This trial started November 24, 2003 and is ongoing.

March 8, 2004
by
Hilary

9 am
I am only spectator present: no reporters, no nothing.  Atif is trying to find a better chair, but says they're all broken.  He is laughing and chatting with Marc Stenchever and Veronica Freitas. James Konat talks in the corner with a guard and Detective Thompson.  Roger Davidheiser is queuing up the tape of Jimmy Miyoshi’s (JM) deposition.  No Bob today: there are two older women clerks instead.

The deposition of JM, taped 8-14-03, continues with the cross by Jeff Robinson. They are going over the conditions of his Immunity Agreement, which states:

1)  He has substantial knowledge of the murders, and will tell everything he knows.  

This is characterized as "full and frank disclosure" of all information he knows.  Jeff is trying to show that if he was fulfilling this agreement, he would have mentioned a variety of information in his first statement(s), rather than bringing things up for the first time in his disposition.

2) He will provide truthful information to RCMP and other law enforcement.

(This is based on statements in 8-95 and 9-95).  He read agreement and consulted his lawyer before signing. 

Jeff questions him about a phone conversation between himself and JM, where JM said "how would things be different if I testified for your side."

Back to Immunity Agreement:

3) This agreement doesn't protect him from prosecution for perjury, or from giving contradictory evidence. 

JM says he understands what perjury is; he's never told anyone he didn't understand the agreement.  Then he says he understands his immunity agreement "in general," but not "in detail."

4)      If JM fails to comply with the terms, the agreement is VOID.

This means that he could be prosecuted for an offense.  JM says: "if I don't provide truthful evidence, I could be tried for conspiracy to commit murder."

JM has recently changed his name, because (he admits), he wanted to reduce the association of this case on his work situation in Japan. JM says he's not expecting anything at this point as far as a letter back to his employer (a letter was to be sent from King County prosecutors to his employer once he had fulfilled his obligation).

Jeff is done.  James redirects.  JM continues to maintain that his feelings towards Sebastian and Atif still affect his testimony, and that he won't volunteer information, but must be specifically asked the correct questions.  Several spectators come in, including an older couple who sit in an aisle across from me.  JM says he was "in a way, yes" hiding from KC prosecutors, because he didn't want to come testify.  Another reason for moving to Japan: after going back to school, he "was trying to rebuild his life."

There’s tons of objecting from Jeff and Veronica, because this questioning is "out of the scope" and had been asked already, but he's allowed to answer because it helps establish his credibility.

He moved out of his shared living situation at 2021 Phillip Avenue about 2 months or so after his arrest.  When asked why, he said "in general.... our interests had...I felt that if I continued to live with them, I wouldn't have (been able to) go in that direction." (The direction he’s talking about is the testifying against them.)

Konat's questioning attempts to re-establish that there was a "plan" amongst the boys to repeat things from the paper.  James is effectively "re-opening" his direct by asking about border-crossing (which Jeff never asked about in his re-direct.)

JM is saying both Sebastian and Atif told him how he felt about the murders.  So why didn’t he rat them out in the 7-31-95 interrogation by RCMP?  "I was being protective and defensive...of my best friends."  JM says James and Roger have only encouraged him to tell the truth.  He is now admitting that his original statements "were lies, in a way," and he's "trying to sort it out now."  He "lied" in previous interviews because of his desire to protect Sebastian and Atif.  JM says Atif was upset about missing his parents’ funeral.  They drove around Vancouver BC trying to cheer Atif up right after the murders.

JM wrote an email to Roger Davidheiser and Sergeant Don Rinn on 7-30-03.  However, when his employer told him he'd be put on leave, the first person he called was Jeff Robinson, though KC prosecutors asked JM to contact Detective Bob Thompson first regarding this case.  He says he contacted Sebastian's lawyer first because "at this time I was considering not coming here... because I have mixed feelings towards them and don't want anything I say to hold a lot of weight."

Regarding his employment in Japan, he says he felt if he DIDN'T come for the deposition, there would have be negative repercussions with respect to his job.

I’m don't fully understand why James wanted to take him to this territory, since it makes it clear (to me at least) that he was motivated by job security (instead of, perhaps, a desire to put forth the truth in this case) to testify that the things he said in interviews 8 years ago were true.  JM testifies that King County prosecutors didn't really agree to his conditions.  JM wrote an email to Jeff for a recommendation of criminal lawyer.  (This seems to imply that JM was preparing to be prosecuted himself.) JEFF recommended John Wolf.  Maybe he explored the possibility of getting his own criminal defense attorney because he feared his immunity agreement would be shot to hell if he did testify (this would lead one to believe he was lying when he signed the agreement, and thought he might not be able to hold it together when put to some serious questioning.  Especially since his statements frequently contradict one another.), and also feared it would be shot to hell if he refused to testify.  He was just thinking ahead.

