Vancouver Sun

Truth versus conviction
The case of two young Canadians cries out for a retrial
Rubin Carter
Special to the Sun

Tuesday, March 25, 2008

In 2004, Sebastian Burns and Atif Rafay were convicted in a Washington state court of the brutal bludgeoning of Atif's father, his mother and his autistic sister.

They were also convicted in the court of public opinion. We now believe that they are in prison for the remainder of their lives because the public and the jury were denied access to the truth.

The murder of the Rafay family on July 12, 1994, shook the placid community of Bellevue, Wash. The bodies of the transplanted Canadian family were discovered by Atif and his friend Sebastian, both 18, upon their return from a movie and a restaurant meal.

They phoned 911, but because police did not see evidence of a break-in, they became the prime suspects. Isolated in a motel, the two submitted to questioning, blood, clothing and hair analysis, and DNA testing.

No hard evidence was found linking these two young boys to the barbaric slaughter. Yet tunnel vision interpreted everything they did, even the viewing of rental movies at the motel, as "proof of guilt."

Because of the absence of evidence, they were released and, with the blessing of Canada and the United States, returned home to West Vancouver. Going back to Canada, referred to as "fleeing," was also used against them.

Burns and Rafay were then betrayed by their own country and its national police force, the Royal Canadian Mounted Police. They were subjected to clandestine eavesdropping and an elaborate "con game" called Mr. Big, wherein police officers pretend to be rogues and gangsters 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.

While the RCMP's Mr. Big sting operation has been successful in solving a number of "cold cases," it has also resulted in several wrongful convictions.

Mr. Big appears less interested in the truth and more in getting those "confessions" and the convictions that inevitably follow. Kyle Unger, Patrick Fischer, Clayton George Mentuck, Jason Dix, Atif Rafay, Sebastian Burns and others were trapped by their human weaknesses in this web of lies, sex, money, fraudulent criminal acts and implied threats of violence.

These young people were no match for seasoned professional interrogators who presumed that they were guilty.

In the Rafay/Burns case, we have been joined by the Idaho Innocence Project and the Pacific Northwest Innocence Project. We believe that if Burns and Rafay are granted a new trial, a trial based upon fact and not character, upon evidence and not prejudice, they will be exonerated. Then maybe the murders of the Rafay family can be solved.

The only pride Canada can take in this case is that for five years our best lawyers argued successfully before our Supreme Court that Sebastian and Atif not be extradited to face the death penalty. Thank God for that. But then two bright young men faced a prejudicial trial resulting in a lifetime of incarceration.

According to Burns's pro se (on his own behalf) brief, his lawyer, Jeff Robinson, brilliant as he was in his closing arguments, did not take the time to prepare his client for questioning in the courtroom. As a result, he, more than Atif, was convicted for perceived arrogance rather than murder.

Another 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. This writing turned out to be 250 pages of detailed notes indicating her mistrust of the prosecutors' case against the defendants.

The court refused to hear credible 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." The court also refused to allow the expert false-confession testimony of Dr. Richard Leo.

The jury did not believe Jeff Robinson: "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."

They believed that two teenagers with no criminal history left a film, beat out the brains of Atif's family, covered up all evidence of their participation in the crime, and stealthily returned to the movie theatre.

Confessions serve justice only when the person confessing understands that what he says may be used against him in a courtroom. Our courts have perversely ruled that police playing the role of ruthless criminals have the right to induce confessions.

In seeking a new trial for Atif Rafay and Sebastian Burns in Washington, we also seek a review of the use of Mr. Big in Canada.

Rubin (Hurricane) Carter is founder and chief executive officer of Innocence International, which works to exonerate prisoners.

Innocent Imprisoned
Truth in Justice