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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

Ben Alan Burkey murder conviction overturned by appeals court

A former police informant’s murder conviction has been reversed on a technicality but he’ll continue to be held while Spokane authorities decide whether to seek a new trial.

Ben Alan Burkey, convicted of murder and several other offenses in connection with the 2005 abduction and beating death of 52-year-old Rick L. Tiwater, was denied his right to a public trial when some of the potential jurors were questioned privately, the state appeals court ruled Thursday. The appellate judges made clear it was a procedural issue rather than evidentiary flaws.

“We decide that the evidence amply supports each conviction, but reverse, because considering the now well-developed case law, Mr. Burkey did not receive a public trial,” the three-judge panel wrote in a unanimous decision.

Burkey, now 55, is among a growing number of felons statewide whose convictions are being reversed because portions of the jury selection for their trials were conducted in private. It follows a state Supreme Court ruling clarifying that a defendant’s right to a public trial includes all aspects of jury questioning and selection.

Spokane County Prosecutor Larry Haskell said Thursday he won’t appeal the reversal but is reviewing the case and beginning preparations for taking Burkey to trial again. The appellate decision essentially starts the process over as if the first trial hadn’t happened, Haskell explained.

Creating the problem was Spokane County Superior Court Judge Jerome Leveque’s decision during jury selection in 2007 to allow 13 prospective jurors to be questioned by prosecutors and defense lawyers in private, with only a vague explanation that experience has shown that some questions are better handled that way.

Burkey argued through his appellate lawyer, Bevan Maxey of Spokane, that it violated his right to a public trial, among other things.

Although he himself had been a confidential informant for local law enforcement and worked with the FBI to help agents infiltrate the Gypsy Jokers motorcycle gang, according to trial testimony, Burkey had accused Tiwater back in 2005 of being a police snitch, which set in motion a brutally fatal chain of events.

Burkey and a friend, biker James Phillip Tesch, confronted Tiwater. The victim was kicked, pounded over the head with a hammer, clobbered with a golf club and run over by a car, and his hair was burned down to the scalp, records show. His body was found near a dirt road north of Spokane.

Tesch was convicted, and while each man blamed the other for the murder, neither testified against the other.

New trials can be difficult for prosecutors, particularly if relying on witnesses whose memories of the events might fade or who have moved out of the area and must be located again. Maxey said one of the prosecution’s witnesses has died since the first trial and another could have credibility problems.

“This has been a long-awaited decision,” Maxey said of the appellate ruling. “Mr. Burkey’s been incarcerated for a long time. I’m sure he’s very pleased.”