It's been a long, long time coming. But the state Court of Appeals has finally weighed in on perhaps Bellevue's most sensationalistic murder case, one that sentenced Sebastian Burns and Atif Rafay to prison for life. Despite a documentary that attempted to prove their innocence, and the involvement of two organizations fighting wrongful imprisonment, the court yesterday upheld Burns' and Rafay's convictions.
Yet, as the Innocence Project and a similar organization in Canada have pointed out, there was little forensic evidence. Instead, what nailed Burns and Rafay was a controversial sting operation in Vancouver, B.C, where Burns' lived. The so-called "Mr. Big"operation--the subject of a documentary made by Burns' sister Tiffany--involved undercover Mounties who pretended to be criminal bigwigs interested in recruiting the young men. It was to these purported gangsters that Burns and Rafay "confessed."
In their appeal, Burns and Rafay claimed they said what they did because they were afraid. They were dealing with supposed violent criminals who were demanding details about the murders. And that alleged "coercion,"they claimed, was unconstitutional.
So how come Burns and Rafay seemed eager to work with the supposed gangsters? That's the retort posed by the appeals court's nearly 90-page ruling. Far from seeming afraid, the young men "repeatedly pursued contacts" with the undercover Mounties and "expressed their willingness to participate in the organization's criminal activities, including acts of violence," according to the ruling.
Burns took the lead in dealing with the "Mr. Big" operatives, the court noted, and his "actions throughout suggest deliberate attempts to impress" them, "not fear of physical injury." This perception was enhanced by a video of Burns and Rafay, captured by hidden camera in a hotel room, discussing the murders with the court called "jovial delight."
Michael Levine predicted this outcome.
A former Drug Enforcement Administration undercover cop, Levine was a potential defense witness barred from testifying at the trial. If he had testified, he would have talked about his view that the "Mr. Big" operation was set up in a way likely to elicit false confessions.
As Seattle Weekly noted in a 2008 cover story on the case, however, Levine doesn't go along with the theory that Burns and Rafay were frightened. From our piece:
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.
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."
Burns, for one, is now planning on appealing to the state Supreme Court, Tiffany and lawyer Elaine Winters tell SW. Perhaps this ruling will cause him and Rafay to revisit their strategy.