Prosecutor James Konat: A win-at-all-costs kinda guy
Sprawled on a couch, Sebastian Burns casually explained that he killed the parents and sister of his best friend, Atif Rafay, one at a time before showering off their blood and making sure the baseball bat he used was "long gone."
Rafay, sipping from a bottle of beer in the hazy video footage, talked about feeling "pretty rotten" about his role in the slayings but calling them "a necessary sacrifice."
Yesterday, parts of their secretly videotaped conversations were a King County jury's blunt introduction to the murder case against the two young men, now on trial for the Bellevue family's slayings in July 1994.
Rafay and Burns are accused of bludgeoning Rafay's parents, Tariq and Sultana, both 56, and his mentally disabled sister, Basma, 20, just months after the family had moved from Vancouver, B.C., to Bellevue's Somerset neighborhood.
Prosecutors contend the men, both Canadian citizens who were 18 at the time, arrogantly believed they could outsmart police with a "perfect murder" and sought about $350,000 in life-insurance proceeds.
Defense attorneys, however, say Rafay and Burns couldn't have done it -- they were seen elsewhere when two different neighbors heard the fatal blows, and evidence found in the house points to others.
Burns' attorney, Song Richardson, told jurors that the men gave false confessions because undercover Canadian officers convinced them that they would be arrested or even killed if they didn't.
The trial is expected to last through April. Opening statements began yesterday in the case that has endured numerous twists, from fueling international debate over capital punishment to a sex scandal involving Sebastian Burns and former lawyer, Theresa Olson. If convicted, Rafay, 27, and Burns, 28, would spend the rest of their lives behind bars.
Yesterday, deputy prosecutor Roger Davidheiser told jurors they would "see and hear the defendants describe, in chilling detail, why and how they killed each member of the Rafay family ... and in sickening detail, how it felt."
Jurors watched the snippets of videotape, which Canadian police recorded in an elaborate 1995 investigation that involved undercover officers befriending the pair and pretending to be powerful crime lords.
In the tape, Burns called the killings "more nerve-racking than we expected," but said he was "a lot happier than if it didn't happen." With a chuckle, he said Basma Rafay "was standing up and walking around or whatever" -- calling it "a curious episode."
The young woman, who was autistic and unable to speak, frantically tried to fight and get away from her killer, according to Davidheiser. Still alive when police found her in her room, she died within hours.
Rafay said he "just didn't have the nerve" to help Burns bludgeon his family, so he stood around, then "yanked out a VCR" in what police say was an effort to make the crime look like a robbery.
"In general, I was pretty freaked out by what I saw," Rafay said.
Davidheiser said Burns' hair along with Tariq Rafay's diluted blood was found in a shower in the Rafay family home. He also said the pair told a friend about their plan to make sure they were seen at a restaurant and a movie that night.
Police contend the pair sneaked out of the movie to commit the crime.
But Richardson told jurors that Burns and Rafay didn't kill the family because they couldn't possibly be two places at once.
Neighbors were certain they heard pounding noises coming from the Rafay house no later than 10 or 10:15 p.m. Rafay and Burns were seen at the theater around 10 watching "The Lion King," and Richardson said no one saw them leave.
She said plenty of evidence showed someone else killed the Rafay family: A mystery fingerprint on the shower door. A bloody shoe mark in the garage that didn't match either teen's shoes. An unidentified hair found near Tariq Rafay's body.
Canadian police even got a tip from a secret informant who had allegedly heard about a $20,000 contract to kill an East Indian family in Bellevue several days before the Rafays were slain. The caller suggested a convicted criminal was involved.
Richardson urged jurors to carefully consider the supposed confessions that Burns and Rafay gave to undercover officers, contending they were scared teenagers who were intimidated and threatened.
Burns was convinced that Bellevue police were "trumping up a case against him," she said. The undercover detectives, pretending to be ruthless crime lords, said they would help him destroy any evidence against him if he admitted to the slayings.
They even went so far as to convince Burns that if he got arrested, they would have him killed to make sure he didn't rat out their crime organization to police, Richardson said.
