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.
The new defence team decided to explain the taped confessions on the basis of fear arguing that Sebastian and Atif had volunteered the confessions on account of fear. And, quite obviously, no jury needs specialists to tell whether or not the people on video looked scared or under pressure. The court, therefore, declined to allow Dr. Leo and Mr. Levine to testify as expert witnesses for the defence.
The defence was also disallowed from raising the possibility of the murders having been committed by another person or group such as Al Fuqra for their own reasons. Apparently, the alternative possibilities sounded more like conspiracy theories to the court rather than real possibilities. Therefore, the jury was to hear only the evidence presented by the state and the only thing that the defence could do was question the evidence so presented.
The defence pointed out that the police had overlooked a fingerprint on the door of the bathroom and had also ignored a bloodspot in the shower. The fingerprint did not come from any of the victims or the two alleged perpetrators, Sebastian and Atif, and the bloodspot was a mix of Dr. Rafay’s blood and someone other than the deceased and Sebastian and Atif. Another unexplained fingerprint was found on one of the doors and another bloodspot in the garage, which was, again, a mix of Dr. Rafay’s blood and that of an unknown person. If it was only Sebastian and Atif who carried out the killing of the Rafay family, how were there fingerprints and bloodspots that did not belong to the Rafay’s or Sebastian?
In fact, there was hardly any incontrovertible forensic evidence gathered from the scene that could definitively point to the guilt of Sebastian and Atif although there were such pieces of forensic evidence that could bring under doubt the story of the prosecution.
Jimmy Miyoshi was brought in to testify, and supported the story of the prosecution, but also said, in response to a question put to him by the defence, that it was clear to him that if he refused to come down to the US from Japan and testified for the prosecution, the American company he was working for would find a reason to terminate his employment and jeopardize his professional future. The King County Deputy Prosecutor James Konat himself said that it was only because the American corporation had forced Miyoshi to fly down to the US and testify that he had done so. In fact, Jimmy Miyoshi wrote an email to the prosecuting attorneys, Roger Davidheiser and James Konat, on July 30, 2003, in which he said, “I did not believe you had it in yourself to damage careers that my wife and I have worked considerably hard to rebuild from our situation almost ten years ago. I am not sure what we have to live for at this point, and I am not convinced that we can ever recover from this.”
The language of the email clearly displays acute anguish and helplessness indicating that Miyoshi was under serious pressure to toe the line. The email was read out to Jimmy Miyoshi during the trial by defence counsel Jeff Robinson and Miyoshi confirmed to having written the email. Robinson also asked Miyoshi if he had been threatened with prosecution as a co-conspirator in the murder of the Rafay family if he did not testify for the prosecution, and Miyoshi confirmed that he had been so threatened. Clearly, Miyoshi had a lot to lose if he did not testify for the prosecution and he had every reason to believe that if he did not go with the prosecution, the life he was then living could be over.
Defence Counsel Jeff Robinson also asked Miyoshi if he had placed a call on his office the morning of the day he was to be cross-examined by the defence, and Miyoshi confirmed that he had. Robinson then asked if Miyoshi remembered having asked Robinson as to how would things change if he were to testify for the defence instead of the prosecution. Miyoshi denied having asked that. However, the question remained as to why did he call the office of the defence attorneys at all if he was sure that he was telling the truth, especially when telling the truth was also going to keep him comfortable? What was it in confirming the story of the prosecution that was making Miyoshi uncomfortable, if it was the truth? Could it be because he wanted to tell the truth without suffering for it, which is why he wanted to explore the option of testifying for the defence? One can only speculate.
In October 2004, the jury found Atif Rafay (28) and Sebastian Burns (29) guilty of murder in the first degree on all three counts, and, on October 22, 2004, Burns and Rafay were sentenced to three consecutive life sentences without the possibility of parole.
After the conviction and before the sentencing the Presiding Judge, Charles W. Mertel, gave Sebastian and Atif an opportunity to make a statement as mandated by the law, the contents of which could be taken into consideration for the purpose of sentencing. Atif spoke for about five minutes whereas Sebastian spoke for nearly an hour and half and explained at length why he believed that they had been wrongly convicted based principally on their own taped confessions, which were inadmissible in evidence under the American laws. He also detailed a long list of evidence that he believed proved them innocent of the crime and further touched upon the evidence that they were not allowed to present to the jury in their defence, including the evidence raising the possibility of other viable suspects with motives just as strong or even stronger than the motives Sebastian and Rafay were said to have had. “We were defending ourselves in this trial with both arms tied behind our backs,” said Sebastian pointing at the perceived unfairness of the trial. “I certainly feel sorry for the victims. I feel sorry for their surviving son. I feel sorry for their surviving family. We didn’t commit the crime,” Sebastian said and blamed the news media in part for what he believed to be a wrongful conviction.
