The extradition of two men accused of a 1994 triple murder in Bellevue was delayed yet again yesterday as the Supreme Court of Canada called for another hearing.
King County prosecutors charged Atif Rafay and Sebastian Burns with killing Rafay's parents and sister. The men remain in a Vancouver, B.C., jail.
Canada's high court is faced with whether to return the pair to King County for trial in the potential death-penalty case. Rafay and Burns are both citizens of Canada, a country that outlawed capital punishment in 1976.
In March, defense attorneys and human-rights groups asked the Supreme Court to block the extradition unless prosecutors agree not to seek capital punishment. King County Prosecutor Norm Maleng has not said whether he will.
The Supreme Court decision was expected to take at least six months.
Since March, one of the court's nine justices retired and another plans to retire. The high court is expected to hear the case again early next year when new justices are seated.
Prosecutors say Burns, now 24, bludgeoned Rafay's parents, Tariq and Sultana Rafay, and his 21-year-old autistic sister, Basma, in their Somerset-neighborhood home. They contend Rafay, now 23, watched, then helped make it resemble a robbery.
King County Prosecutor Norm Maleng promised yesterday that he will not seek the death penalty for two men charged with one of Bellevue's most brutal murders.
The move was essentially forced by Canada's highest court, which ruled last month that Atif Rafay and Sebastian Burns could not be returned from Vancouver, B.C., to King County for trial if there were any chance they could face execution.
"I am personally troubled by the idea that a foreign government can restrict the application of our state law for a crime that occurred within our borders," Maleng said in a written statement.
But he also has "an interest in seeing these men brought to justice and in achieving finality in this tragic case."
The two men, both 25, are accused of beating to death Rafay's parents and autistic sister in their Somerset-area home in 1994. They have spent almost six years in a Vancouver jail as the prospect of their extradition drew international controversy.
Maleng yesterday gave his assurances that "the death penalty will neither be sought nor imposed" in a letter to the U.S. Justice Department, which will send word to Canadian authorities.
His only choice was to watch Canada set the pair free.
"It's a very clear decision by the (Canadian) Supreme Court," said Burns' Seattle attorney, Theresa Olson.
"We're glad he read this decision the same way we did."
Olson said her client, Burns, is somewhat relieved that he will not be in limbo much longer. Both men could be in the King County Jail awaiting trial by the end of the month.
"I don't think anyone is ever eager to be tried for three counts of aggravated murder in the first degree," Olson said, "but I think Mr. Burns is looking forward to fighting the charges in court -- after so many years."
"I think it's about time that Mr. Maleng's office has given those assurances," said Rafay's Seattle attorney, Gary Davis.
Ever since Maleng charged Rafay and Burns each with three counts of aggravated murder in 1995, he never said whether he would seek capital punishment. The state's only possible penalties for the crime are death or life in prison with no possibility of release.
Under Washington law, the prosecutor of each county has the sole power to decide whether to ask jurors to impose execution in aggravated-murder cases.
But the decision is made after defendants answer to the charges, and Rafay and Burns have not yet been arraigned. The two men are citizens of Canada, which fueled the long extradition battle.
Canada abolished capital punishment in 1976 and has never handed over a citizen to face it.
In its decision Feb. 15, the Supreme Court of Canada noted that "in the Canadian view of fundamental justice, capital punishment is unjust and should be stopped" -- a view "increasingly shared by most of the world's democracies."
Justices rejected the argument that Canada would become a "safe haven" for criminals trying to avoid execution.
But Maleng expressed concern in his letter:
"While I take issue with the notion that an offender can commit murder in Washington state and then flee to Canada to seek the protection of Canadian laws, I also have an interest in seeing these men brought to justice."
On July 13, 1994, three members of the Rafay family were found dead in their split-level home.
Sultana Rafay was beaten to death and left with a shawl draped over her head. Her husband, Tariq, was clubbed as he lay in bed.
Their autistic daughter, Basma, 21, tried to fight off her attacker but later died in a hospital.
