New Year

A recent spate of discoveries in the Burns/Rafay case has come about through a platoon of volunteers coming forward because they’ve seen “The Confession Tapes”. These people are legal professionals and researchers motivated to do pro bono work to right what has now become an apparent injustice. People at Innocence International are extremely grateful for this work. Not one piece of so-called evidence from the trial has held up to scrutiny nor, as is always the case in a wrongful conviction, has any information arisen to confirm the convictions. This development bodes well for the progress of the case in 2018.

Why is it that so many murder victims in Canada, especially BC, are “known to police” but we, the citizens, never learn the names of the victims and the perpetrators? Who is being killed by whom? Why are there over a thousand missing and murdered BC women, whose cases are still unsolved? Why are so many sexual assault cases labeled “unfounded”? Why does the RCMP seem so inept at solving serious crime? These are questions that we must be prepared to confront rather sit back and believe that all Canadians are being well served by our national police force. As I’ve said previously, individual RCMP officers are as good or bad as any other profession in society. But the force is dominated by a culture that needs scrutiny. Their responsibility for the wrongful convictions in Burns/Rafay has to be examined in the light of that culture.


TVO interview by Steve Paikin with David McCallum and Ken Klonsky: Freeing David McCallum plus link to book

This interview was done October 23rd in Toronto in conjunction with the launch of “Freeing David McCallum: The Last Miracle of Rubin “Hurricane” Carter

Link to Buying the Book

Pre-trial examination of Police Detective Bob Thompson by Jeff Robinson, lawyer for Sebastian Burns and Atif Rafay

The judge refused to allow this testimony or this information into the courtroom. Why? For those who think the extreme fundamentalist angle is “thin”, please read this:

JEFF ROBINSON ( Lawyer representing defendants): I want to move to a different topic now.  Do you recall several days after the homicides being approached by and interviewing a man named Douglas Mohammed?


Q:        I can show you a report to help with the dates.  I’m going to show you this, which is a copy from Detective Gomes’ police reports.  July 18 is the date at the top of that page.  Is that right?

A:        Yes, it is.

Q:        And then if you turn to the next page, is there an indication that along about 2:45 in the afternoon you and

Q:        Detective Gomes interviewed Douglas Mohammed?

A:        Yes.

Q:        And Mr. Mohammed gave you an address and phone number to contact him, didn’t he?

A:        Yes.

Q:        And he told you that he was Egyptian?

A:        Yes.

Q:        And he told you that he was affiliated with some FBI agents?

A:        Yes.

Q:        He then described a concern he had about, that might relate to the Rafay homicides.  Is that right?

A:        Yes.

Q:        And he told you that there were different factions in the Muslim community?

A:        Yes.

Q:        Both in Seattle and in Vancouver, British Columbia?

A:        Yes.

Q:        And he told you that one of these factions was headed by a particular man, whose name and address he gave you.  Is that right?

A:        Yes.

Q:        And he told you that this man preached that those that did not accept his translation of the Koran should be killed?

A:        Yes.

Q:        And he told you that this man’s interpretation of the Koran was an extremely violent one?

A:        Yes.

Q:        He told you that this man owned a gas station and he gave you the location of that gas station?

A:        Yes.

Q:        And he told you about several other people that were in this man’s group let’s call it?

A:        Yes, he did.

Q:        And he told you that on the Friday after the homicides, one of these men that was in this group came to his house and appeared to be very nervous and frightened?

A:        Yes.

Q:        And he indicated that this man who was nervous and frightened was asking whether he, Mr. Mohammed, remembered a baseball bat that had been carried around by group members in a car.  Do you recall that?

A:        Can you give me a second just to read through this on the baseball bat issue?

Q:        Yes, absolutely.

A:        Yes, I do recall that.

Q:        And he was saying that he thought the baseball bat could have been the murder weapon?

A:        Yes.

Q:        On August 2,——

COURT:         Go over that again.  He told of this baseball bat being where?  I lost that.

A:        He had come to the police department and said there’s some people he knew that carried a, basically carried a baseball bat in their car.


