Convicted murderer likely to be released

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Date: 2004-12-08

Convicted murderer likely to be released

Rosario Daza
Seattle Times
 
EVERETT — A former Bothell nurse practitioner who has served 12 years of a 40-year sentence for biting, burning and fatally beating her 2-year-old adopted daughter will likely be freed today, in one of the first of hundreds of closed cases affected by a Washington Supreme Court decision last month.

Noreen Erlandson, 52, received an extraordinarily long prison sentence in the April 24, 1991, death of her Korean-born daughter, Kayla; the sentence was intended to send a strong message against child abuse.

Now Erlandson is among the first to expect release after last month's unanimous state Supreme Court ruling, which places all felony murder convictions based on assault, from 1975 to 2002, up for review.

The Nov. 18 opinion retroactively applied a 2002 decision in the case of Shawn Andress, which struck down a statute allowing prosecutors to win murder convictions even if death was an unintended result of an assault.

The state Legislature rewrote the law in 2003 to again allow assault to be a basis for felony-murder charges. But last month's high-court decision, awaited for more than a year, throws into question nearly 300 convictions finalized under the earlier statute, in some cases resulting in new trials and charges. This not only affects victims' families and those imprisoned under harsher sentences but also will have an unprecedented ripple effect on prosecutors' offices, public defenders and police agencies that must again deal with the old homicide cases.

In King County, for example, prosecutors have formed a new "Andress unit" to deal with about 100 affected defendants in custody, and it could cost upward of $1 million.

"It's completely unprecedented to have this many murder cases come back in this fashion," said senior deputy prosecuting attorney Melinda Young, who heads King County's new six-person unit. "No prosecutor's office or police agency has seen anything like this. ... It easily doubles our homicide workload and reopens old wounds for families."

Erlandson's case is one of 21 affected in Snohomish County, where 11 such defendants still sit in jail. Today, defense attorney David Zuckerman will ask a Superior Court judge to vacate Erlandson's sentence for second-degree felony murder.

Snohomish deputy prosecutor Seth Fine will file amended charges of manslaughter, which carries a maximum sentence of 10 years, less than Erlandson has already served. She was sentenced to 40 years, a stiffer penalty than even the sentence for intentional murder, because a judge considered the circumstances exceptional.

Zuckerman, who represented Erlandson after her trial and an earlier unsuccessful appeal, said he was drawn to her case because of the exceptional sentence and what he called significant evidence of her innocence. A medical expert who studied the case for years thought 2½-year-old Kayla suffered from Lennox-Gastaut syndrome, a form of epilepsy, which could have caused her injuries, Zuckerman said.
 
He represents six clients affected by the state Supreme Court's felony-murder decisions, two of whom were released after the Andress ruling through plea agreements.

"For what it's worth, a lot of these prisoners are not asking for an outright acquittal and never have been," said Zuckerman, who argued the issue before the high court in October 2003. "They're simply saying that they were convicted of an inappropriate charge."

But Fine, who will not oppose Erlandson's release, said he "feels as if the rug has been pulled out from underneath us" by the decisions. "This conviction was obtained on the basis of case law that had been consistently upheld for 25 years."

When other states changed their interpretations of such rules, they did not make the change retroactive, according to Pam Loginsky, staff attorney for the Washington Association of Prosecuting Attorneys.

Loginsky estimates that nearly 200 defendants affected by the rulings currently sit in jail in 31 counties already considering the costs and the implications.

"It's the tip of a very large iceberg," said Loginsky, who is still waiting to hear from eight other counties.

Jenny Wieland, executive director of the Everett-based Families and Friends of Violent Crime Victims, said the cost for surviving families and friends is unimaginable.

"The responses have varied from extreme sadness, to anger, to shock and fear," said Wieland, who heads the group, the oldest victims-advocacy organization in the state.

Wieland and her staff plan to attend today's hearing to represent Erlandson's daughter Kayla, who, because she was adopted, had no immediate relatives prosecutors could contact.

Rosario Daza: 425-783-0604 or rdaza@seattletimes.com

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