Rafay, home from his freshman year at Cornell University, and Burns, his longtime friend, told police they found the gruesome scene after returning home from a movie.
But prosecutors allege Burns beat all three victims with a baseball bat while Rafay watched, then helped shuffle things around to make it look like a robbery.
They contend the motive for the killings was money: about $350,000 in life insurance and the value of the family home.
Within days, the pair left for Vancouver, B.C.
They were arrested a year later, after King County prosecutors filed charges.
VANCOUVER, BC -- Canada's justice minister has signed papers that will send Atif Rafay and Glen Sebastian Burns to Washington state, where they are charged in the 1994 slayings of Rafay's family.
Burns and Rafay are charged in the slayings of Rafay's father, mother and sister in Bellevue.
Justice Minister Anne McLellan approved the transfer yesterday, said Lise Cantin, a Department of Justice spokeswoman.
McLellan's approval came after King County Prosecutor Norm Maleng assured the Canadian government earlier this month that neither man would face the death penalty if convicted in the United States. Cantin said U.S. marshals are free to pick the men up. No timetable was discussed.
In Seattle, Maleng spokesman Dan Donohoe said his office hoped to have the two men back "as soon as possible."
Burns and Rafay have been held in a British Columbia prison while their extradition fight wound its way to the Supreme Court of Canada. The high court decided last month the two Vancouver men could not be extradited for trial without protection from the death penalty.
Now in their mid-20s, Rafay and Burns, both Canadian citizens, have been charged with aggravated first-degree murder. The Rafay family members were found beaten to death with a baseball bat in their suburban Bellevue home July 12, 1994, when Rafay and Burns were 18.
Two Canadian men charged in the 1994 slaying of a Bellevue family were booked into the King County Jail yesterday, ending a long extradition battle.
Atif Rafay and Glen Sebastian Burns were transported by the Royal Canadian Mounted Police to the Canadian border, where they were picked up by officers with the Bellevue Police Department and U.S. Marshals Service.
They will remain in jail until April 6. Rafay and Burns, now in their mid-20s, have been charged with aggravated first-degree murder. Rafay family members were found beaten to death with a baseball bat in their home.
Two Canadian men who fought a six-year extradition battle that ended in Canada's Supreme Court pleaded innocent Friday to charges they killed one of the men's parents and sister.
Atif Rafay and Sebastian Burns are accused of killing Rafay's father, mother and sister in 1994 in their suburban Bellevue home. They pleaded innocent to charges of aggravated first-degree murder in King County Superior Court.
The Supreme Court of Canada ruled earlier this year that because Canada does not have the death penalty, the men could not be returned to the United States unless prosecutors promised they would not be executed. County Prosecutor Norm Maleng made that promise, and Rafay and Burns were returned last month.
In court documents, their lawyers argued the charges should be dismissed, saying prosecutors violated their right to a speedy trial. They could have been extradited and arraigned years ago if the prosecutor's office had agreed sooner not to seek the death penalty, the lawyers said.
Leesa Barrow, a deputy chief of staff in the prosecutor's office, challenged that assertion.
""I think to make an argument that we could have arraigned them seven years ago, when they fled the country, that's going to be a difficult argument to make,'' she said.
Rafay and Burns were held in a British Columbia prison from the time of their arrest in 1995 until their return to Seattle.
If convicted, the men, who are now in their mid-20s, would be sentenced to life in prison without parole.
The Rafay family members were beaten to death with a baseball bat on July 12, 1994, when Rafay and Burns were 18.
Almost seven years after a Bellevue family was brutally slain, the two young men charged with the crime made their first, long-anticipated appearance yesterday in King County Superior Court.
Atif Rafay and Sebastian Burns, who were at the center of a long extradition battle with Canada, pleaded not guilty to three counts of aggravated first-degree murder.
Legal wrangling began immediately, when defense attorneys said the charges should be dismissed because the men were denied their right to a speedy trial. If the charges are not dismissed, they will ask that they be tried separately.