Q:        And that the man who came to his house that was a member of the group we’ve described was nervous and frightened and was asking him, Mr. Mohammed, like hey, do you remember that baseball bat we were carrying around?

A:        Yes.

Q:        So a person in the group that Mr. Mohammed suspected might be involved in the homicides was asking Mr. Mohammed about a baseball bat?

A:        That’s correct.

Q:        And on August 2nd of 1994, on or about that date, do you recall applying for the return of search warrant to be sealed by a district court judge?

A:        I do recall having a search warrant sealed.

Q:        And it was after July 18, wasn’t it?

A:        I don’t remember.  Well, yes, counselor, it would be after July 18.

Q:        And one of the things you said in the request to seal that search warrant is that there was evidence that was outlined in the warrant return that only the investigating detectives or the killers would know?

A:        Yes.

Q:        And one of the things you placed into that category only the investigating detectives or the killers would know was the fact that the murder weapon might have been a baseball bat?

A:        Yes.

Q:        And Douglas Mohammed was talking about a baseball bat before that information had ever been released to anybody in the public.  Am I right?

A:        Yes.

Q:        And Mr. Mohammed went further and told you that this group leader had actually made a specific threatening statement about Mr. Tariq Rafay, didn’t he?

A:        Yes.

Q:        He said that this man had indicated that Tariq Rafay should be killed because of Mr. Tariq Rafay’s interpretation of the Koran?

A:        Yes.

Q:        Detective Gomes obviously prepared this report some time after July 18?

A:        Yes.

Q:        It was in your file when the RCMP came down in March and February of ’95?

A:        Yes.

Q:        And by the way, you did confirm that Douglas Mohammed was actually an informant for the FBI, didn’t you?

A:        Yes.


Rebuttal to Washington Prosecuting Attorney based on his press release attacking Netflix’s The Confession Tapes

The Prosecuting Attorney of King County, Washington, Dan Satterberg, issued a press release (above) on Sept. 26th criticizing Netflix “The Confession Tapes” (“True East” episodes) for, among other things, selectivity. First, Satterberg’s press release:

Here is our response:

Statement by Innocence International on the King County Prosecuting Attorney’s office attempt to impugn the validity of the Netflix series “The Confession Tapes (The “True East” episodes).

On September 26th, in response to both concern and outrage from the public after viewing the Netflix series “The Confession Tapes”, the King County Prosecuting Attorney’s office issued a press release.  The episode referred to deals with the 2005 convictions of both Atif Rafay and Sebastian Burns for the murder of Rafay’s family.

The press release claims that the documentary is unfair and inaccurate without pointing to any specific instances of inaccuracy or unfairness. The release represents yet another attempt to justify the wrongful convictions in the absence of forensic evidence. At the end of the document the prosecutor states: “The Confession Tapes” recounts some but not all of the forensic evidence linking Burns and Rafay to the murders. The episode recounts no forensic evidence against Burns and Rafay because there was none. Had there been forensic evidence implicating them in this crime, no innocence project would have taken up this case.

The press release states that “The Confession Tapes” strongly suggests confessions to these crimes made by both Burns and Rafay are false. This statement is in the eye of the beholder since the program has no outside narrative. Police Detective Bob Thompson and James Konat, the prosecutor, are given more time on screen than anyone else. The fact that the program “strongly suggests” the innocence of the defendants is predicated on the weakness of the case against them.

The jury, which heard all of the evidence during a six-month trial, rejected this defense and convicted Burns and Rafay. That they were convicted is true. That the jury heard all the evidence is demonstrably false. The judge did not allow the jury to hear any alternative theories to the crime, despite the fact that a validated FBI informant identified the murder weapon prior to its being published and stated unequivocally that the crime was committed by someone else; despite the fact that an RCMP informant tipped the Bellevue police beforehand that a hit was planned on a South Asian family recently moved to Bellevue; despite the fact that a detective in the Bellevue Police Department received a call from the intelligence unit of the Seattle Police Department indicating that the homicides were possibly associated with an Islamist terrorist group that targets Muslims “who do not practice the faith or interpret the Koran as they do. They punish these unfaithful persons by bombing, stabbing and murdering.”

