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UPDATED: West Van men lose bid to overturn triple murder conviction
For the past 18 years, convicted killers Sebastian Burns and Atif Rafay have steadfastly maintained their innocence.
But they won’t get a second chance to prove that inside a courtroom any time soon. On Monday, the Washington State Court of Appeals denied the pair’s bid to overturn their triple murder convictions.
In May 2004, the West Vancouver men were found guilty of bludgeoning to death Rafay’s parents, Tariq and Sultana, and autistic sister, Basma, inside their suburban Seattle home on a summer evening in 1994.
The pair, both 28 at the time of their conviction, received three consecutive 99-year life sentences without the possibility of parole for the brutal murders.
During the high-profile trial, prosecutors argued that money was a motivating factor in the crime.
Last July, seven years after being sentenced to a lifetime behind bars, a Washington State court of appeal heard their argument for a new trial based on several grounds, chief among them the tactics used by the RCMP’s controversial undercover sting operation — known as “Mr. Big” — to ensnare them.
Burns and Rafay had been staying with the Rafay family in Seattle on the night of the murders, but had an alibi. They were out for a movie and food and later returned home to discover the bodies around 2 a.m. and called 911. Not long after they returned to North Vancouver, the RCMP launched Project Estate, where, posing as underworld criminals, they had the pair participate in different “scenarios.” This eventually led to their arrest on July 31, 1995.
In a published opinion dated June 18, Chief Judge C.J. Leach wrote “Glen Sebastian Burns and Atif Ahmad Rafay appeal their convictions of three counts of aggravated murder in the first degree based upon the murders of Rafay’s parents and sister. They argue that the complex undercover operation conducted by the Royal Canadian Mounted Police (RCMP) coerced their confessions admitted at trial. But substantial evidence supports the trial court’s findings that these confessions were voluntary. And because the other issues presented by Burns and Rafay also do not warrant appellate relief, we affirm.”
The two other judges on the panel concurred.
Among the other issues raised in the appeal: the exclusion of expert testimony, notably proposed testimony on false confessions, the limitation of “other suspect” evidence, lack of a speedy trial, and alleged prosecutorial misconduct during the closing argument when the deputy prosecutor compared the murders of the Rafay family to a terrorist beheading.
Given the complexity of the Burns-Rafay trial, which lasted eight months, King County prosecuting attorney Brian McDonald wasn’t surprised by the number of issues raised on appeal by the defendants.
“It’s not uncommon to raise five or six issues in a homicide case, this case they probably raised more like a dozen,” he said.
But this case has always been unusual in its scope, noted McDonald, explaining that it was both one of the longest trials in King County history and is probably, in terms of briefing on appeal, one of the most extensive ever.
“This appeal, if you’ve ever looked at the briefing, is many, many hundreds of pages. Even in a normal homicide it’s a fraction of that.”
Speaking to The Outlook one day after the appeal decision was released, McDonald said, “We think the court of appeal analyzed all the issues that had been raised correctly and reached the correct results.”
Ken Klonsky, a member of Innocence International, a Canadian-based advocacy group that took on the Burns-Rafay’s case four years ago, bristled at the appeal court judgement.
“The justice system does not work; two innocent young men have had their lives destroyed and the court has confirmed this injustice with a bizarre, impressionistic and prejudicial decision upholding a prejudicial trial. The convictions of Burns and Rafay for the brutal bludgeonings of the Rafay family were and still are in defiance of common sense,” he wrote in an email on Monday.
Klonsky is regularly in touch with Rafay through correspondence and jail visits but because he’s been in New York he hasn’t had a chance to speak with Rafay since the appeal court decision.
He expects the news will be “partially devastating” for Rafay but he believes he will be able to quickly come to terms with situation.
“He’s such an intellectual, a heady person, I know he’s going to say, that even if the court had ruled in his favour — and this is true — the state would have appealed that to the Supreme Court. So both [attorney] David Koch and Atif said, this was not going to be the end point in any event. So the case has to go to the supreme court,” said Klonsky by telephone on Tuesday.
For inspiration, Rafay need look no further than Klonsky’s Innocence Project partner Rubin “Hurricane” Carter, the ex-boxer who spent nearly two decades in prison for a crime he didn’t commit, as a role model for resolve.
“You can’t give up your innocence. I mean Rubin had a second trial and he was convicted at the second trial [but]... it had nothing to do, in his mind, with reality, he knew he hadn’t done that crime. And the same should be said here,” said Klonsky. “Two young men are not going to commit a crime of that magnitude for some money to make a movie. It defies common sense.”
Tiffany Burns, Sebastian’s sister, has also never wavered in her belief that her brother and his friend have been wrongfully convicted. In 2004, she produced a documentary that explored the controversial methods used in Mr. Big operations to extract confessions and also told the stories of victims who’d falsely confessed only to later be exonerated through DNA evidence.
“My brother and Atif are innocent. We plan to fight this all the way to the Supreme Court,” she said in an email to The Outlook Monday afternoon.
Calls and emails to legal council representing Burns and Rafay were not returned.
Monday’s appeal denial is just the latest chapter in the sensational high-profile murder case that’s played out on both sides of the border for nearly two decades.
In 1996, a year after RCMP arrested Burns and Rafay at their rental home in North Vancouver, the Attorney General of Canada ordered their extradition to the U.S., but the B.C. Supreme Court blocked those the orders. That began years of legal chess. The Canadian government took the case to the Supreme Court, which ultimately decided that the pair couldn’t be extradited to a country where they could face the death penalty.
In 2001, after receiving assurances from the King County prosecutor that his office would not seek the death penalty, Burns and Rafay were transported to Seattle and booked into King County Jail.
The trial finally began in 2003, nearly a decade after the Rafay family was murdered and lasted nearly eight months. On May 26, 2004, Burns and Rafay were each found guilty on three charges of first degree murder. Burns and Rafay filed their appeal in 2007.
The pair’s lawyers now have 30 days to file a petition for a review of the decision by the Supreme Court.
King County prosecutor Brian McDonald expects this will be the next step for their legal team. “I’d be surprised if they do not,” he said.
“So we’ll know roughly six months from now whether the Washington Supreme Court will take the case,” he added, noting that the high court “only accepts a small fraction of the cases people seek review on.”
Of course even if the Supreme Court rejects the case, it’s likely far from over.
“If they decide not to take the case, then the direct appeal is over but you may know there are all kinds of other ways to challenge your conviction. So there are still avenues available but they get harder to pursue.”