On September 26th, in response to both concern and outrage from the public after viewing the Netflix series “The Confession Tapes”, the King County Prosecuting Attorney’s office issued a press release. The episode referred to deals with the 2005 convictions of both Atif Rafay and Sebastian Burns for the murder of Rafay’s family.
The press release claims that the documentary is unfair and inaccurate without pointing to any specific instances of inaccuracy or unfairness. The release represents yet another attempt to justify the wrongful convictions in the absence of forensic evidence. At the end of the document the prosecutor states: “The Confession Tapes” recounts some but not all of the forensic evidence linking Burns and Rafay to the murders. The episode recounts no forensic evidence against Burns and Rafay because there was none. Had there been forensic evidence implicating them in this crime, no innocence project would have taken up this case.
The press release states that “The Confession Tapes” strongly suggests confessions to these crimes made by both Burns and Rafay are false. This statement is in the eye of the beholder since the program has no outside narrative. Police Detective Bob Thompson and James Konat, the prosecutor, are given more time on screen than anyone else. The fact that the program “strongly suggests” the innocence of the defendants is predicated on the weakness of the case against them.
The jury, which heard all of the evidence during a six-month trial, rejected this defense and convicted Burns and Rafay. That they were convicted is true. That the jury heard all the evidence is demonstrably false. The judge did not allow the jury to hear any alternative theories to the crime, despite the fact that a validated FBI informant identified the murder weapon prior to its being published and stated unequivocally that the crime was committed by someone else; despite the fact that an RCMP informant tipped the Bellevue police beforehand that a hit was planned on a South Asian family recently moved to Bellevue; despite the fact that a detective in the Bellevue Police Department received a call from the intelligence unit of the Seattle Police Department indicating that the homicides were possibly associated with an Islamist terrorist group that targets Muslims “who do not practice the faith or interpret the Koran as they do. They punish these unfaithful persons by bombing, stabbing and murdering.”
The trial judge also refused to allow Richard Leo, an expert on false confessions, to testify. The reason given, that a jury is qualified to decide who is lying and who is telling the truth, is specious. In fact, any cursory glance at scientific knowledge in this area will show that the average person is not qualified to do anything of the sort. An FBI authority on sting operations, Michael Levine, was also denied witness status at the trial on the ground that he was not an expert.
The Prosecuting Attorney’s Office accuses Netflix of selectivity: most of the confessions are neither played nor described. The RCMP and the prosecutors are the ones guilty of selectivity. Most of the initial conversations between Burns and the undercover officers were not recorded. Sections of the tapes that do not support the convictions and that jurors never saw have been destroyed or disposed of.
The prosecutor’s press release makes the claim that Burns, far from being intimidated by the officers [the RCMP play acting as mobsters], sought them out. Why did Burns continue to seek out the mobsters and engage in petty criminal acts at their behest? The scurrilous implication in the current press release by the Prosecuting Attorney’s office—the same as at the trial—is that Sebastian Burns had a criminal mind and actually reveled in the doings of the crime world. In fact, Burns was psychologically conditioned by the RCMP. Every time he committed an illegal act, he was given money. That is why he sought them out. One of the purposes of the trial was to prejudice the jury by making Burns appear to be a criminal when, in reality, he is no different than the rest of us.
The Prosecuting Attorney’s Office relies heavily upon the 2012 Court of Appeals decision. Firstly, as part of the post-conviction apparatus in the state, the Court of Appeals is not, as stated, an ‘independent panel’. The decision was made by elected—not independent—judges. We wish to make it clear that the court of appeals’ first order of business is to find reasons to sustain the convictions. In the instance referred to in the press release, the court’s reasons were not based on legal issues but on unsubstantiated perception:
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“The trial court was therefore able to view the defendant’s demeanor and body language during the entire confessions, including their jovial delight in revealing certain details…”
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It bears repeating that there is no scientific basis for the court’s observations. A person’s inner thoughts, his candidness or lack thereof, cannot be apprehended by observing his or her body language or demeanor, especially in a situation like this where the defendants, two fronting adolescents plied with alcohol, believed they were talking to mobsters. The only knowable lie is the RCMP mobsters lying about who they really were. That both the appeals court and the current prosecutor allow this kind of ‘evidence’ to bear legal weight is outrageous. They know better.
Finally, the issue of Jimmy Miyoshi must be addressed. The reason that Miyoshi stated that he knew of the murders being planned beforehand is seriously in doubt because the transcripts show him resisting both the RCMP mobsters and, later, the police who pressured him unrelentingly to make incriminating statements against his friends.
What we have in our possession is the entire interrogation of Miyoshi after Burns and Rafay were arrested in 1995. What is most egregious, and left out in the press release, is that the RCMP threatened Miyoshi with 99 years in prison, and even a suggestion of the death penalty in Washington, if he didn’t give evidence against his friends. And that during this psychologically brutal interrogation that made constant use of the Reid Technique (police denying what they didn’t want to hear), Miyoshi repeatedly said that “They never did” discuss the murders beforehand. This time he was talking to people he knew to be the police.
What is also beyond doubt, and what the Netflix series points out, is that after Miyoshi returned to Japan, he was threatened by the loss of his job by his Japanese employer if he did not testify against his friends. His testimony, therefore, was coerced, because the absence of forensic evidence and the fear that the so-called confessions garnered from an illegal sting operation would be thrown out of court made the case against Burns and Rafay paper thin.
Finally, what forensic evidence there was pointed in opposite directions to the one taken by the prosecutors. The Bellevue Police and the King County Prosecutor initially asserted that a pubic hair found in Mr. Rafay’s bed was certainly left there by the killer. After it was found not to match any of the Rafays nor Sebastian Burns, they dismissed it as a ‘stray’. It didn’t belong to Sebastian, ergo it was irrelevant. “If the facts don’t fit the theory, change the facts.” That is the essence of tunnel vision and that is the source of the wrongful conviction of two young men who have now been imprisoned for 22 years.
Our conclusion is that the press release issued by the office of the Prosecuting Attorney represents either disingenuous or willful blindness at best, in almost all respects. Justice has not been done in this case; “The Confession Tapes” now makes justice a possibility.
-Ken Klonsky, Director: Innocence International
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