The United States Court of Appeals for the 9th Circuit, a federal appeals court that rules on lower district court appeals and the court of last resort before the US Supreme Court, has agreed to hear the case of Atif Rafay (and, by extension, Sebastian Burns). Atif was able to garner the assistance of one of America’s finest Supreme Court attorneys, Tom Goldstein (Goldstein Russell) and Daniel Woofter at the same firm. Given that the 9th Circuit Court, which covers all of the western states, only hears 8% of the cases that come before it, Rafay has achieved a major milestone in a mostly frustrating and arduous process of seeking legal relief from a badly flawed conviction.
The appeal is based on two grounds, touching on the 5th, 6th and 14th Amendments to the US Constitution. First: that the right to a fair trial was abridged and subverted by the judge’s rulings that 1) disallowed alternative suspect theories into the proceedings; 2) refused to allow Dr. Richard Leo to speak to the court about false confessions and 3) refused to allow Michael Levine, an expert on FBI sting operations, to speak to the court.
Second: The conviction was largely based on confessions garnered by RCMP fake gangsters whom I have spoken about many times in this blog. There was, in our opinion, no justification for allowing evidence gained from a sting operation that failed to conform to 5th Amendment guarantees against self-incrimination to enter into a US courtroom. (And there is little justification for allowing it into Canadian courtrooms.) The 9th Circuit agrees that the case against the triple murder convictions should be heard.
More than any single factor, the dogged determination of Atif Rafay has brought about this ruling. While many may have thrown in the towel after 17 years of struggle, he stayed the course. Now he and his team have a chance to ‘go the distance’. Rubin “Hurricane” Carter is up there smiling. Perhaps the Canadian courts will once again revisit their decision to allow evidence gained from Mr. Big stings, albeit even in the limited use they have now.
May truth and luck be with them! !(Pretty obvious you need both when caught in the sometimes slimy tentacles of our judicial system.)
Hi Jack,
As Rubin Carter used to say to our clients: “The law put you in prison. The law keeps you in prison. The law, all by itself, will not be getting you out of prison. Luck, maybe, although I’ve heard the expression: “Luck is for non-believers.” Truth, yes, because the truth is on a higher level than the law. Truth is what keeps the case going; it has its own momentum.
Ken
I am now in my 70th year on this planet. We all have our ups and downs as years go on … but this case just makes me so sad sometimes. I don’t even know the two men, that once we’re young, bright and very vivacious. There is just way too much injustice in our system. DNA has shown a glimpse of it, yet most legal professionals don’t take the study/intellectual time to realize it implies, if not mandates, that many more cases are wrongful convictions which don’t happen to have exonerating DNA. And the real crazy thing is that there are like 4 lines of other solid evidence which show Atif and Glenn to be factually innocent.
Hi Ken,
I have been watching the confession tapes and i want to know if they will get out of prison or is it pointless. I also don’t know about the DNA testing. Is there more information about that?
Hi Gaby,
The odds are long in any wrongful conviction case, but “Say not that the struggle naught availeth.” The average time for an innocence project to achieve the release of a prisoner is ten years. And this does not count the ones–the majority–who are never released. We’ve been working on this case since 2007 and, for the first time, we see some light. However, you can never underestimate the ability of the system to avoid the consequences of a wrongful conviction.
As to DNA, yes, there is DNA waiting to be tested, but the court process is still going ahead. Most projects do not present new evidence unless the appeals process has run its course.
Thanks for your inquiry,
Ken
Is anyone conducting forensic genealogy in an attempt to identify the donor or donors of the unidentified DNA found at the crime scene? If successful, would that not be a basis for appeal?
Hi Kelly,
The forensic/legal tie-in is something I’ve slowly learned about. While someone is seeking a legal appeal based on court error or constitutional violations, most innocence projects will not begin the process of testing for DNA. When the time comes for “new evidence” (generally the only way out), DNA collected at the crime scene comes to the fore. As to being the basis for an appeal, the defendant is, by then, beyond the appeals process (which only applies to legal error). The new evidence becomes the basis for a new trial or an outright release, based on the recommendations of a District Attorney and/or a judge.
Of course the process is also affected by the particular jurisdiction where different rules apply. It’s all a maze with unnecessary time delays and agonizing refusals to allow for this and that. DA’s offices will usually say that the worst possible thing is for a woman or man to be imprisoned for a crime they have not committed. You would not know this from the roadblocks they throw in your way!
Thanks for your inquiry.
Ken
I sincerely hope that the justice will be served and they be free soon and the two country make public excuse and compensation even that they never get their 20 years of jail back. I’m sorry for my English but It’s not my native language.
Thank you, Julien. The factthat you would respond, despite the English problem, tells me how deeply you must feel.
