Benjamin dissents in case about shackling prisoner witnesses

By Steve Korris | Jun 25, 2008


CHARLESTON – Retired Cabell Circuit Judge L. D. Egnor did not violate Gary Gibson's rights by ordering shackles on defense witnesses at his murder conspiracy trial, according to Justice Brent Benjamin of the West Virginia Supreme Court of Appeals.

Benjamin, dissenting June 23 from a decision that set aside Gibson's conviction in a 1986 prison killing, argued that Egnor and jurors feared the witnesses for good reasons.

"These men posed significant security risks readily apparent to the trial court, the jury and the public in general," Benjamin wrote. "The jury was well aware of who all witnesses were and their crimes."

He connected the murder to a deadly riot, a connection the majority did not mention.

"On January 1, 1986, the worst prisoner riot in the history of Moundsville occurred," Benjamin wrote. "This riot was started by a prison gang known as the Avengers."

Three inmates died, and the riot lasted 42 hours.

The Supreme Court of Appeals declared conditions there unconstitutional, he wrote.

Avenger leader Danny Lehman died later that year of stab wounds.

Grand jurors in Marshall County indicted Gibson, who requested and received a transfer to Cabell County.

At trial, seven witnesses exonerated Gibson. Six, still serving time at Moundsville, testified in shackles and prison clothing.

A defense witness who had transferred to a better facility testified in civilian clothes, without shackles.

Two witnesses testified for the state, in civilian clothes and no shackles. In exchange for their cooperation the state had transferred them to a better facility.

The disparity in appearance made it impossible for jurors to evaluate testimony fairly, four Justices agreed June 12.

Benjamin disagreed, writing that "valid reasons existed for those incarcerated defense witnesses to appear and testify in prison attire and shackles."

"The dangerous nature of the facility and persons incarcerated therein was undoubtedly well known to the jurors," he wrote, noting that all six shackled witnesses were serving life sentences. "While in Cabell County, they were held in an unsecure courtroom, not in a jail cell, while awaiting their turn to testify and return to Moundsville."

On another point the majority omitted, Benjamin quoted Egnor's instructions to the jury.

"I don't want you to be prejudiced by that or to allow the fact that they are in shackles to influence in any way, shape or form the manner in which you receive their testimony," Egnor told jurors.

"It is, however, a measure I think that is proper under the circumstances and that I believe I have done for good and just cause."

Moundsville penitentiary closed in 1994.

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