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Coming away from a full day in Seattle, Washington, a two and a half hour prison visit to Atif Rafay, sandwiched in between a press conference and a film screening, after reading transcripts, appeal briefs and consulting with other innocence projects, I can now offer my support. My belief (absent any forensic evidence to the contrary) is that Atif Rafay did not participate in nor passively permit the bludgeoning deaths of his father, his mother, and his autistic sister. Moreover, if Atif Rafay was not at that murder scene, neither was Sebastian Burns.
The murder of the Rafay family on July 12, 1994 shook the placid community of Bellevue, Washington. The bodies of that transplanted Canadian family were discovered by Atif Rafay, then eighteen years of age, and Sebastian Burns of the same age, upon their return from a movie. They phoned 911 and, upon the arrival of the police, immediately became the prime suspects. They were questioned, submitted voluntarily to blood, clothing and hair analysis, DNA testing and then isolated in a motel. During this time and up until this very day, the authorities found no forensic evidence linking these two young boys to the crime. Yet everything they did, every normal teenage behaviour, including the viewing of rental movies at the motel, was seen as “proof of their guilt.” Notwithstanding the unrelenting suspicions of the police, they were released and, with the blessing of Canada and the USA, returned to West Vancouver, British Columbia, Canada, then the home of both teenagers. Of course, going back to Canada, referred to as “fleeing”, was also used against them.
Upon their return to Canada, Burns and Rafay had no idea that they were going to be betrayed by their own country and its national police force, the RCMP. They were subjected to clandestine eavesdropping, wiretaps, bugging and an elaborate “con game” called Mr. Big, wherein police officers pretend to be rogues and gangsters in order to elicit confessions. Confessions gained from these types of investigative techniques cannot be used in American courtrooms unless they are gathered in a foreign jurisdiction, in this case, Canada.
While the RCMP’s Mr. Big sting operation may have been successful in solving a number of “cold cases,” this type of investigative technique has already resulted in several wrongful convictions. The ultimate purpose of Mr. Big does not appear to be the discovery of truth but getting those very “confessions” and, of course, the convictions that inevitably follow. Canadians Kyle Unger, Patrick Fischer, Clayton George Mentuck, Jason Dix, Atif Rafay, Sebastian Burns and God knows how many others were all trapped by their human weaknesses in this web of deception, lies, criminal money, fraudulent criminal acts and implied threats of violence. Just because Mr. Big may have been successful in one or two or however many cases, it is not a proper form of investigation, especially if it represents the sole means of conviction.
We at Innocence International believe that all of the above mentioned people were, variously, wrongly arrested, wrongly prosecuted, wrongly convicted and wrongly imprisoned (the taxpayer has already compensated Jason Dix $750,000 for malicious prosecution). In the case of Atif Rafay and Sebastian Burns, we have been joined by the Idaho Innocence Project and the Pacific Northwest Innocence Project. All of us now believe that the 2004 convictions of the two teenagers should be overturned and that they must be granted a full and fair hearing as prescribed by the United States Constitution. If a new trial is based upon fact and not character, upon evidence and not prejudice, it may become clear to everyone that Atif Rafay and Sebastian Burns are, indeed, entitled to exoneration. It will become clear that Mr. Big told Sebastian that the police in Bellevue were assembling evidence against him (even to the point of a fake newspaper report) and that only Mr. Big, in exchange for Sebastian’s confession, could destroy that evidence. It will become clear that two teenage boys are no match for seasoned professional interrogators who are determined to get a confession. It may become clear to all of us that the murders of the Rafay family have never been solved.
As a wrongly convicted person, I can draw a clear analogy between this case and my own case which resulted in my being convicted as a triple racist murderer in 1966. I was convicted for who I was and not for what I did. While the evidence in my case did not support a verdict of guilt, the image of a mean, bald-headed, black boxer, with a Fu Manchu mustache and a baleful glare, made an all-white jury believe that I could easily have entered a bar and killed three innocent people! The Burns/Rafay trial was really a trial of Sebastian Burns’ character. He was convicted of being an “arrogant” cold, methodical killer, even though he had never participated in a criminal act and had never demonstrated a penchant for violence. Like John Artis in my own case, Atif Rafay was deemed to be a dupe or a follower, one who had fallen prey to the other evil person. And just like John Artis, Atif was asked repeatedly to give testimony against his friend in exchange for leniency. Neither young man succumbed because neither young man could bring himself to lie and implicate another. That is my definition of a hero.
