This trial started November 24, 2003 and is ongoing.

March 29, 2004
by
hbm

9:30ish
I'm late today for work-related reasons.  When I arrive, James Konat is addressing the court about the deposition of girl who's coming in today to speak about some comments Sebastian Burns allegedly made to her.  She is a high school acquaintance of Burns', who on March 9th, 2004, contacted the prosecution in regards to some information she wanted to share about Sebastian.  There are a lot of people here today (by a lot I mean about 5, probably 3 or which are press, plus myself).  The mood in the courtroom is extremely tense. 

James and Jeff Robinson take turns talking a few times about the varying perspectives (State and Sebastian's defense, respectively) on what is supposed to occur today.  Jeff wants the defense to have an opportunity question the girl, as planned, before ruling the testimony admissible or not.  They're arguing over the exact nature of the questioning they're about to do on this witness- is it an interview, a deposition...?  I'm not sure I know the difference. Judge Mertel says if her testimony is ruled admissible, she must come back in person and testify, or else it will be scrapped altogether.  No more filmed depositions. They're also talking about the types of questions they're going to ask her.  She's already been given an interview by the State, and that interview was tape recorded.  JR wants to question her in order to assess how much time they need to take to prepare for an actual testimony, and to better understand (what could be seen as) an incriminating comment she claims Burns made, and the nature of her relationship to Burns.  (I don't think I'm going to say here in this diary what the comment she says Burns made was exactly.  You can read about it in the paper.  If you want to know why I'm not including it here, you can email me or inquire via posting on the forum.)

They are now discussing the use of the girl's name.  James informs the court that she doesn't want her full name used.  They discuss whether to use her initials, or her last name only, then the court decides to use her first name only.  Judge Mertel says he has a terrible cold.  Luckily, this should be  short day.  They go back to discussing the nature of her testimony.  The judge affirms a statement made by Jeff, agreeing that the witness should come in to discuss her relationship with Burns, background of the situation, and specific events of the evening (when the comments took place).  He goes on to say that the defense will be given "wide latitude" for questioning, though that opens up issues for the Prosecution.  He adds that this is NOT a deposition, and will not go to jury AT ALL: if her testimony goes to the jury, she must appear in person.

James goes to get her, and everyone sits in absolute dead silence for several moments.  This is probably one of the tensed mornings I've ever sat in on.  No joking or laughing today.  Everyone is looking straight ahead, stoic and silent, awaiting the unfolding events.  Bob & James bring her in.  She somewhat tall, has dark hair, and wears all black clothing.  The combined effect of her countenance and attire are French fashion model-meets law student.  Interesting.  James asks the court to keep an eye on the defendants, saying Atif ("and the guards saw this too") was "eyeballing" the witness.  I believe there's an issue of the witness feeling intimidated by the defendants. 

The judge swears her in, but doesn't have her spell her name as usual, and so I miss it.  I have absolutely no idea what her name is.  I heard it once, but it was a name I had never heard before, and it absolutely refused to stick in my head.  I figure that's ok, because it would only be her first name anyway.  (Note added March 30, 2004: The girl's name, according to the news, is Nazgol).  James begins the questioning.  She is 27.  W Van secondary school.  She met Sebastian in her 10th grade French class (91 -92).  He asked her out, and they dated for about a month.  He was in 11th grade.  She says when she stopped seeing him, he didn't date for the rest of the year.  I think that's a weird thing to say, since James didn't ask, but moving on...

