Retrial set for trooper in fatal shooting
Monday, March 14, 2005
By Torsten Ove, Pittsburgh Post-Gazette
"Execute the lawless."
That was the bumper sticker state Trooper Francis J. Murphy III once sported on his personal vehicle.
He also called the public "the enemy," tried to alter his gun so it had a hair trigger, wore guns and knives constantly (sometimes even while sleeping), hung out with the Pagans motorcycle gang and worried his colleagues so much they feared he would shoot people.
Those and other details from a 10-year-old police personnel report will be part of an upcoming retrial in U.S. District Court pitting Murphy against the family of David Bennett, a suicidal Latrobe man whom Murphy shot to death in 1994 after a tense, hourlong standoff in Hempfield.
The shooting was ruled justified and a federal civil trial cleared Murphy of liability two years later.
But the jury never heard word one about that report because State Police withheld it from the Bennett family's lawyer, Victor Pribanic.
Now, after a nine-year legal odyssey, another trial will start on April 11.
And this time, Murphy's troubled history as a young trooper in Greensburg is no longer a secret.
"I do honestly feel that they knew what was in that personnel report," said Tammi Bush, 41, of Rector, David's sister. "After so many years you want some sort of closure. I honestly wish it would not have drawn out so long. But we still feel that nothing was justified that evening."
Murphy, now in his 30s and working out of the Washington barracks, has always maintained he was right to shoot because he said David Bennett was a threat.
He didn't return a message this week.
Senior Deputy Attorney General Kemal Alexander Mericli, who will try the case, referred questions to the attorney general's press office, which didn't return a call. Barbara Christie, chief counsel for the state police, also did not return a call.
Pribanic said he couldn't talk, either, before the trial.
But in court papers dating to 1997, he has accused state police of deliberately obstructing his suit by not turning over documents before and after the 1996 trial.
He wasn't the only one frustrated.
Former U.S. District Judge Robert Cindrich once threatened to hold the state attorney general's office and state police in contempt for "failure to produce the records as ordered."
When all the records were finally in hand, Cindrich granted a motion for a new trial in 2000, but he has since left the bench.
U.S. District Judge Arthur J. Schwab inherited the case and ruled last year in Murphy's favor, essentially saying the law is murky about whether a trooper in his position should have known not to shoot.
The 3rd U.S. Circuit Court of Appeals, however, said Schwab made a mistake in reaching that conclusion and reversed his decision, forcing a new trial.
Senior U.S. District Judge Milton Shadur, an Illinois judge sitting by designation, said the facts as presented by the Bennett family indicate Murphy was not faced with any urgency to fire.
"More than an hour had passed during the standoff with David, a period throughout which he had threatened no one but himself," Shadur wrote, "and when Murphy chose that instant to shoot to kill, David was at a standstill 20 to 25 yards from the nearest officer and fully 80 yards from Murphy."
Shadur said, however, that Murphy could still argue that he perceived the facts as different from the Bennett family version, but he said that's an issue for trial.
The case began on the snowy night of Jan. 5, 1994.
Bennett, a 25-year-old volunteer firefighter, was distraught because Sherrie Ann Knauss, his girlfriend of four years and the mother of his child, wanted to end their relationship.
Tammy Bush said her brother had been out directing traffic during a snowstorm when Knauss called him and asked him to come to her apartment in the Greengate Garden complex in Hempfield.
When he got there, Bush said, another man was with her and she wouldn't let him in. Bennett returned to his car, grabbed a 12-gauge shotgun and said he was going to kill himself. Knauss called 911.
State police arrived and set up a perimeter around the snowy courtyard where David was walking around, holding the shotgun.
A standoff began. Finally, after more than an hour, Murphy shot Bennett in the back of the neck from 243 feet away.
In statements given later, Murphy and Trooper Daniel Lynch said Bennett had charged at Lynch and aimed the shotgun at him. But residents of the complex said they saw Bennett point the gun only at himself.
One of the enduring mysteries of the incident remains a tape of a police radio transmission in which someone at the scene can be heard saying, "Do it now, Murph." Murphy didn't fire at that moment, but eight minutes later he did.
A Westmoreland County coroner's jury ruled the shooting justifiable, but in 1996, a civil rights suit brought by Bennett's mother, Sally, now 65, went to trial before Cindrich.
What happened next was highly unusual.
