Closing Arguments

(Annie) 8:35 I get to the courtroom. All the benches have reserved signs on them. The front row closest to the defendants is reserved for family members. There is one middle row for spectators that is already getting crowded. The back row is reserved with what looks like the name of a law firm. I ended up sitting in the bench reserved for the King County prosecutor’s office because some guy told me no one from there will probably come. The courtroom fills up completely.

9:05 Judge Mertel gives the day’s schedule. Konat will finish around lunch, then Marc will go and then Jeff tomorrow.

9:10 Konat continues his closing statements. He says the behavior of the defendants changed when the defendants got back on “their native soil.” I guess he finally realized that they weren’t “fleeing” to Canada, it was their home. Konat then says he made a mistake yesterday when discussing the location of the hair in the shower drain. He corrects himself by saying that 9 pieces of hair were underneath the drain, while the other 12 pieces were on top, which he says would have been left by the last person who took a shower. I am pretty sure that all the hairs belonged to Sebastian or at least some of them did. Konat says that someone asked him yesterday if he was going to keep talking until he needs to shave. Konat starts discussing AR’s attempts to get the insurance money. He says AR didn’t call his uncle (from what Konat is saying, I’m sure if the guy is really his uncle or just someone AR refers to as uncle) until he wanted to sell the house, on July 21st. On Sunday July 21st, Tahir Rafay and the rest of the family met AR and SB in Canada. Family members tried to get AR to live with one of them. Konat keeps bringing up that AR didn’t go to the family’s funeral. He says the defendants knew they had to get out of town because “the heat was rising” from the police and family.

9:21 Konat is showing a timeline of events. He is talking about how SB knew a lot of information about the Rafay family finances (bank accounts, insurance, etc.) after the murders. Next comes a slide of total “Estate Assets” of the Rafay family. Konat is saying that some of the funds were Canadian, as they were in Canadian retirement accounts. So I’m not sure if the funds on the slide have all been converted to US dollars. The sum of the assets is $511,923.56. Konat then says that Tariq Rafay was only worth half a million to AR if the whole family was dead.

9:27 Konat shows a slide of calls to the Rafay house from the Miyoshi house from July 9-13, 1994. He brings up the incident when AR and SB crossed the border into Montana with the mustang and the thousands of dollars in cash. You have all heard about this before so I won’t go into detail. Apparently, when they were talking to an official at the border, SB stepped in to save AR, as he “always” did. January 11, 1995 was the first time officials from the U.S. and Canada met to start a Canadian investigation.

9:39 Konat starts discussing AR’s behavior after the murders and his trying to collect on the proceeds from the estate. Apparently SB was mad that Bob Thompson gave some of the estate jewelry to a female Rafay relative, this was overheard on the wiretaps, which the RCMP received authorization for on April 5, 1995. On the estate assets slide, the family’s jewelry was estimated to be worth $20,000, but Konat doesn’t say the value of the jewelry that was given away. Konat then brings up the Whistler May 6th stolen car scenario when SB told one of the undercover RCMP officers that when he and his friends do something, they plan it out so they don’t get caught. 9:50 Continued discussion of scenarios with RCMP. Konat says that what the boys didn’t say in the house is every bit as important as what they did say. Sgt. Haslett testified that he gave SB at least twelve chances to deny that he was involved in the murders.

9:56 Audio clip of SB saying he thinks he is one of the most intelligent people in the world. He only says that after Haslett says to him “Tell me how fucking smart you are.” SB’s voice is halting but joking when he replies. Konat plays a very fuzzy audio clip of SB talking about killing people for Haslett. He plays another hard to understand clip where I think that SB is suggesting they blow up buildings to destroy the evidence, I couldn’t see the screen with the transcript very well. Konat then says that AR never asked the Bellevue police how the investigation was going.

10:12 Break 10:19 More audio clips, then back to timeline slide. Jeff points out a big error in the slide, where it says the shower contained blood mingled with hair that belonged to SB which was NOT true. I’m sure the prosecution was hoping to slip that by.

10:25 June 28th and 29th smurfing scenario with SB and JM. While in their hotel room, they joke about it being bugged. During this scenario, SB and Haslett have what Haslett calls the “first confession” conversation. Konat plays an audio clip form this scenario where SB asks Haslett how smart his people in Bellevue are. SB says that he would know exactly what to look for in a police report. Later on the RCMP made a fake police report for Haslett to give to SB about what was found at the scene of the murders.

