This trial started November 24, 2003 and is ongoing.

May 20, 2004
by
dll

Closing Arguments

9:00am – Courtroom is full. Gomes is taking up a seat. Can’t help wondering why he is here. I wind up next door in the overflow room. Twenty others with me at this time. By the time Jeff is in full swing with his closing the room has swelled to 50+. Only about 15 showed up for James yesterday.

9:01am – SB & AR brought in. SB & AR conferring with Jeff. Judge comes in, asks Jeff if his will run about 2 hours, Jeff says yes. Judge says we will run until about 10:15 then break. The sound is not on for anyone except Judge Mertel. Roger gets up and talks about something, blah, blah, blah, mistrial, blah, blah, jury. Then someone turns the sound all the way down. Idiots. I run to the other room and stand in the back. Apparently the prosecutor's office is unthrilled with James for talking about the Berg beheading and they want to put in an "limiting instruction" to the jury to disregard that testimony… interesting.

9:10am – Jury brought in.

9:12am – Jeff starts his closing argument. It is inaudible. Finally someone turns his microphone up. Talks about prosecutors opening statements. The prosecutors have given you a not-so-subtle invitation to judge this person on his personality, on his demeanor, not on evidence. When you go down that road you are on the road to hell. Talks about some Korean ship that was captured and some prisoners who were made to falsely confess to some crimes..

Haslett & Shinkaruk were working people over longer than SB had been alive. Haslett said, “Sebastian, they are coming to lock your ass up.” “If you get arrested you’re a threat to me. And threats to me get taken care of.” “I only trust you because you’re a murderer.” At the Ocean Point Hotel, SB couldn’t tell Haslett, “You know, I didn’t really murder anyone but the BPD are fabricating evidence against me, could you still take care of that for me?” He couldn’t say that, so he wound up sitting on a couch, drinking a beer, “confessing” to Haslett. His confession was contrary to the facts of the case. He didn’t give any indication that his confession was false, except for the fact that he didn’t get the story of the Rafay murders straight. If you are going to judge SB on the evidence, then you will find my client innocent.

Are any of you still cheating on your spouses? That’s the kind of question SB was asked on the stand. Everyone would answer that type of question differently. SB stood in court and listened to people talk about him. His ability to communicate due to the last nine years in prison = stunted. To face a jury, to face an audience, to face TV cameras. And we're telling him don’t wait too long to answer questions, don’t appear arrogant, just act “normal.” Impossible. Take a short cut, judge him on the things he said, the way he acted, that’s what the prosecutors want you to do. Shinkaruk also gave long run-on sentences. Haslett was as obstinate as Burns. Nickles – a fingerprint expert, turned into a box handling expert. SB's desire to make a movie is a smoke screen to ask you to focus on instead of guilt or innocence. Did Nozgol come in here and tell you anything about how it was just late night chatter? What about the car wreck? What they didn’t talk about was SB said it was a disaster. They want you to think he’s so smart but that he would use the same alibi again, when the Vancouver police had it documented. The state can’t have it both ways. He could go away for his natural life. Don’t you think you should judge him on the evidence? Moves on to evidence left at the crime. On July 12 three killers entered the Rafay home. The defense wants you to believe it was only one. Mrs. Rafay was not found to have run from her attacker. Don't you think Mr. Burns walking towards her, naked, with a baseball bat might have caused her some alarm?

10:35am – There were no details at all about Mrs. Rafay’s murder. After her murder, someone moved her scarf. That is hold-back evidence. There were no fingerprints from SB&AR in this particular part of the house at all. SB is not responsible for these murders. Upstairs the prime reason for these attacks is evident. Dr. Rafay was murdered in a rage. His face was unrecognizable, his ability to speak taken from him. Someone was sending a message. SB told Haslett he did it alone. But there were at least three people in the room when Dr. Rafay was murdered. The pillow is of great significance. The pillow was being moved during the killing. Blood spatter went in every direction. We have a void, a blood shadow, where someone else had to be standing. Three people were in that room, that’s what the facts tell us. SB said there was one murder weapon. Jeff shows a picture of a wound on Dr. Rafay that was not made with a baseball bat.

