Three murderers from Island County currently serving time in prison may be among the 300 “felony murderers” in the state whose convictions were thrown into question by a Washington State Supreme Court decision this month.

But on the bright side for prosecutors, the Appeals Court published an opinion last week that’s not only critical of the state Supreme Court for the felony murder rulings, but may open the way for new trials against the convicted murderers with vacated sentences.

Island County Prosecuting Attorney Greg Banks is not happy with the state Supreme Court justices. He called their most recent decision related to the controversial Andress case “really the worst one yet.”

Two years ago, the Supreme Court ruled in the Andress case that a person can’t be charged with felony murder if the underlying crime is assault. Before that, prosecutors were able to convict people of felony murder without having to prove intent to kill.

In the other states, such cases usually bring charges of manslaughter, which typically carry lighter sentences than murder. Yet in making the ruling, the Supreme Court justices were reversing 25 years of established law in Washington.

The state Legislature passed a bill in February of 2003 that re-established the felony-murder charge with assault as an underlying felony.

It wasn’t clear whether the Supreme Court ruling in Andress affected cases that were still in the appeals process, or all cases that had gone through the process and were finalized. In the recent ruling, the Supreme Court decided that the ruling affected all the 300 or so cases.

In Island County, the original Andress decision affected two cases. Camano Island resident Linda Miley was convicted of second-degree “felony” murder and first degree manslaughter. She shot and killed her boyfriend, Jack Pearson, in 1997. She was sentenced to 21 years in prison.

Jerry Lee Farrow shot and killed his girlfriend, Faith Ellison, in her Oak Harbor home two years ago. He was convicted of second-degree “felony” murder with a deadly weapon, third-degree assault with a deadly weapon and was sentenced to 30 years in prison.

Banks was at the Court of Appeals early this month to argue in the Miley case, which he prosecuted in Island County Superior Court. The main issue is whether Miley’s conviction for first-degree manslaughter will stay in effect if the felony-murder conviction is vacated.

Banks said he’s waiting to hear from Farrow’s attorneys on a possible appeal.

Then on Nov. 20, the state Supreme Court ruled that the Andress decision applied retroactively, which means hundreds many more cases will be reviewed. About 300 people in the state are serving time after being convicted of felony murder involving assault.

The only other case in Island County is that of James Alexander. He was convicted of felony murder in 1991 for beating his 2-year-old child to death for spilling milk.

Yet prosecutors have received some good news lately. The Court of Appeals published an opinion last week about whether a person who has a felony murder conviction vacated can subsequently be charged with manslaughter, for example, even though the prosecutor didn’t originally charge the offense.

Under normal circumstances, the mandatory joinder would prohibit new manslaughter charges on old felony-murder cases. The rule states that all offenses must be joined for trial.

The Appeals Court, however, concluded that these are not normal circumstances.

“Our high court adhered to the felony murder doctrine with unwavering consistency until 2002,” the appellate court wrote. “Then, in Andress, the Court held the 1976 amendments to the criminal code had never been properly examined, and concluded that the Legislature did not intend assault to serve as the predicate felony for murder.

“For the Court to abandon an unbroken line of precedent on a question of statutory construction after more than 25 years is highly unusual.”

Basically, the appellate court ruled that the mandatory joinder does not apply, but the ends of justice exception does. In other words, the state can charge someone with manslaughter after his or her felony-murder conviction is vacated.

Unless the Supreme Court rules otherwise.

You can reach Jessie Stensland at jstensland@whidbeynewstimes.com or 675-6611.