"So Sebastian did his best to convincingly confess to a crime that he didn't commit in order to survive," she told jurors.
She said Rafay's and Burns' supposed confessions were conspicuously vague and "don't mach the physical evidence" found in the Rafay home, such as signs that "multiple people" were in Tariq Rafay's bedroom when he was killed.
Nearly 10 years have passed since the slayings stunned Bellevue neighbors and the Muslim community in Vancouver, where the family had lived for years after the parents emigrated from Pakistan.
It was Burns who called 911 early July 13, 1994.
He and Rafay, both considered exceptionally intelligent teens who had just finished their first year in college, told police they'd been staying with Rafay's parents and came back to find them dead.
They answered questions, gave fingerprints and let investigators examine their clothes and shoes. Two days later, while prayers were being said over the three coffins at a mosque in North Seattle, Rafay and Burns were on a bus back to Vancouver.
Police worked to solve the slayings as the teens lived in Canada. They wanted a DNA sample from Burns but couldn't force him to give one, leaving investigators to snatch a napkin that he had blown his nose on and discarded.
Royal Canadian Mounted Police embarked on its secret investigation using techniques that aren't generally legal in the United States, such as bugging the teens' home, phones and cars.
Burns and Rafay were arrested in the summer of 1995, but their extradition took nearly six years in battle over the death penalty.
Canada abolished capital punishment in 1976 and wouldn't hand over two of its citizens if they might face execution.
After numerous appeals, Canada's highest court essentially forced King County Prosecutor Norm Maleng to promise he would not seek execution before sending the pair back here.
Burns and Rafay have remained in the King County Jail since March 2001, waiting for trial for nearly three years that have been far from uneventful.
A judge appointed new public defenders for Rafay after he couldn't get along with his original ones, and Burns was given new lawyers after he and lawyer Theresa Olson were caught in a sexual encounter in a small interview room at the jail.
Then earlier this year, Superior Court Judge Charles Mertel heard months of testimony to decide whether the jury should be able to hear what Rafay and Burns told the undercover Canadian detectives, eventually finding the evidence admissible.
Atif Rafay's father gave him intellectual guidance, helping him become the brilliant young man who was valedictorian of his high school class.
His older sister was mentally disabled, losing her ability to speak when Rafay was young, and his mother was dedicated and nurturing to both of them.
"They were the only family he had," Rafay's attorney, Veronica Freitas, told a King County Superior Court jury yesterday. "They were the family for whom he was not allowed to grieve."
Rafay's parents and sister were beaten to death in their Bellevue home in July 1994, and now Rafay and his best friend, Sebastian Burns, are on trial for the killings.
King County prosecutors contend the pair, both Canadian citizens who were 18 at the time, hoped to collect life-insurance money and make a movie that would earn millions.
The young men later bragged about the baseball-bat beatings to undercover Canadian investigators and a close friend, a deputy prosecutor told jurors earlier this week.
But in her opening statement yesterday, Freitas said Rafay was dependent on his family -- they gave him food and shelter and made it possible for him to attend Cornell University.
Just after the killings, Rafay told police that "they were the most supportive family in the world. They helped me out. Now I have nothing."
Freitas told jurors Bellevue police immediately decided Rafay and Burns were the killers and twisted everything they did -- including their decision to head back to Vancouver, B.C. -- to reinforce that idea.
She said evidence showed someone else committed the crime, maybe an assassin hired by a Canadian crime family.
An informant told Canadian police of hearing about an alleged murder-for-hire plot shortly after the slayings.
Freitas said Rafay's father was likely the main target -- his face was beaten far more brutally than what it would have taken to end his life.
Rafay and Burns told police they had been out all evening and returned at 2 a.m. on July 13, 1994, to the family's split-level home.
Sultana Rafay, 56, was dead in the family room, and Tariq Rafay, also 56, had been bludgeoned in his bed as he slept.
Basma Rafay, 20, was moaning in her bedroom, and her brother didn't try to help her.
