Crime File

THE RAFAY MURDERS-III TRIAL AND THE SEX SCANDAL

Atif Rafay’s entire family had been killed while he was out with his friend, Sebastian Burns. The two return, discover the bodies and report the crime. But they do not display the behaviour typical of the victims in such situations, which makes the investigators suspect them so strongly that they ignore all other leads and possibilities. A legally dubious investigative tool is employed to obtain confessions. HEMRAJ SINGH tells the tale of a conviction despite well-founded doubts.

Sebastian was asked to tell in detail what went down on the night of the murders, and the story that he told did not disclose anything not known already. There were no such details that had not been reported in the media already. So far only Sebastian had been talking to these members of a purported criminal organization with international operations and reach, and it was after Sebastian had confessed that they asked him to bring Atif in as well. The next day both Atif and Sebastian were sitting with the undercover operatives posing as the members of a criminal organization. They together told much the same story that Sebastian had told earlier and whatever little details they added could not be verified. According to their story, it was Sebastian who went around killing the family while Atif kept sitting in the living room away from the scene of the crime. As per this story Atif was nowhere around Sebastian when he clubbed the victims to death with a baseball bat.

The problem with that version of the story was that it did not fit well with the scene of the crime as the police found it. The pattern of the blood splatter found on the wall of Dr. Rafay’s room indicated that there was a human figure blocking the splattering of blood on the wall, which meant that someone was standing there when the killer took to hitting Dr. Rafay with the baseball bat, which contradicted the story told by Atif and Sebastian because their story put Atif in another room away from the scene of the crime, and there was no third killer in the story.
There were inconsistencies inherent in the confession itself. Questions such as where the baseball bat used to kill the Rafay family was bought and who bought it, where did they throw their clothes after the murders, what was Atif’s sister doing right before she was killed, were answered inconsistently and sometimes Atif said one thing and Sebastian another in response to the same question and then they tried to align their story rather clumsily. It seems that they just wanted to convince their interviewers that they had actually committed the crime so that they could get them out of the mess.

The murder weapon had never been found. The DNA evidence could not conclusively indicate that Atif and Sebastian had anything to do with the killings. There were no incriminating fingerprints found drawing the attention to the two. Instead, Sultana, Atif’s sister, was found dead with her shawl over her head and she was facing east, which was another thing that supported the theory of the involvement of a fundamentalist organization, but that angle was not paid much attention to, which could also be because the murders took place before the 9/11 WTC tragedy. However, Atif and Sebastian were charged and prosecuted for the murder of the Rafay family on the force of the taped confessions obtained through a technique that was illegal in the US.

Jimmy was not quite as forthcoming as Atif and Sebastian were, and he did not say anything to confirm his involvement in the alleged plot to kill in any manner. He barely confirmed that Sebastian had killed the family, but that was after Sebastian reassured him that he could open up and the undercover operatives also assured him that it was only for the purpose of building trust. However, Jimmy was brought before the RCMP operatives by Sebastian and Atif, which meant that they must have briefed him about the meeting and its purpose. So, the least he could do was confirm the story Sebastian and Atif had told without saying anything about his direct involvement in the murders. If, on the other hand, Miyoshi had come to meet the operatives on the insistence of Sebastian and Atif and had not only denied his involvement in the plan without confirming that Sebastian and Atif had committed the crime, his coming to the meeting would have been completely pointless and futile. He might have been trying to help his friends by supporting their lies for them without getting himself implicated.

The prosecutors tried to turn Atif against Sebastian, but that did not work. They turned to Jimmy Miyoshi and he was granted immunity from prosecution in exchange for his testimony against Sebastian and Atif. Later, he moved to Japan and was called in from Japan to testify against the duo at which point he was working for an American Corporation in Japan and the corporate establishment was contacted by the American authorities and informed about Jimmy Miyoshi’s role in the Rafay murders and how significant his testimony was to secure the conviction of the culprits.

Apparently, Miyoshi was under pressure to testify for the prosecution because not toeing the line of the prosecution could affect his job and livelihood and could also result in his arrest and prosecution as a co-conspirator. But before Miyoshi could be of any use to the prosecutors in the court, Atif and Sebastian had to be extradited to the US for trial, which did not prove easy. It vigorously contested before the Canadian courts for over six years. But the US prosecutors managed to convince the courts in Canada and the extradition went through.

Finally, at the age of 27, Atif and Sebastian were brought to the US to face trial for the murder of the Rafay family committed over eight years ago when they were eighteen years old. The fundamental legal question was whether the taped confessions were admissible as evidence in a court of law in the US because only such evidence could be placed before the court and could form part of evidence that was legally obtained whereas methods to obtain confessions such as the “Mr. Big technique” were illegal in the US, and without those confessions the prosecutors did not have much in terms of evidence against Atif and Sebastian. In fact, without those confessions, the police did not even have sufficient evidence to obtain a warrant for their arrest.

