EVERETT — A Snohomish County judge continued to wrestle Thursday with how four words fit into the prosecution of a convicted rapist accused of two 1995 “cold-case” killings.
Superior Court Judge Bruce Weiss told attorneys he’s conflicted over whether there is enough evidence to show that what happened to the women was the result of a “common scheme or plan.”
That’s a necessary finding if Danny Ross Giles is to have a single trial on first-degree murder charges linked to Patti Berry’s killing and the separate disappearance and presumed death of Tracey Brazzel a few weeks earlier.
There are similarities in the cases, including genetic test results that prosecutors say link Giles to both women’s cars.
There also are key differences. Berry’s killer repeatedly stabbed her. The absence of blood at Brazzel’s apartment indicates that likely wasn’t her fate, but it is a mystery because her body has not been found.
In a situation where all the evidence and its meaning is in dispute, how does the court decide whether the crimes are just similar or somehow more profoundly related?
“This is what I’m really struggling with,” Weiss told the attorneys.
He expects to make a ruling soon. That may come after a special hearing, now scheduled next week, to take testimony from a witness who reportedly has provided conflicting accounts of when she last spoke to Brazzel.
Weiss also said that hearing may not be necessary after he takes the opportunity to fully reflect on the information already presented.
Thursday’s hearing came on the 19th anniversary of Berry’s killing. The single mom, 26, worked as a dancer at Honey’s, a nude nightclub that used to be along Highway 99 north of Lynnwood. She went missing after working a shift on July 31, 1995.
Brazzel, 22, disappeared May 27, 1995. According to police reports, the hairstylist was last seen at a pub south of Everett along Highway 99 after an evening that included some drug trafficking.
The last person who reported seeing Berry puts her at a convenience store adjacent to the pub. She likely drove there after work to get air for a leaking tire.
Public defenders representing Giles have urged Weiss to bar prosecutors from trying their client at the same time on both counts, arguing that he would suffer “catastrophic prejudice” from linking cases that have little overlap.
“Just wishing it to be a common scheme or plan does not make it a common scheme or plan,” seasoned public defender Neal Friedman told the judge.
Weiss on Wednesday said he has concerns. He spent much of an hour Thursday morning questioning deputy prosecutor Craig Matheson about how he sees the evidence snapping together.
The prosecutor acknowledged that investigators have arrived at some conclusions based on inference. For example, they believe whoever killed Berry and Brazzel likely drove their cars and kept the keys as trophies because they’ve never been found.
Weiss wondered whether it was just as likely that the keys were simply discarded.
“Both are possible. We don’t know,” the prosecutor said.
On the other hand, Giles appears to have described to others being in Brazzel’s apartment and both women were last seen at a location where the defendant acknowledges he frequented.
“I would suggest it is no coincidence,” Matheson said.
Giles, 46, was not a suspect in either case until 2008 when genetic tests that weren’t available in 1995 were conducted on the steering wheel of Berry’s car and later on a spot found on the exterior of Brazzel’s vehicle.
The state crime lab calculated the statistical probability of a random DNA match to Giles in the Berry case at 1 in 580 million, and 1 in 56 quadrillion in the Brazzel case, according to court papers.
Giles’ criminal record includes the 1987 rape of a woman attacked while she was using a Lynnwood tanning bed, plus a string of other crimes against women and girls starting in his teens. His trial is now scheduled to begin in late September.