TACOMA — The prison door again slammed shut in murderer Brian Brush’s face last week when state appellate judges rejected his latest claim that an 88-year sentence is too harsh.
This is Brush’s second time around through Washington’s appeals system, in which he isn’t contesting his conviction, but hopes to lay the groundwork to get out of the penal system before the end of his life. Last week’s decision was made by the middle-tier Washington State Court of Appeals Division Two. Brush, 56, can appeal to the Washington Supreme Court in Olympia, however last week’s closely reasoned 24-page ruling appears designed to short-circuit any such request for a discretionary review.
Brush’s guilt was never a matter of serious debate. Almost exactly nine years ago, in front of dozens of witnesses including three police officers, he gunned down Long Beach real estate agent Lisa Bonney on Bolstad beach approach. After a long process of establishing his mental competency to stand trial, in 2011 he was found guilty in Pacific County Superior Court. In 2012, then-Superior Court Judge Michael Sullivan imposed a 1,000-month sentence, plus 60 months based on a state law that adds time to the sentences of those who use firearms in the commission of violent crimes.
Typically, first-degree murder with a firearm would draw a sentence of 25 to 31 years. However, Brush received the exceptional longer sentence due to an “aggravating factor” of “aggravated domestic violence … over a prolonged period of time,” plus a factor of “deliberate cruelty” due to the cold-blooded way in which the murder was committed.
After a successful appeal to the Washington State Supreme Court — in which then Prosecutor David Burke did not defend the deliberate cruelty finding — Sullivan gave Brush the same sentence after a Nov. 15, 2016 trial based on aggravated domestic violence alone. Current Prosecutor Mark McClain wasn’t representing the county in Brush’s first appeal of his sentence.
“It was unfortunate that my predecessor, Dr. Burke, chose not to appeal the other aggravating factors I had initially proven at trial [as an assistant prosecutor] because that significantly limited the evidence we could produce at trial and how it could relate to the imposition of an aggravating factor,” McClain said in a written statement last week.
The appellate judges last week ruled that Sullivan was justified in finding that Brush had engaged in aggravated domestic violence, and said the weeks it went on did legally constitute a “prolonged period.”
In Brush’s case, the appeals judges said last week Sullivan’s sentence “was 680 months and more than 2.5 times greater than the top of Brush’s standard range sentence, 380 months. The trial court based its [initial] sentence on two aggravating factors: deliberate cruelty and a pattern of abuse. Although the sentence is substantial both in absolute terms and relative to Brush’s standard range sentence, it is not so lengthy this it shocks the conscience. Brush inflicted psychological abuse on Bonney, and the court found that he acted with deliberate cruelty by repeatedly shooting her at close range with a shotgun. In light of these aggravating factors, the trial court did not abuse its discretion in imposing Brush’s sentence.”
The court also rejected several other legal arguments raised by Brush’s attorney, including that Brush’s verbal abuse should have been viewed as speech protected by the First Amendment to the U.S. Constitution.
“For me, our first responsibility as a prosecutor is to protect our community and in this case that meant we needed to ensure Mr. Brush is never released from prison,” McClain said. “It was really an amazing feeling to make my calls to Lisa’s family to share the good news as they, and our community, deserve closure.”
The appellate court’s opinion is online at tinyurl.com/Brush-Ruling-2018.