Prosecutors did not have a chance to respond to the matters, which will be argued at a future hearing.
The two men, both 25, are accused of beating to death Rafay's parents and autistic sister in their Somerset-area home in 1994.
Led into the 12th-floor courtroom individually, the longtime friends were a stark contrast to each other.
Burns was tall and broad-shouldered, with thick brown curls. Rafay was short and slight, wearing his too-long jail uniform rolled at the hem and closely cropped black hair.
Arrested in 1995, they spent nearly six years in a Vancouver, B.C., jail while their attorneys argued against returning them to King County if there was any chance they could face the death penalty.
They are both citizens of Canada, which outlawed capital punishment in 1976 and has never handed over one of its citizens to face it.
In a February ruling, the Supreme Court of Canada denounced the death penalty and ruled that the pair could not be extradited if it was an option.
King County Prosecutor Norm Maleng gave his word last month that they would face life in prison.
Yesterday, Rafay's attorney, Gary Davis, said prosecutors should have taken the death penalty off the table long ago to bring the pair back to the United States.
"This prosecutor's office knew what the Canadian position was," he said.
Deputy prosecutor James Konat questioned how defense attorneys who had fought the young men's extradition could argue that keeping them in Canada violated their rights.
Rafay's parents, Tariq and Sultana, were found beaten to death in their split-level home on July 13, 1994.
Their autistic daughter, Basma, 21, tried to fight off her attacker but later died in a hospital.
Rafay, home from his freshman year at Cornell University, and Burns told police they found the gruesome scene after returning home from a movie.
Prosecutors contend the young men were after money: about $350,000 in life insurance and the value of the family home. But defense attorneys plan to put that theory and the evidence "under a microscope," Davis said.
Defense attorneys say investigators exaggerated their evidence against Atif Rafay and Sebastian Burns -- accused of bludgeoning Rafay's family in Bellevue -- so that a Canadian judge would let them secretly videotape and tape-record the pair.
They plan to ask a judge to throw out incriminating statements the young men made to undercover Canadian police officers in 1995, one year after the killings.
"Clearly, the Canadian judge who signed the warrants was given false information," said Burns' attorney, Theresa Olson. "That is very concerning to us."
But King County prosecutors maintain they have "overwhelming evidence" against the pair, including DNA and confessions they allegedly made to a close pal.
"We believe that there's not an issue here, and that we'll be moving forward with the case," said Dan Donohoe, spokesman for the prosecutor's office.
A hearing date has not been set. Other pretrial matters will be argued in King County Superior Court this morning, including whether the identity of a supposed informant should be given to the defense.
Rafay, 25, and Burns, 26, are accused of killing Rafay's parents, Tariq and Sultana, and his autistic sister, Basma, 21, for insurance money and the family home. Rafay told police he and Burns found the gruesome scene early July 13, 1994, after returning home from a movie.
Within days, he and Burns returned to their homeland of Canada, and Bellevue police asked the Royal Canadian Mounted Police for help. The Mounties launched an undercover operation, befriending the young men and persuading a judge to allow electronic surveillance.
But Olson and co-counsel Neil Fox argue that more than 30 things that an RCMP officer told the judge -- possibly with the help of Bellevue police or King County prosecutors -- were misleading or wrong. Among them:
That Rafay and Burns were calm when police arrived, for example, though court documents say officers actually found Rafay "fidgety" and Burns so emotional he "could hardly speak."
Or that the slayings occurred during the only two-hour period that Burns and Rafay didn't have a provable alibi, even though the precise time of death wasn't known.
The lawyers also note that investigators didn't mention anything that could show that Burns and Rafay were innocent: That neighbors heard suspicious noises from the Rafay house at a time when the men were seen elsewhere. Or that "bloody footprints found in the garage did not match the shoes of either young man."