10:38 Audio clip of Haslett asking SB why he committed the murders. SB totally dances around the question. Another audio clip of SB talking nervously to Haslett, imagining the headline in the newspapers if Haslett is a cop and SB is arrested.

10:46 More discussion of JM and his role in the murders and investigation. Konat basically says that JM didn’t have a reason to give his confessions, then says that JM was being investigated in Canada for conspiracy to commit murder and fraud, which sounds like a reason to enter an immunity agreement to me. Konat says that two of the cigarettes collected from the Rafay yard several weeks after the murders belonged to an investigator. Konat now begins going over the jury instruction book and charges. He talks about how SB told Haslett that SB and AR stayed at the Rafay house 5 days in advance so they could explain the DNA evidence. Konat says that SB and AR’s plans to make a movie were also a motive for the killings because they would become famous. He explains that the murders were “aggravated” because they lived off the proceeds from the murders afterwards.

11:04 Break for the jury. Judge Mertel asks Konat how much longer he is going need. Jeff objected earlier to Konat’s announcement that he would play a clip of JM’s testimony because that is essentially recalling a witness.  Judge Mertel agrees with Jeff and rules that Konat can’t play the clips.

11:10 Break for everyone else. 11:30 Jury comes back in and Konat continues. On July 18th, Haslett and Shinkaruk showed their fake BPD report to SB. That same day, SB confessed to the murders (this is the videotaped confession. AR’s confession is the next day, with SB present. Later on, JM was not able to give Haslett the “same story.” Konat shows the video clip of the July 18th conversation between Haslett and SB, where SB is discussing the assets. Next Konat shows a video clip from July 19th, with both SB and AR and Haslett discussing what JM knows. Konat claims that the newspapers never said that the killers were barefoot- there were “crescent-shaped” blood marks on the floor. So he is saying that SB’s claim that he committed the murders naked is holdback evidence. SB says that they washed the bat off in the shower and wore gloves during the murders. Konat says that this is evidence of SB “volunteering” information and not “playing [Haslett’s] game” as the defense claims. Konat says that AR’s laughing on the tape while discussing the murders shows that he wasn’t nervous. Konat then starts rambling about how the only question that hasn’t been answered is who came up with the idea. He goes into a final summary: SB learned from his car-accident faking insurance experience taught him how to avoid such mistakes next time, brings up the Nozgul I want to kill someone comment, says that all these things taken together show very clearly that SB and AR are the killers. Konat finishes at noon exactly. Lunch break till 1:30.

(Hilary) I arrive at 1:35. The place is packed, but there are a few seats left in the back. Defendants enter at 1:36. They look pretty somber today.  Everyone's chatting away, but there's definitely a severe air in the room. Mr. and Mrs. Burns are here, and their row has filled up with quite a few people.

Jury is in at 1:39.

It's Marc's turn to speak on behalf of Atif.  He plans on taking 1.5 hours, 2 at the most.  There's lots of press here. 

Marc begins with general ponderings on how innocent people are charged and convicted of crimes.  (Like yesterday, I am going to paraphrase as best as I can, instead of saying "Marc said" again and again, so assume all of this is stuff "Marc said.").  We know that this happens: innocent people are accused of crimes, and are even sometimes convicted.  How does this happen?  This happens when jurors bend to the wrong side (in this case the state's)  using emotion, not the real evidence, to make their decision.  The prosecution's evidence is silly: So what if a teenager doesn't subscribe to the same religion as parents? Or if those "rotten kids" sleep until noon?  What about that behavior is atypical of a teenager?

So, why would jurors need use only emotion to convict the defendants in this in this case? Because there IS NO EVIDENCE.  What we have is grand a house of cards set up by Bob Thompson (and later the RCMP and the state), based on his own false conclusions he made immediately after the murders.  A trial by jury is the only defense people have when the system conspires against its TARGETS, and that is the most appropriate term for the two accused.  If you can't go into deliberations under presumption of innocence, you have wasted your time for the past six months.

