PORT ANGELES — Clallam County Prosecutor Deb Kelly will consult with law enforcement before rendering a decision on whether to ask the state Supreme Court to review the state Court of Appeal’s decision to overturn the 2006 murder conviction of Robert Gene Covarrubias.

Covarrubias, who was 25 at the time, was found guilty in April 2006 by a Clallam County jury of strangling 15-year-old Melissa Leigh Carter to death after raping her in December 2004.

Covarrubias was sentenced to 34 years in prison.

The Court of Appeals determined that, although there was enough evidence to support a conviction, Covarrubias deserves a retrial because the Clallam County Prosecuting Attorney’s Office disclosed 16 pieces of evidence to defense attorneys too late in the process, from pretrial hearings in March through sentencing.

“We hold that sufficient evidence supports the conviction, but because cumulative error prejudiced him, we reverse and remand for a new trial,” the opinion states.

Melissa’s grandfather, Jim Madden of Salem, Ore., said his family is shocked by the appeals court’s ruling and that he is determined to be at the retrial, as he was at the first trial.

‘Something stinks’

“Something stinks here; that’s all I got to say,” he said.

SDLqI think it’s really a shame to take up the court’s time on something I feel was decided with no doubt.”

Kelly said she has 30 days to file an appeal to the motion.

“It is a very formalized process I would have to follow, if I do decide to,” she said.

She said that it is also possible to file a motion before the Court of Appeals to ask for reconsideration, but that was usually used only for minor decisions.

“The normal course of action in this case would be to seek discretionary review,” Kelly said.

Kelly said on Wednesday that she has been tied up with other cases and has only had a chance to read the opinion one time.

“If I decide to file an appeal, I will have to lay out exactly why I think it should be reviewed and all of the reasons for that,” she said.

If she decides not to appeal — and also if the appeal were to fail — she would have to formally inform the court if she planned to retry it.

“On issues much more minor than this sometimes prosecutors don’t go through with retrying it,” Kelly said.

“For example, if an offender had already served all of the time he was going to serve, they might not bother to go through with retrying it.”

If a formal intent to retry is filed, Covarrubias will be transferred from prison to the Clallam County jail, and the process will begin again.

“We would start from scratch, just like before his trial started,” Kelly said.

Covarrubias could potentially end up qualifying for bail, she said.

“It would all start over,” Kelly said.

Delayed disclosures

It was the cumulative effect of the 16 delayed disclosures that led to the decision, even though each one individually would not be sufficient to warrant a retrial, said the author of the ruling, Judge Elaine Houghton.

Judges J. Robin Hunt and Joel Penoyar concurred in the opinion.

Some of those items involving an expert’s endorsement on crime scenes, lab reports, autopsy photographs and notes, lab technician testimony and a mental health counselor’s testimony.

Three teenage boys found Carter’s nude body behind a tree near the Waterfront Trail just east of downtown Port Angeles on Dec. 26, 2004.

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Reporter Paige Dickerson can be reached at 360-417-3535 or at paige.dickerson@peninsuladailynews.com.