The trial judge also refused to allow Richard Leo, an expert on false confessions, to testify. The reason given, that a jury is qualified to decide who is lying and who is telling the truth, is specious. In fact, any cursory glance at scientific knowledge in this area will show that the average person is not qualified to do anything of the sort. An FBI authority on sting operations, Michael Levine, was also denied witness status at the trial on the ground that he was not an expert.

The Prosecuting Attorney’s Office accuses Netflix of selectivity: most of the confessions are neither played nor described. The RCMP and the prosecutors are the ones guilty of selectivity. Most of the initial conversations between Burns and the undercover officers were not recorded. Sections of the tapes that do not support the convictions and that jurors never saw have been destroyed or disposed of.

The prosecutor’s press release makes the claim that Burns, far from being intimidated by the officers [the RCMP play acting as mobsters], sought them out. Why did Burns continue to seek out the mobsters and engage in petty criminal acts at their behest? The scurrilous implication in the current press release by the Prosecuting Attorney’s office—the same as at the trial—is that Sebastian Burns had a criminal mind and actually reveled in the doings of the crime world. In fact, Burns was psychologically conditioned by the RCMP. Every time he committed an illegal act, he was given money. That is why he sought them out. One of the purposes of the trial was to prejudice the jury by making Burns appear to be a criminal when, in reality, he is no different than the rest of us.

The Prosecuting Attorney’s Office relies heavily upon the 2012 Court of Appeals decision. Firstly, as part of the post-conviction apparatus in the state, the Court of Appeals is not, as stated, an ‘independent panel’. The decision was made by elected—not independent—judges. We wish to make it clear that the court of appeals’ first order of business is to find reasons to sustain the convictions. In the instance referred to in the press release, the court’s reasons were not based on legal issues but on unsubstantiated perception:

“The trial court was therefore able to view the defendant’s demeanor and body language during the entire confessions, including their jovial delight in revealing certain details…”

It bears repeating that there is no scientific basis for the court’s observations. A person’s inner thoughts, his candidness or lack thereof, cannot be apprehended by observing his or her body language or demeanor, especially in a situation like this where the defendants, two fronting adolescents plied with alcohol, believed they were talking to mobsters. The only knowable lie is the RCMP mobsters lying about who they really were. That both the appeals court and the current prosecutor allow this kind of ‘evidence’ to bear legal weight is outrageous. They know better.

Finally, the issue of Jimmy Miyoshi must be addressed. The reason that Miyoshi stated that he knew of the murders being planned beforehand is seriously in doubt because the transcripts show him resisting both the RCMP mobsters and, later, the police who pressured him unrelentingly to make incriminating statements against his friends.

What we have in our possession is the entire interrogation of Miyoshi after Burns and Rafay were arrested in 1995.  What is most egregious, and left out in the press release, is that the RCMP threatened Miyoshi with 99 years in prison, and even a suggestion of the death penalty in Washington, if he didn’t give evidence against his friends. And that during this psychologically brutal interrogation that made constant use of the Reid Technique (police denying what they didn’t want to hear), Miyoshi repeatedly said that “They never did” discuss the murders beforehand. This time he was talking to people he knew to be the police.

What is also beyond doubt, and what the Netflix series points out, is that after Miyoshi returned to Japan, he was threatened by the loss of his job by his Japanese employer if he did not testify against his friends. His testimony, therefore, was coerced, because the absence of forensic evidence and the fear that the so-called confessions garnered from an illegal sting operation would be thrown out of court made the case against Burns and Rafay paper thin.

Finally, what forensic evidence there was pointed in opposite directions to the one taken by the prosecutors. The Bellevue Police and the King County Prosecutor initially asserted that a pubic hair found in Mr. Rafay’s bed was certainly left there by the killer. After it was found not to match any of the Rafays nor Sebastian Burns, they dismissed it as a ‘stray’. It didn’t belong to Sebastian, ergo it was irrelevant. “If the facts don’t fit the theory, change the facts.” That is the essence of tunnel vision and that is the source of the wrongful conviction of two young men who have now been imprisoned for 22 years.