Before moving on to Atif, Judge Charles W. Mertel, responding to the statement made by Burns, came down heavily on him with uncharacteristic vehemence and said that Burns statement was “chilling in the lack of remorse” for the victims of the crime and further said to Burns, “You are not immoral. You are amoral. You have no moral rudder whatsoever. You are an arrogant, convicted killer. You are not a kid, as you often refer to yourself. You are an adult and you will be held responsible as an adult.” The judge also indicated the most compelling evidence against Atif and Sebastian based on which they had been convicted when he said, “You were convicted, Mr. Burns, based on your own chilling, casual confession.” The judge then proceeded to sentence Sebastian before allowing Atif to make a statement.
Atif maintained that he and Sebastian were innocent of the crime they had been convicted for, and went on to express his anguish and grief at the loss of his parents and sister, and also his undying love for his parents. Referring to the taped confessions, Atif said that they had told lies and worn masks to “survive an appalling, atrocious situation that was constructed to entice” and elicit from them “those very lies and that mask”. He lamented that he had been manipulated into contributing to the fact that the real killers of his family had not been brought to justice.
Despite Atif’s clear denial of accusations against him and Sebastian, Judge Mertel found Atif “genuinely remorseful”, and said that he thought Atif did have “a moral compass”. Judge Mertel once again re-asserted that the principal evidence against them was the taped confessions. “Why you would do that if it wasn’t true?” said the judge referring to the confessions. “The difficulty is telling somebody you were lying then but you are telling the truth now. Always a difficult proposition. But you were convicted on your confessions. Frightening confessions casually given about how you did these things and why you did it.” The Judge seems to have simply ignored that any two statements can be compared for the credibility of the truth expressed only if they were given in identical, or, at the very least, similar circumstances. In this case, the taped confessions were clearly baited into by the RCMP, which is exactly why they should not have been admitted into evidence.
Also, neither Sebastian nor Atif was remorseful because both had clearly denied that the two had anything to do with the murder of Atif’s family, and one cannot be remorseful or remorseless with respect to something one has not done. However, the Judge did make it plain that it was primarily the taped confessions that obtained the conviction of the duo for the prosecution. In other words, the conviction was principally based upon the evidence of questionable legality and credibility.
Mr. Big: Current Legal Standing
Ten years after Atif and Sebastian were found guilty and sentenced for the murder of the Rafay family principally based on their own confessions obtained through Mr. Big technique, which was an illegal investigative tool in the United States but was legally permissible in Canada, it was called into question before the Supreme Court of Canada in R v. Hart, 2014 SCC 52, and was found by the Canadian Supreme Court to be prone to misuse. The apex court of Canada found that the confessions obtained through Mr. Big technique were often unreliable, and laid down stringent guidelines for the admissibility of the confessions thus obtained to prevent the abuse of the technique and also to improve the credibility of the confessions. However, the Supreme Court of Canada stopped short of ruling the Mr. Big technique was illegal and unconstitutional and chose to introduce the safeguards instead.
In R v. Hart, the Supreme Court looked into the technique under question to eliminate the risk of unreliable confession and also from the viewpoint that the suspect’s participation in the “simulated” crimes (Para 73) might prejudice the jury against the accused apart from the fact that the misconduct of the undercover police officers may also “amount to an abuse of process” (Para 78).
The Supreme Court evolved a two-pronged safeguard to improve reliability of the evidence gathered through Mr. Big technique and also to protect the suspects against the possible abuse of the legal process by the police officers.
The first prong puts in place a new common law rule of evidence to assess the admissibility of confessions, according to which “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” (Para 85). To overcome the inadmissibility the prosecution must prove “on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect” (Para 85). The probative value of the confession “turns on an assessment of its reliability” while “its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context” (Para 85). Where the prosecution fails to prove the admissibility of the confession based on the test, “the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible” (Para 85), ruled the Supreme Court.
The second prong of the two-pronged solution aims at addressing “unacceptable coercion”, which the court found to come in two forms – “violence and threats of violence”. However, the court noted that “Mr. Big operations can become coercive in other ways as well. Operations that prey on an accused’s vulnerabilities — like mental health problems, substance addictions, or youthfulness — are also highly problematic” (Para 117). The court further said, “Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system. As this court has said on many occasions, misconduct that offends the community’s sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement” (Para 117). Although the Canadian Supreme Court has not completely outlawed the Mr. Big technique, it has clearly pointed out the unreliability of the technique in gathering credible evidence, for which reason the Supreme Court laid down stringent safeguards.
The conviction of Atif and Sebastian was based almost solely on their own confessions extracted by a Mr. Big operation with no forensic evidence linking them to the crime and despite ironclad alibis that were dismissed as purposely created with no evidence of such purposive construction of alibis as suspected. Furthermore, there were other viable suspects for the crime, who were never considered by the investigators and all alternative theories were rejected out of hand without even preliminary investigation on the ground that there can be endless theories and leads to pursue, if one were to consider the alternative possibilities. But there were not quite as many theories and suspects that they could not investigated.
However, it seems the investigators thought that they had their culprits simply because Atif and Sebastian did not appear to behave like they were in mourning. And then they somehow got their confessions through a hugely dubious technique and for them it was a conclusive proof of guilt. As the above discussion shows, there are sufficient reasons to seriously doubt the conclusion the investigators arrived at. The conviction of Atif and Sebastian, therefore, seems to be on shaky legal footing.