The legal question of the admissibility of the taped confessions as evidence was hotly contested because it was the most significant piece of evidence the prosecution had against Atif and Sebastian. However, the confessions had not been voluntarily offered as legal confessions before any person or body authorized in this regard and were inadmissible as per American laws. However, the presiding judge chose to allow the tapes to be admitted in evidence on the ground that the investigators were following the Canadian law and for that reason the taped confessions were admissible under international treaty. The ruling was certainly a major win for the prosecutors and was also a turning point in the case. The confessions were now set to be used against Atif and Sebastian to secure their conviction. But before the trial could start something dramatic occurred.

The Sex Scandal

Sebastian was represented by Neil Fox and Theresa Olson. Olson traveled to Tokyo, Japan, to meet Jimmy Miyoshi and returned convinced that Miyoshi was going to step into the courtroom and withdraw his admission of any substantial knowledge of Sebastian’s and Atif’s guilt. Fox and Olson were working hard to defend Sebastian and had been Sebastian’s lawyers since 1999 after they were appointed in the capacity by The Defender Association, a non-profit law firm.

In August 2002, four correction officers at the King County Jail found Olson (46) and Sebastian (29) having sexual intercourse in a conference room during a client-attorney meeting between the two. The matter was duly reported. The correctional officers testified that they witnessed Olson bent over a table with her skirt pulled up to her waist and Sebastian standing behind her and moving in a “sexual way” with his pants down. The correctional officers also said that they had entered the room after observing the two from the upper tiers of the city’s King County jail for several minutes. The guards further testified that they believed that the two had been having sex for at least three or four months before they were finally caught.

Olson, in her testimony admitted to having developed romantic feelings for Sebastian and also admitted that it was a case of a passionate hug gone wrong and that she should have resisted but did not. However, she denied having sexual intercourse with Sebastian.

Both Fox and Olson were removed from the case, and the Washington State Bar Association recommended a two-year suspension and mental-health evaluation for Theresa Olson, which the Washington Supreme Court accepted and confirmed.

Apart from being embarrassing to the local criminal-justice system, the scandal and the resultant removal of Olson and Fox delayed the trial by about eighteen months or so, and raised the cost for the county by an estimated $150,000. Olson and Fox were replaced by Jeff Robinson and Sam Richardson.

The Trial

As the trial began, it started becoming clear that the strongest evidence against Sebastian and Atif was actually their own confession, and even so, the pieces of physical evidence collected from the scene of the crime did not wholly line up with the story the prosecution told, which was fundamentally the story that Sebastian and Atif had told in their taped confession.

As per the sequence of events narrated by Sebastian and Atif, Sebastian went around the house clubbing everybody to death while Atif sat in the living room and let Sebastian finish the job.

Therefore, there were only two assailants, one of which sat in the living room and the other went about committing the murders singlehandedly. However, the crime scene, particularly the pattern of blood spatter on the wall of Mr. Rafay’s room, told a different story in that regard. From the pattern of blood on the wall, it appeared that it has been blocked by a human figure, which meant that when the killer was hitting Mr. Rafay with the bat someone was standing between Mr. Rafay and the wall and it could only be an accomplice because the rest of the family members were in other rooms, and even if they were in the same room, they would not have stood and watched.

So, if Atif was in a different room and Sebastian killed Mr. Rafay, who stood watching? The story of the investigators or the taped confessions of Atif and Sebastian did not put a third accomplice on the crime scene. Therefore, the story placed before the jury did not find support from the physical state of the crime scene. But far louder than the discrepancies in the physical evidence collected from the scene rang the sound of the confession tapes, which had been cleared by the court for the viewing by the jury, and were, therefore, played to the jury.

The juries comprise of ordinary citizens, who believe, not without good reason, that only those who are guilty confess to acts as dastardly as Sebastian and Atif had confessed to having committed. This is what makes confessions extremely prejudicial in a jury trial. Atif and Sebastian were put in a situation where they felt that the only way forward was to convince the criminals of a well-organised gang that they were bad enough to be part of a ruthless mafia force, which meant that they had to act like they were every bit as cold and bereft of conscience as the worst in the gang. It is not easy for a jury to be appreciative of such circumstances unless it is impressed upon the jury with considerable persuasive force, which is a very difficult task for any lawyer.

The former Defence team comprising Fox and Olson had thought of playing to the jury the angle of criminal braggadocio, which was meant to explain that on the confessional tapes Sebastian and Atif were not really confessing to a crime they had actually committed but were engaging in plain bragging so as to have a foothold in the criminal organisation they thought was their saviour. To back the defence of criminal braggadocio or “false bragging”, the Defence had planned to call as expert witnesses Dr. Richard Leo, an associate professor of criminology and psychology at the University of California, who had written and testified extensively on the issue of false confessions, and Michael Levine, a former Drug Enforcement Administration undercover specialist.

…to be continued

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HemRaj Singh

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