James systematically goes over points of JM's past interview responses and asks if he was attempting to be "full and frank."  JM says yes again and again.

(morning break)

JM says that murders were Sebastian's idea.

JM confirms that he was trying to be "full and frank" at each point to of his incriminating initial interview with Jeff Baird (3-11-96).  JM says Atif and Sebastian "never asked me to do anything at all" in exchange for being let into their confidence (about the murders).  James seems to imply that this is odd.  JM testifies about their "car talk" conversation: Sebastian wanted a Cadillac, Atif wanted a Mitsubishi 3000 GT.  (Incidentally, the day of the murders, they went to both auto dealerships.)

(Date of tape now reads 8-15-03, 2:25 pm.  James continues)

JM called the Rafay residence repetitively after Sebastian and Atif’s visit to BC because he wanted to figure out if they "did it."

The judge has gone missing for some reason.  Oh, wait- he’s just sitting behind out of my view, on the far side of the jury; getting a better view of the screen.  This tape is much quieter than the previous day. A young guy with a notebook comes in.  Roger turns up the speaker volume for the jury.  There's also a 40-something woman with short hair and glasses in the very back.  The three of us are the only spectators at this point (there was some turnover at the break).

Back to the questioning…

There are some questions where JM says he doesn't know if he was being full and frank, but to almost all of them, he says he was.  Konat is going over each incriminating point of Miyoshi's 3-11-96 statement to Baird and Thompson.  This is in testimony we've already heard, they're just confirming point by point that JM was being full and frank.  At several points during the re-hashing of JM's testimony, Atif shakes his head in apparent dismay; sometimes looking at Marc and Veronica.  JM says Atif didn't care as much that much that Basma died, not as much as his parents, and neither Sebastian or Atif ever expressed regret to JM.

Now they’ve moved on to the 8-26-96 interview, which was under oath, swearing to God.  This interview was also with Baird.  They’re discussing events around high school graduation, going to college.  They review the first conversation about killing the Rafay's, when JM says they talked while he drove.  They review his answers regarding the actual killing of the Rafays, the boys’ alleged discussion by the creek, where JM said they talked about methods (bat, gassing house/kitchen).  Presumably it was here that the baseball bat was decided to be more “efficient.” 

Lawyerly-looking man comes in, sits behind the guard in my row.  He asks where the judge is...clerk Shyrrel talks to him.

James is going over every point of this interview now, asking if he was being "full and frank with Mr. Baird" in each question.

(break)

Detective Thompson is talking with the defense about sports.  Song asks to talk to James.  Atif and Sebastian are chatting softly as they're brought in. All attorneys are now present.  Sebastian looks over his packet of papers (they are contained in a big white envelope.  He writes on his papers with pencils only.)  Atif talks with Veronica and Marc.  Judge enters at 1:52.  There is discussion on record about points of next witness' testimony of what he observed @ border crossing.

Taped deposition continues, with date/time reading 8-15-03, 3:09 pm.  They are now reading from the past interview transcripts.  James reads for Baird, Miyoshi reads for himself.  They have moved on to Exhibit 77, the 9-26-95 interview transcript with Sergeant Rinn.  They go over what JM says were Atif's statements to JM about Basma's death.

Jeff's re-re-direct

Since the jury can’t see this on the tape, Jeff draws their attention to the large paper-pad on an easel facing them.  It states the dates of each interview, and whether or not JM has determined himself to be “full and frank” in each (as gleaned by James’ questioning).  It is as follows:

7-31-95: being protective/defensive,
8-24-95: "full and frank" (this is when they started the process of the immunity agreement)
9-26-95: "full and frank"
3-11-96: "full and frank"
8-26-96: “full and frank”

The 3-11-96 interview has a statement in it that JM first had said is not “full and frank.”  He says "I might have heard about the Lion King later, so that's a full and frank statement."   

Jeff makes him look inconsistent.  For example, in the 8-24-95 interview, which they all agreed is a "full and frank" statement, Jimmy says Atif and Sebastian had no concrete alibi.  Later, in his interview with Sergeant Rinn, he says he knew they had an alibi, but knew about the alibi from seeing it in the news "a thousand times."   Jeff asks if this is an example of contradictory evidence, to which JM replies "no."

Here, for the record, Jeff goes back to the issue of the conversation with Jeff, Song Richardson, and Jimmy, regarding John Wolf.  JM says it was not about suing KC or anyone else, it was about getting him legal advice when he was trying to decide whether to come testify.

