Defense seeks mistrial for Finch

By SCOTT NORTH

Herald Writer

A Snohomish County judge was scheduled to rule this morning on whether to continue with the sentencing trial of a convicted double murderer who has been near death since an Oct. 25 suicide attempt at the county jail.

An attorney for Charles Ben Finch, 51, on Thursday asked Superior Court Judge Ronald Castleberry to declare a mistrial in the case.

The lawyer, public defender Bill Jaquette, also urged the judge to consider deciding himself whether Finch should receive a death sentence or life in prison without possibility of release.

Finch is paralyzed, unconscious and battling a respiratory infection that earlier this week caused perilously low levels of oxygen in his blood. Although his condition has improved, Finch remains so ill that he meets the legal definition of being incompetent and unable to assist in his defense, Jaquette said.

State law prohibits trying, convicting or sentencing an incompetent person, and Finch’s trial must stop, Jaquette said.

But deputy prosecutor Michael Downes said the law also allows a trial to continue if a defendant voluntarily absents himself.

Finch was injured when he jumped head first from a second-floor balcony at the jail, Downes said. He was being held there for his second sentencing trial in the August 1994 murders near Cathcart of sheriff’s Sgt. Jim Kinard and Ronald Modlin, a blind man.

"As cruel as it may sound — however it may sound — he’s voluntarily absented himself from these proceedings," Downes said of Finch.

Castleberry said he’ll rule on the mistrial motion after speaking with Finch’s doctors this morning.

He also reserved ruling on Jaquette’s call for a directed verdict.

Prosecutors failed to show that sufficient grounds for mercy aren’t present, Jaquette said. Finch’s severely injured status also must be considered, he said.

Prosecutors believe the law is clear that a jury, not a judge, must decide whether or not to impose death in a capital murder case, Downes said.

The only recent death-penalty case where a judge decided punishment, instead of leaving it up to jurors, came in the 1989 trial of Darrin Rand Hutchinson. Hutchinson was convicted of killing two Island County deputies at the jail in Coupeville in 1987. His convictions and life sentence were upheld by the state Supreme Court two years ago. But the case provides little guidance because the judge’s decision to bypass the jury was not one of the issues considered on appeal, Downes said.

Castleberry told lawyers on both sides of Finch’s case to be prepared to make closing arguments late this morning. He also spent most of an hour Thursday deciding what jurors should be told about Finch’s medical problems and the likelihood of his survival or recovery.

Finch was convicted of murdering Kinard and Modlin and sentenced to die in 1995. But the state Supreme Court tossed out the sentence in 1999 because jurors had seen him in handcuffs and a nylon hobble. The underlying convictions were not affected.

The sole question in Finch’s new trial is whether he should receive a death sentence or life in prison without possibility of release.