Second man convicted in murder
Ben Alan Burkey stared blankly out the courthouse window Thursday as the judge read the jury’s verdict, which converted the prolific criminal and police informant into a convicted killer.
The jury of seven men and five women found the 46-year-old Burkey guilty of first-degree murder, kidnapping, robbery and assault. It also found him guilty of conspiracy to commit first-degree kidnapping and robbery.
A different jury on June 9 convicted Burkey’s longtime friend, 41-year-old James Phillip Tesch, of the same six crimes in connection with the torture death last September of 52-year-old Rick L. Tiwater. He suffered blows to the head by a hammer and golf club, had his head set on fire and was run over by Burkey’s car.
“It’s great news,” said Vernie Tiwater, the victim’s sister-in-law. “There was no reason to kill Rick. Nobody deserves what he got, even if he were a bad person.”
Vernie Tiwater sat through testimony where witnesses explained that Burkey – who had 65 convictions as of 2001 – had worked as a confidential informant for local law enforcement and had also worked with the FBI in an effort to infiltrate the Gypsy Jokers motorcycle gang, of which Tesch was a member.
During their separate trials, neither man testified against the other. But Tesch’s defense attorney blamed Burkey, and Burkey’s attorney, Tracy Collins, blamed Tesch.
Collins had no comment after the verdict, which came after a day and a half of deliberations.
Deputy Prosecutor Eugene Cruz smiled and raised a triumphant thumb as he left the courtroom.
“I think we got the worst of the two,” Cruz said as deputies led Burkey down the courtroom hallway.
Burkey said nothing. He folded his arms and glared into the eyes of any jurors who would look at him as they walked past him for the last time.
Burkey gave one look to his fiancée, who refused to comment after the verdict. Because the jury found him guilty of using a deadly weapon in each of six counts, Burkey must serve 18 years in addition to whatever sentence Superior Court Judge Jerome Leveque imposes for the murder and other crimes.
No sentencing date was set Thursday.
During closing statements Tuesday, Collins used the analogy of a limb chipper. He claimed that the prosecution kept jamming unrelated limbs into the chipper and then asked the jury to decide that what they had was a pile of bark.
“What they’ve done is throw a hodgepodge of evidence together and say, ‘Look at all of this, and see if you like it.’ But all of the evidence that they are trying to fit in this chipper … is inconsistent,” Collins said.
“The person who is responsible for this murder is James Tesch. He was in control of the circumstances, like a whirlwind,” Collins continued. “And the fact is Mr. Tesch enjoyed it. Mr. Tesch got high on what he was doing to Mr. Tiwater. He loved it. While he was doing that, Mr. Burkey was pacing and telling him to stop.”
But Cruz and Deputy Prosecutor Mark Cipolla both said that Burkey was the one who Tesch and all the other witnesses feared.
Burkey testified on his own behalf, and Cipolla grilled him on the seven different versions he gave investigators about how he and Tesch left Tiwater on a secluded dirt trail off East Laurel Road in north Spokane County. “I always tell my kids this: The truth is an absolute defense,” Cipolla told the jury. “It really is. If you haven’t done something, you don’t change your story. You don’t make things up.”
The day after Tiwater was killed, Burkey told a friend that “we went golfing, and (Tiwater) fell in a camp fire, and he won’t be back,” Cipolla said. “It was a joke to Ben Burkey that Rick Tiwater was burned and beaten with a golf club. That tells you volumes of what Mr. Burkey’s involvement was.”
The jury agreed.