Defence: Rafay/Burns confessions coerced

DEFENCE lawyers for two West Vancouver men convicted of three brutal murders 17 years ago asked a panel of Washington State appeal court judges Friday to overturn that verdict, saying the men were not given an adequate chance to defend themselves and that their confessions were coerced.

Sebastian Burns and his friend Atif Rafay - both 35 now - are serving three consecutive life sentences after being convicted in 2004 of the 1994 murders of Rafay's father, mother and autistic sister in the Rafays' Seattle-area home.

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Prosecutors in the original trial said Burns wielded an aluminum bat used in the murders, while Rafay planned the killings in order to receive a $300,000 inheritance.

The case against the pair was mostly circumstantial. Videotaped confessions to the murders made during a controversial RCMP sting operation after the pair returned to Canada were a crucial part of the case.

In a Seattle-area appeals court Friday, lawyers for the two men said the pair were scared into false confessions by believing they would be hurt or killed by a "crime boss" - really an undercover police officer - if they didn't say they had committed the killings. If they confessed, the "crime boss" said he would have evidence against them in the case destroyed.

Defence lawyers argued the trial judge violated the men's

constitutional rights by not allowing them to call two legal experts who could talk about the potential for false confessions.

Without the perspective of the experts, the jury had no way to consider what kinds of interrogation techniques could cause someone to make a false confession, said the defence lawyers, who noted the type of sting used by the RCMP - dubbed "Mr. Big" - isn't allowed in the United States.

Nothing in the pair's confessions was information only a killer could have known, said defence lawyers. Some of the statements made in the confession were also inconsistent with evidence of police experts who examined the murder scene, they said.

Prosecutors urged the judges to uphold the murder convictions, arguing that Burns and Rafay made their confessions willingly. Instead of walking away from involvement with the "crime boss" when he had the chance, Sebastian Burns "eagerly pursued it," said prosecutor Deborah Dwyer. "He wanted that evidence in Bellevue destroyed."

She added the undercover confessions weren't the only evidence pointing to the pair's guilt. Jimmy Miyoshi, a close high school friend of Rafay and Burns, also gave statements about the plan to kill the Rafays in exchange for immunity from prosecution.

Defence lawyers argued in the original trial that Miyoshi was lying.

On Friday, they also pointed to inflammatory comments made by the trial prosecutor in his address to the jury that compared the murder of the Rafay's with the beheading of an American in Iraq.

They also pointed to DNA found in the home that did not belong to either Burns, Rafay or his family that the jury never heard about, as well as statements by neighbours who said they heard sounds at the Rafay house at around 9 p.m. on the night of the murders - when the two men had alibis saying they were elsewhere.

The appeal court has reserved its decision.

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