Winter of '93 Nazgol had contact with Atif.  She was interested in applying to Cornell University, and heard he was going there.  She called him to ask about Cornell, and they discussed general plans to get together at some point to talk about the school.  Then over the holiday break (she isn't sure if this was December '93 or early January '94), she heard some noises while getting ready for bed.  She says everyone in her house was in bed already, or getting ready for bed, and the house was dark (though some lights may have been on...she can't recall exactly).  It was around or after midnight.  She went out to investigate, and found Sebastian and Atif in the house.  She thought this was unusual, particularly since she wasn't a very close acquaintance of either of them.  She didn't hear them knocking, but agrees that doesn't mean they didn't first try knocking, then decide to come through the unlocked door.  She had no impulse to call the police or anything, she instead decided to stay up with them & talk in her bedroom.  She sat on bed, they sat on floor against the wall. Her cousin was also there, staying at her parents' house, but she went back to sleep.  They talked for approximately 2 hours.  She says the conversation included their mockery of her Amnesty International poster, talk of films, and then it moved into more abstract philosophical subject matter.  Specifically, Nietzsche.  It was here that she says Burns made "a comment that stuck in her head."  SB's comment stood out partly because it didn't directly relate to the abstract, philosophical subject matter.  He wasn't laughing, & seemed pretty serious, though Nazgol says she didn't feel like he'd act on the comment he made.

Nazgol appears to tear up when saying she believed the feelings expressed in his comment were true feelings, but did not believe he would act on these feelings.

Jumping ahead to 2004, Nazgol says she read news articles about the case online (they were very specific in asking her, and her verifying, that she read articles in online newspapers, not other websites about the case), and decided she might have relevant information to add.  she contacted the prosecution at urging of a college professor (who she consulted with beforehand).  She says based on what she read in the news articles, the case would be an "obvious conviction."  She says she read about the neighbors "hearing screams" during the murders (????), and other details, and thought that it might be worthwhile to add the details she knew.

When asked by James, Nazgol says she believes they are guilty.  Regarding the comment she says SB made, she says she has told her parents & some of her friends about it.  She names a friend who she told.  Veronica looks at Atif, who shakes his head, indicating (I presume) that he doesn't know the friend. 

Jeff Robinson's turn:

Jeff asks Nazgol to verify when she told other individuals about the comment Burns made: everyone she told about the comment was in 2004.  She can't recall telling anyone in December '93 (or January 94), when it happened.  JR asks if they had just had dinner at her parents' house- she doesn't remember that, so this doesn't really go anywhere, though she says they did have dinner at her parents' house the summer of the murders.  That surprises me, but Jeff doesn't ask about it.  Nazgol says she didn't HEAR them knock when they entered her home, but that doesn't mean they didn't knock.  At the time, it didn't seem weird, or in Jeff's words, ominous, to her, though she was surprised to see them show up randomly, because they weren't really friends.  But "its not like (she) was going to call the cops on them."  This makes it clear it wasn't a breaking-and-entering situation.  Then they engaged in the long, late-night discussion in her room.  She says, yes, at that age, for her, late-night discussions weren't unusual.  She maintains that Burns' comment didn't seem to fit exactly with the conversation, as it was not then related back to the Nietzsche philosophy.  JR has to restate after talking over one of her answers.  She told the prosecution the comment occurred "during the time period when Nietzsche was being discussed," so Jeff is trying to figure out how she can say it didn't fit with the discussion.  Also, she says she had little to no exposure herself, at that time, to Nietzsche.  Jeff asks, if she didn't know about Nietzsche, how did she know the comment not fit?  Nazgol explains it still seemed abrupt, or out of context, from her perspective.

She doesn't remember verbatim what Burns said, but knows it was a personalized: "I" this and "I" that type comment. She did talk with prosecution about her testimony, but only to clarify the scope of what her testimony would be.  She was told that in court, the prosecution would ask her questions, defense would cross-examine.  Jeff asks how many conversations she had with the prosecution before the taped interview with them.  She had one when she called them, then one 2-hour conversation before the tape-recorded statements.

Nazgol heard about the murders 6 months after this late-night discussion incident, & says she immediately thought that Sebastian did it.  According to a statement she gave to the police at that time, she acknowledges that this was her gut-response, but thought it was "a totally horrific accusation...and not my place to do, without any evidence."  Now she does think they're guilty, based on the evidence (which she's read about in newspapers online only).

She told an RCMP officer in '94 that she didn't really have any information for them. Her father urged her not to talk about the night Sebastian and Atif came to the house, so she limited her statement to that she knew SB & that they dated in 10th grade.