DNA has revolutionized the criminal justice system. Tiny pieces of evidence are able to convict people and to take people off death row. It doesn’t mischaracterize, it just gives you the facts. Whose pubic hair was left on the bed? The BPD told the RCMP that the hair was left by the murderer. But now they say it must have been on his clothes at work. It doesn’t fit their story so they change their story. They failed to mention that AR didn’t want to walk into his father's room because of the blood spot in the doorway. If AR was in that room when the murder happened, he would have had more than one tiny bloodspot on his pants. Going into Basma’s room there is an unidentified fingerprint, was that one of her killers’ fingerprints? We don’t know. The marks found on Dr. Rafay were not found on Basma. It could be a coincidence if she was only hit once, but she was hit 10 times. There was more than one weapon. Whose blood is it that was found outside the sliding glass door? The prosecution says we don’t care. SB looks guilty, so he did it. SB & AR were thoroughly examined and they had no cuts. So if someone’s blood is mixed with Dr. Rafay’s, it’s the killer’s and it’s not from SB & AR.

The men who talked about the shorts in the washer told the prosecution, “I don’t like the innuendo. There was not any blood found and that doesn’t mean there used to be…”

Shower, his hair in the shower is exactly where you would have found it if he is innocent. There was no cleaning done in that bathroom. If SB was covering his tracks, wouldn’t he clean up after the shower? Fingerprint on the shower door. The prosecution says it has nothing to do with the crime. If that is true, why did they run it through the FBI computers three times? Prosecutors are inviting you to take a short cut around this evidence and convict. Minor source doesn’t mean insignificant or unable to test for DNA. That is the profile of the killer and it’s not SB or AR. SB said it looked like a break-in. The police testified, “At first glance it looked like a break-in.” If they can say it, why can't SB say it? In the garage there were blood spots.

10:15am – break

10:30am – SB & AR brought in. Judge enters. Jury enters. Jeff tells “flood story.” A man is on the roof of his house, a great flood is coming. A police car comes by to pick him up, "No thanks, " he says, "I trust in God, He will save me." A little time later the flood is rising, a boat comes by, "Get in." No thanks," he says, "I trust in God, He will save me." A while later a helicopter comes, they try to rescue him too. "No thanks," he says, "I trust in God, He will save me." Well he dies in the flood and he asks God "Why didn't you save me? Didn't you hear my prayers?" God says, "Well I sent you a car, a boat and a helicopter, what else could I do?" Courtroom laughs. The blood in the garage & shower is telling you something. Please listen.

Don’t go out to eat and forget your watch if you are going to a movie afterwards, if you ask the waiter for the time you could be a suspect in a triple homicide. For the first time in 10 years we hear from the prosecution during their closing arguement that the murders might not have happened during the movie. Now it happened after. The prosecution doesn’t know when it happened, they just want you to convict them. Steve’s Broiler waitress says SB and AR were there at midnight. The state didn’t like it when she said "the cops were in my face saying these guys did it, we don’t like your answers, you must be wrong."

The police canvassed the entire Rafay neighborhood and no one else was making those sounds the witnesses heard at 9:50pm. The state didn’t even mention to you the sound recreation tests. Both witnesses picked the same sound, aluminum baseball bat, at the same times. But oops, it doesn’t fit the prosecutor’s story, so they don’t bring it up. Sunset was at 9:05 on July 12. Mrs. Rafay's glasses were folded next to her on the floor when they found her body. The prosecutors say that’s not a prayer mat she was found on. If not, where is her prayer mat?

How are you going to decide this case? You apply the law to the facts. Where you start out has a major impact to your conclusion. It’s like proving the existence of God by looking at a flower. It’s complicated, God must have had a hand in it. Someone else says flowers are similar to other plants, very compartmentalized. Biology rules the flower. Where you start out has a lot to do with where you end up. The law tells you SB is innocent… you have to ask yourself what has the state shown me to believe he’s guilty without one doubt that he is innocent? Justice, the law, and common sense tell you where you have to start out. A lot of myths of how to act around a jury. Talk to your client, but don't talk too much. Wear your tie loose so you look comfortable, wear it tight so you look professional, etc. Based on one fear… that the jury will dismiss the law as small talk. I want a jury that’s going to abide by the law – I want a jury like you.

The most biased evidence… that when the police asked them to calm down, they did. And that SB was rude to a police officer at the scene. They didn't tell you he went back later and said, sorry I snapped at you. Not one report from that night had their demeanor in it. You only hear about it weeks later. You heard, well we thought I was a murder/suicide. Within 20 minutes they know there was no gun in the house. Characterization of behavior. We did a lighting recreation – but the wallboard was removed, the bed had been removed & Dr. Rafay had been removed. Bosler could see that there was blood on his face, the wall & sheets when he stuck his head in the room, with the lights out.

Bob Thompson said we never accused AR of the murder… I’m not saying he’s lying but he is wrong. As far as the "great detail" their remembered their night out as, they couldn’t remember the name of one person they ran into. They couldn’t remember the name of Steve’s Broiler. They said it was Steven’s Café.

Gomes told you when they found SB and AR at the Barnes & Noble SB asked can I go with? No. Touched AR's hand and said, "Talk to you later." Bob told you SB flung his arm across AR’s chest and said, “I’m going too.”

They want you to think because SB and AR didn't remember exactly what they did in the house when discovering the bodies that they are guilty. Officers said they couldn’t remember what they said after looking at Dr. Rafay’s room. But SB & AR are supposed to remember what they did. One woman wouldn’t process the room because of how horrific it was.

The BPD did everything they could do to isolate SB & AR after the crime. Look at the number of calls SB’s parents made trying to find out where their son was. (phone bill up on big screen)

“They fled.” After the BPD said "how did you know your father didn’t throw blood on the wall?" “Was he decapitated?" "Did you go up and look?” Who wouldn't flee?

The prosecution said it was an inside job because Dr. Rafay’s was only hit above the collarbone. That makes no sense. It was an inside job because they had to “navigate their way” to Dr. Rafay’s room, like it’s a forest or jungle or something. (courtroom laughs) It’s an inside job because they know what time he went to bed. SB and AR said Dr. Rafay went to bed between 10 and 11, wouldn’t you wait until after midnight to do the murders to make sure? Wallet of Dr. Rafay is left by someone leaving quickly. SB & AR said they had an hour and a half. One thing you won’t hear from the state is that they have to prove the elements of the crime. They are using JM to prove identity.

11:20am – Prosecution is asking you about JM - why would he lie? You should ask yourselves - why should I believe him? Presumption of disbelief. With all the technology we’ve used, we don’t use computers to decide guilt. There are times when people will just lie. JM took the story made for A & H and said it was true. Jimmy just twists it a little bit. JM can’t even keep his lies straight from one afternoon to another. JM’s story fell apart because of the confessions. Can’t blame him. He signed his immunity agreement. Two things he didn’t get immunity from – perjury & contradictory statements. “JM, stick to the story.” On 3 occasions he is reminded of his immunity agreements. He said once he would wave immunity, that he trusts his best interest would be looked after. He wrote that for his employer’s benefit. He did not waive immunity once he got back here. He lied about the Lion King. He lied about the cat. He calls me asking for advice. The one thing he was consistent about was the fear from Haslett & Shinkaruk that SB & AR had.

11:30am – break.

11:37am – Back. A quote from Haslett – if so, it’s chilling – “We know what the approach was in this case – meet the targets and get a confessions to the crimes they did.” But in court they told you, “We just wanted the truth.” BPD thought they were guilty and passed it on to the RCMP. Bob Thompson said to SB's lawyer in Canada “Let him know that I know he did the murders and want to talk to him about it.” Why didn’t Haslett say, “If you didn’t do the crime, just tell me, I’m okay with that.” Haslett told us, “That wasn’t my role.” That’s why we don’t do stuff like that down here. It’s unreliable.

