“Defense in Rafay killings says FBI memo mentions possible terrorist involvement.”
Mike Carter, Louis T. Corsaletti, Seattle Times 8/04/00

The document, now in the possession of the Seattle Police Department, is being sought by attorneys for one of the men jailed in Canada in connection with the 1994 triple homicide in Bellevue. But federal prosecutors are suing to get it back, and the police, caught in the middle, are waiting for a court to sort out the matter. 

Defense attorneys are trying to get their hands on a secret FBI memo they say may implicate a violent Islamic group in one of the worst murders in Bellevue's history, the 1994 slaying of the Rafay family.

The memo is currently in the possession of the Seattle Police Department, which isn't giving it up - not to the two defense attorneys and not to federal prosecutors who are suing to get it back, claiming it belongs to the FBI.

Prosecutors and Bellevue detectives say the supposed terrorist link is much ado about nothing. Police discounted it years ago. The Rafay crimes didn't fit the pattern of a terrorist execution, they say. They have charged two men with the killings - Atif Rafay, the son and brother of the victims, and Sebastian Burns.

Bellevue police say an exhaustive investigation led them to Rafay and Burns "with evidence which linked them directly to the murders," said Lt. Ed Mott, who headed the Rafay investigation. "In this case, we let the evidence tell us what happened."

Nevertheless, the controversy surrounding the memo adds another legal knot in an already tangled prosecution. Indeed, the case is strikingly similar to the quagmire that continues to engulf the prosecution of Seattle's most heinous murder case - the 1983 Wah Mee Social Club killings in the International District.

The two defendants in the Rafay killings remain in custody in Canada, where they have been since two days after Atif Rafay's 56-year-old parents and 19-year-old sister were found bludgeoned to death in their Bellevue home July 12, 1994. Burns and Atif Rafay were charged with three counts each of aggravated murder in July 1995 after the Royal Canadian Mounted Police, at the behest of Bellevue Police, mounted an undercover operation they say resulted in incriminating statements.

Burns, according to charging documents, stripped to his underwear that night and went from room to room in the Rafay house, wielding an aluminum baseball bat. He then showered and dressed and he and Atif Rafay went out on the town to party.

The motive, police say, was insurance money and the proceeds from the sale of the Rafay home.

So far, Canadian officials have refused to extradite the pair because prosecutors here won't promise not to seek the death penalty against them. Both are Canadian citizens, and Canada abolished capital punishment in 1976.

In the weeks after the killings, Bellevue police pursued a number of leads. According to documents filed in Superior Court, one tip passed to Bellevue investigators from a Seattle Police intelligence detective involved the possible involvement of an international radical Black Muslim organization known as Fuqra.

Fuqra, or Al-Fuqra, according to the Seattle Police detective, had "local ties to Seattle," and police had been collecting intelligence on the group for some time. "They target Muslims who do not practice the faith or interpret the Koran as they do . . . they punish these unfaithful persons by bombing, stabbing and murdering them," according to the documents in the court file.

Reports at the time of the killings said the Rafay family practiced Islam and was devoutly religious. Burns' defense attorneys also claim Bellevue police received information from Canadian authorities that another man - with connections to a Vancouver crime family - had confessed to the killings.

What the defense attorneys have done is subpoena information about Fuqra from the Seattle Police Department - a move that alarmed the U.S. government, since it had shared the sensitive FBI Fuqra memorandum with police. The memo, apparently drafted several years ago, sat unnoticed in police files until Burns' attorneys recently learned of it.

"As Mr. Burns' counsel, the fact that a member of law enforcement suspects that others may be involved in committing this crime obligates us to look into it," said Theresa Olson, one of Burns' pubic defenders. "We need to be able to investigate that ourselves, and that is what we are going to do."

In order to try to keep police from turning the memorandum over to defense lawyers, federal prosecutors Thursday sued the Police Department in U.S. District Court. The lawsuit seeks an injunction and the memo's immediate return.

"This is not an antagonistic lawsuit," said Assistant U.S. Attorney Harold Malkin. "We understand that the police are between a rock and a hard place. But that document belongs to the United States government and was loaned to them. It is not theirs to give out."

Seattle Police legal adviser Leo Poort said the department has been placed in an awkward position - it can't return the memo to the FBI because of the defense subpoena. And it won't give it to Burns' defense because of federal legal concerns.

"I'm not going to do anything until a court determines what we should do," Poort said.

A hearing is set in King County Superior Court for April 17 on a motion by Burns' lawyer to force the department to comply with the defense subpoena.

Malkin expects to seek a hearing before a federal judge on his injunction sometime next week.

Whatever happens, the controversy is likely to further complicate an already complex prosecution. Similar issues have prevented King County from seeking a new death penalty against Kwai Fan "Willie" Mak - convicted in the 1983 execution-style slayings of 13 people at the Wah Mee Social Club in old Chinatown - for the past decade.

In that case, Mak sued the FBI because it refused to disclose the source of secret information he claimed was vital to his defense. Mak lost his federal lawsuit last year but has appealed.

As in that case, Burns' lawyers fear that if the memo is returned to the FBI, the government will then claim immunity from any effort to retrieve it.

"As Mr. Burns' attorneys, we need to be able to pursue this, and we worry we won't be able to if the FBI gets it back," said Neil Fox, Burns' other public defender.

Bellevue police maintain the defense will be disappointed when - or if - it ever gets its hands on the information.

Mott, the Bellevue police lieutenant who headed the investigation of the Rafay murders, said the department dismissed the Fuqra lead because the Rafay family did not fit the profile of the group's targets. And the department was never able to verify the existence of the person who allegedly confessed to the killings.

Bellevue Police Interim Chief Larry Lorack was puzzled by the defense claims.

"I've never even heard of that group, not in connection with this homicide, or anything else," he said. "I think the record shows that we did a thorough investigation. There is no indication of any outside group involved in those homicides whatsoever."