Our conclusion is that the press release issued by the office of the Prosecuting Attorney represents either disingenuousness or willful blindness at best, in almost all respects. Justice has not been done in this case; “The Confession Tapes” now makes justice a possibility.

Ken Klonsky, Director: Innocence International


Netflix: September 8, 2017, Rafay/Burns case: The Confession Tapes, True East

Adding to the astonishingly popular “Making A Murderer”, and to “Fight For Justice: David & Me”, Ray Klonsky and Marc Lamy’s documentary about David McCallum (which Netflix bought from Markham Street Films), Netflix has commissioned a series on wrongful convictions beginning with a segment on the Rafay/Burns case to appear next month. The segment is coming at a good time and should augment the investigative work now being done on the case. Kelly Loudenberg, the director, has done extensive interviews, especially with people not seen before in relation to Rafay/Burns. I think it will turn more than a few heads and make skeptics reconsider their views.

It comes out Sept. 8 and is called “The Confession Tapes” and the individual episode is called “True East”. It’s the only episode that is two parts and it is the first episode on this Netflix series.


Dan Satterberg, Prosecuting Attorney
516 Third Ave W400
Seattle, WA

Please urge him to take a second look at the case for whatever reasons you think.

Freeing David McCallum: The Last Miracle of Rubin “Hurricane” Carter

Freeing David Cover photo

Freeing David McCallum Press Release-4

This coming October, a new book with the above title will be released by Chicago Review Press (Lawrence Hill Division). This book is a behind-the-scenes look at overturning a wrongful conviction, specifically the 1985 convictions of David McCallum and the late Willie Stuckey of Brooklyn, New York. I am proud to be the author of this book but, like everything else in this remarkable case, the book is the result of the efforts of many people, not the least of whom is David himself. His letters and words provide much of the background and commentary.

The book also details the gathering together of the forces that made McCallum’s miraculous release possible. The notion of a legal miracle was conceived by the late Rubin “Hurricane” Carter who, borrowing from G.G. Gurdjieff, believed that the definition of a miracle is when “higher forces operate on a lower level”. There is no question in my mind that the successful conclusion of this case was miraculous in that sense; I think the book makes a good case in proving that thesis.

The initial launch of the book will take place on October 12th at Greenlight Bookstore in the Greenpoint section of Brooklyn, the same place where Carter launched “Eye of the Hurricane”. Other New York launches are planned for law schools in Manhattan, Long Island and New Jersey, and a library in Scarsdale. Professor Steve Drizin of the renowned Bluhm Legal Clinic is hosting a launch at Northwestern University and a bookstore in Chicago (57th Street Books). In Toronto, the launch will be held at A Different Booklist in its new digs on Bathurst Street. The Vancouver launch will be held at Post 750, next door to the CBC building. David will be accompanying me on this tour, no doubt the focus of attention, deservedly so.

Prison Wedding

Like the lotus blossom arising from the darkness of the swamp, Atif Rafay and Loretta Fisher tied the bonds of matrimony on January 14th, 2017 at Washington State Reformatory in Monroe, Washington. This wedding came against all odds, not the least of which is the flourishing of love inside an environment that destroys this most precious of all human experiences.

The ceremony was officiated by Amy Darling, a Buddhist minister, who managed to create, in one small section of the visiting room, a sacred space wherein the couple’s love transcended the bonds of prison. Their commitment to each other, their obvious love, transcended the bonds of incarceration. The irony is that the relationship between Atif Rafay and Loretta Fisher has greater intimacy and less distraction than most couples on the outside.

Why we believe in the innocence of Atif Rafay and Sebastian Burns: six reasons

Why we believe in the innocence of Atif Rafay and Sebastian Burns


REASON ONE: No hard or scientifically gathered evidence ties them to the crime.