The attorneys say the judge's signature allowed investigators to bug the pair's Vancouver-area home, tap phone lines of their friends and relatives -- even secretly videotape the young men giving confessions they contend were coerced.
"This is not some little screw-up," Olson said. "Clearly, it goes beyond the level of an innocent mistake."
The prosecutor's office declined to discuss the specific defense claims, saying the matter would be handled in court. But documents they filed yesterday show that they have strong confidence in their case.
"The defendants have admitted their guilt -- to a friend, and to RCMP undercover officers, on videotape, in a manner almost unimaginably boastful and remorseless," Deputy Prosecutor Jeff Baird wrote.
The trial is set for May 6. The case was delayed for years by an extradition dispute between United States and Canada, which handed over the young men only after prosecutors agreed they would not seek the death penalty, which Canada does not recognize.
Canadian police may never reveal an informant's identity in the 1994 slaying of a Bellevue family, but a King County judge agreed yesterday that defense attorneys were entitled to details about the secret police operation that helped snare two suspects.
Atif Rafay and Sebastian Burns were charged with killing Rafay's family in 1995, after undercover Royal Canadian Mounted Police officers befriended them and secretly recorded the pair making incriminating statements. If the Canadian police are unwilling to divulge the strategies they used, Superior Court Judge Charles Mertel said he would ask a Canadian court to order them to do so.
Atif Rafay, charged in his family's 1994 slaying in Bellevue, was at the center of a contentious court hearing yesterday about whether he should be allowed to get new lawyers.
King County Superior Court Judge Charles Mertel said earlier this week that public defenders Gary Davis and James Keonig could withdraw from the triple-murder case, but prosecutors now hope to change his mind.
A hearing was set for April 8.
Rafay, 26, maintains in court documents that he doesn't trust his current counsel to advocate for him, protect his secrets and keep him informed about the case.
Yesterday, private attorney Tito Rodriguez argued on Rafay's behalf, while prosecutors argued that they should be privy to what went on in a series of closed-door hearings about Rafay's counsel.
An apparent rift between Rafay, his lawyers, and the lawyers of co-defendant Sebastian Burns has resulted in complaints to the state Bar Association and a no-contact order, though the details are contained in sealed files.
Deputy prosecutor James Konat said he doesn't want Rafay to get new lawyers because "there is no conceivable way they could be ready by October," when the trial is scheduled. Rodriguez said he believed it was possible.
The two undercover Canadian detectives pretended they were powerful crime lords with fancy cars, beautiful women and exorbitant amounts of cash at their fingertips, according to court documents.
They struck up a friendship with Sebastian Burns and Atif Rafay -- and supposedly persuaded the pair to confess to the 1994 Bellevue slaying of Rafay's family.
The undercover operation -- which involved electronically monitoring the young men's private conversations for months -- would have been of questionable legality in Washington.
Now a judge must decide whether the evidence gathered by Canadian officers can be used against Rafay and Burns in King County Superior Court.
The trial is set to begin in September.
The issue may come down to whether the Canadian officers conducted their secret investigation on their own, or at the behest of Bellevue police.
Judge Charles Mertel isn't expected to make a decision until at least next month, when the two undercover officers are expected to testify.
Yesterday, two other members of the Royal Canadian Mounted Police said the undercover operation was solely the idea of their police force and a tactic used in homicide investigations all the time.
Gary Bass, then the RCMP officer in charge of major crimes, said his agency had launched its own investigation into whether Rafay and Burns -- both citizens of Canada -- plotted the killings while on Canadian soil.
"Based on the time frames ... I felt quite comfortable believing that the planning had been going on for quite some time, and that it had been going on in Canada," Bass testified.
King County prosecutors acknowledge that Bellevue detectives did seek Canadian officers' help under an international treaty for legal assistance -- but mainly to get a DNA sample from Burns.
Deputy prosecutors Roger Davidheiser and James Konat contend that Bellevue police had no idea the RCMP would launch an undercover investigation that would involve bugging telephones, cars and homes.
