One of the main arguments against Atif Rafay and Sebastian Burns by the Washington appeal courts centers on the demeanor of Sebastian Burns while he is supposedly confessing to the RCMP gangsters. He doesn’t appear to be fearful or distressed; therefore his lawyers must be wrong about him being coerced through fear into making the confessions. I have already made the argument that you can’t judge a book by its cover, i.e. you can’t know what is inside a person’s head by the way she or he behaves on the surface. You can only guess. For that reason alone, the arguments against the appeal are worse than suspect, they are invalid. They are a legal disgrace.
Another argument against the two teens (as they were at the time) is their inappropriate behavior in general after the killings of the Rafay family. Rather than a legal argument, it was the perception of their behavior in the media at the memorial for Rafay’s family. It appeared infantile at best. Nor were they models of decorum–neighbors found them “obnoxious”–when they moved into a shared residence with friends in West Vancouver. But here is a quote that I found upon rereading Victor Frankl’s great work, “Man’s search For Meaning”.
ABNORMAL REACTIONS TO AN ABNORMAL SITUATION IS NORMAL BEHAVIOR.
Frankl was referring to the behavior of oppressed people in concentration camps who are in the category of wrongly convicted persons. They did things they never would have done had they not been starving to death and constantly beaten. They were not bad people but people in dire circumstances. I think people might also give Atif and Sebastian the benefit of the doubt when it comes to surface behavior. They had witnessed the aftermath of a bloodbath which would be bad enough if they didn’t know the victims. This was, however, the family of Atif Rafay! Their abnormal behavior, under the circumstances, is completely understandable.
It irks me when I hear people talk about their behavior as the clinching argument for their guilt. Anything but! If they had been purely calculating, they never would have behaved in that way. That is why, on The Confession Tapes, I described them as “two goofballs in a state of shock”. How do any of us act in violent and completely abnormal situations? Why do soldiers suffer from PTSD? Does anyone really know what a soldier goes through after enduring sights that the rest of us never have to see, like bodies blown to pieces in a marketplace? What would YOU do if you came upon your family bludgeoned to death? You don’t know until it happens and God forbid it ever does.
I completely agree. I’ve read so many arguments from those convinced of their guilt based on their behavior. I am their age and was a college student at the time of the murders. Every last guy I knew lived like Atif and Sebastian. Slept all day, up all night, played loud music, party animal teenagers. This is typical teenage guy behavior.
They DID NOT actively seek out a “gangster lifestyle” – they were targeted and placed in these scenarios specifically designed to lure them, after being ostracized in their community due to the false stories the police fed to the media. The RCMP preyed on this weakness, with the help of the Bellevue Police Department and they really had no way out.
There is no script to follow after witnessing such an enormous personal trauma. And their behavior after the fact was probably an attempt at restoring normalcy. How so many refuse to see this is astounding to me.
All teenaged guys partied and played loud music…. you do realize what you’re really saying is that Rafay and Burns’ (and Miyoshi’s) behaviour then was completely normal.
Also. Burns showed a tendency for deceptive (abnormal?) behaviour in the years preceding the murders. Evident he had a cunning mind.
Yes, I think their behavior was completely normal for 18 year old boys with an upbringing similar to mine (upper middle class, fairly sheltered, carefree etc). Cunning? Absolutely. Does that make him a murderer? Of course not.
In a somewhat similar situation to Sebastian’s car wreck: while in high school, I (barely) tapped a parked car, leaving a small dent. There were no witnesses, so I moved along and pretended like nothing happened. It worked – I was never found out and didn’t get into trouble. But I was so riddled with guilt and shame that I’d never try that again. Conversely, Sebastian WAS found out, he testified that it was a “shameful disaster”. Even if he DID make the jump from a mischievous teenager to murderer (which I don’t believe he did), I can’t see him thinking that story would work again.
The problem with the perception of Sebastian (and he’s no angel) is the way he was made to appear by the RCMP to the jury. What Mr, Big does, aside from eliciting confessions, is to make the defendant look like a criminal. After all, one asks, why would a person participate in criminal misdeeds with gangsters? The answer is conditioning. If you are paid large sums of money each time you commit a petty crime and you can’t get a job because the community thinks you are a murderer, wouldn’t some not take the money?