A bludgeoning is an extremely bloody way to kill. It goes, almost without saying, that for one to bludgeon three different people to death and leave no trace of blood in the scalp or anywhere else on his face is unlikely. Showering would not be sufficient. They agreed to undergo forensic testing for five days without legal representation, because they thought their innocence would protect them. No one, neither prosecutors nor police, say they found hard evidence linking Burns and Rafay to the crime.

Lacking a solid case, they referred (and still do) to “a mountain of circumstantial evidence”, evidence that turns out to be negligible evidence, a molehill of evidence. Lacking a solid case, they turned to the RCMP:

REASON TWO: Their confessions to the RCMP mobsters took many months of heavy handed interviews to obtain. No juror was shown video evidence of Sebastian’s constant denials that he had anything to do with the crime, while the RCMP has disposed of almost the entire taped interrogation. What remains are the sessions that implicate Burns and Rafay.

The so-called confessions were manufactured from Sebastian Burns’s knowledge of the case gained in newspaper accounts available at the time.

REASON THREE: James Miyoshi, the chief witness against them, was threatened with being charged as an accessory, a crime punishable by life in prison, making his testimony less than reliable. What he said was always vague and sometimes even fanciful. Reliance upon such testimony is a sign of a faulty case, but they thought they needed it to seal the deal. In truth, Miyoshi tried to protect himself from prison while not betraying his friends. This proved to be an impossibility.

REASON FOUR: The RCMP never looked to any other suspects, despite being told by sources that a hit was being planned against a Pakistani family newly moved to Bellevue, WA. Nor were leads followed after the killings that may have implicated an extremist religious group, despite the Bellevue police having a factually reliable tip from a confirmed FBI informant. In that Sebastian and Atif were the only suspects investigated, the Burns/Rafay case may well be a classic example of ‘tunnel vision’.


  1. Atif and Sebastian loved the work of philosopher, Friedrich Nietzsche. The prosecutors equated Nietzsche’s work with Adolph Hitler, and utilized the very loose connection to indicate that Sebastian and Atif believed that they were superior beings, entitled to eliminate anyone who got in their way. That fact that Nietzsche was perhaps the most influential philosopher of the 19th and 20th centuries was lost on the jury. Hitler did admire the German philosopher but the philosopher never expressed a belief in genocide, nor did the defendants. (This is known as “guilt by association”)
  1. The actual motive given for the crime was greed. Atif would inherit money from his father’s estate that could be used to make a film. Does that sound like motivation to bludgeon a family to death, or did Atif and Sebastian create this motive to satisfy the RCMP gangsters who made them fear for their lives? Why would they choose to kill the Rafays? The Burns’s had more money by far and there was no death penalty in Canada.
  1. Burns appeared in a school play, “The Rope” where the eponymous murder weapon was changed into a baseball bat. This is a stark coincidence but hardly proof of murder since it presupposes that a killer would advertise his method beforehand.
  1. The crime scene was made to appear like a burglary had occurred. Somehow this was attributed to the two teens, as if other killers could not have thought of the same idea. Were the murders done by others seeking revenge against Tariq Rafay, they might also want to make the scene appear like a burglary.
  1. Sebastian Burns’s hair was found in the shower, mixed with the Rafay’s blood. This is the most quoted piece of evidence. Burns was living in that house for several days and using that shower. Do adolescents consistently clean up after themselves?
  1. Blood was found on the bottom of Atif’s pants. Atif and Sebastian entered the bloody crime scene and walked from room to room. Why wouldn’t the cuffs have blood on them? Why would blood be nowhere else?
  1. News reports then and since have referred to Atif and Sebastian fleeing to Canada to evade investigation. This is the most scurrilous of all the accusations against them. Sebastian lived in West Vancouver; Atif’s family had been annihilated. Where would they go but Canada since Atif was a citizen? The truth is that they were allowed to leave because there was no credible evidence against them. The RCMP sting (Mr. Big) was used against them to elicit confessions, but the use of the sting, according to current rulings by the Supreme Court of Canada, should not have been used in the absence of hard evidence. No such safeguards existed at that time.

