OLYMPIA — After losing in Clallam County Superior Court and the state Court of Appeals, county Prosecuting Attorney Mark Nichols continues to challenge the Oct. 17 dismissal of murder charges against Tommy Lee Ross Jr.
Nichols’ office June 20 asked the Supreme Court to review the appeals court’s May 22 decision confirming the dismissal.
This petition was answered Monday by Ross’s Seattle attorney, Nancy Collins, of the Washington Appellate project.
Five of the Supreme Court’s nine justices are tentatively set to decide whether to review the 41-year-old murder case Oct. 2, court Clerk Susan Carlson said.
They will issue a ruling on whether they will hear the appeal the following day, a court spokeswoman said Thursday.
Justice Susan Owens, the former Forks-area Clallam County District Court 2 judge, will not hear the case, Carlson said.
Ross was first charged in 1978 in the strangulation murder of 20-year-old Janet Bowcutt of Port Angeles before the arrest warrant was quashed in 1987 while he was serving a life term in Canada for murder.
Charged again in 2016 before charges were dismissed in October, Ross is in the Sacramento County jail without bail on two felony assault charges and a misdemeanor charge.
Ross could receive up to 2½ years in the county jail if found guilty in the March 31 case.
The 11th settlement conference scheduled in the case is Sept. 13, according to court records.
The appeals court upheld Superior Court Judge Brian Coughenour’s dismissal of first- and second-degree murder charges against Ross.
Ross served 38 years in Canada for the 1978 strangulation murder of a Victoria woman before being charged with Bowcutt’s murder Nov. 15, 2016, shortly after he was paroled.
Coughenour said the delay in bringing Ross to trial had violated Ross’ speedy trial rights.
The appeals court agreed that the passage of time diminished Ross’s ability to receive a fair trial.
The judges cited the deaths and faded memories of witnesses, the lack of effort by the Clallam County Prosecuting Attorney’s Office to seek Ross’ extradition from Canada for 36 years, and Ross not being given access to legal counsel on the Clallam County charge while in Canada.
Ross allegedly admitted to county investigators in 1988, while in the Canadian prison, that he had killed Bowcutt and said he had killed three other women, according to the probable cause statement for the 2016 charges.
The interview was not recorded.
Ross has not been charged in the three murders, and was under investigation for murder in the Los Angeles area when Clallam County authorities allowed his release to Canada.
Clallam County’s petition to the state Supreme Court to review the appeals court ruling was filed by Nichols and Criminal Deputy Prosecuting Attorney Jesse Espinoza.
They assert the appeals court ignored a speedy-trial requirement laid out by the U.S. Supreme Court in Smith v. Hooey that makes Ross a key responsible party in a speedy trial claim.
In the 1969 Texas case, the justices said Texas “had a constitutional duty to make a diligent, good-faith effort to bring [the defendant]” to the Texas county for trial, but added the clause, “upon the [defendant’s] demand.”
“Ross never made a demand for trial,” Nichols and Espinoza said in the petition.
“Ross purposefully acquiesced to the delay for his own purposes.”
Ross withdrew a request to transfer his Canadian sentence to the U.S. in 1988 under his counsel’s advice that “it would be more to Ross’s advantage to wait to be paroled in Canada first,” according to Clallam County’s appeal.
In her response, Collins cited a seminal 1967 speedy trial case, Barker v. Wingo, saying the dismissal of charges against Ross met tests laid out in the case.
“The state’s petition for review misconstrues the law and misrepresents critical facts,” Collins said.
“It downplays, to an extreme degree, its own responsibility for the delay even though both the trial court and Court of Appeals ruled the state’s own conduct violated Mr. Ross’s right to a speedy trail.
“It manufactures legal questions that are either irrelevant or inaccurate.”
She said Clallam County delayed prosecuting the case at its inception 41 years ago and never took available avenues to bring Ross to trial.
“The law did not bar extradition, and the state never tried,” she said.
“The reason for the delay is the most significant of all Barker factors and the state bears the burden of proving it is not responsible for it,” she said.
Bowcutt’s body was found bound and gagged April 24, 1978, on the bedroom floor of her apartment on Eighth Street, her 6-month-old son crying on her bed.
DNA test results of a hair found on Bowcutt’s blouse linked Ross to her death while he was incarcerated in the Clallam County jail on $1.5 million bail.
“DNA is, in our experience, assigned significant weight by a jury and recognized as carrying such weight through the courts,” Nichols said in an interview.
Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at [email protected] peninsuladailynews.com.