The State made a mistake, “Nice boy, eats a lot.” That wasn't said on the phone to Sebastian's dad in Canada, that comment was made later when Bob went to Vancouver.

The RCMP wanted to give them a logical reason to confess. “We can destroy all the evidence but you have to tell us everything and tell us now.” When he showed SB he fake police report, these are SB’s worst fears. If you need any more proof that the BPD were biased – This is what they told the RCMP about SB and AR. “They went to a fancy restaurant.” They went to The Keg. "They made themselves known everywhere they went" – false. No one testified to that. "A six foot tall killer" – state never brought that up. "SB’s blood mixed with victim’s". Not true.

Talking about scenario. SHINKARUK saying SB wanted to be a hitman, you saw the tapes, SHINKARUK was wrong. SB met with them again because he wanted to find out more about the Bellevue investigation. “I’ve got your future in the palm of my hand,” Haslett said. We’re asking you to evaluate not on appearance, but the evidence. Forget who said what, who drank what, look at the facts. Talking about holdback evidence… done by Ross Gardener in 2001. Testimony about underwear. Haslett asked, "how do you kill three people and not get any blood on you?" First SB said, "You do it naked." Then later, "I was wearing underwear". State kept telling you SB & AR were owners of underwear. AR said, “The police don’t talk to us, they just talk to the media!” Every fact came from the press or was suggested by HASLETT before SB said anything. They were wearing the same thing before & after the murder, there was no change of clothes. This was cooberated by witnesses.

On July 18th SB said the bat was in the house. Then later said he bought it at a store in Bellingham. Hard to keep the story straight when you’re lying. Sums up his argument, you are being invited to ignore these red flags. We know you won’t. “You can beat the wrap but you can’t beat the ride.” --Author

That’s a ride I suggest none of us would like to take. SB had to ask himself, "Do I fight fire with fire? Do I get the evidence destroyed or do I chance it in court."

This case was handed to BPD on a silver platter. No one has checked the confessions against the facts. Now that’s your job.

Jesse Brar. An example of the State setting up a straw man and then knocked it down to prove it wrong. Jess Brar never said he killed them, but that he was offered that contract. We are speculating. Somebody was talking about killing this family 2 days before it happened. Jesse Brar, the kind of guy who when you go to his house you bring the tactical squad with you. To get his DNA you pick up his cigarette butts.

Jesse Brar was bragging about murder but no one looked into it until 6 years later.

The fact that they took six months doesn’t mean they have a lot of evidence. We asked you to pay close attention to the details because that would lead to a road of not guilty.

When you chose a foreperson, choose someone who is going to be a guardian for the presumption of innocence. During deliberations, don’t be afraid to turn to a fellow juror and say, “That sounds like it’s coming from a stance of presumption of guilt.” If you convict them, you can’t wake up three days later and say there was no proof. Or three weeks later on the bus saying JM’s testimony didn’t make sense.

Last night talking to a friend. The friend said, "Just do the best you can. You know the publicity before the trial. They are just human beings." I looked at my friend and I was able to say I know something you don’t. What I know is that I’ve looked into the eyes of the jury. Thank you doesn’t begin to express how I feel, but it’s all I have to say to you!

12:12pm - Jeff ends.

1:35pm – Courtroom full.

1:41pm – Song & Jeff arrive. Veronica already here. Prosecutors enter with Gomes. Marc here.

1:45pm – Prosecution trying to figure out why their overhead projector won’t work. 48-Hours people unplugged it. Roger gets it plugged back in.

1:51pm – SB & AR brought in. Judge enters.

1:53pm – Jury brought in. James starts his closing. There’s a sense of desperation growing at the defense camp. They want you to ignore the confessions SB & AR made where they laughed & giggled throughout. The defense wants you to believe that everything that SB said is true and everything Haslett & Shinkaruk said is false. That’s what you’d have to do to find them innocent. James is talking so fast it’s hard to write everything he says. Marc said the RCMP was out to get SB & AR.