So called evidence from the sting should not have been allowed into a US courtroom but the judge was prejudiced against the defendants. Mr. Big violates the Fifth Amendment right against self-incrimination and the Fourteenth Amendment against illegal search and seizure.

MIRANDA rights, i.e. the right to remain silent and to know that what you say may be used against you in a court of law; the right to have a lawyer present during questioning; the right to select questions you want to answer; were not accorded them. Why not? Because the evidence was gathered in Canada. To permit this evidence at trial was the result of a mistaken interpretation of the law and of Miranda protections

REASON SIX: The most significant evidence in the case pointed to their innocence and was explained away.

Fact: Atif and Sebastian were seen at a showing of The Lion King at the time of the murder—minutes before 10 p.m. Neighbours on both sides heard the thumps from the bludgeoning at 9:50 that night (twilight).

How can they have been in two places at once? How do you attack an airtight alibi? Somehow, it was averred, they left the theater by the side door and raced back to commit the murders. Even if this unlikely story was hatched under duress by Sebastian himself, it doesn’t make sense in the time context. So the prosecutor obfuscated the time by calling the neighbours’ recollections into question.

The case sounds familiar to others while, of course, the details differ. Behavior at the funeral, the insurance claim, blood spatter and so forth. The police and prosecutors are involved in constructing stories, and so are defense attorneys. The “winner” is she or he who invents the best story for the jury to believe. Truth has some role in this but not a major role.

What I mean here is that anything that fits the story (or the theory) is accepted. Any facts that go against the theory are explained away. 2 examples in Burns and Rafay. (“If the facts don’t fit the theory, change the facts.”)

1. A pubic hair was found in Tariq Rafay’s bed. The police were ecstatic because they were certain it belonged to Sebastian Burns. But it didn’t. Nor did it belong to any of the Rafays. So what did they do? The pubic hair became a “stray”. You know, people in Washington are shedding public hairs all over the state.

2. Atif and Sebastian were examined for blood spatter in their hair follicles. The underwear in the washing machine was analyzed for blood residue. Blood does not wash out easily. Just ask Lady Macbeth! So no blood was found anywhere on them. That means they were so exceptionally clever that they covered it all up. But not clever enough to keep their mouths shut to the gangster cops.

All of which is to say that crime is a template onto which all kinds of theories are hung. Many of these theories depend on self-deception. No one wants to be proved wrong, especially when the stakes are so high. Whenever we think “the Crown is on the ropes” someone comes up behind us and bops us over the head.

In light of what appears to us a manufactured case against Atif Rafay and Sebastian Burns, it is legitimate to doubt the result of the trial and the verdict of the appeal court.


Ken Thompson R.I.P. plus NY Times Editorial and NY Post

Never have I been so devastated by the loss of a political figure as in the untimely passing of Ken Thompson, Kings County District Attorney for only three years. It is through Thompson’s Conviction Review Unit (CRU) that David McCallum was released from prison on October 15th 2014. As all of us who were involved in David’s case from 2004-14 know, David would still be in prison were it not for Ken Thompson.

The story of David’s release began with Rubin Carter and ended with Ken Thompson. Both are now dead but their lives were certainly not lived in vain.

The suddenness of Thompson’s death reminds me of the brief period (the same three years) in office that ended when John F. Kennedy was assassinated. While the symbolic importance of a president far outshines the image of a district attorney, it may be fair to say that Thompson accomplished more on a local level than Kennedy was able to accomplish as president. In fact, Kennedy’s legend was enhanced by his death; his presidency short on accomplishments, like defusing the Cuban missile crisis, and perhaps more notable for misadventures like Vietnam and the Bay of Pigs invasion. Thompson’s CRU took off and functioned as it was meant to from day one. Many innocent people (twenty-one and counting) were released from prison. He established a principle we can only hope will be maintained in Brooklyn and copied throughout the USA: the truth is more important than the functioning of legal machinery. Thompson has a legacy but, still, he will be greatly missed and greatly mourned.

Among NY City and State officials, along with US legal VIP’s, David McCallum was the only exoneree invited to speak at the funeral. See the NY Post article below.

NY Times Editorial: