Beach killer penalty overturned

<p>Brian Brush</p>

LONG BEACH – Convicted murderer Brian Brush, who killed his girlfriend Lisa Bonney near a crowded Long Beach Boardwalk Sept. 11, 2009, could be released from prison much sooner than expected.

Originally, Brush was convicted of first-degree murder and given an exceptional sentence of 1,060 months, or 88 years in prison. But in an opinion filed May 12, the Court of Appeals for the State of Washington determined that while his conviction was appropriate, his extra-long sentence was not. They remanded his case to Pacific County Superior Court for resentencing.

Now County Prosecutor David Burke must decide whether to appeal this decision to the state Supreme Court. If he does not or if he loses the appeal, the original trial court will have to significantly shorten Brush’s sentence.

“I disagree with the decision, and I was disappointed,” Burke said in a phone interview Thursday. “This is the most I can say given that the case is still in progress.”

Efforts made via family attorney Guy Glenn Sr., and other venues were unable to reach members of the Bonney family for comment in time for publication.

The original sentence

At his sentencing hearing in February 2012, Judge Michael Sullivan gave Brush 1,000 months, plus an additional 60 months for using firearm to commit a crime, saying the “violence, the terror and the horror” of the crime merited an exceptional sentence.

In Washington the standard sentencing range for a person convicted of first-degree murder is 240-320 months in prison. But Sullivan believed he was permitted to impose an exceptionally severe sentence because the jury determined there were three “aggravating factors”: Deliberate cruelty toward the victim during the crime, aggravated domestic violence and inflicting injuries that exceeded the level of bodily harm typically associated with the offense.

During the hearing, Bonney’s family members repeatedly emphasized that the long sentence was one of few small comforts in a terrible ordeal.

Speaking to Judge Sullivan, Bonney’s father, Gene Klingler, said, “I want him behind bars without parole so that every day of his life he will remember what he did.”

Brush, 47 at the time of the murder, spent about three months in Pacific County Jail before being transferred to await his trial in a Washington State Prison near Shelton in January 2010. So far, he has served about 56 months behind bars. Before the Court of Appeals ruling, he was theoretically due for release no later than 2097, at the unattainable age of 135. This amounted to a life sentence.

Unless one or more of the aggravating factors is re-established by the Washington Supreme Court, Brush’s sentence would likely be reduced to no more than 320 months – 26 years and eight months – with credit for the 56 months already served. In addition, in Washington state inmates typically receive one-third off their sentences for “good time” – time served without major disciplinary problems. Taking all this into consideration, he could end up being released in a little more than 13 more years, at the age of about 65.

Basis of appeal

During the appeal process, Brush’s attorneys argued that the aggravating factors did not apply in Brush’s case. Furthermore, they argued that he was not given a fair trial because the judge allowed one of the jurors selected to hear the case to instead take a job assignment in Alaska. This switch to an alternate juror occurred before evidence was presented and state rules explicitly allow jurors to be excused if serving would impose a financial hardship. Brush’s lawyers also contended that his repeated admissions of guilt, during and after his arrest, should be thrown out because a police officer asked Brush before reading him his Miranda Rights.

Appellate judges throw out sentence

However, the court agreed with Brush’s attorneys that the three aggravating factors couldn’t be sustained.

First, the judges said that Brush could not be sentenced on the basis of “deliberate cruelty,” because despite the brutal nature of the shooting, he did not appear to have inflicted gratuitous pain merely for the sake of inflicting pain.

According to the opinion, “… there is no indication that Brush deliberately sought to inflict pain as an end in itself or to prolong Bonney’s suffering in any way. Indeed, the evidence is to the contrary; all of the eyewitnesses suggested that he fired the second lethal shot almost immediately after the first.”

Former Chief Deputy Prosecutor Mark McClain – who successfully led the effort to convict Brush – said Thursday that he thinks the appellate opinion is misguided.

“Mr. Brush’s actions were entirely designed to inflict punishment on Ms. Bonney, and that’s precisely what the jury found,” McClain said.

He hopes Burke will decide to appeal the decision.

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