I would also be careful about drawing conclusions (“a cunning mind”) from teenage behavior. How many people out there misbehaved badly but were never caught? Look at the new U.S. Supreme Court Justice. No one would have known the allegations against him for sexual assault had he not been nominated to the court. The judgment of young men is generally flawed.
None of this has anything to do with murder but it does speak to perception that might prejudice someone into believing someone is a murderer.
I would also argue that “Mr. Big” seemed extremely intimidating and often talked about offing people who annoyed him. I know, if I was somehow in a position where this man knew my face, vehicle, where I frequent, I would think that if I said I was some square innocent person who wouldn’t commit crime— he’d kill me. He’d kill my loved ones if I run. It wouldn’t be just making money if I do it, it would be serious consequences if I didn’t. They didn’t even need to condition him, once they were in the car together, he was screwed.
Here is an interesting article on CNN about teenage false confessions due to coercion/manipulation if you and/or interested readers haven’t seen it:
https://www.cnn.com/2018/06/12/opinions/making-a-murderer-false-confession-opinion-tankleff/index.html
Good article – thanks for the link! I can’t even bring myself to dive into the Dassey case. I’ve been so consumed with the Rafay/Burns ordeal since learning of it that I don’t think my brain could handle anything else.
So many people who believe their guilt fail to consider the psychological impact, and their vulnerability after experiencing such an emotionally traumatic event. And so many jump on the fact that they were legal adults at the time. Even in Burns v Warner, Sebastian’s habeas petition (I think) – the judges point out, TWICE, that he was nearly 20 years old at the time of the “confession” in July 1995. It’s as if they assume people become impervious to these tactics the minute they turn 18. It’s splitting hairs, really.
I’d also say, in response, that in my experience, the 18-25 age range is when young men engage in the riskiest and most mindless of endeavours. It is not an age of maturity. Ask many parents and they’ll tell you the same: a young man is lucky to make it through those years in one piece. At the age of 18, you have the very definition of sophomoric, know it all and contempt for adults. At the upper range, there is great physical strength without the good sense to keep it under control.
Ken, are you saying Burns’ school pranks and attempt at insurance fraud were “mindless” ?
What about his obvious rationing of his ‘life of crime’ with Mr Big? Didn’t seem like impulsive decisions to me…
-He was in high school and was a bit of a rascal, but quite successful and social. Pretty normal kid-type you can find in any school you go to – and that person does NOT go out and commit an heinous, brutal crime like the terrible Rafay murders.
-He was thrown into a ridiculously unfair, Kafkaesque life – a downward spiral would not be inconsistent when you see the “system” you are brought up in, have succeeded in, and been told is FAIR – turns out to be the opposite.
Heartbreak and disbelief- this is how I was left after learning about the Sebastian Burns and Atif Rafay story. The number of experts giving context to the confessions ought to have persuaded the jury as to the overwhelming amount of reasonable doubt in this case. Apparently missing from this conversation is neurobiological expertise.
The adolescent brain, and specifically the pre-frontal cortex, is not fully developed until an individual’s mid-twenties. This part of the brain is responsible for planning, decision making, evaluating consequences of behaviors/ actions and much more. A brain in fight or flight mode is even more susceptible to behaviors that otherwise would not occur.
This science cannot be left out of the conversation if the behavior of Sebastian and Atif following the murders is going to be weighed so heavily. The perception that they were aloof and behaving inappropriately in addition to the fact that they decided that providing false confessions to individuals whom they believed would help them MUST be considered in the context of adolescent brain development. Finally, the adolescent brain is extremely vulnerable to peer pressure. Sebastian confiding in, and subsequently describing fictional criminal behavior, demonstrates this.
Anyone who cares about justice should care about what happened to these two men with so much potential. For those who feel indifferent, this case ought to demonstrate the fact that anyone’s lives can be taken regardless of innocence.
I couldn’t agree more, Kate. The behavior is what resulted in the conviction. They were convicted for who they were or, more accurately, they were found guilty because the entire courtroom, outside of their own friends and relatives, was made to despise them. Behaving badly at a memorial, for example, is visually damning, even if reason tells you that people who committed such a cold-blooded murder would try to look sad and solemn. They were two adolescents who had seen something no person should ever have to see and were not mature enough to cope with it in an adult way. This, along with your accurate assessment of the adolescent brain, was a bad confluence.