Freitas told jurors Atif Rafay was stunned and couldn't bring himself to go in there.
They weren't charged with the slayings until the following summer in Canada, after an elaborate undercover investigation by the Royal Canadian Mounted Police.
Defense attorneys contend the confessions that the pair gave the undercover officers -- who had spent months posing as high-rolling criminals -- were the result of fear and intimidation.
Prosecutors, however, say the secretly videotaped admissions show the teens unquestionably killed the family, figuring they could outsmart police, and that they felt very little remorse.
The trial, which began Monday, is expected to last through April. If convicted, Rafay and Burns, who are now in their late 20s, would go to prison for life.
A King County Superior Court judge has removed a juror from the triple-murder trial of Sebastian Burns and Atif Rafay for alleged misconduct, prompting motions for a mistrial from defense attorneys.
The expulsion Wednesday came after a juror sent Judge Charles Mertel a note saying juror No. 4, a woman in her 40s, allegedly said, "I'll do whatever is necessary to get off this (expletive) trial."
In open court but with the other jurors removed, Mertel asked the woman about her comments. She denied the statement but said she might have said, "I wanted to go home."
Rafay and Burns are accused of aggravated murder in the 1994 bludgeoning deaths of Rafay's parents, and sister.
Sebastian Burns told the jurors who will decide his fate that he had nothing to do with the brutal slaying of his best friend's family in Bellevue 10 years ago -- but that he pretended he did because he was scared he would end up dead himself.
Admittedly nervous on the witness stand yesterday, Burns said he gave a phony confession to two undercover Canadian police officers who were posing as dangerous criminals because he thought it was what they wanted to hear.
So when they asked him, he said, he never denied killing Atif Rafay's family.
"The risk seemed almost pointless," Burns told jurors in King County Superior Court, "and it seemed to us the best and safest thing would be to play along."
Burns and Rafay, both 28, are charged with three counts of aggravated murder for the July 1994 deaths of Rafay's parents, Tariq and Sultana, both 56, and his autistic sister, Basma, 20. All were bludgeoned in their home in the Somerset neighborhood.
King County prosecutors contend that Rafay and Burns, both Canadian citizens who were 18 at the time, wanted to get their hands on roughly $350,000 in life-insurance proceeds and believed they could outsmart police with a "perfect murder."
Jurors already have heard the testimony of the pair's close friend, Jimmy Miyoshi, who said Rafay and Burns carefully planned the crime and told him about it afterward.
Rafay's attorneys said they haven't decided whether Rafay will testify in the trial, which began nearly six months ago and could wrap up within weeks.
Yesterday, Burns was talkative and articulate, though he occasionally faltered. "My apologies," he said more than once when asking his attorney, Jeff Robinson, to repeat a question. He acknowledged being afraid that he might not "speak well" after spending nine years in the unsociable setting of jail.
He told jurors that he had become afraid of the Canadian police officers who befriended him in a long 1995 undercover operation. The officers, posing as high-rolling criminals, began soliciting his help in staged crimes such as laundering money and stealing a car.
One of the men told Burns he had killed someone before, and Burns said he made up his mind that he "was simply never, ever going to cross him."
Eventually, he told the two men he didn't want to be involved in their criminal activity anymore, and Burns said it didn't go over well.
Burns said the men seemed worried that he would turn them in to police, and that at one point, they stared hard at each other for a long time while Burns watched in alarm.
"I thought they were deciding right then whether they were going to kill me," Burns testified.
The two undercover officers began pressuring him to give details about the Rafay killings, saying they could help him destroy evidence. Burns said he feared they would have him killed if he didn't, believing they were worried he would rat out their supposed crime organization to police if he were arrested.
Burns said he and Rafay agreed to "confess" to these supposed criminals, but that he was forced to be evasive because he knew only what he had heard and read in the newspapers about the slayings. Burns said one of the undercover officers "wanted me to give him an A-to-Z story about the crime so he could sabotage the evidence. I didn't have an A-to-Z story because I didn't do it."
