Ruling leads to negated convictions

Two years after a controversial state Supreme Court ruling, Art Curtis’ prediction came true: A man convicted of murdering a toddler had his sentence overturned.

Now, the Clark County prosecutor must decide between staging a costly retrial for a reduced sentence or seeking another plea agreement.

Either way, 26-year-old David E. DeRosia II, who was sentenced to 28 years after pleading guilty to second-degree felony murder in 2001, is expected to receive a far shorter sentence.

“It’s just a horrible situation,” Curtis said this week. “We’re just one of 39 counties. We’re talking about hundreds of cases across the state.”

The dilemma stems from a 2002 state Supreme Court ruling that overturned the murder conviction of Shawn Andress for stabbing a man outside a Seattle bar.

The court found that a murder conviction requires intent, throwing into lurch a quarter-century of case law and hundreds of murder convictions in Washington. In 2003, the Legislature quickly passed a bill reaffirming the original law, but that does not apply retroactively to dozens of cases across the state.

In Spokane County, more than 25 prisoners may still be affected by the ruling, forcing prosecutors to search through case files dating back to the early 1980s. Included are five child homicide cases.

“The detectives for the most part are long since retired,” said Kevin Korsmo, an appeals attorney with the prosecutor’s office. “We haven’t dug through the evidence to see what’s available. Conceivably, we could get hit with 25 or 30 murder cases we have to retry next year.”

In the past two years, the decision has been cited to overturn murder convictions, reduce sentences or lower charges against suspects. The regional appeals court that covers Spokane County has stayed decisions on the Andress cases until it receives further instructions from the high court.

Last year, an appeals court overturned the conviction of Chayce Hanson, 28, of Renton, who was convicted of killing his girlfriend’s 2-year-old daughter. King County prosecutors will retry Hanson, who pleaded not guilty to first-degree manslaughter and assault of a child.

In Spokane, prosecutors reduced a murder charge against Brent Boling, 25, who beat and kicked a friend to death. Boling was convicted of first-degree manslaughter, instead of murder. Korsmo said the ruling will likely void the conviction of Jonathan Michel, 30, who was convicted of second-degree murder for beating a homeless man to death with a 7-foot pole.

In Clark County, convicted murderer Verne Hughes was released just three years into a 16-year sentence. Convicted of assisting in the murder of a man suspected of stealing a motorcycle from a member of the Free Souls Motorcycle Club, Hughes was recharged with second-degree assault and released.

“There was nothing left to do but charge him with assault,” Curtis said. “He walked out the door for time served.”

The court has not decided whether the Andress decision will apply to hundreds of convicted felons who exhausted their appeals prior to the ruling.

“It’s a question of how far into the past Andress will reach,” said Sheryl Gordon McCloud, a Seattle defense attorney whose current Supreme Court case could trigger the overturning of several more convictions.

“To be convicted of a nonexistent crime is a terrible thing,” McCloud said. “This is a politically unpopular population, but we need independent judges who can apply the law without regard to the hue and cry.”

Backlash to the case spurred an unusual number of candidates to run for the Supreme Court this year, but two judges up for re-election won their seats, including Justice Barbara Madsen – author of the Andress decision.

“I think it was an overreaction,” said Michael Clark, a Tacoma defense attorney and member of the state bar’s criminal law committee. “There’s such paranoia about crime. Anything that keeps people in prison is good, and anything that lets them out is bad. It doesn’t matter if it’s inconsistent with the Constitution or our ideals of democracy. It’s a visceral reaction.”

Evidence of the impacts of the court decision remains a point of contention. Prosecutors put the number in the dozens or hundreds. Defense attorneys refer to a handful of cases.

Several of the cases involve young children or infants who were killed during an assault. Those cases, which prosecutors say have been particularly difficult to try, often left open the question of intent.

“I don’t know that you can show intent to kill,” said Ed Hays, a Spokane County deputy prosecutor. “What you typically see is a young parent who can’t deal with the child. It’s possible that there was intent to kill or it’s possible that it was out-of-control behavior that resulted in death.”

The county prosecutor’s office says those cases include Kenneth E. Galloway, who was sentenced to 24 years for the beating death of a 2-year-old, and Michael Rydholm, who received 30 years in the death of a 10-month-old child.

In Clark County, prosecutors had predicted that DeRosia’s case would be overturned. In 2001, DeRosia pleaded guilty to second-degree murder in the death of 2-year-old Lewis Strickland, who died from massive trauma to his head and spinal cord.

The state Court of Appeals in Tacoma found that the victim’s age did not affect the Andress ruling and reversed the conviction because DeRosia “plead guilty to a charge later invalidated” by the high court, the justices wrote.

Strickland’s family said they had prepared for the possibility that the conviction could be thrown out, but were shocked nonetheless.

“It just gives me a sick stomach,” said Janet Sparrowgrove, the toddler’s grandmother. “It’s a miscarriage of justice. It was a heinous crime.”

For Strickland’s mother, Maria Jensen, the decision opened old wounds.

“I’m trying to start a new life,” Jensen said, fighting back tears. “I really don’t want to see him again in court. But if I had to go to trial, I’d do it.”