(to address why Atif did not testify)  You may ask, "why would someone not testify when they're innocent?"  Its because doing a "Balancing Test" is an issue.  This is when jurors balance two stories (the state's side v. the defense/the defendants' story) to see which they find more appealing/believable.  This is not the correct, legal way to deliberate.  This case isn't about Atif or Sebastian: this is about whether or not the state has PROVEN beyond a reasonable doubt that they committed the murders.  (Marc shows bar graph of what reasonable doubt is: pretty darn close to no doubt.)  It's like doctors treating a cancer patient with very advanced bone cancer.  Such a cancer patient would be treated regardless of how low their chance of living is, because the doctors job is to do their best to make them live, even if the odds look bad.  Jurors are doctors: as advanced a case of cancer someone might have, the doctor still offers treatment. A guilty verdict is the same as a doctor choosing to pull the life support plug and end a life.  For a doctor to feel comfortable committing such an act, they'd have to feel completely comfortable that there was no chance the patient was alive or could live.  So certain must a jury also be, before they can issue a guilty verdict for the defendants.

All the facts proving the defendants' innocence are right here.  Here's a few basic facts of the case: it was committed with a weapon like bat, and sharp, blunt object.  (Shows photos of the house, one shows where Mark Sidell stood when he heard banging from the house.)  Both neighbors who described hearing sounds place the time frame within minutes of each other, and these time frames are about 30 minutes off of when Atif and Sebastian could possibly have gotten there. This is all the evidence you need. You don't need to worry about which of Jimmy Miyoshi's statements where false (the first interview he gave police, the second, his testimony, etc. etc.). You don't need to worry about getting inside everyone's head to see who was leading who around or who was trying to bluff who.  The fact is, in the pre-trial hearings, the RCMP said that their goal in Project Estate was to get a statement of guilt.  There was no mention of wanting to find the truth on their part.

The Rafay's neighbor, Julie Rackly, was interviewed by the BPD on 7-22-94.  She heard the Rafay's TV on on an earlier night, and complained about it to Sultana Rafay, who told the boys to not have the television on so loud at nighttime in the future.  So Atif knew that if they made noise at night, the neighbors would hear it.  A stranger entering the house wouldn't know this.  Julie's testified that she went upstairs at 9 pm, when her elderly dad started watching TV.  He was hard of hearing and so watched it with the volume on high every night starting at night, so she'd commonly go upstairs to escape the din.  She took off her make-up and did her exercises, activities which took her approximately 40 minutes.  Then she started reading.  She soon heard banging sounds (oddly muffled, not pinging like hammer and nail), which were loud enough to annoy her, and which she could describe in detail.  Though she was pretty confident it was coming from the Rafay home, she had heard a banging from a different neighbor some days earlier, so she went to a window to take a look at their house.  Their house was dark and quiet.  She was now absolultely certain it was coming from the Rafay home.  She went downstairs at 10:15 to make a snack. It was silent by then. To verify her story, Julie re-enacted every step of her night, and verified that all her times were correct.  In police re-enactments, she could pick out the bat sound from other banging sounds.

Mark Sidell, the other neighbor who testified, came home at 8:35 with his wife.  His wife, who was pregnant and not feeling well, went upstairs.  He does laundry, then takes some flight charts (he's a pilot) out to his SUV, which is parked near to the Rafay house.  He hears sounds like hanging pictures, but describes them as being too low (physically, like someone wouldn't hang a picture that low on a wall); also heard sounds like wallboard/sheetrock breaking.  He heard "muffled cow sounds," or perhaps the sounds of a retarded female.  He went to bed at 10:30.  Sidell's testimony is like hold-back evidence, because he did not confer with anyone else or read anything about it before telling the police what he heard.  On July 13, 1995, he gave his comments to police: sounds happened between 9:45 and 9:50.  Mark Sidell was also able to pick out sounds that matched bats in police re-enactments .

Jeff brings a paperboard over for Marc, which shows Sidell's points made in testimony, taken from his 7-13-95 interview:
-definitely Rafay home
-not rhythmic like typical hammering, but more random
-occurred from 9:45-9:50
-there were cow/girl noises.

He later said the sounds could have been earlier, but conceded he'd read papers by then.

It's a fact that these sounds were the murders: there's nothing else it could have been. It's true that other neighbors didn't hear it, but they were passing by at the wrong time, so that is irrelevant.

How could this happen? How could the state put so much time, money, and energy into prosecuting defendants they knew were the wrong people?  First of all, it was Bob Thompson's first ever murder case- so what does Bellevue PD do?  THey give him the most complicated and gorey case perhaps in Bellevue's history.