James talks about what if you saw a cat smashed on the road and someone comes in here and jokes about it. Most people wouldn’t joke about their worst enemy being killed. They were laughing about their family being killed.

James talking about Marc saying sounds were over by 8:50. Says it several times. Marc stands up and says, “I never said anything about 8:50.” Judge says jury will have to remember for themselves. James goes over neighbors’ testimony about when they heard noises, what type of noises and where they could have come from.

James saying Jeff would have you believe at 9:06pm Sultana was being murdered.

Jeff objects, says I never said anything like that, I won’t sit here and let him put words in my mouth. Judge says it’s argument, I’ll let the jury decide.

James talks about the “possible void," ie -blood shadow on the wall of Dr. Rafay's bedroom. Jeff objects saying K. Sweeny never talked about a possible void. He said he definitely saw a void. Judge says jury will have to decide. James says he didn’t mean to say K. Sweeny but Ross Gardener.

Now talking about DNA. Garage DNA was female. Shower door fingerprint could have been in "caulk" from when the doors were installed.

“What are the chances three people snuck into the Rafay’s house.”

Mrs. Osteen – you saw how she was when went up those steps and down and I could smell how she was… (implying, apparently, that she was drunk)

Jeff & Marc jump up and object. Judge sustains the objection and tells the jury to disregard that statement.

If you believe anything JM says it is game, point, match. The defense is desperate for you not to believe him. He was their very best friend.

Back to SB’s confession and how it contained no holdback evidence – just like JM said. Now talking about how the one night they chose to go out there was a triple murder.

Three jurors sitting with their arms crossed.

James talks again about how the DNA in the garage was female. Jeff stands up and objects, says it’s not true. Judge says jury will have to decide. James says the jury doesn’t have to remember, it is in evidence. Jeff is shaking his head. I thought I remembered it as male as well.

2:50pm – Going over Canadian consulate testimony. AR – Burial arrangements? None.

2:55pm – Break.

3:15pm – Break over. James resumes. The instructions are your guide line. I take exception to Jeff saying you must assume JM is lying. And you must assume SB is telling the truth. Jeff objects, says James is misstating the law. Judge says he will hear an argument after James’ closing.

3:20pm – James talks about he was gone for a few days and he lost his father. If you haven’t lost a parent go back there and listen to those who have. You will find it difficult to understand how they could giggle about the death of AR’s family. Or how they could laugh about killing Bob Thompson and his wife and kids. Song plays with a paperclip as James speaks. James says we don’t have to explain every hair and every fingerprint in that house. That isn’t a “reasonable doubt.”

"I want to leave you with one last thought. If you came home and found your mother dead, would you really go and check your room to see if anyone took anything from your room? Because that’s what AR told the police."

"The job of the State is to prove beyond a reasonable doubt and we have covered every reasonable doubt."

3:37pm – James ends. Judge re-reads rule #1 to the jury that says closing arguments are not evidence. Reads 2nd rule that says lawyers have rights to object to anything and you can’t infer anything about that.

Judge says this afternoon they will pick a foreperson and start their deliberation tomorrow at 9am.

Jeff calls for sidebar. Everyone goes back into judge’s chambers.

3:42pm – Sidebar over. Mr. Brown is the alternate. Still part of the jury – must keep in contact with Shyrell.

3:47pm – Jury files out to start their deliberations. Song has some comments about the evidence list. 250 A & B missing. Judge says those are on bottom of list. Fingerprint cards – entered for illustrative purposes only. Judge says they were admitted and without objection. James says it was an error, he did not intend to admit those. Judge makes change. 522 is listed as a map but it’s a news article. 523 is the map.

3:53pm – Marc makes a motion for a mistrial due to James’ mention his father died. Jeff joins in this. Says they had private conversation with judge where it was decided this would not be referenced. Judge agreed. "I am somewhat concerned about that. But I’ll deny that motion." This was discussed. James says there was no discussion in my presence. Jeff says that is right, Roger knew and Roger should have told him.

3:55pm – Judge clears court.

TRIAL IS OVER!