The man accused of being cop killer Maurice Clemmons’ getaway driver can’t be retried on factors that would result in an automatic life sentence should he be convicted again, a state appeals court has ruled.
In an opinion released Wednesday, a panel for the Court of Appeals for Division II said the U.S. Constitution’s double-jeopardy protections prohibit Pierce County prosecutors from charging Dorcus Allen with aggravated first-degree murder for the purposes of retrial.
That means prosecutors can proceed only on charges of first-degree murder, which takes the prospect of an automatic life-without-parole sentence off the table.
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While a technical victory, Allen, also known by the first name Darcus, still faces the prospect of dying in prison if convicted of four counts of first-degree murder during a retrial tentatively set for summer 2018. He has pleaded not guilty.
The Prosecuting Attorney’s Office said the appeals court’s opinion is based on an erroneous premise.
“The decision of the Court of Appeals is based on the mistaken belief that Mr. Allen’s first trial was a death-penalty case,” Chief Criminal Deputy Kathleen Proctor said.
“The State did not seek the death penalty in this case because Mr. Allen was the getaway driver and not the shooter. Therefore, we intend to file a motion for reconsideration before this same court.”
Allen, 46, is suspected of driving Clemmons to and from the vicinity of a Parkland coffee shop where Clemmons gunned down Lakewood police Sgt. Mark Renninger and officers Tina Griswold, Gregory Richards and Ronald Owens in November 2009.
Clemmons, the subject of an intense two-county manhunt, later was shot and killed by a Seattle police officer.
Prosecutors originally charged Allen with four counts of aggravated first-degree murder and considered a possible death penalty against him. Prosecutor Mark Lindquist later decided not to seek capital punishment for Allen, instead pursuing a sentence of life in prison without the possibility of parole.
A jury convicted him of the murder charges but found unanimously that prosecutors hadn’t proven the aggravating factors, meaning the sentence of life without parole could not be considered.
Superior Court Judge Frederick Fleming, now deceased, instead sentenced Allen to more than 400 years in prison on the first-degree murder charges and underlying firearm-sentencing enhancements.
Allen successfully appealed his convictions, convincing the Washington State Supreme Court that then-Deputy Prosecutor Stephen Penner committed misconduct during closing arguments by telling jurors that Allen “should have known” Clemmons intended to kill the officers.
Prosecuting Attorney Mark Lindquist’s office decided to retry Allen on four counts of aggravated first-degree murder. Prosecutors decided not to seek a possible death penalty during the second trial, opting instead to again pursue the automatic life-without-parole sentence that would be the only other choice for an aggravated-murder conviction.
Allen’s defense attorneys, Mary Kay High and Peter Mazzone, called foul.
Double-jeopardy protections barred prosecutors from seeking to have Allen tried again on the aggravating factors, his defense team argued, because the first jury unanimously found prosecutors had not proven them.
Judge Katherine Stolz, assigned to preside over the retrial, agreed with the defense and dismissed the aggravators. Lindquist’s office appealed Stolz’s ruling, saying the aggravators were akin to sentencing enhancements and not subject to double-jeopardy protections.
In Wednesday’s opinion, appellate Judge Rich Melnick said Stolz got it right, although he referred to the first trial as a “capital case.”
“In the capital case against Allen, the jury affirmatively and unanimously found that the state had not proven beyond a reasonable doubt any aggravating circumstances,” Melnick wrote in an opinion signed by judges Jill Johanson and Lisa Sutton. “These aggravating circumstances are the functional equivalent of elements of the crime.
“The jury’s finding is an acquittal of the aggravating circumstances for double jeopardy purposes. The state cannot retry Allen on the aggravating circumstances for which a jury found lack of proof.”
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