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Island murder convictions in doubt

A surprising decision by the state Supreme Court last week could have consequences for murder cases across the state, including at least two in Island County.

If the decision stands, murder convictions against Jerry Lee Farrow and Linda Miley may be vacated and they could be re-sentenced for their lesser convictions.

That, however, would probably be months or even years away. The King County Prosecutor’s Office is asking the high court to reconsider the 5-4 decision in the Shawn Andress appeal, which involved a “felony-murder” conviction for a death that resulted from a bar fight.

The ruling basically states that a person can’t be charged with felony-murder if the predicate or underlying felony is assault. Under state statutes, a felony-murder may occur when a person commits certain serious felonies and “in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants”

If a person commits arson, for example, and another person is killed in the fire, the arsonist may be guilty of felony-murder. For over 30 years, the Supreme Court has said that assault is one of those crimes, even if their wasn’t an intent to kill, and prosecutors have charged and convicted hundreds accordingly.

The latest Supreme Court decision, however, seems to reverse decades of established case law.

Not surprisingly, local prosecutors and defense attorneys disagree about the decision. Island County Prosecutor Greg Banks said the decision is an “abomination.”

“It’s like Alice in Wonderland,” he said. “If you read the decision, they’ve really tried hard to make it sound logical, but it just doesn’t make sense. They’ve thrown out 36 years of established case law.”

Deputy Prosecutor Mike Henegen agreed, pointing out that the court’s minority opinion was extremely critical of the majority. “A 5-4 decision doesn’t make particularly good law,” he said.

Tom Pacher, a public defender with Coupeville’s Platt and Arndt, admits that the decision is a “big switch in the law,” but he said it echoes what defense attorneys have been saying for years.

Pacher said the Supreme Court’s decision is consistent with “just about every state in the union.” He said charging someone with felony-murder, with the predicate assault, “allows prosecutors to do an end-run around manslaughter.” Manslaughter is an unintentional homicide and is a lesser crime than felony-murder.

Prosecutors don’t have to prove intent to kill in felony-murder cases. Pacher said that allows prosecutors to get murder convictions in cases that should have been considered manslaughters.

“Prosecutors have been allowed to render manslaughter useless,” he said.

Pacher defended both Farrow and Miley, whose appeals have been on hold pending this Supreme Court decision. Farrow was a 23-year-old Michigan man who shot and killed his girlfriend, Faith Ellison, in her Oak Harbor home last fall. He was convicted of second-degree murder (felony-murder) with a deadly weapon and third-degree assault with a deadly weapon and was sentenced to 30 years in prison.

Camano Island resident Linda Miley was convicted last fall of second-degree “felony” murder and first degree manslaughter. She shot and killed her boyfriend, Jack Pearson, in 1997. She was sentenced to 21 years in prison.

Because of double jeopardy and mandatory joinder concerns, Pacher say it’s unlikely that convicted murderers like Farrow and Miley would be tried again if the Supreme Court decision stands.

That means Miley could conceivably be re-sentenced on just the manslaughter conviction and Farrow would be re-sentenced solely on the assault charge.

Banks agrees that this is a possibility and it makes him angry. He said one of the first things students learn in law school is the importance of case law or previous court decisions. “It’s what makes the law predictable so attorneys know what they’re doing,” he said.

This recent Supreme Court decision flies in the face of that, according to Banks. He said the court has considered this issue at least three times in the past and sided with prosecutors in the felony-murder issue.

“It’s what they call legislating from the bench,” he said. “They didn’t like what the Legislature did so they make their own law.”

Though it’s unusual for a state Supreme Court to reconsider a decision and reverse itself, it seems possible in this case. One of the justices in the majority is retiring at the end of the year and the other, Charles Johnson, is in a tight election. The changes in the make-up of the bench could swing the majority to the other side.

But for now, prosecutors, defense attorneys and murderers can only waiting to see what happens.

You can reach Jessie Stensland at jstensland@whidbeynewstimes.com or call 675-6611.

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