The system will hold on to this conviction as long as it possibly can and Atif and Sebastian will be hard pressed to find a way out. A nightmare.
The dynamic that takes people into false confessions is not restricted to Mr. Big scenarios. It can appear in less dramatic forms in other situations where a person feels like he or she needs help or rescue or leniency in situations where they feel trapped by people who are putting a lot of pressure on them. Bit by bit, the psychological phenomenon gradually shades into the very common dynamic of the way some (not all, but some) people claim they are victims or in need of a special degree of help, or need to be given, or spared, the things that others commonly earn for themselves or have to endure in life. In the vast majority of those cases the individuals don’t consciously realize they are passively manipulating the situation, or trying to manipulate the situation, to their advantage, although in many cases the “advantage” might be nothing more than normal and perhaps not-too-pleasant survival. I think the reason that the legal system in the end did not give Burns and Rafay any benefits of any doubts is related to the extreme unlikeliness of all the so-called “circumstantial” evidence occurring and overlapping in the way that makes them look guilty. Not all circumstantial evidence is equally circumstantial, so if it gets closer to “material” in the legal sense, which means a factor directly relevant to determining a question one way or another. Judges will give those pieces of evidence various weights in their final decision, unless, of course, the judge has made his or her decision within the first five minutes of seeing the defendants, something that lawyers and others rightly fear can happen or try to exploit (always try to exploit). There are mathematical-like ways of giving weights to a set of varying likelihoods in order to arrive at an end likelihood and I would expect and hope judges are complete masters of using such and DO use the same method in all cases where it’s needed. For example, a procedure written out the great jurist Wigmore was first published about 170 years ago and it’s still being developed and refined. However, that is for evidence that has been ADMITTED, and the whole matter of getting evidence admitted or rejected is another jousting match that can be a life and death matter. AND, EVIDENCE ADMITTED OR NOT, one of the best litigators I’ve ever met cautioned me wisely that “case law is the handmaiden for the judge’s decision” and that, I would say, is ever the sorest temptation of the police and courts, and the population’s biggest fear regarding the courts. After years of interest in this case, I continue to lean in the direction of seeing Burns and Rafay as either guilty, or, if not, the victims of an absolutely PERFECT storm of wrongful conviction. THAT SAID, I have questions about whether they should have been convicted even if they are guilty. I don’t see why the judge’s admission of the Mr. Big evidence under the provisions of international treaties couldn’t be reversed by arguments citing American constitutional law, for one thing, although that must have been tried and failed. I have no idea if the trial judge made a decision based on a dislike he took to the defendants, but it’s a question in my mind. The population in general doesn’t understand or like highly-intellectual teenagers who are both arrogant and intoxicated with the first freedoms of rebelliousness and adult freedom but who have not yet caught on how to mix with the rank and file of life. Similar teenagers who are equally bright and immersed in scientific subjects (i.e who are budding “intelligentsia” not “intellectuals”) are accepted much better, but arrogant teenage intellectuals alienate others quite quickly when they haven’t yet caught on how to interact with the general public, and those difficulties can just make it all worse as they react to others’ reactions to them. Did the judge take an instant dislike to them both? A lot of people would. Also, I think the defense lawyers closed off the possibility of the confessions being seen as “criminal braggadocio” (as Dr. Michael Levine, an expert in the area calls it). The lawyers said the confessions were false, borne of fear, and the judge said fear was straightforward enough for a jury to discern and decide upon, and thus there was no need for any expert testimony. The general rationale in the common law for judges to accept “expert” reports or testimony is that it’s only of value when the judge’s inherent “common sense” will not do. In Canada, composing expert reports and testimony is very much a business of NOT discussing any common sense issue that a judge can decide upon him- or herself, and my guess is that the American system works similarly with respect to expert evidence. One of the biggest problems I see in law is how conclusive some decisions of a trial judge are considered to be by the appellate levels that review decisions. Trial judges’ decisions about credibility of witnesses, for example, can’t be challenged in appeal courts in Canada, and I would say that is NOT good, NOT good at all because