Burns/Rafay as to the Hart decision by the SCC

In light of the encouraging new efforts by US legal firms to overturn the trial of Atif Rafay and Sebastian Burns, I thought it vital to put this case up against the relatively new parameters for the Mr. Big sting operation as set out in the Hart Decision by the Supreme Court of Canada. In my view, the verdict would have been overturned and the case sent for retrial. More importantly, the courts would not have signed off on the use of the sting in this particular case, since no forensic evidence existed tying them to the murders of the Rafay family:

Rafay/Burns case with respect to the Hart decision (R v Hart, 2014 SCC 52)

Justices Moldaver and Karakatsanis delivered the decision. Moldaver’s opinion (and the SCC itself) allowed the practice of the RCMP’s Mr. Big sting operation to continue with restrictions best summarized as follows:

…the law, as it stands, provides insufficient protection to accused persons who confess during Mr. Big operations. A two-pronged response is needed to address the concerns with reliability, prejudice and police misconduct raised by these operations.

 The first prong requires recognizing a new common law rule of evidence. Under this rule, where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect.

Although it is regrettable that the Supreme Court of Canada did not outlaw the Mr. Big sting in its entirety, the stipulations put in place go some of the way toward preventing unreliable or false confessions. The problems with the technique go beyond the cautions of the court, not the least of which is the association of law enforcement with criminal thuggery. The use of the sting is not isolated but a primary investigative tool used by the RCMP; the cost of the operation, by now used hundreds of times, is astronomical, depending on the length of time it takes to elicit a confession. Meanwhile, scientific evidence gathering and following up other leads take a back seat to a dubious game of charades. They continue to use the sting because it succeeds in getting convictions, albeit questionable ones. Convictions should not be the ultimate goal of a justice system in a democratic society; never should the need for or protection of a conviction outweigh the goals of justice and truth.

When asked by the Bellevue police to intervene in the Rafay killings, the RCMP did not hesitate. Their own investigation was cursory. They had been given a tip, before the murders took place, that a man named Jesse Brar (Jasminder Singh Brar) had been hired to do a hit on a Pakistani family that had recently moved to Bellevue. They went so far as to surreptitiously get Brar’s DNA, as they did with Sebastian Burns. To this day, there is more evidence, shallow as even that may be, tying Brar to the killings than either Sebastian Burns and Atif Rafay, and yet there was never any question in the minds of police that the two teens were the guilty party. (There was even more evidence from an FBI informant, Douglas Muhammad, that the killing was done by religious fundamentalists.) Investigations of alternate suspects and theories were perfunctory or non-existent. This prejudice against Burns and Rafay was fostered by an inexperienced lead investigator, Bob Thompson of the Bellevue Police Department, whom the RCMP was only too happy to serve.

The primary issue with Sebastian Burns and Atif Rafay was their youth. As to drinking and voting, 19-year-olds are said to be adults, but most people who have raised boys who are becoming young men know well that the ages of 18-25 are the riskiest years. In terms of judgment, relative freedom of movement, ‘fronting’ or bravado, serious and sometimes fatal mistakes are made, especially with respect to gang violence, drinking, drugs and driving. The RCMP preyed on that aspect of Sebastian, especially during the final session where they ‘confessed’ to killing the Rafay family. At the time, they were the youngest people ever subjected to the technique, and the science of false confessions was in its early stages. During the confessions, both boys were plied with alcohol. Several beers are seen on the table and Sebastian’s voice indicates a certain level of inebriation.

The details they provided were often contradictory, especially with regard to the disposal of bloody clothing and the murder weapon. Sebastian and Atif answered questions, acknowledging the murders while knowing that they had not committed the crime. The key here was their fear of the gangsters: Sebastian knew of their criminal behavior, hence, to gain their trust, as a quid pro quo, he had to tell them about what had happened in Washington. Only one answer, that he had committed the murders, would be acceptable to them. It took the RCMP five months to get those supposed confessions, and yet there is no confirmatory evidence, no ‘markers of reliability’, that they committed the murders. Burns, Rafay and their friends were followed, bugged, wiretapped, and surveilled. Nothing from those five months, including the enlistment of Burns into their ‘gang’ and the inspection of the house in Bellevue, incriminated them. The only forensic evidence that the prosecutors relayed to the public or the court was the hair of Sebastian Burns mixed with the blood of the Rafays in the guest shower. Since Burns was a guest in the house, his hairs in the shower are hardly an example of reliable evidence, so prosecutors made much of the fact that hairs from another person were not found in the shower. (A question arises as to whether the killers took showers or washed off the murder weapon.)

