Silva pleads no contest to first-degree murder
Judge John T. Ball accepted Silva’s no contest plea and handed down a 25-years-to-life concurrent sentence for Thorpe’s murder.
While the defendant neither admits nor denies guilt through a no contest plea, it is the same as a guilty plea in the eyes of the court.
Silva displayed no emotion during the sentencing, but Thorpe’s cousin made an emotional victim’s statement to the court.
“No one deserves to die the way Kevin was murdered,” she said. “The family has to live with that every day … I only pray he never gets out of prison.”
Silva was convicted 26 years ago for abduction, robbery and murder using an automatic weapon for the crimes he committed on the Madeline Plains in Lassen County. Silva was sentenced to death for Thorpe’s murder in 1982, but that conviction was overturned in 2005 due to prosecutorial misconduct during the original trial.
Because Burns believed Silva might someday be released on parole without a murder conviction, he decided to re-try him on that charge.
The district attorney said he believed Silva should spend the rest of his life behind bars due to the murder conviction. The soonest he could come up for parole is when he’s 62 years old, but Burns said the parole board is not granting parole to murderers. And if Silva ever wins parole, he still faces a 10-year sentence on federal charges of manufacturing methamphetamine. If Silva got the earliest possible parole and release on the federal charges, he’d be 68-years-old.
A murder conviction on his record makes it clear Silva is a murderer when he comes up for parole.
“We believe Silva is a multiple murderer,” Burns said after the sentencing. “We believe he was involved in murders in Lassen County, Oregon and perhaps other places, but we’re the only one to sustain a murder conviction on him.”
While Burns said the plea bargain and sentence were “about what we expected,” he said he wished Silva could have received the death penalty.
“It’s not a perfect situation,” Burns said. “If I had a magic wand I could wave above my head and impose the justice I think is appropriate, he’d be dead. I think he’s earned that in many ways.”
The district attorney said trying a 26-year-old case to trial brings unique challenges.
“I was in high school when this crime occurred,” Burns said. “There were five people present. Two of them were murder victims, and the other three participated in the situation. Two of those are serving life in prison, and the third was used as a witness to prove our case.”
The district attorney said he was happy with the sentence. He said Silva has spent all his time in prison on death row, and now that’s going to change.
“For the first time in his life Mr. Silva is going to have to walk the yard because he’s no longer on death row,” Burns said. “I get a little satisfaction knowing when he wakes up tomorrow morning he might have to worry about his personal safety. Prisoners on death row have more privileges than other inmates. They have their own cell, they don’t have to have a cellmate, and so they don’t have to worry about their day-to-day safety as much. For the first time in his life, he’s going to have to walk the yard with all the other inmates. He’s not on death row anymore.”
Best of all, Silva will never appear in a Lassen County courtroom again on these charges.
“He waived his right to appeal,” Burns said. “This case is put to bed. We’ve finished fussing over Benjamin Wai Silva.”
The judge said, “This is a final judgment. The matter is now at rest as far as the legal process is concerned.”
Silva, Joe Shelton and Norman Thomas kidnapped Thorpe and his girlfriend, Laura Craig, college students who passed through Madeline on their way to Oregon returning from winter break, according to the district court decision authored by Judge B. Fletcher.
In a trial held before Silva’s, Shelton was convicted of murdering both Thorpe and Craig. He was sentenced to life in prison without parole, according to court records. He appealed and was sentenced to life in prison.
Former Lassen County Superior Court Judge Joseph Harvey sentenced Thomas to seven years in prison for his part in the crimes. He entered a plea to reduced charges after providing key prosecution testimony against Silva and Shelton.
Silva and Shelton killed Thorpe by inflicting multiple gunshot wounds from an automatic weapon, according to Fletcher’s decision. Thomas then dismembered Thorpe's body with an ax (purportedly on Silva's orders) and stuffed the remains into several trash bags, which were each buried in shallow graves.
Craig was shot twice and killed by the side of a road. Thomas informed police of the murders later that month after he was found in possession of a firearm in violation of his probation.
Crucial evidence withheld
The court found DePasquale, the prosecutor in the original case, withheld evidence. He did not tell defense attorney Tom Buckwalter about an agreement to delay a mental evaluation of Thomas, the chief witness for the prosecution, until after the original trial.
The Ninth Circuit Court of Appeals decisions said, “The prosecutor’s own conduct in keeping the deal secret underscores the deal’s importance.”
The decision also said, “Here, Thomas’ attorney Rex Gay declared in his uncontroverted affidavit that the prosecutor agreed with Gay’s assessment that a psychiatric evaluation of Thomas could be damaging to the state’s case against Silva.
“… If the jury had been presented with evidence of the prosecution’s own doubts as to Thomas’s mental capacity, the jury might not have believed Thomas’s account with regard to either murder.
“… In sum, because evidence of the undisclosed deal could well have undermined the credibility of a vital prosecution witness, ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’”
The court concluded, “In our justice system, the prosecuting attorney occupies a special position of public trust. Courts, citizens, and even criminal defendants must rely on these public servants to be honorable advocates both for the community on whose behalf they litigate and for the justice system of which they are an integral part. When prosecutors betray their solemn obligations and abuse the immense power they hold, the fairness of our entire system of justice is called into doubt and public confidence in it is undermined.”
It said, “The reliability of the jury’s verdict as to Silva’s role as the triggerman in Thorpe’s murder was compromised by the Lassen County District Attorney’s unscrupulous decision to keep secret the deal he made to prevent an evaluation of the competence of the state’s star witness. The particularly atrocious nature of the crimes with which Silva was charged cannot diminish the prosecutor’s — and our court’s — duty to ensure that all persons accused of crimes receive due process of law.”
In July 2005, the Ninth Circuit Court of Appeals reversed Silva’s murder conviction and ordered the prosecution to retry or re-sentence him because of misconduct by then Lassen County District Attorney Paul DePasquale.
According to the court records, DePasquale and Silva’s defense attorney Tom Buckwalter, a former district attorney in Plumas and Modoc counties, made a secret deal not to tell the jury about an agreement to delay a mental evaluation of Thomas until after the original trial. Thomas was the chief witness for the prosecution against Silva.
“We leave Silva’s convictions on the kidnapping, robbery, and firearms charges undisturbed,” the decision said, but the court ordered Lassen County to “retry Silva within a reasonable time or re-sentence him based on these remaining convictions.”
The remaining charges subject Silva to two life sentences and he faces 15 years in federal prison on related charges, but he could be eligible for parole.
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