Prosecutors may cross-examine Burns today or tomorrow.
They contend that Burns beat all three members of the Rafay family with a baseball bat while Rafay tried to make the house look as if it had been robbed. Investigators found Burns' hair in a shower with Tariq Rafay's diluted blood.
Burns called police early July 13, 1994, and said he and Atif Rafay had come home to find the bloody scene.
But in past months, jurors have seen footage of Burns and Rafay casually talking about killing the Rafay family. Canadian officers secretly bugged their house and cars, and they videotaped some of their meetings with the undercover officers.
In the video footage, Burns called the killings "more nerve-racking than we expected," but said he was "a lot happier than if it didn't happen." Rafay told the undercover officers he "just didn't have the nerve" to help Burns bludgeon his family and "was pretty freaked out" by what he saw.
The pair told police they went out for dinner and a movie that night. They were seen at more than one restaurant and a Bellevue showing of "The Lion King." Prosecutors contend the pair made sure they were seen, then crept out of the darkened theater to commit the crimes.
Rafay and Burns returned to Canada within days of the slayings. They were arrested the following year, though a battle over their extradition lasted several years.
The case has endured many twists, from fueling debate about capital punishment to a sex scandal involving Burns and a former lawyer. If convicted, Rafay and Burns would be sentenced to life in prison.
On the witness stand in his triple-murder trial, Sebastian Burns was cross-examined yesterday about the victims' life-insurance money, his distrust of police and his past claim that he had "no use for people of less intelligence" than himself.
Burns, 28, acknowledged knowing that his friend, Atif Rafay, received some life-insurance money after the 1994 slayings of Rafay's family and could get $225,000 more, which could help their plans to make a feature film called "The Great Despisers."
He also acknowledged that some of the money went toward buying them a fancy new car.
But in his second day of testimony, Burns continued to reiterate -- often without being asked -- that he was not involved in killing Rafay's family.
Burns and Rafay are charged in the bludgeoning death of Rafay's parents, Tariq and Sultana, and his developmentally disabled sister, Basma, 20, in their Somerset-neighborhood home.
Prosecutors contend that the young men, both 18 at the time, wanted to get their hands on more than $300,000 in life-insurance proceeds. They say the young men, both highly intelligent, were arrogantly convinced that they could kill Rafay's family without getting caught.
Yesterday, Burns acknowledged once telling an undercover police officer that he and Rafay were "among the smartest people in the world" and that he has no use for people who aren't.
He called it merely "a fun thing to say."
"I do remember boasting how smart I was, and how smart my friends were," Burns said. "I did have a lot of arrogant attitudes back then."
Deputy prosecutor Roger Davidheiser questioned Burns extensively about his friendship with a key prosecution witness, Jimmy Miyoshi.
Jimmy Miyoshi has testified that Sebastian Burns and Atif Rafay talked about the slayings before and after Rafay's family was killed and said that they carefully planned an alibi.
Burns acknowledged that he talked to Miyoshi often, including the day before the slayings, and that he was a very good friend.
He once even remarked that Rafay and Miyoshi were such close friends that "if they were girls, I'd marry them."
But he also said that while he once trusted Jimmy Miyoshi implicitly, he "never anticipated that anybody was going to give false testimony against us."
Burns and Rafay were arrested in 1995, after they confessed to the slayings to two undercover Canadian police officers who were posing as dangerous, high-rolling criminals.
On the witness stand, Burns has maintained that the officers intimidated them into admitting to a crime they didn't commit.
Burns also told jurors he was concerned that police might fabricate evidence against him, and he acknowledged thinking that police might have bugged the phone in the motel room where he and Rafay were staying right after the slayings.
Davidheiser wanted to know why Burns, as merely a witness to a crime, would be so worried about the police.
Burns said the idea that the phone was tapped came from his father, who told him to make all of his calls from a pay phone.
Rafay is not expected to take the witness stand in the trial, which could wrap up next week in King County Superior Court.
Burns' testimony will continue today.