But they say those tactics are perfectly legal in Canada, which by law means that the evidence can be used here.
In court documents, prosecutors say Rafay and Burns confessed to the slayings while being secretly videotaped, talking about the crime "in a manner almost unimaginably boastful and remorseless."
But attorneys for Rafay, Veronica Freitas and Marc Stenchever, contend that the young men merely offered false confessions out of fear. They say the undercover officers first told Rafay and Burns that if they knew all of the details of the slayings, they could use their crime organization's connections to have evidence destroyed.
When that didn't work, according to the lawyers, the officers led Rafay and Burns to believe the crime organization would have them killed if they didn't confess.
The attorneys argue that the operation "went beyond any and all permissible boundaries." They say Canadian police opened their own investigation -- for which charges were never filed -- only after Bellevue police realized that was the only way they would be able to use any of the RCMP's evidence.
And Burns' attorneys contend that Bellevue police were fully involved in the undercover operation -- they had contact with Canadian police at least 36 times during the last two and a half months of the undercover operation.
Rafay and Burns, now 27, were charged with three counts of aggravated murder in August 1995. It was just over a year after Rafay's parents, Tariq and Sultana, and his developmentally disabled sister, Basma, 20, were found bludgeoned in their home.
Prosecutors contend that Rafay and Burns hoped to get roughly $350,000 from the family estate, and Canadian authorities called their undercover operation "Project Estate."
Canadian police also surreptitiously got a sample of Burns' DNA by grabbing a tissue the young man discarded at a coffeehouse after blowing his nose. The DNA allegedly matches hair found in a shower at the Rafay home, where police allege that Burns washed away blood after the slayings.
Burns and Rafay remained behind bars in Canada during a lengthy extradition battle. They were brought to King County in March 2001.
A former best friend of Atif Rafay and Sebastian Burns, both accused in a triple slaying, said they had talked in 1994 about killing Rafay's family -- even discussing ways to do it and working out an alibi.
On the witness stand yesterday in a pretrial hearing, Jimmy Miyoshi said he never wanted to testify against the two men, who face trial in November in the killing of Rafay's parents and sister in their Bellevue home. Miyoshi lives in Japan now and acknowledged that he has essentially been hiding from King County prosecutors for years.
But he came to King County Superior Court this week, partly because his boss found out about the matter and urged him to take care of it.
Now attorneys are questioning him about the slayings -- and videotaping every word in case he is unwilling to return for the trial.
Burns' lawyers said it will be up to jurors to decide whether Miyoshi is telling the truth, suggesting that he might fear losing his job or even facing criminal charges if he doesn't cooperate with authorities.
This week, Jimmy Miyoshi testified that Rafay and Burns, now both 27, had talked in early 1994 about killing Rafay's family. He said that at least one of them had mentioned getting insurance proceeds, but he "didn't believe that insurance was the sole reason."
Miyoshi said that one day, as they relaxed by a creek near his parents' home in Canada, the three of them chatted about ways they could do it.
Someone came up with the idea of leaving the gas on in the Rafay family kitchen, he said, and Burns suggested using a baseball bat.
Miyoshi, who said he couldn't remember many details, said a bat was thought of as "a quick, painless way of killing someone."
He also said Rafay and Burns told him afterward about the slayings. He said Rafay first lured his mother downstairs so that Burns could bludgeon her.
Jimmy Miyoshi said Sebastian Burns told him it "wasn't the easiest or most pleasant thing to do," but once he had struck Atif's mother, "there was no going back." Rafay's father and sister were attacked next, he said.
Miyoshi said Burns and Rafay had crafted an alibi. They went to a showing of "The Lion King," which police say they left early to commit the slayings, and other public places that night, trying to attract attention so that people would remember seeing them, Miyoshi said.
Burns' attorney, Jeff Robinson, noted that Jimmy Miyoshi has changed his story since he was arrested with Rafay and Burns in 1995, adding new and seemingly incriminating details as recently as this week.
