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Published: Sunday, July 29, 2012, 12:01 a.m.

Prosecutors using 3 strikes penalty less often

Partly due to the expense, prosecutors are not pursuing as many cases as when the law first went into effect in 1993.

EVERETT -- Six months after the state's three-strikes law went into effect, Snohomish County prosecutors asked a judge to sentence a man to life in prison for a second-degree robbery conviction.
Larry Fisher had robbed $151 from a Lynnwood sandwich shop. The holdup turned out to be Fisher's last chance. He'd been convicted of two other robberies, including threatening his grandfather into surrendering his wallet. His previous two strikes came years before voters in 1993 approved the Persistent Offender Accountability Act.
Prosecutors said their hands were tied. They believed the law left them little discretion. Fisher was given a life sentence.
He remains behind bars 18 years later.
Fisher is among the 32 people sentenced in Snohomish County to prison for life under the three-strikes law. The majority of those convictions happened during the early years of the law's existence.
Judges sentenced 21 people to life behind bars between 1994 and 1999 under the three-strikes law. State data show that trend has slowed in the past decade. Only a dozen people have been sentenced in Snohomish County as persistent offenders since 2000. Among them are two men whose earlier life sentences were overturned on appeal but were sent back to prison for life after committing new crimes.
Overall, prosecutors here say, they are pursuing fewer third strikes.
Snohomish County Prosecuting Attorney Mark Roe said his office must weigh several factors before seeking a final strike. That's in large part because such cases are heavily litigated, often as much as an aggravated murder case -- the only other charge that can carry a mandatory life sentence.
Roe said he is "very cognizant of the tremendous expense, impact on the victims and greater likelihood these cases will be reversed on appeal" when deciding whether to pursue a third or second strike that could send an offender to prison for life.
Sentences overturned
A handful of Snohomish County three-strike life sentences have been overturned on appeal, according to records.
•One of those offenders was James Thorne, a habitual robber. Thorne was sentenced to life in December 1994 for holding up a hospital gift shop with a BB gun. The sentence eventually was thrown out after Thorne successfully argued that his attorney hadn't explored an insanity offense. He pleaded guilty to a lesser offense and was sentenced to prison.
A few months after his release in 2006, Thorne robbed an Everett check-cashing store, telling employees that the brown bag under his arm was a bomb. There was no bomb. Thorne had robbed the store with a four-pack of yogurt. At 66, Thorne was once again sentenced to life without parole as a third-striker. He died in prison in 2010 -- a week before his 68th birthday.
•Prosecutors twice sought a life sentence for Hubba Teal. He was accused of taking part in two violent robberies of drug dealers in 1997. He was convicted of the robberies and sentenced to life behind bars. Teal appealed those cases and a previous strike conviction. His life sentences were thrown out.
Jamie Wallin fought his mandatory life sentence after he was convicted in 2003 for raping a young girl -- his second sex-offense strike. The state Court of Appeals overturned the conviction, ruling that evidence used against Wallin, including a confession and graphic pictures, had to be tossed out because of an improper police search.
Back on the street, Wallin in 2007 was convicted of numerous sexual crimes against three young girls. Once again, he was sentenced to spend the rest of his life behind bars. Prosecutors sought insurance that Wallin would remain imprisoned. He received a second life sentence after the victim from the 2003 case stepped forward and the case was retried.
How law is used now
In one of the most recent three-strike cases, Jerry Perkins racked up 16 felonies before he was sentenced to life. Perkins, a career thug with a nasty temper and a drug problem, was convicted of second-degree assault in 2011 for punching a man in the nose.
He was handed a life-sentence.
Days later, Roe announced that he'd seek death for another three-striker, Byron Scherf. The convicted rapist is accused of murdering corrections officer Jayme Biendl in the chapel at the Washington State Reformatory.
"There are people who really deserve to be locked up for life," Roe said. "On the other hand, we have some discretion and I think we're using that better than we used to in these cases."
Roe said in the law's infancy, third-strike charges were filed in some cases that likely would be handled differently these days. A few of those early cases created "some results that, frankly, I'm not proud of," Roe said.
As he sees it, prosecutors can seek other charges that will result in a guilty plea and a long prison sentence that can't be reversed. For example, a second-degree robbery that isn't violent can be charged as a first-degree theft. To avoid a strike, a defendant often will agree to plead guilty and agree to an exceptional sentence, Roe said.
"We get a lot of guilty pleas to serious time by not filing a third strike. There is efficiency with a guilty plea. A trial is the least certain, least efficient and least final way of administering justice," Roe said.
Bill Jaquette, the director of the Snohomish County Public Defender Association, said he has noticed a drop in third-strike cases, especially in the case of less-serious crimes, such as second-degree robbery.
"We certainly got an evolution in the right direction here," Jaquette said. "Over time, I think (prosecutors) saw cases, speaking of overall justice, that didn't look right."
Fisher is one example, he said. The inmate, 53, is serving a life sentence for offenses that, before the three-strikes law was enacted, would have netted him a two-year stint behind bars. Instead, he has served more time than a woman who kicked a 4-year-old Lake Stevens girl to death and more time than five Sultan teens accused of fatally stabbing and beating another teen in downtown Sultan.
Opposition to law
Jaquette, a longtime public defender, calls the persistent offender act bad law. It paints all offenders with the same brush, eliminating any discretion based on individual circumstances, he said.
Judges once were able to punish the unusual case with an exceptional sentence. They could pick out the most egregious robbery and treat it with great severity, Jaquette said. He believes the discretion should go back to the judges.
There have been efforts over the years to amend the three-strikes law, including removing crimes such as second-degree robbery from the list. People can be charged with second-degree robbery even if they weren't armed and didn't physically harm anyone.
Last year there was legislation proposed that would have allowed three-strikes offenders convicted of certain lesser felony crimes to seek review of their sentences by the Indeterminate Sentence Review Board after 15 years.
Proponents pointed out that "all three-strikers are treated equally." The legislation was supported by the Washington Association of Prosecuting Attorneys.
Opponents, however, countered that by passing the three-strikes law, voters sent a clear message that they want habitual offenders off the streets for good. They also pointed out that inmates can seek clemency from the governor, an elected official accountable to voters.

Diana Hefley: 425-339-3463; hefley@heraldnet.com.
Story tags » CrimeLaws

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