During the trial, an unidentified police officer who read the newspaper account of the trial called Pribanic's staff and said Murphy lied when he testified that he was not disciplined after the shooting.
The informant said Murphy had been ordered to undergo a psychiatric evaluation and also mentioned a personnel report questioning Murphy's ability to use deadly force within department guidelines.
Pribanic asked Deputy Attorney General Donna McClelland to turn over Murphy's personnel files, which he said she should have done during the discovery phase of the suit. McClelland refused.
Then, after the trial, a second informant came forward and repeated the claim that Murphy had been disciplined. The first informant also provided more information in May 1997, saying Murphy had been demoted and assigned to desk duty after the trial.
Based on those revelations, Pribanic accused Murphy and McClelland of lying and asked for a new trial, setting in motion a long battle over the documents.
"The defendants' counsel misrepresented herself at trial when she specifically assuaged [me] that the discipline Murphy experienced was unrelated to the Bennett shooting," Pribanic wrote. "The defendants' express denial of the existence of this information is an abuse of exponential magnitude of the discovery process, and one that suggests a win at any price mentality."
If Pribanic had been given access to the trooper's personnel files at trial, he said, he could have used them to discredit Murphy and open up the trooper's history of questionable behavior.
The records include a detailed 1995 report by the Bureau of Personnel that questioned whether Murphy, a Persian Gulf war veteran who joined the state police less than a year before the shooting, should even be a police officer.
An investigation had begun after Murphy underwent a confidential psychiatric evaluation in May 1995, a synopsis of which includes mention of the Bennett shooting and many other incidents.
The subsequent Bureau of Personnel report in November of that year says no "administrative action" was taken against Murphy because of the shooting. But it also reveals that Murphy had been the subject of seven internal investigations in the 10 months between the time he joined the force and the shooting.
The report said Murphy's supervisors considered him a "liability" to the force.
"They basically questioned his hyper, overaggressive tendencies and attitudes and were extremely uncertain if Trooper Murphy could be trusted to patrol without supervision," wrote Sgt. Robert Lizik. "Very few felt secure in assigning him to any incident for fear that Trooper Murphy would exacerbate it. At least one supervisor expressed certainty that Trooper Murphy would be involved in another shooting."
Among many findings, the report said Murphy's police academy roommates had expected him to be involved in a shooting because of his attitude during training.
Four months after the Bennett incident, in April 1994, Murphy made a drunken driving arrest. At the preliminary hearing, the report said, Murphy "blatantly perjured himself" to "get the bad guy." As a result, the case was thrown out and the Westmoreland County district attorney's office said it would no longer consider Murphy a credible witness.
The report contains other episodes:
* In an attempt to alter his gun so it would have a hair trigger, Murphy botched the job and rendered his weapon useless. Then he lied and said the gun malfunctioned on its own.
* He failed to enter 30 counterfeit Steelers tickets into evidence and didn't report injuries suffered by someone who had complained that Murphy and another trooper abused him.
* After a voluntary transfer to the Somerset barracks, he was accused of sleeping at the station between shifts while armed with several weapons.
Those who knew Murphy said that while he had some good traits for a police officer, he had a tough time separating military and police training. Anyone outside of the department, for example, was considered "the enemy." He also had an "unorthodox" association with the Pagans and an "everlasting obsession" with guns, the report said.
Colleagues also indicated they were afraid to work with him because they thought he might either misjudge or overreact to a dangerous situation.
One officer, Lt. Dale Blasko, said Murphy had a "black and white" vision of his job in which a subject was either right or wrong.
"Lt. Blasko expressed concern over Trooper Murphy's 'bad guy' theory and further felt that he was completely over-focused with this theme and would stop at nothing to get someone who had broken the law," the report said.
Another officer, Lt. Robert McKnight, noticed that Murphy didn't seem at all upset by the shooting of Bennett, especially for a new trooper in his early 20s.
"Lt. McKnight found it somewhat uncomfortable that a very young officer had taken a life and, right or wrong, was so unbothered about it," the report said.
Cpl. Marlo Nolan also said Murphy took the shooting "almost too casually."
Sgt. Lawrence Bodnar told investigators it would only be a "matter of time before Trooper Murphy killed again." Bodnar said Murphy's ideals were summed up by his "Execute the Lawless" bumper sticker.
Murphy's commanding officer, Capt. John Pudliner, concluded that the "risk factors would be too high in allowing Trooper Murphy to continue as a trooper."
MEMBERS ONLY