Back to making JM appear inconsistent: Jeff says "you got a lot of information from the media."  JM balks, asking him to define “a lot.”  So Jeff points out a transcript where JM says he DID get a lot from the media (and he even used the word “a lot”).  He also quoted a long list of papers from Vancouver and also the Seattle PI, which Jimmy said he had read about the murders in. According to this interview statement, Arash “got him a bunch of PI's." 

Jeff asks if JM will agree that his five statements (from the dates above) and his deposition testimony are contradictory, are internally contradictory, and he describes the same event in different ways from statement to statement.  Jimmy says no or "I don't think so" to all three parts of this question. 

James asks JM to take a moment to explain how it is that his statements are not contradictory.  JM explains that in the first (7-95) interview with Rinn and Gomes, he was scared and unsure of how to respond (was still being “protective and defensive” at that time, even if he had to omit the truth or lie).  He believes the next statements (which happened after he was more decisive about speaking against Rafay and Burns) were more formal and truthful statements.  Jeff asks “if you take 7-31-95 out of the mix” does the characterization ring true of the remaining statements and testimony (that they are contradictory).  JM says that in each interview, he was saying what he knew to be true, though words may have been different.

(Break)

The court is preparing for the next witness: Larry F. Overcast, the Port Director in US Customs and Border Patrol.  They are discussing what information may be included in Overcast's testimony.  Judge rules that the ID found for "bar purposes" will be used, though it should not be admitted as evidence that this ID belonged to another individual.  Judge also rules to include: two luggage bags found in trunk, one with airport tags for Atif, the other containing check books for the Rafay Estate, but no other personal items included.  They will also include that Atif had $3,000 cash Canadian, and $5,000 cash American dollars in 2 white envelopes on his person. Song successfully argues that some items found aren't relevant, and they are not admitted. Veronica argues that this whole perspective (of a suspicious border patrolman) in general is irrelevant, as border suspicions don't prove anything with respect to the murders.  Judge isn't convinced, and allows it to go forward.

Officer Larry F. Overcast is sworn in.  He is the Port Director in US customs and Border Patrol in Sweatgrass, MN. James goes over what he can and can't say. ID ok, name and type isn't; No contents of Atif's suitcase; checks and their amounts will be asked, etc. etc.

(break)

Overcast is sworn in, in front of the jury.  James starts.  This witness seems relaxed.

He was in secondary inspection processing the day he met Atif and Sebastian came through.  The secondary inspector asks additional questions if the officer at the primary inspection wants more information (this is a standard filtration process to assess who is suspicious and who isn’t). 10-11-94, 10:11 pm is when they came through. Overcast doesn't know why the primary inspector found it necessary to send them in to him.  They were driving a blue '93 Mustang convertible with BC plates.  He spoke with them together at the counter, gave them the appropriate written declaration and so on.  He also spoke individually with each, starting with Atif.  Overcast made him remove his wallet, jacket, and pocket contents (routine and legal at border).  Atif had $3,000 Canadian, $5,000 US.  He looked into it to ensure there was no currency violation ($10,000+ must be declared.)  Atif said his parents loaned him the money to go on vacation.  This was "suspicious/odd" but not illegal.  Sebastian was then asked to empty his pockets, and had an ID of another individual (this was not admissible, but it was said in front of the jury).  Sebastian said it was for “bar use” (they were legal drinkers in Canada, but not the US).  Sebastian told Overcast he wanted to speak with him in private.  Overcast took him and Atif to his supervisor's (also present) office for privacy.  When told by Burns that Atif’s parents were murdered, and the funds were from their estate, Overcast was "shocked by that revelation." Overcast called the Bellevue PD, then went to inspect the vehicle.  In the trunk he found a suitcase with Atif's name (and his old Bellevue address) on airport travel tags.  He also found a black bag with brown trim, containing two checkbooks from the Rafay Estate, showing Atif as the administrator.  Joe Fry was also named on the checks.  Atif wrote checks to himself for 3, 5, and $8,000.  Overcast was in contact with Burns and Rafay for 30 min- 1 hour.  He received a call from Detective Thompson, who said not to detain them.

Song redirects.  She starts by re-describing the scene inside the secondary inspections office: lots of employees and others in lobby, hustle and bustle.  She is trying to show that Sebastian and Atif were being open and honest, but perhaps just wanted privacy when they asked to speak to Overcast alone.  Also, she makes sure the jury understands that the Mustang was a rental.

There are no further questions (Overcast was the fasted witness ever!), so court is adjourned for the day.