Ken
Hi, just watched The Confession Tapes on Netflix. THe story of Atif and Sebastian is so, so tragic. In the episodes we hear and see Atif years later, he gave interviews or participated in a podcast. How about Sebastian? His father said he spent 10 years in solitary? So tragic. THe work you all do is very important. Sorry for my english, not my first language.
Thank you, Priscilla. Sebastian is suffering from ailments related to his incarceration. The entire situation, as you write, is tragic. Extremely tragic.
Ken
Wow, found this blog after watching the confession tapes. May god bless all of you in your efforts to free these two and anyone who assists in freeing the wrongfully convicted.
Wondering if there is anywhere to help donate? Anything but go fund me. I would hope to get help if this happened to me. Good luck will keep in prayers.
Thank you, Kristen. We did fundraising for years on the rafayburnsappeal.com site but, at the moment, we have stopped. We have a bevy of pro bono people after all these years. But I appreciate your thoughts and your generosity.
Ken
Rafay should seek resentencing based on the Washington Supreme Court’s recently decision in Monschke/Bartholomew. A significant material change in the law. I recall his wife asking the Court during a public Q&A for such a precedent. Hope you can share with him that that another possible way to pursue an earlier release… time is of the essence
Recent*
Here’s the TVW Link for the Q&A
https://www.tvw.org/watch/?clientID=9375922947&eventID=2018021216&startStreamAt=2584
Thank you, Jerome. I assure you that this route is being considered.
Ken
May God bless you for your hard work on this case! They’ll be out soon I’m praying!!
Thank you, Tru.
Thank you so much for your efforts in documenting further progress on this! We, like many others, recently were stunned by the Confession Tapes case. No amount of money after the fact will get these guys their years back, it’s nuts. Being Canadian, I can’t believe Mr. Big tactics are in anyway ethical or valid. This is obviously extra true for youth who likely experienced extreme trauma, had no clue how to psychologically process it, and were then villainized publicly.
Happy to hear finances aren’t a concern for the case. If anything else is publicly helpful please advise. We’ve come across Amazon Wishlists for Atif, but are unsure if they’re legit/maintained, or even general mail for morale boost.
This is wonderful news! What happens next? Is a court date set?
The court date has been moved back a few times because of COVID and just recently because Atif’s lawyers want to clarify certain things in the legal and political landscape. Right now it appears to be some time in late May or June, but then this is the legal system…
Hi Ken,
Have there been any updates on when the court date might be?
Thank you.
Yes, Alex. Because of various delays, Covid, extensions and so forth, it would appear that oral arguments before the 9th Circuit will take place in December. October is possible but unlikely.
Hello Ken, sorry for my English.
Are the oral arguments still expected in december ?
Thanks.
No need to apologize, Jo. Your sentence is perfect and to the point. The final brief is in now. When the court is ready for oral arguments, they will give ten weeks notice. The process will obviously stretch into next year, maybe April or May realistically. The law is an incredible grind.
Ken
I recently saw the confession tapes on Netflix and have been completely preoccupied with this case since, listening and reading and watching everything I can find on it. I cannot believe that they were found guilty! It is completely obvious that they never in a million years committed these murders. What happened fills me with outrage and sadness and hatred for the dic*head cops’ treatment of these boys and the biased judge. I am keeping all my fingers crossed that they both will be freed soon by this 9th circuit hearing.
Thanks, Carla,
It’s unlikely that they’d be freed by the appeal court. The court could turn down the appeal (the usual); they could order a new trial, at which point the state (King County) has to decide if there’s a reasonable likelihood of getting another conviction, or King County can decide to release them. While the 9th Circuit hearing is a major legal breakthrough for a case that was dead in the water, the system is heavily weighted against successful appeals.
Ken
Hi Ken,
Firstly, thank you so much for all the hard work you do in keeping the public updated. I am by no means literate in law (and especially US law), but I am glad that there is some positivity and progress, after so many years and so many rejected appeals.
I came across the case, like many, via the Confession Tapes, and I did some additional research thereafter. Despite how limited I am in terms of what I’ve accessed, I cannot help but strongly feel that they are innocent. I haven’t felt so bothered by a documentary since (nor will I ever be in the future), with how they’ve been treated and how much time has gone by (and how they’ve been cheated out of so many years of their lives).
I often wonder how Sebastian is doing. I don’t know what you’re connections are but If I were able to pass a message onto Sebastian or his family, is that there are people out there in this world that care about him and are rooting for him! (As well as Atif of course). Is there any news on how Sebastian is doing?
Thank you, Kade. I will pass your thoughts on to Sebastian’s family. We are, of course, hoping against all odds for a favorable ruling in this case.
Kwn
God I hope these two do not win their appeal on Wednesday. It would be a slap in the face to two very guilty individuals.
Well, you got your wish… you vindictive, low IQ, man. Ignorance is bliss.
You must allow people to have their own opinion without resorting to calling them names.
It would be a very sad day for justice if only those who agree with you are allowed a voice