A pubic hair was found in the bed of Tariq Rafay. At first, this discovery was going to be the lynchpin in the case, the confirmatory evidence: Sebastian said that he committed the killings without his clothing on, so it stood to reason that the pubic hair could be a match. In fact, if it were a match, we would never have become involved with the case; the confession would have been partly confirmed because it contained ‘a marker of reliability’ as outlined in the Hart decision. That the hair did not belong to Burns was a problem for police and prosecutors that was solved by calling the hair a ”stray”, somehow brought in on Tariq’s clothing. Taking the shower and pubic hair evidence together, one sees evidence of Meyer’s Law: ‘If the facts don’t fit the theory, change the facts.’ What the police sought was confirmation of their theory that Sebastian, with Atif’s approval, carried out the murders. Everything else was rejected.

The prejudicial side of the case began as early as a week after the killings themselves. For several days, cooped up in a motel room, they submitted to testing and questioning without the presence of a lawyer. The police saw their willingness to cooperate as an attempt to challenge them: ‘We committed the perfect crime and you’ll never be able to prove that we did it.’ The more likely explanation for their willingness was their knowledge that they had not done the crime and would be vindicated by the truth. Such a belief was also attributable to their youthful inexperience.

At some point during the initial investigation, Sebastian and Atif were left to their own devices. Atif was never informed about his family’s funeral. They were allowed to leave and return to Canada. Our belief has always been that their leaving was allowed as a way to prejudice the public, both Canadian and American, that they had “fled” and callously disrespected the Rafay family. Indeed the Bellevue police fed that line to the media.

The Hart decision goes on to outline the second prong of the response: (It relies) on the doctrine of abuse of process. The doctrine of abuse of process is intended to guard against state misconduct that threatens the integrity of the justice system and the fairness of trials. Trial judges must be aware that Mr. Big operations can become abusive. It is of course impossible to set out a precise formula for determining when a Mr. Big operation will reach that threshold. But there is one guideline that can be suggested. In conducting an operation, the police cannot be permitted to overcome the will of the accused and coerce a confession…While violence and threats of violence are two forms of unacceptable coercion, operations that prey on an accused’s vulnerabilities, such as mental health problems, substance addictions, or youthfulness, can also become unacceptable.

5^th Amendment guarantees in the American legal system are foundational. Miranda warnings preclude the use of sting operations to coerce confessions; the suspect must be told that what he says may be used against him in a court of law. (Mr. Big was allowed into the Rafay trial in the state of Washington because of a non-existent legal falsehood, “the silver platter doctrine”, which held that evidence gathered illegally in another country could be used in an American courtroom.) Although the 5^th Amendment standard is not applicable in Canada and, unlike the USA, evidence gathered in this way is still allowable in court, these new restrictions go some of the way to protecting fundamental human rights. However, the sting, because it involves the use of phony gangsters, is inherently violent and coercive, far more coercive than being questioned by police who are constrained by law.

 The Hart decision focused on the suspect’s (Hart’s) isolation. Whatever benefits their small group of friends and Sebastian’s family provided, the air had been poisoned in Canada by the insinuation that they had fled the United States and by media reports about the killings of which they were falsely accused. Burns’s father reported that Sebastian and Atif, both recognizable in the small town environment of West Vancouver, were subjected to taunts and ridicule. Getting a job was impossible for Sebastian as was returning to his local college. He was, therefore, open to the easy money and friendship offered by the RCMP gangsters.

Sebastian Burns displayed traits present in people with Asperger’s Syndrome, or what is now referred to as those being on the spectrum of an autism disorder. It is possible that Burns had this syndrome; according to the Autism Spectrum Disorders Health Center, a person with Asperger’s exhibits, to a greater or lesser degree, the following tendencies:

1. An inability to pick up on social cues and an absence of social skills, such as being able to read others’ body language… (Burns was easily fooled by the Mr. Big sting operation and constantly rubbed people the wrong way.)
2. The appearance of a lack of empathy. (Judge Mertel told him he was amoral; most saw him as “arrogant”.)
3. Be unable to recognize subtle differences in speech tone, pitch and accent that alter the meaning of others’ speech. (Burns’ behavior showed that he didn’t understand the way other people saw him—especially if they employed irony or understatement to correct him.)
4. Have a formal style of speaking that is advanced for his age. (His use of such language enforced the view that he was arrogant.)
5. Avoid eye contact or stare at others. (The jury complained about Burns’ menacing stare.)
6. Have unusual facial expressions or postures. (Every close observer of Sebastian Burns commented on this trait)
7. Have a tendency to talk a lot. One-sided conversations are common. Internal thoughts are often verbalized. (Burns spoke for an hour and a half before sentencing)

Even in the absence of a formal diagnosis, such character traits could be prejudicial in a courtroom, but they certainly do not constitute evidence. The appeal court, just as the trial court, made much of Sebastian’s apparent absence of fear during the interrogation, reading him as you would in a typical situation. Michael Levine, and FBI expert on sting operations who was not allowed to testify at trial, characterized both Sebastian and Atif’s behavior as an example of youthful bravado. Jeff Robinson, one of the defense lawyers, mentioned all of these reservations about the so-called character evidence in his summation; everything in that summation was true and reasonable, but none of what he said could overcome the animus in the courtroom.

