PORT ANGELES — A state Court of Appeals commissioner has affirmed that Tommy Ross should be released from jail because murder charges against him were dismissed.
But the commissioner, Aurora Bearse, also allowed her ruling last week to be challenged by Clallam County officials who want to keep Ross in jail pending their court appeal to keep those charges intact against Ross, 60.
Clallam County will file a motion for reconsideration of Bearse’s ruling to the full three-judge Court of Appeals by Bearse’s Thursday deadline in a last-ditch effort to keep Ross in the Clackamas County, Ore., jail, Deputy Prosecuting Attorney Steve Johnson said Monday.
“If we lost on our motion for reconsideration, at that point, Mr. Ross would be released,” Johnson said.
Clallam County Superior Court Judge Brian Coughenhour released Ross on Oct. 23, dismissing first- and second-degree murder charges connected to the April 24, 1978 death of Janet Bowcutt of Port Angeles.
Coughenhour said Ross’ constitutional right to a speedy trial had been violated by Clallam County authorities.
Ross, on his way to California, was re-arrested that same day in Clackamas County, Ore., after the appeals court reimposed the conditions of his release on an emergency basis, including $1.5 million bail.
He was being held Monday in the Clackamas County jail as a fugitive from another state to await the full court’s ruling on the motion for reconsideration.
Bearse also ordered the county’s appeal of the dismissal of charges to be considered in an accelerated manner by the full court, “likely February 2019,” Bearse said.
“The state has not shown how a stay is necessary to preserve the fruits of this appeal,” Bearse said.
“It can proceed with its appeal of the speedy trial dismissal regardless whether Ross Remains in custody.”
But the county satisfied the requirement of raising a “debatable issue” that warranted further consideration, Bearse said.
She pointed to Ross’ actions while he was incarcerated in Canada for 38 years after he was convicted of murdering Janice Forbes of Victoria, a conviction on which Ross was paroled in November 2016.
He was immediately rearrested at the U.S. border for allegedly murdering Bowcutt 38 years after he was first arrested in connection with her murder.
Ross was in Los Angeles and wanted for Bowcutt’s murder when then Prosecuting Attorney Grant Meiner allowed him to be extradited to Canada rather than have Ross returned to Clallam County, believing wrongly that Canada would return Ross to Port Angeles following Ross’ trial in Forbes’ death.
Coughenour placed the blame for the delay of Ross’ speedy trial “solely on the prosecution, which relinquished jurisdiction over Ross and then never took any action to extradite Ross,” Bearse said.
But Coughenour did not “fully analyze” Ross’ several requests to transfer from Canada to the U.S. while he was represented by counsel, later withdrawn, and his active litigation in his trial since his November 2016 arrest affect the extent to which Ross could have, but failed to, assert his right to a speedy trial, Bearse said.
“Although a defendant has no duty to being himself to trial, Washington speedy trial cases often look to a defendant’s actions over the course of a prosecution in analyzing this factor,” Bearse said.
Prosecuting Attorney Mark Nichols, who had contended Ross’ release posed a danger to the public, was encouraged by Bearse’s determination that Clallam County “had at least satisfied the habitability requirement of the emergency motion to stay,” Nichols said last week.
Considering Ross’ dangerousness if he is released, Bearse said the murders of Forbes and Bowcutt occurred 40 years ago, and that Ross had been released by the Parole Board of Canada, which determined he was not likely to re-offend.
Lane Wolfley, who presented the motion to dismiss charges against Ross that was approved by Coughenour, was confident Ross would be released and the appeal of dismissal of charges denied.
“To me, it seems silly for the prosecution to move forward on this and create a record forever in the annals of the common law [on] such a sad state of facts,” Wolfley said.
“They are stuck with what happened for 40 years, and they are stuck with the Constitution, and so it’s very clear what the court has to do at every step of the way.”
Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at [email protected].