Dec 19, 2013 - By Eric Blom, Staff WriterMan convicted of 2010 murder expected to be freed
After serving three years of a life sentence for first-degree murder, a Riverton man is expected to walk free. New evidence convinced Fremont County Attorney Michael Bennett that Gabriel Drennen acted in self defense in 2010 when he shot Leroy Hoster to death, and the prosecutor has filed a motion drop all charges.
Ninth District Court Judge Norman E. Young would have to sign off on the motion for it to take effect. He had not done so by Thursday morning.
"I made up my mind that the self defense was supported by the evidence and the facts in the case," Bennett said in an interview Wednesday, the day he filed the motion.
Drennen was convicted in January 2011 of murder for killing Hoster on May 2, 2010. The case reopened in district court because the Wyoming Supreme Court overturned the conviction after deciding prosecutors and the judge misled the jury during Drennen's trial.
Furious loved ones
Friends and family of Hoster were upset with Bennett's decision.
"(I'm) beyond totally pissed off," Kami Spencer said in an interview. "He's making a mockery of what victims are going through. He doesn't think about what the victims are going through."
Spencer dated Hoster and has a child with him, she said.
"I'm extremely, extremely upset about the whole situation," said Hoster's sister, Jennifer Smith. "It's extremely frustrating and extremely wrong in every way, shape and form."
The motion to dismiss would apply to a charge Bennett filed Monday to replace the original charge of first-degree murder. The revised charge was possession of a deadly weapon with unlawful intent. Now there will be no charge at all.
Bennett said Drennen's attorney, Tom Jubin, obtained new physical evidence that showed Drennen acted in self-defense, including analyses by two expert witnesses.
"I would normally take that with a grain of salt -- and I did -- but these experts are nationally accredited," Bennett said. "When you use a trustworthy expert witness, I think both sides should be able to rely upon that decision."
Bennett declined to comment on what he now considers to be the facts of the case, but he pointed to three new pieces of evidence provided by the experts:
- The first was an analysis of "stippling," showing Hoster was 6 to 12 inches from Drennen when he fired, Bennett said, closer than the distance presented at trial. Stippling in this context means burns caused by hot particles of gunpowder following a bullet.
- The experts also performed a study of the ejection of spent casings from Drennen's firearm.
"From that ejection pattern you get a good idea of where people were sitting, and it allowed experts to come up with a to-scale diagram," Bennett said. "At trial, the prosecutors weren't able to present a to-scale diagram."
- Third, the experts found Drennen fired five shots with the last one missing low. Bennett agreed with their analysis, the prosecutor said. At the trial, there was testimony the first shot was the one that missed, and a delay between the fourth and fifth indicated premeditation, Bennett said.
If the fifth shot missed, there could not have been a delay which supported premeditation, weakening the case for first-degree murder, Bennett said.
No prosecution expert
The Fremont County Attorney's Office did not retain its own expert to review the case, Bennett said, because he thought the state could rely on the two the defense retained.
The absence of a diagram was only one problem with the trial, the county attorney noted. None of the evidence the defense's experts developed was available at Drennen's trial, and prosecutors did not seek it, Bennett said.
Jennifer Smith was not convinced by Bennett's explanation during a meeting Wednesday between the county attorney and Hoster's friends and family.
Bennett should "do his job right" she said.
On top of evidence Bennett believes helps the defendant, the county attorney said he does not think prosecutors could secure a conviction if they retried the case because the charge is inappropriate.
"This was never a first-degree murder case. At best it was a manslaughter case," Bennett said. "It was overcharged."
Furthermore, prosecutors only were able to obtain a conviction by misleading the jury regarding the law on self-defense, he said. That was the basis of the Supreme Court's ruling.
The evidence ultimately convinced Bennett that even the weapons charge was inappropriate.
He changed the charge "to look at it and heavily consider it," Bennett said, but decided against it.
"I cannot stand by and support a plea to a lesser charge I do not believe the state can support," he said.
Bennett would not comment on whether Drennen had agreed to plead to the lesser charge.
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