…you are being given a not-so-subtle invitation by the state to judge this youngman, not on the evidence, but on…personality.

The choice to follow Sebastian (and not Atif) and draw him into the Mr. Big sting was based on the assessment of his obvious vulnerabilities and of Atif’s more rational and grounded personality.

Another police ploy was the use of intermittent re-enforcement. Sebastian’s inability to read others prevented him from seeing that the widely varying sums of money for each ‘job’ or errand that he did made him more likely to come back for more. Money is a highly motivating factor; intermittent re-enforcement is the most powerful behavioral motivator, both with animals (pigeons in the classic experiment) and human beings. His induced participation in the simulated crimes prejudiced the jury against him.

Applying the Hart decision to the Rafay murder case reveals a “complete lack of confirmatory evidence” alongside the confessions. Their alibi—that they were at a showing of “The Lion King” during the time that the neighbors on both sides heard thumping and animal-like noises coming from the Rafay home—was confirmed by numerous people as was their presence at other post film venues. During the sting, Sebastian was asked by the gangsters how he could have committed the crime when people saw him at the movie. If he had been talking to police, he would have simply said that he had not committed the crime, but he had to satisfy the gangsters that he was ‘solid’, i.e. trustworthy. The cost of telling the truth appeared to be greater than falsely confessing. So he told them that he and Atif had snuck out the side door of the theatre. But that explanation, in and of itself, would have made commission of the crime impossible under the timelines established by the neighbors. Their presence at the film was never questioned so the prosecutor, James Konat, tried to obfuscate the time. If the facts don’t fit the theory, change the facts.

Following the discovery of his murdered family, Atif Rafay was in a state of mind that ranged from shock to P.T.S.D. If he were innocent of the crime, which we believe to be the case, he would be experiencing an emotional state for which there is little precedent. How is a person to behave after his family has been bludgeoned to death? There are no guidelines. What may appear to be Rafay’s callous behavior in the aftermath (e.g. he was criticized for watching videos in the motel room), might actually be escapism. Television footage showing him evading the media at the Vancouver memorial for his family was extremely prejudicial. At no point in the murder investigation and the sting operation was the so-called evidence anything but prejudicial.

Finally, appearances can be deceiving. What does fear look like, especially in adolescents who are fronting? What does lying look like? In experiments done using MRI’s that focus on an area of the brain that is activated when a person lies, the success rate is 70%. When an average person is asked to judge whether or not a person is lying, the odds are more like fifty-fifty; in other words people do not have that ability. Judge Mertel erred when saying that a jury is perfectly capable of telling if a defendant is lying; he erred in not allowing Richard Leo to testify about false confessions. His remarks to Sebastian and Atif at sentencing indicated his mind was made up about them before the trial took place. Sebastian he described as ‘amoral’. After Atif was perfectly clear in pre-sentencing that he never would have killed the family he loved,  a family so supportive of his academic dreams, Judge Mertel said that he could see that Atif regretted what he had done. But this was a mischaracterization brought on by Mertel’s inability to hear what he didn’t want to hear: there was no regret in Atif’s words, only devastation. He was going to prison for the murder of his family, a murder he and his friend could not have committed.

For all these reasons, the trial, under the Hart decision, would not be allowed to stand; the convictions would be thrown out because the sting had no probative value. The treatment of Atif and Sebastian by the authorities never afforded them the presumption of innocence. The injustice could not have taken place without an abuse of process, the preying on the suspects’ vulnerabilities as youths.

On a personal note, the lack of humility in some individuals who enforce the law, and my implied lack of humility in the legal process itself, leads to a greater abuse than abuse of process: the abuse of truth. Jury verdicts are not sacrosanct; they can be the result of prejudice or error or deception or bad lawyering. The only beneficiaries who are served by the hallowing of verdicts are the people who run the system, not justice itself. Since “verdict” is translated as ‘speaking truth’, and wrongful convictions give the lie to that self-congratulatory definition, the only remedy to wrongful convictions is people of good will. Even cases with exculpatory DNA evidence are sometimes thrown out for procedural reasons, but those prosecutors who see an innocent person serving time for a crime he has not committed as the greatest evil will go to any lengths to remedy that injustice. May that happen in this disastrous case.