Wearing a blue shirt and tie yesterday, he was calm as he addressed the jury, though he occasionally appeared flustered as he tried to answer questions precisely or find the right words.
He repeatedly denied Davidheiser's suggestions that he was making up a story about being innocent and giving a phony confession, saying repeatedly: "It's the truth."
The deputy prosecutor and defendant did agree on one thing:
"These were horrendous murders, wouldn't you agree, sir?" Davidheiser asked.
Burns replied: "Absolutely."
The people who bludgeoned three members of a family nearly 10 years ago were obviously familiar with the family's Bellevue home and comfortable enough to stay and shower off the blood, a deputy prosecutor told jurors yesterday.
The killers also knew that as they beat to death Sultana and Tariq Rafay, he said, the couple's severely autistic daughter wouldn't be able to call 911.
King County deputy prosecutor James Konat said the slayings were not, as defense attorneys have suggested, the work of a hit man, robbers or some group who opposed the Rafays' religious views.
"This," Konat told jurors, "is what we call in the business 'an inside job.' "
Closing arguments began yesterday in the trial of Atif Rafay and Sebastian Burns, who are charged with killing Rafay's parents and his developmentally disabled sister, Basma, 20, in July 1994.
Prosecutors began summing up the evidence they've presented since the trial began nearly six months ago, from what they contend was a phony alibi to the confessions Rafay and Burns gave undercover Canadian police.
Konat said the pair "systematically executed" the family knowing Rafay stood to inherit assets worth roughly $500,000 as the only heir.
Attorneys for Rafay and Burns will give their closing arguments today and tomorrow, and jurors could begin deliberations Friday.
Defense attorneys have said Rafay and Burns merely discovered the brutal crime early July 13, 1994, and were later intimidated into giving false confessions.
They contend that there was strong evidence that someone else killed the family, including a mystery fingerprint, an unidentified bloody shoe mark and evidence that Tariq Rafay had religious enemies because of his controversial beliefs.
But yesterday, Konat told jurors that only Atif Rafay and Burns could have pulled it off.
He said they knew Rafay's father already would be asleep when they lured his mother downstairs and that the woman -- who had no reason to fear her own son and his best friend -- was killed first.
He said Rafay's father was next, beaten by someone who clearly knew the layout of the family home even though most of the lights were off, then Rafay's sister was attacked in her room.
Drawing objections from the defense, Konat told jurors that what Rafay and Burns did to Rafay's family was worse than the recent beheading of an American in Iraq. Rafay's attorney, Marc Stenchever, called the remark a "blatant emotional plea to the jury" -- and one made worse by the fact that Rafay is Pakistani. He asked for a mistrial, though Judge Charles Mertel denied it.
Burns and Rafay told police they were at a movie the night the killings occurred, but prosecutors contend that the pair crept out of the theater to commit the crime. They returned to the Rafay home later and called 911.
According to Konat, they didn't act like two young men who had stumbled into a horrific crime. Rafay didn't try to find out whether his mother was still alive when he saw her lying on the floor, Konat said, nor did he immediately run to check on his father.
Two different people recalled hearing pounding noises coming from a house where a Bellevue family was bludgeoned at the same time that Atif Rafay and Sebastian Burns, now on trial for the crime, were seen at a movie theater.
That, Rafay's lawyer said yesterday, is all jurors need to know to find that the young men did not kill Rafay's parents and older sister in July 1994.
"Don't ignore evidence that Atif Rafay is innocent and was somewhere else when his family was slaughtered," attorney Marc Stenchever urged the King County Superior Court jury in his closing argument.
One of Burns' attorneys is expected to sum up his case today, and jurors are expected to begin deliberations in the triple aggravated-murder case tomorrow.
King County prosecutors contend Rafay and Burns created an alibi July 12, 1994, making sure they were seen at a 9:50 p.m. showing of "The Lion King" before sneaking out and beating Rafay's parents, Tariq and Sultana, and his sister, Basma, 20, with a baseball bat to get inheritance money.