Marc deconstructs Bob's "red flags" that made him convinced of Sebastian and Atif's guilt:

1) Bob's statement that they "didn't show emotion" contradicts officer Ramada statement that they were extremely excited when he arrived, pounded on the police car, shouted "this is the house!  This is the house!" etc.  They had to actually be told to calm down that night.
2) "Atif couldn't remember details from the days before the murders."  Here's why: Officer Ramada had talked with him only hours after they found the bodies, and questioned him about the evening of the murders, not before.  In subsequent interviews, none of the other officers asked about the previous days' activities (in the first 4 statements).  So it's not surprising that he recalled the night of the murders in much greater detail- not only had he been asked to recalled them from the beginning and then asked to re-give the information over and over, but he wasn't doing anything of note for the previous days anyway.  He could remember the night of the murders when first questioned because it was the same day.  I can remember what happened to me today.  But five days ago?  It's all a blur.  Prosecution says the lack of detail once in the house, but when Atif just saw his dead mom downstairs, why would he remember which hand he used to open Tariq's door?

(On to alibi night witnesses).  Contrary to what the prosecution says, Kaplan didn't really say they were rude (at the movie theatre). He said he remembered because they were mixed race.  In Bellevue, in 1994, he didn't think it was very typical to see a person of color and a caucasian out together, and that stood out to him.

The older woman at Steve's Broiler would seem an odd choice for them to inquire about nightclubs to, but she testified she gets asked ALL the time where the clubs are, so it’s actually not weird.

The state said it was weird that Atif didn't ask about the status of the investigation, but:

Fact: Atif was with Police almost constantly during the days after murders. They spent entire day with police, had breakfast at Coco's, were alone at the hotel for 5 hours, during which time they rented some videos and tried to sleep.  Then they were taken back into the BPD at 4 am for fingerprinting.  The next day at Barnes and Nobel they were found and taken in again. Then they were on the bus back to Vancouver.  Why would Atif ask about the investigation, when he had been involved from the beginning (as the focus)?

The state says Atif didn't cooperate, but he and Sebastian gave skin samples, fingerprints, computer files (?), ANYTHING the police wanted.  BPD made NO requests that were denied by Atif. He did admit reluctantly to the police that he thought his sister was gross, and didn't have a real relationship with her.  The state thought it odd that he didn't call relatives, but its not like he had their numbers committed to memory.  How many of you have memorized your extended family's phone numbers?  Maybe Atif didn't remember his uncle's name (Johnny Saiyed) because he thought maybe he'd Americanized it, but he DID say what his wife's name was, where he worked, etc.  If he was trying to not tell the cops what his uncle's name was because he didn't want him to be contacted, then he sure went about it strangely to give all that other information.

The state thought it was suspicious that Atif didn't bother to go to funeral.

Facts: no one knew when the funeral was, not even the BPD. Johnny Siayed didn't even know until that morning, because the family wasn't sure whether they'd even be able to get the Rafay's remains back from the laboratory.  And they couldn't tell Atif because they didn't know where he was.

The state says he fled to Canada.

Fact is he had two choices: 1) stay around the hotel with the police, where his friends couldn't even go (when they tried, they were apprehended and questioned themselves), or 2) go home with Sebastian, where his welcoming family was waiting.  The choice is obvious.

Bob Thompson ignored Jesse Brar evidence because they believed AR and Sebastian were guilty. The Bellevue PD made one attempt to talk to Brar after the credible tip from the RCMP that someone was willing to pay for the murder of this family, but he wasn't home when they went to his house.  So they didn't contact him again until 2000, and it's really hard to verify someone's alibi six years later.

Marc goes over evidence that point to someone else: Tariq Rafay published controversial paper that said mosques in North America weren't facing true east, and he was developing a computer program, Sultana told Atif the family had enemies, no one followed up on these leads or talked with the opposing Muslim community to see if there were any leads there.

Break at 2:40.  I have to take off.

(Annie) 2:50 (My notes start up after Hilary left at the afternoon break.) Marc continues. He is refuting the claims made by the prosecution. When Tahir Rafay heard that his brother had been murdered, he “fell apart” and couldn’t make funeral or travel arrangements. Tahir Rafay visited AR in Canada the day after the murders. He said that AR was “crying and sobbing very hard.” Marc next brings up AR saying he hated his sister, while he was being questioned or interviewed in the days after murders. When asked again if he really hated her, AR just says that they didn’t have a “real relationship.” Detective Gomes accused AR of not trying to contact his family after murders, but he and AR had discussed Gomes contacting the family for him since all the contact information was in the house. As Marc says, not many people have the phone numbers of extended family memorized, which is very true.