Centralia -- Lewis County prosecutors will argue before the state Supreme Court in October against a Washington Court of Appeals' decision to reverse the murder conviction of Kenneth Slert.
Slert has been convicted of murder in Lewis County Superior Court three times in the past decade of shooting and killing John Benson, 53, at a hunting camp in 2000. Each conviction, however, has been overturned by a higher court.
Now, more than 13 years after the slaying, and halfway through Slert's 22-year prison sentence, prosecutors will ask the state Supreme Court to make Slert's third conviction his last.
Slert appealed his 2010 conviction on the grounds that his rights to be present at all critical stages of the trial had been violated when a conference between attorneys resulted in the dismissal of four jurors during the trial. He was not present for the conference, according to the ruling.
The appeals court agreed, and ordered that Slert receive another trial, which would be his fourth.
Lewis County Prosecutor Jonathan Meyer removed himself from the decision-making process whenthe case was returned to his office. Meyer represented Slert during one of the trials, prior to being elected prosecutor in 2010.
Lewis County Deputy Prosecutor Eric Eisenberg, who has been handling the appellate case, said he will argue two primary points at the Oct. 17 hearing.
The first, he said, will be that the brief conversation between the attorneys and judge did not violate the open courts doctrine, as alleged by Slert's attorneys.
"The next step in the argument," Eisenberg said: "Even if it was a violation, it was so small and had so little effect on trial that a new trial is not necessary."
Similar issues have been raised in a number of other cases pending before the state's Supreme Court.
"The open courts issue is something that is really sort of up in the air," he said. "… The justices are divided on what the right approach is."
Eisenberg said he hopes the decision will prove successful convictions should not be sent back for a retrial for something minor.
It's difficult and expensive to go through a trial like Slert's, he said, and for a case so complex, it's difficult to avoid making some sort of small mistake.
"It's not a good use of resources and does not serve the ends of justice," he said.
Series of problems
Slert's case was plagued with problems from the beginning. He claimed the fatal shooting was in self-defense, and while he was arrested and booked into jail, he was later released without being charged.
In 2003, three years after the death, Slert was charged with both first- and second-degree murder, with a firearms enhancement. He's been in custody ever since.
While Slert was convicted of murder at the first trial, the court of appeals overturned it because a judge erroneously rejected Slert's proposed jury instruction that would have allowed the jurors to consider self-defense as an option, according to the court's ruling.
Slert was retried in Lewis County Superior Court, and the second jury trial also resulted in a second-degree murder conviction, with a firearms enhancement.
It was also reversed by the appeals court after Lewis County Superior Court Judge Nelson Hunt made a comment during a pretrial hearing that acknowledged he knew officers and attorneys involved in the case and should have recused himself, according to the court.
When the prosecutors attempted to try Slert for a third time, prior to the trial, an entire jury panel -- 45 potential jurors -- was dismissed because Slert was accidentally led into a room where they were filling out questionnaires.
When the third trial did start, the case was put on the brink of a mistrial when two more jurors had to be dismissed, but the jury ended up with the same conclusion as the previous two, finding Slert guilty of murder.