Go hence, to have more talk of these sad things;/ Some shall be pardoned, and some punished;/ For never was a story of more woe
The sheer terror of a wrongful conviction is only possible to understand through imagination and empathy. Far easier to turn away and forget the suffering of the wrongly convicted, or, easier still, to accept the verdict of a misinformed jury. This need for closure is a powerful motivator for the victim’s family, the public and the legal officers of the court, police, lawyers, judges. But just, for a moment, think of what it must be like to have done no crime and hear the iron doors close behind you for ‘life without the possibility of parole’.
When speaking of the innocence of Atif Rafay and Sebastian Burns, the first reaction of many people in the public, especially in Vancouver, was, until recently, hostile disbelief. These two, who at the time of the crime (1994) were teenagers, must be despicable murderers. Case closed. Much time, effort and resources went into the 2004 convictions in the state of Washington, including a long extradition battle in Canada to protect Sebastian and Atif from facing the death penalty. There is more than a hint of complicity amongst the press and the legal systems of two countries, especially the use of the often discredited RCMP sting operation, ‘Mr. Big’. Never mind that three innocence projects agree that no forensic evidence ties the pair to the crime. Never mind that the two were seen at a movie theater while the crime took place, alibi evidence that the prosecution went through gyrations to discredit. Never mind that the crime was the hideous bludgeoning of Rafay’s parents and sister and that the motive given for this savagery was the desire to make a film with the family inheritance. That such a motive could be applied to such a crime, when no hint of familial abuse or previous criminal activity can be found, is perverse in the extreme. And yet it was applied and was successful, if success can be measured by getting a wrongful conviction. Were Sebastian Burns to have carried through on such a thing, he would have been insane (not financially motivated), but clearly he was not. We strongly believe that this case was decided on extorted evidence and prejudice rather than concrete forensic evidence. The convictions of Burns and Rafay are a textbook example of tunnel vision; other suspects and theories to account for this hideous crime were never seriously investigated.
We make the following speculative assertion while recognizing that it also entails prejudice. The style or method of killing is more in keeping with either psychosis or religious fundamentalism. The fact that Tariq Rafay, Atif’s father, was the head of the Canadian Pakistani Association before he moved to Bellevue,Washington for employment, cannot be divorced from this crime, even though it was at the trial. The family had moved there in 1993 but had not been living at that address for even a year when the killing took place. Was Mr. Rafay considered an apostate Muslim when, as a civil engineer, he discovered that Canada’s mosques were not facing Mecca? Were there groups within Bellevue that did not want the Rafay family to live in that community? Five days following the Rafay murders, an FBI informant, Douglas Muhammad, gave information about the weapon used in the crime and the motivation mentioned above, i.e. Islamic fundamentalism. Another reliable informant in Canada told the RCMP about a possible hit on a Canadian-Pakistani family that had just moved to Bellevue, Washington. These possibilities are dealt with on the rafayburnsappeal.com website; I will not address them any further except to say that they were disallowed in the courtroom as prejudicial and that the failure to follow up on the leads was an example of tunnel vision.
The most recent (November 2012) amicus brief for this case was presented by the Innocence Network, a large and prestigious group of innocence projects both in the United States and Canada. The brief, sent to the Washington State Supreme Court, deals with the right of a defendant to use expert witnesses. Burns and Rafay sought to have Richard Leo and Michael Levine speak to the jury about the issue of false confessions (Leo) and the dangers of sting operations such as Mr. Big (Levine). Both were disallowed in the courtroom. Since the case hinged so strongly on the confessions, the two defendants were denied the ability to defend themselves fully.
The appeal court for the State of Washington ruled earlier this year against Rafay and Burns. Without question, their ruling was as perverse as the trial itself, although it would have been unusual for a lower appeal court to overturn a conviction in such a high profile case. Along with agreeing with the judge that the jury would be perfectly competent to decide between truth and lies while viewing confessions extracted through a sting operation, they also supported the contention that outside experts should not have been allowed to testify. These two rulings are, in effect, Siamese twins. Since the methodology of obtaining the confessions could not be challenged or explained, the confessions had to be accepted at face value. The question then becomes: How does a juror know that a confession is true simply by the way the confessor is behaving?
