“Delays big issue in Rafay case; prosecutors slow to share evidence, defense complains.”
Michael Ko, Seattle Times 27/07/01

In July 1994, after three people in the Rafay family were found bludgeoned to death in their Bellevue home, investigators carefully shot 35 rolls of film of the crime scene.

Seven years later, and six years after Atif Rafay and Sebastian Burns were charged with the slayings — and fled to Canada and were returned here — their attorneys have obtained copies of the photos. But they've been given no log explaining what each represents.

"A picture of a ruler being held (next) to something is of no value to the defense," said Theresa Olson, the Seattle attorney who represents Burns. "How the state can expect the defense to know what these photos pertain to is beyond comprehension.

"This is not the kind of thing where you want to get the results two minutes before the trial starts. We need this evidence to prepare our defense."

The speed of justice — or lack of it, according to the defense — has become an issue in one of the bloodiest slayings in Bellevue memory.

Federal law requires that evidence and information the prosecution intends to use to prove its case must be shared with the defense before the trial can begin. It's called discovery.

And in a case heavy with forensic evidence, the photo log is a crucial reference piece.

Prosecutors deny withholding or delaying handing over evidence and say the sheer volume of evidence — there are more than 13,000 pages of documents and thousands of hours of audiotape and videotape — have slowed discovery. International issues have complicated the procedure as well — much of the evidence in the case was gathered in Canada.

Defense attorneys, nonetheless, fear that delays in handing over the log and other pieces of discovery mean it will take even longer for their clients to finally appear in a courtroom and fight the charges against them.

The lawyers are to appear this morning in King County Superior Court to ask Judge Charles Mertel to help speed things up. They say it will probably be next spring, at the earliest, before the case reaches trial.

"Without knowing what the evidence is, who has it, where it is, and if we will ever see it, we cannot reasonably forecast when we will be ready (for trial)," Olson said. "If we are forced to wait until the state finally provides the requested information, Mr. Burns may spend another six years in custody."

Burns and his high-school classmate, Rafay allegedly hatched a plan to kill Rafay's parents and sister to collect $350,000 in insurance money to finance a movie-making scheme. According to prosecutors, Rafay watched as Burns beat the three to death with an aluminum baseball bat.

The pair fled to Canada, where they are citizens. They were arrested a year later, allegedly after Burns made incriminating statements to undercover police officers posing as international gangsters. Prosecutors said Burns, trying to prove he had the mettle to be a mobster, gave "painstaking details" of the way he killed the Rafay family.

Burns and Rafay have spent almost six years in Canadian jails, awaiting extradition while an international debate on the death penalty swirled around them.

Canada, which has banned capital punishment, refused to send the pair to a country that supports it. That impasse ended when King County prosecutors promised not to seek the death penalty for the pair if they're convicted. They were transferred to the King County Jail on March 29.

Besides the photo log, the defense says other missing pieces are:

• The identity of a police informer who knows a Canadian mobster who allegedly admitted and boasted about killing the Rafays.
  
• The results of 22 hair samples and 137 latent fingerprints lifted from the Rafay house.
  
• A copy of the 911 call made by Burns after the slayings.
  
• A copy of four recorded statements taken from Burns and Rafay.
  
• Thousands of hours of undercover audiotape and videotape taken by the Royal Canadian Mounted Police, who spied on the pair in Vancouver, B.C.

Complicating matters is that Burns' and Rafay's attorneys have little if any jurisdiction over foreign agencies; they cannot subpoena evidence from Canada.

Prosecutors say they are working with Canadian authorities and U.S. federal agents to get the information. All the evidence will be forwarded "in a reasonable amount of time," they said.

"The preparation of this case, and eventually the presentation of it, will involve witnesses from all over North America," said Senior King County Deputy Prosecutor James Konat. "It should be no surprise ... that (the defense) recognizes the monumental effort involved. They have chosen to fight this case procedurally rather than substantively.