What Leo goes on to say, and other criminal law experts confirm, is more nebulous. Coercing confessions is illegal, prohibited by both the Fifth and Fourteenth Amendments, which protect defendants against involuntary self-incrimination and guarantee due process, respectively. It doesn't matter whether the operation occurred in the U.S. or not.
So the key question, from a legal point of view, is: Were Burns and Rafay coerced? King County Superior Court Judge Charles Mertel noted that the confession was not made while Burns and Rafay were in custody. "The defendants," he said, "were free to leave or not leave" and "speak or not speak." But defense lawyers contend the two were coerced, and it's one of the key points in their appeal. They also object to Mertel's refusal to let Leo testify.
Kevin P. Casey
Tiffany Burns left her job as a Cleveland
newscaster to make a film about
her brother’s case.
Details
Mr. Big: Harvard Exit, 7 p.m. Tues. June 3; SIFF Cinema, 4:30 p.m. Thurs. June 5. Read Brian Miller’s review.
Seattle International Film Festival Continues through Sun., June 15. Tickets, schedule, and information: www.siff.net and 324-9996.
See our SIFF Guide 2008 for other stories, reviews, and full coverage throughout the fest.
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Another defense consultant barred from testifying at the trial was a former Drug Enforcement Administration undercover cop named Michael Levine. But he doesn't think Burns and Rafay were frightened into confessing. He thinks, as they smiled and laughed in the hotel room, they were doing something else—"bragging and lying" as they tried to appear tough. He says it happens so often there's a name for it: criminal braggadocio. It's something he says he came across when he himself pretended to be a crime boss. Turns out American cops, too, use the scheme. Levine says he did so "100 to 200 times."
In fact, Levine teaches the method as an instructor for police academies around the country. He's upset that in Mr. Big he appears to bolster the contention that there's something inherently wrong with it; he says he tried, unsuccessfully, to have himself removed from the film. And he thinks the kids received fatefully bad legal advice to portray themselves as being frightened when the jury can see in the tape that they're smiling and laughing. It's a legal strategy, pursued in appeals briefs as well, that he believes will keep Burns and Rafay in jail even though they're "100 percent innocent."
He says the problem with the "substandard" Mr. Big sting operation in this case is that the undercover agents were pursuing a confession, not the truth. When Burns and Rafay started to say things that indicated they weren't guilty, Levine says the agents led the conversation in another direction. And they didn't ask for key information that only the real murderers could have known, like how they got Rafay's mother to lie in a prone position with a scarf over her head.
Thus, regardless of whether the operation was legal, the question from a broader perspective is: Did it produce the truth?
What makes Greg Hampikian suspicious is that the teens' confessions don't match the forensics evidence. A biology professor at Boise State University, he points to testimony from the state's expert on blood spatters. Such evidence provides clues as to how many people were involved in a crime, because when blood spatters, a clear spot is left on the wall behind where someone is standing. "It is my opinion that there [were] two people in this room during the attack," state forensic expert Ross Gardner testified, referring to the murder of Rafay's father. Yet, Hampikian notes, Rafay had told Mr. Big that he wasn't present during the murder of his father, which would leave only Burns in the room.
He points further to forensics evidence that he says leads away from Burns and Rafay: a hair found on a bed that was neither theirs nor the victims', and blood found that was a mixture of Rafay's father's and some unknown person's.
Hampikian has traveled to Seattle to look at all the evidence that prosecutors keep in a storage locker: dented wall boards, rug pieces, hair samples, and blood spatters. Nothing, he contends, ties the pair to the murders. He finds it particularly significant that no blood was found on the teens' clothing or hair (aside from a drop of blood on Rafay's jeans, which the defense argued could easily have been obtained while finding the bodies). "It's hard to imagine they did such a crime and did not have any blood," Hampikian says.
Bellevue Police Detective Bob Thompson, who headed the investigation, doesn't agree that there was no hard evidence in the case. Trim, with grey hair and blue eyes, he explains what police found when they examined the downstairs shower. They sprayed the shower with a chemical that reveals traces of blood, he says, and "boom, it lit up like a Christmas tree." It was the blood of Rafay's father. "So we knew that the killer had showered." And they found hairs of Burns in the shower.
"On the floor of the shower," Thompson emphasizes. "They weren't in the drain." Thus he deduces that the hairs belong to the last one in the shower: the killer. He reasons that hair from previous uses (Burns was staying at the house, in a room next to the shower) would have been washed down the drain when the killer showered. "The killer washed himself off, washed the blood off the [shower] walls, dried himself off, and then forgot to turn the water on one more time to wash the hairs off that were left on the floor," he says.