Another aspect of the ruling was the use of the sting itself. The court held that the confession was not made to people “in authority” (i.e. police interrogators) but to police masquerading as gangsters. For some reason, it was believed that gangsters were less likely to produce false confessions, even if those RCMP gangsters made it clear that Burns would be in for physical harm and legal danger if he didn’t confess. In fact, Burns was under increasing pressure as the sting, which went on for three months, progressed. (A recent appeal ruling in Newfoundland (Nelson Hart) held that the Mr. Big sting produced more coercion and pressure to confess than a regular police interrogation. Mr. Hart was therefore granted another trial.)
One ruse they used was to show him a fake news report from Washington that indicated hard evidence of his guilt. They told Burns that he was about to be charged with the killings unless he confessed to Mr. Big. If he told Mr. Big that he was responsible for killing the Rafay family, and thereby prove that he was ‘solid, they would make the charges go away. Using such methodology is actually illegal in the United States, and for very good reason. A confession cannot be valid if it is extorted or coerced in any way, because such coercion is a violation of the 5th Amendment, the guarantee against involuntary self-incrimination.
Finally, the appeal court agreed with the defendants that the prosecutor used legally unacceptable and clearly prejudicial language in describing the crime during his summation. They also agreed that the use of grisly photos taken from news reports on Muslim fundamentalists was completely improper. However, they said that the offensive statements and the grisly photos only constituted a small part of the entire summation and ‘it was arguable’ that they made no appreciable difference in the verdict. When we say the ruling was perverse, along with prejudicial, this particular aspect of the ruling best exemplifies those words. What Prosecutor Konat said and the photos he employed may have prejudiced the jury, they held, but only, we guess, if he had acted improperly for a longer time.
At some level, be it state or federal, we believe that Sebastian Burns and Atif Rafay will be granted another trial. They should be granted another trial! They are innocent. Their incarceration is an unmitigated tragedy. Rafay has lost his entire family and his freedom for a lifetime. Burns, presupposed to be the one who actually bludgeoned the Rafay family, has suffered a far worse fate. Living in solitary confinement for the past 8 years, one of tens of thousands of such prisoners in the USA, he has developed psychological problems that may be beyond cure. I ask any reader of this blog to use his/her imagination and, just for a moment, entertain the possibility that the two are wrongly convicted. It’s an inconvenient truth, no? No one wants to believe such a thing, especially when guilt has been presupposed by so many. But think of the suffering if innocence is the issue. Think of Rafay; think of Sebastian Burns; think of Sebastian’s family. And then, know that what I am saying here is TRUE! Three innocence projects (Innocence International, Idaho Innocence Project at Boise State University, and Pacific Northwest Innocence Project at the University of Washington) are 100% certain that the two of them are innocent. Now try to live with that as fact and see if you don’t feel like us; see if you don’t feel the pressing weight of injustice and the culpability of the RCMP who launched a sting without any hard evidence to back up the contention that Burns and Rafay killed the Rafay family. See if you still support a sting operation that can easily manufacture false confessions through inducement and coercion.
LATEST COURT DECISION ON OBNOXIOUS MR. BIG STING
Man acquitted in neighbour’s 1974 killing after judge throws out evidence from ‘Mr. Big’ sting
After 40 years, two murder cases, one failed undercover operation and now an acquittal thanks to Charter violations, Durham Region’s oldest murder case remains unresolved
By:Wendy GillisNews reporter, Published on Mon Jul 28 2014
After nearly 40 years, two murder trials, one elaborate undercover operation and now an acquittal, Durham Regional Police’s oldest murder case remains unsolved.
Dealing the final blow to the first-degree murder case, Justice Bruce Glass acquitted Alan Smith of the 1974 slaying of Beverly Smith in an Oshawa courtroom Monday.
Glass effectively undid the case last month, when he threw out all evidence gathered in an intricate, year-long police sting known as a “Mr. Big” operation.
The undercover investigation — which convinced Smith he was enmeshed in a murderous crime ring, and culminated with the dumping of a fake corpse off a cliff — had violated Smith’s Charter rights and was an abuse of process, Glass ruled in June.
Without the evidence gathered during the sting, namely two widely varying murder confessions, Crown Attorney Frederick Stephens conceded there was little prospect of conviction.
“There is no reasonable alternative but to discontinue the prosecution,” he told court Monday.