Witness steps down at 10:20 am.

The court decides to have its morning break.  I leave to pay the parking meter.  We're back in at 10:42.  The defendants are already there when I return.  The court has to sort out the issue of addresses (for the sake of the witness' privacy).  JK first goes over ALL the people the witness told about the conversation.

Then counsel begins bringing up its arguments for whether or not the testimony should be used.  JR telling court that the evidence is minimally appropriate.  Since it was a conversation between teenagers at a late hour, which is a common setting to say unusual things (my inference).  Jeff goes on to argue that allowing this testimony to be admissible would put an "undo prejudice" on the defense, which would have to ask for a continuance to admit this minimally appropriate evidence this late in the trial. He asks the judge to focus on the fact that she hadn't told anyone about the comment until she started reading about it in the paper, & thought the case "wasn't going so well." (JR's interpretation of what she said.  James interpretation was the opposite, since she said she thought it would be an "obvious conviction").  Veronica joins JR's arguments, & adds that Sebastian's comments don't implicate Atif, though their affect on the jury will affect Atif.  She says if Atif's defense had known that this was going to come up, it might have affected their decision to not move for a severance at the beginning of the trial.  Also, information related to Nietzsche has already been ruled to be suppressed.  JR adds that SB might have to testify to respond, as he'd be in danger of "admission through silence."  James rebuts Jeff's comments that this testimony is the same as "all the other people who claimed Sebastian is a psychopath."  It's different because of the personal nature of comment ("I" this and "I" that.)

(Most of the spectators from earlier are now gone.  It is now only me, Noel from KCJ, a woman from CBS, and the guards).

Judge Mertel says if he had known about this information/witness last spring, he would have admitted it. Given the timing (& he says this is strictly a timing & "undo prejudice" issue), he will exclude it from the case.  But he urges the defense counsel to "still do research this" because there are "a number of scenarios where this could come up in appropriate, fair... rebuttals."  He directs that the defense will be given ALL contact information for people the witness talked to about the comment, & if that can't happen, the entire issue will be stricken.

Roger Davidheiser asks for clarification: Judge is saying this IS a relevant issue, but it's a matter of timing, prejudice to the state or defense.  Judge agrees.

Moving on, Song brings up a separate issue.  She & Roger talked about a book of "interesting calls" that is in Davidheiser's possession.  These are wire-taped phone conversations from the RCMP investigation.  Some of the calls are hard to hear, but she wants copies of uncorrected transcripts of the calls, which will help her prepare for crossing Henderson tomorrow.  VF says she had been told there were no transcripts available.  Judge says it's an issue of whether the "uncorrected transcripts" can be considered "transcripts" or not.  VF says it's a lot of information they'd sure like to go through.  Song wants the rough transcripts for herself to simply prepare, to whatever extent that Mr. Davidheiser has the information in his binder.  Roger says the prosecution shouldn't have to share rough transcripts.  Judge says to make them available to Song & Veronica this afternoon, though they may not be appropriate for use with Henderson's testimony tomorrow.  The uncorrected transcripts are for Song's preparation only.  If they want to ask Henderson questions about portions of the transcripts, they may bring him back on the stand and do so after the transcripts are corrected.

Jeff brings up a final issue: he wants to scan some photo evidence into his office computer.  Will have them back in same order & orientation by 1:30 today.  He goes over exactly what photo exhibit's he's talking about.

For tomorrow, they'll be finishing with Henderson, then moving on to Bass.  Several other RCMP investigators also named as coming up, including Haslett and Sheckerrick (no idea how to spell this, which is why I typically opt not to use their names...), the undercover officers.

Court is adjourned around 11:20 am. So early!  I ride the elevator down with an obviously irate James Konat.  Outside it's an extremely atypical day for Seattle- radiantly sunny and very warm.  It's not usually this nice in June, let alone March!  It's a somewhat startling change to come into after being in the courtroom all morning.