Prosecutors have suggested that the two witnesses were mistaken about the timing of the noises or heard something other than the slayings.
They say Rafay and Burns, both 18 at the time, bragged to a close friend and two undercover Canadian police officers about leaving the movie to commit the crime. The two fled to Canada after the slayings.
But yesterday, Stenchever said two of the Rafay family's neighbors gave clear, detailed descriptions of the odd hammerlike sounds coming from the Rafay home before 10 p.m. One neighbor testified it sounded as if someone was hanging pictures and put a gash in a wall, which is exactly what police found near Rafay's mortally wounded sister.
Stenchever emphasized that Rafay and Burns were still at the movie at 10 o'clock. That's about the time the curtain malfunctioned, failing to reopen after the previews, according to witnesses, and it was Burns who reported the problem to the manager.
Stenchever also argued that police centered their investigation on Rafay and Burns, refusing to follow tips that might lead elsewhere, and said that prosecutors built a case on speculation and piles of "meaningless evidence."
He urged jurors to consider that the supposed confessions that each young man gave to undercover Canadian police officers in 1995 didn't match each other or the physical evidence found in the house.
He also pointed to the horrific violence of the slayings, particularly in the death of Tariq Rafay, and suggested it was more likely some kind of hate crime. Jurors have heard that the man's religious views may have angered other Muslims, and they've seen disturbing pictures of the man's badly beaten body.
"Does he look like he was killed by a teenager who wants his inheritance?" Stenchever asked. "That was the work of someone who was trying to send a message."
A jury will begin deliberations this morning in the 1994 killing of a Bellevue family after hearing almost six months of fiercely disputed testimony about an alibi, forensic evidence and an undercover investigation designed to snare the two suspects.
In his closing argument yesterday, defense attorney Jeff Robinson said jurors simply could not convict Atif Rafay and Sebastian Burns of killing Rafay's family because too much evidence -- from traces of unidentified DNA to an informant's tip about a planned "contract killing" -- points elsewhere.
"How many times does the evidence have to tell us that it's not Sebastian, and it's not Atif, before we listen?" Robinson, who is defending Burns, asked the King County Superior Court jury.
Rafay and Burns would spend the rest of their lives in prison if convicted of aggravated murder in the beating deaths of Rafay's parents, Tariq and Sultana, and his developmentally disabled sister, Basma, 20, in their Somerset-neighborhood home.
Prosecutors contend Burns used a baseball bat to kill each person on July 12, 1994, as Rafay, his best friend, moved things around to fake a robbery. Both men were 18 when the slayings occurred and told police they'd been at a movie.
In past months, jurors have had the rare opportunity to see and hear the men discuss and even admit to the slayings in both video footage and audio recordings, which were captured in 1995 by undercover Canadian police officers who were posing as high-rolling criminals.
But Robinson urged the jurors to consider the officers' tactics. He said they used intimidation and lies to convince Burns he'd end up either in jail or dead if he didn't start telling them what they wanted to hear.
"And that's how he ended up on a couch, sipping beer and claiming responsibility for something he did not do," Robinson said.
He told jurors that blood evidence revealed that at least three people committed the slayings with at least two weapons, which doesn't even remotely fit with prosecutors' theory that Burns was armed only with a bat and swung it alone.
"The truth is, we still don't know who committed these murders," Robinson said.
Deputy prosecutor James Konat, however, told jurors that finding the pair guilty "might be one of the easiest decisions you've made in a long, long time."
He asked them to recall video footage of Burns explaining that Basma Rafay was "standing up and walking around" as he was trying to kill her, requiring more "bat work" -- though Burns contends he said "effort" -- than the other two victims.
Konat said the fact that the young woman tried desperately to get away -- shown by the blood and broken wallboard in her bedroom -- is something only her killer would know.
But he said it was even more telling that Atif Rafay, whose own sister was the topic of the secretly videotaped discussion, joined Burns in chuckling about it.
"There is simply no way to explain the way they acted," Konat said. "It is truly gut-wrenching to listen to those confessions and how they laughed" about the killings.