Lawyers for two British Columbia men convicted of killing a Seattle-area family asked a Washington state appeals court Friday to overturn those convictions, in large part because of a controversial RCMP undercover operation.
Lawyers for Sebastian Burns and Atif Rafay argued that their clients gave false confessions to Mounties involved in the so-called "Mr. Big" operation, posing as criminals.
They said such undercover operations may be legal in Canada, but in some cases courts in the U.S. have found them unreliable. A defence lawyer told the panel of appeal court judges that the trial jury should have been allowed to hear from an expert on false confessions.
'Persuasion isn't the same as coercion.' —U.S. prosecutor Deborah Dwyer
"No person could look at these scenarios and conclude reasonably that these confessions were not coerced," defence lawyer David Koch told a court hearing that was streamed live on the Internet.
"The tools of the operation are duress and coercion and you can't blame Canadian law enforcement for using those tools — they've been given the green light to do it up there."
But case law south of the border says that can't be done in the U.S., he argued.
"We have two youthful individuals, these are teenagers, right, among the youngest ever targeted by this sort of operation. They're not criminally savvy, right, I mean they don't have long histories of committing crimes that might better prepare them to deal with sort of the onslaught they got from these undercover officers," Koch said during the brief hearing.
The Mr. Big scenario is a controversial tactic in which undercover officers create the appearance of a criminal organization looking to recruit or do business with a suspect. Over the course of the operation officers elicit information about past crimes, often as proof of criminal veracity or in order to help eliminate evidence of that crime.
But county prosecutors said the confessions were not the sole evidence that led to the 2004 aggravated murder convictions.
Deborah Dwyer told the judges that the RCMP undercover operation and the confessions it elicited from Burns and Rafay are legal anyway, and incredibly important to the case.
"The only thing that I've seen that couldn't have been done, certainly categorically in the state of Washington, is videotaping them and audiotaping them without their permission," Dwyer told the court.
She said RCMP put "a lot of time, manpower and money" into the undercover operation, and dismissed defence claims that Burns confessed out of fear.
"I think everything in this record shows you that Mr. Burns never was afraid," Dwyer told the appeal judges. "He wasn't afraid of these guys."
No threats, prosecutor argues
Dwyer said there were no direct threats of violence by undercover operators.
"Persuasion isn't the same as coercion. Sebastian Burns was certainly persuaded that his best interests lay with [the undercover officer] at this point, that his best interests lay with getting this evidence destroyed," she said, referring to undercover officers' offer to have evidence in the Rafay murders destroyed.
Burns and Atif Rafay were 18 in 1994 when Rafay's parents, Tariq and Sultana, and his autistic sister, Basma, were beaten to death with a baseball bat in their Bellevue, Wash., home.
The men were arrested in Vancouver in 1995, and after prosecutors agreed to take the death penalty off the table, the Canadian government extradited the two West Vancouver men in 2001.
During the six-month trial, prosecutors argued the motive for the killings was money and that they were planned by Rafay and carried out by Burns.
In May 2004, a King County Superior Court jury convicted them of three counts each of aggravated first-degree murder. They were sentenced to three consecutive life terms without parole.
The state appeals court will issue its decision at a later date.
An earlier version of this story stated that Sebastian Burns and Atif Rafay were deported to the United States in 2001. The men are in fact Canadian citizens, and the Canadian government extradited them to face trial in the U.S. in 2001.Jul 10, 2011 8:42 AM PT