Miyoshi acknowledged that he never told investigators anything about his friends planning an alibi.
He admitted lying about the case on several occasions, saying he had "mixed feelings" -- and still does -- about testifying against his friends.
Robinson said Miyoshi called Burns' lawyers recently and asked, "How would the situation change if I were to be a witness for your side?"
Authorities in Canada gave Jimmy Miyoshi immunity years ago, promising that he wouldn't face criminal charges if he told them what he knows about the slayings and testifies in Rafay's and Burns' trial.
Defense lawyers have suggested that the agreement has prompted Miyoshi to say what police want to hear.
Rafay's parents, Tariq and Sultana, and their 20-year-old autistic daughter, Basma, were bludgeoned in July 1994.
Within days, Rafay and Burns returned to Canada, where they are citizens. They were charged with the slayings in 1995, touching off an extradition battle that lasted years.
Jurors will be allowed to hear Atif Rafay and Sebastian Burns talk on videotape about the slayings of Rafay's family as well as other evidence from an elaborate Canadian police operation that had undercover officers pretending to be high-rolling criminals.
King County Superior Court Judge Charles Mertel turned down defense attorneys' request yesterday to throw out the evidence, finding that the officers' tactics -- essentially unheard of in Washington -- were perfectly legal in Canada.
Mertel agreed with a Canadian judge's ruling that the officers "engaged in tricks, but not dirty tricks" in their investigation, and he did not find that the undercover officers coerced Rafay and Burns into talking to them.
Rafay and Burns are charged with the 1994 bludgeoning deaths of Rafay's parents, Tariq and Sultana, and his autistic 20-year-old sister, Basma, in their Bellevue home. If convicted, they would face life in prison.
Attorneys have been arguing over the evidence -- and the way the Royal Canadian Mounted Police went about getting it -- for months in King County Superior Court.
Yesterday's ruling was key to how both sides present their cases in the trial next month.
"The jury is going to hear the whole story, not just the parts the defense couldn't keep out," deputy prosecutor James Konat said.
Burns' attorney, Song Richardson, said it would also be important for jurors to hear how the supposed confessions came about.
"When police officers pretend to be mobsters -- when they lie, threaten and intimidate teenagers in order to manipulate them into a world of organized crime -- they create the recipe for a false confession," Richardson said.
Attorneys for Rafay, 27, and Burns, 28, have argued all along that the Canadian police investigation "went beyond any and all permissible boundaries." It began after Rafay and Burns, both Canadian citizens, returned to the Vancouver area shortly after the slayings.
Undercover officers befriended the young men and pretended to be big shots in a world of crime, money and guns. They also began monitoring the men's conversations by planting bugs in their telephones, cars and home.
The officers eventually got the pair to talk about the slayings -- while being secretly videotaped -- in what prosecutors have called an "almost unimaginably boastful and remorseless" way.
But defense attorneys argued that the officers got the young men, who were then just teenagers, to "confess" by implying their mob would have them killed if they didn't.
The attorneys maintained that the Canadian officers did it for Bellevue police, who wanted to solve the Rafay family slayings but couldn't legally use such tactics themselves.
Prosecutors acknowledged that Bellevue detectives asked Canada for help, but they said the detectives had no idea that RCMP officers would start masquerading as powerful crime lords and would secretly be listening to the suspects' private conversations.
Prosecutors argued that Canadian police had their own purpose: They were investigating Burns and Rafay for conspiracy and insurance fraud, suspecting that the pair planned the slayings in Canada to get insurance proceeds.
Yesterday, Mertel found that "there was, without question, extensive sharing of information" between Bellevue and Canadian police, but he found that Bellevue police weren't calling the shots.
He also rejected defense attorneys' argument that Canadian police couldn't have gotten a judge's approval to plant recording devices if they hadn't lied, making the evidence against Rafay and Burns sound far more incriminating than it was.
Mertel noted that a sergeant did make mistakes in his sworn statement to the judge, but said they weren't intentional.