Sebastian and Atif are two bright young men from solidly middle class families. This truth did not stop the media from alluding to the wealth of West Vancouverites or making prejudicial comparisons to the infamous Richard Loeb and Nathan Leopold, two other bright and truly wealthy young men, gay lovers who read Friedrich Nietzsche, and who decided for whatever reason to commit a perfect crime, the murder and disposal of a complete stranger. In fact, what is known is that Leopold’s love of Loeb induced him to participate in the 1924 slaying of Bobby Franks. So it was suggested in the media that Rafay and Burns were also gay lovers, although once again the facts say otherwise. What they did share with Leopold and Loeb was their intelligence (Rafay was a sophomore at Cornell University), and a love of Nietzsche. As if arrogant wealth or Nietzsche or Loeb and Leopold has anything to do with the murder of the Rafay family! As if such innuendo somehow gives them the capacity to murder in order to get the funds to make a movie! I believe that their smirking in court, also used against them as evidence of cold cruelty, has more to do with how they perceived the case being made against them.
We also believe that the role of the RCMP and our own Canadian Government, in eliciting false confessions and imprisoning these two young boys for nine years before they were extradited to the State of Washington to face trial, represents yet another shameful chapter in Canadian legal history, one that goes down with Guy-Paul Morin, Thomas Sophonow, David Milgaard, Donald Marshall, Ian Bush, Mahar Arar and many other martyrs to a flawed criminal justice system. Of course Canada wanted, in the end, to be seen as the “good guys” to our southern neighbours. Don’t we always? Didn’t Canada agree to have Arar sent to Syria for torture (wherein our fellow taxpayers had to pay out ten million dollars in compensation)?
In the Rafay/Burns case, Canada gathered the very evidence that would have been inadmissible in a Seattle courtroom had the Washington State Police conducted the same operation. The only pride Canada can take in this case is that some of our best lawyers argued successfully before our Supreme Court that Sebastian and Atif not face the death penalty. Thank God for that! But then two young men, in the absence of any incriminating evidence besides the confessions, have been locked away for the remainder of their lives based on an elaborate corrupting “sting operation” and a series of prejudicial assumptions.
Why else, in the end, were they convicted?
It appears to us that “a perfect storm” of mishaps and questionable rulings occurred in this trial. According to Burns’ pro se brief, his lawyer, Jeff Robinson, brilliant as he was in his closing arguments, did not properly prepare his client for questioning in the courtroom. To underscore this point, one need only listen to his summation which was suddenly interrupted by the ringing of a cell phone, his cell phone, and, oh, excuse me, I have a call from Tennessee, at which the judge declared a recess. Mr. Robinson was in demand from many different quarters. As a result, Sebastian Burns did not come off sympathetically while testifying on his own behalf.
Another crucial factor was the dismissal, over her objections, of one juror, Donna Perry. A fellow juror accused her of “inattention” because she seemed to be writing so much, perhaps working on a novel. In fact, this writing was over two-hundred-and-fifty pages of detailed notes on the trial indicating her mistrust of the prosecutors and the case they were making against the defendants.
The court simply refused to hear alternate theories about who may have committed the crime or take seriously the DNA and blood spatter evidence that indicated the presence of “three killers in the house,” none of whom were Atif Rafay or Sebastian Burns. Finally, and most damaging, the court refused to allow the testimony of Dr. Richard Leo, one of several world wide experts on false confessions.
A former Washington state prosecutor appeared at our press conference in Seattle to claim that Burns and Rafay were convicted by “an incredible amount of evidence”. Although not the way in which he meant, the evidence against the two was certainly incredible. When Professor Greg Hampikian, Director of the Idaho Innocence project, asked this former prosecutor to “describe this evidence,” he referred to some hairs of Sebastian Burns that were found in the shower mixed with blood of the victims. What this former prosecutor did not say was that Burns was staying at the Rafay house for five days before the murders, or that teenagers do not generally clean up after themselves or that the Bellevue police did not think that such evidence was sufficient to charge the pair.
In the words of Jeff Robinson during his final summation: “Sebastian Burns was in over his head…and he chose to lie in such a way as to convince the gangsters that he was telling the truth…claiming responsibility for what he did not do.” Perhaps you don’t believe him. Perhaps you think Dr. Leo is mistaken when he says that 22% of all DNA exonerations in the United States involved false confessions. Perhaps you choose to believe that two teenagers with no criminal history and no history of violence left a film, literally beat out the brains of the Rafay family, had the presence of mind to cover up every aspect of their participation in the crime, stealthily returned to the movie theatre and were able to do all this within a one hour window of opportunity. Atif Rafay admits that they were stupid and credulous in their dealings with Mr. Big; no doubt that’s true. Three innocence projects know that Burns and Rafay were wrongly convicted because the facts of the case do not support the verdict of the jury. We also believe that they are innocent or else we would not represent them.
As to Canada, it’s time for our citizens and our legal organizations to speak out with one voice. We must openly acknowledge that Mr. Big is a flawed investigative instrument. We must eliminate this scheme from our system and recognize that the only true confessions are voluntary confessions, that before a person confesses, he or she must be made aware of his or her right to remain silent, and that the confession may be used against that person in a court of law. We must speak out against our national police force taking on the role of criminals because at some point the role playing will become reality. In seeking the exonerations of Atif Rafay and Sebastian Burns in the state of Washington, we also seek to cleanse the corruption from our own system of justice.
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