TACOMA — The state Court of Appeals upheld Tuesday the dismissal of murder charges against Tommy Lee Ross Jr. in a 41-year-old Port Angeles homicide case, agreeing that Ross’ speedy trial rights were violated.
Prosecuting Attorney Mark Nichols said in a text message Tuesday that his office disagreed with the decision and will be considering its options.
Ross, 60, originally was charged in June 1978 with the April 24, 1978 strangulation death of Janet Bowcutt of Port Angeles. He served 38 years in Canada for the 1978 murder of Janice Forbes of Victoria, B.C., and was re-charged with Bowcutt’s murder Nov. 15, 2016, the day he was paroled from a Canadian prison.
In its opinion published Tuesday, the appeals court upheld Clallam County Superior Court Judge Brian Coughenour’s Oct. 17 dismissal of first- and second-degree murder charges against Ross.
Coughenour, ruling on a dismissal motion by Ross’ attorney Lane Wolfley of Port Angeles, had said the delay violated Ross’ speedy-trial rights and rejected the argument by the Clallam County Prosecuting Attorney’s Office that Ross had failed to assert those rights for decades.
The appeals court conceded Ross’ delay in asserting his speedy trial right so long after his 2016 arrest “only slightly weighs against him” and sided with Coughenour.
“A defendant has no duty to bring himself to trial,” the judges said, quoting the landmark Barker v. Wingo U.S. Supreme Court case.
“We cannot ignore that a delay of 38 years is unprecedented in speedy trial cases,” the judges said.
Behind that delay was the decision by then-Prosecuting Attorney Grant Meiner to defer prosecuting Ross, who was being questioned in Los Angeles on a separate murder investigation, and instead send him to Canada to face prosecution for Forbes’ death, the judges said.
“Meiner’s decision to release Ross to Canada was the root cause of the speedy trial issue,” the judges said in the opinion.
“Meiner was negligent in conjunction with that decision in failing to either (1) secure a formal enforceable agreement from Canadian authorities that Canada would return Ross after the Victoria trial regardless of the outcome, or (2) determine whether Ross’s return was likely under Canadian law once he had been convicted and sentenced,” the judges said.
Meiner made futile efforts to have Ross transferred to Clallam County in 1979 and 1980.
“However, the state made no further efforts to seek extradition of Ross or otherwise obtain his transfer for the next 36 years,” the judges said.
“This failure is significant because the extradition treaties between the United States and Canada were amended in 1991 to give the country incarcerating a person the discretion to extradite the person before expiration of his or her sentence,” they said, adding that person could still serve out an existing sentence.
“The record shows that the State had little interest in prosecuting Ross at all, much less in a timely manner,” the judges said.
The passage of time had prejudiced Ross’ ability to mount a defense, the judges ruled.
They cited Coughenour’s list of factors, including a fingerprint card lost or destroyed, impaired or faded memories of eyewitnesses, the deaths over time of expert and law enforcement witness and Ross never being given access to legal counsel on the Clallam County case while incarcerated in Canada.
Ross admitted to Clallam County investigators in 1988 that he killed Bowcutt, according his probable cause statement, although the confession was never recorded.
Fingerprint evidence from Bowcutt’s Eighth Street apartment and DNA extracted from a hair found on Bowcutt’s sweater linked Ross to Bowcutt’s murder.
Nancy Collins of Seattle, the Washington Appellate Project attorney who argued the case to the appeals court on Ross’ behalf, said she would be surprised if Nichols filed an appeal.
Ross remained incarcerated Tuesday without bail in the Sacramento County jail on six charges, a Sacramento Prosecuting Attorney’s Office spokeswoman said Tuesday.
Ross was charged April 3 with four felony counts of threats to commit a crime that could result in death or great bodily hard, felony assault with a deadly weapon, an misdemeanor removing or destroying a wireless communications device.
The spokeswoman said a settlement conference scheduled for May 15 was delayed to May 29.
Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at [email protected].