judges, like all humans, tend to VASTLY OVERESTIMATE their abilities to discern credibility in people’s non-verbal presentation. GRANTED, credibility can be assessed by linguistic analysis of testimony (variously called ‘statement analysis’, ‘discourse analysis’ and other terms — it’s a science, not an art), and judges will sometimes explain the analytic reasoning they use about a person’s testimony to explain their findings re: credibility. It’s written out in detail in SOME decisions, but in many, perhaps most, decisions, judges give no rationale for their finding witnesses to be credible (usually while not mentioning why others’ testimonies are not accepted, i.e., not credible). The great American psychologist Paul Ekman included judges in the EXHAUSTIVE assessments he did of people’s abilities to discern deceit, and judges, just like college freshmen and just like police and the rest of us, were only about 50% correct (i.e, no better than guesswork) no matter how many years they had been on the bench or how much faith they had in their abilities to see lying in a person’s non-verbal behavior (including the non-verbals accompanying their verbalizations). THE PROBLEM IS, what better system do we have at the moment? There are a lot of legitimate criticisms that can be made but we don’t have better alternatives yet except for the appeal processes, etc. that are in place. If there is an enshrined, permitted, encouraged, or required bias on the appeal level to accepting certain aspects of a trial judge’s decisions (i.e., re: witness credibility, and whatever else), how can it get reversed if it’s incorrect or unwarranted? I see some problems in Canadian law due to the unfettered, unmonitored, irreversible discretion of trial level judges in Canadian law and I’d guess it’s as bad in American law, if not worse if there’s a stronger bias there toward favouring trial court decisions. There is pleading in American law of “error coram vobis” (or “nobis”) meaning ‘error in front of you’ (the court) or us (“nobis”) and I imagine the American lawyers have used it the hilt to no avail (I brought it up in a discussion with one of the shorter-lived American defense lawyers involved). The Confession Tapes portrays a couple of the jurors as having questionable appropriateness for intellectually-demanding decisions, but another jury member later talks about how the case against Burns and Rafay simply became overwhelming by the end. I think — possibly I am wrong — but I think it was the extreme unlikelihood of all the so-called “circumstantial” evidence overlapping as it did that had the jury accept the confessions as the truth. I certainly don’t know the truth any better than anyone else (save Rafay and Burns themselves), but I would fear what might happen if either of them were released when I think of the case of Jack Abbot, a criminal released due to the lobbying efforts of Norman Mailer. Six weeks out of prison, Abbot knifed a man to death during an argument about using a restaurant’s bathroom. So we look at the relative merits and dangers of false positives and false negatives in these HUGE decisions. The world is not a picnic, not a picnic at all, eh? All that clearly said, with appropriate GRAVE RESERVATIONS about our system of law, I am not aware of any better system anywhere at any time in history. If things fail due to judicial discretion on the trial level, it is FIRST AND FOREMOST an unmonitored HUMAN problem in the judges’ psychologies, the sort of problem that gets worse the more they get away with uncorrected self-indulgence. I am in the earliest days of beginning to take it up with Canadian judges but even if I get maximum traction in their minds, there isn’t too much that can be done other them upbraiding and disciplining themselves to do better. If brain-reading machines ever become 100% trustable about truth and lying (lie detector machines are not trustable), perhaps they will eventually be allowed in the courts. In the meantime, we have the noble efforts of innocence projects, another indicator of how our imperfection-plagued legal system has evolved to the highest level known in history compared to what else is or could be available. In the history of common law, a lot of it — not all, but a good amount of it — developed out of people claiming they had been wronged and thus deserve a remedy, a remedy that a court had to INVENT on the spot given the novelty or strength of the claim. This is the part of the history of the law that can be called “the remedy leads to the right” — the justice of the newly-awarded remedy simultaneously mints a new right. THAT SHOWS the reactive nature of the law, WHICH, IN TURN, MEANS, that SOME undesirable situations in society are a STEP AHEAD of the state law has developed to in its reactive history. So again and again, we get faced with the imperfections of the law. However, law doesn’t promise people a “perfect” trial, only a “fair” trial, but legal scholars do refer to the “uncertain promise of the law”. That promise is bolstered by the humanity and strong promises of innocence projects, for which we can be eternally grateful, but they too can make mistakes.