“Replay” of homicide trial in the works

The Grays Harbor County Prosecutor has re-filed charges against an Elma woman whose homicide conviction was overturned by the state Supreme Court.

Brenda Zillyette, 47, is charged once again with controlled substances homicide in the death of 18-year-old Austin Burrows. She made her first appearance on the new charge in Grays Harbor Superior Court Monday.

Zillyette is accused of giving Burrows methadone and Xanax pills, which they crushed into a powder and snorted together hours before Burrows died of an overdose April 1, 2009. She was sentenced to 4 1/2 years in prison for controlled substances homicide and was released earlier this year.

Prosecutor Stew Menefee initially said the decision to re-file would depend on whether witnesses and evidence were still available four years after the initial trial. He said Monday that’s all squared away and the charge was re-filed.

This time around, her charging documents specify it’s the methadone she’s charged for. The first time, the Supreme Court threw out her conviction because the charging documents didn’t say what drug or what class of drug Zillyette was accused of giving to Burrows, just that she gave him a controlled substance. Only Schedule I, II and III drugs can be the basis of a controlled substances homicide, so in effect, the high court said, prosecutors didn’t technically accuse Zillyette of a crime.

“The specific identity of a controlled substance is not necessarily an essential element of controlled substances homicide. However, because not all controlled substances can be the basis for controlled substances homicide, some degree of specification ‘is necessary to establish the very illegality of the behavior,’ ” the court concluded.

The court did not take any issue with the facts of the case, in no way clearing Zillyette of wrongdoing.

“This decision by the court was not an exoneration … but then again it means she’s not been convicted, too. She’s presumed innocent,” her attorney for the Supreme Court case, John Hays of Longview, said after the ruling.

Asked if Zillyette could see any additional prison time, Menefee said, “Probably not, she’ll probably get time served.”

But trying the case again is still a key part of seeing justice done.

“It’s important because she’ll have a homicide on her record as opposed to having a clean record. In other words, she won’t have access to firearms and the court can restrict her access to drugs, whereas if we don’t re-try she can indicate she’s an innocent person who’s never been convicted,” Menefee continued. “It’s not a great result, considering the nature of the error the court found, which was a pretty technical ruling, but it’s something we have to go forward with.”

The cost of Zillyette’s defense counsel through the appeals process will be handled by the state because she qualified for indigent defense, Menefee said. He didn’t have an exact cost for the county’s work on the case, but estimated it at roughly $10,000 from the initial case through the initial trial, appeal and Supreme Court case. He said it should be less for the re-trial.

“We don’t keep track in terms of cost, in other words, we don’t do hourly billing to keep track of our cost. It’s part of the overall cost of doing business,” he said.

Beyond the change to the charging documents, which appear to have the specificity the Supreme Court asked for, the only changes to the case may come from new counsel for Zillyette. Defense attorney Scott Campbell was re-appointed to Zillyette’s case Monday, but Menefee said Campbell has said he won’t handle the case again.

“The new defense counsel may try to argue some other angle, take a fresh look at it. I’m not going to try to predict that. But in terms of the nature of the case, it hasn’t changed and I don’t believe there’s going to be any change in terms of witnesses, for the state anyway,” Menefee said. “At this point we’re going to see pretty much a replay, for all practical purposes, of the original trial.”

The full text of the Supreme Court opinion is available here: http://1.usa.gov/14Oi1Qw.