Seattle Times

Wednesday, August 21, 2002, 12:02 a.m. Pacific

Judge had 'no choice,' dismisses defenders; jail sex scandal sets back murder trial

By Michael Ko
Seattle Times Eastside bureau


ELLEN M. BANNER / THE SEATTLE TIMES
Attorneys Theresa Olson and Neil Fox, shown in July 2001, spent nearly three years crafting Sebastian Burns’ defense.

King County Superior Court Judge Charles Mertel sighed deeply and said what no one wanted to hear.

"There is sufficient evidence of an inappropriate sexual relationship," Mertel concluded yesterday. "I have no choice but to appoint new counsel."

The accusations against public defender Theresa Olson — that she had sex in jail with one of her clients, Sebastian Burns — have tainted the credibility of her firm on the case, again postponing justice in a Bellevue triple-murder case already 8 years old.

"I'll be shocked if this case goes to trial before 2004," said James Konat, senior deputy prosecutor.

And for that, Mertel said he was sorry — for the delays, for the money and the time spent so far.

Yesterday, Mertel dismissed Olson's firm, The Defender Association, from representing Burns, and he ordered the King County Office of Public Defense to give him new lawyers by the end of the week.

The new team will have to catch up with 36,000 pages of documents, 4,000 hours of video and audiotapes and hundreds of potential witnesses.

Upon hearing the news, the two public defenders representing Burns' co-defendant, Atif Rafay, said they would seek to have their case tried separately in order to keep the scheduled trial date of next April.

"The guy's been in jail for ... years," said Marc Stenchever, one of Rafay's two attorneys. "He's had to have his entire life put on hold for a third of his life."

Prosecutors said they oppose trying the defendants separately.

Burns and Rafay, both 26, have been in custody since 1995, when they were each charged with three counts of aggravated first-degree murder. Prosecutors said the two high-school classmates from Vancouver, B.C., finished their first year of college, then returned to Bellevue's Somerset neighborhood and killed Rafay's father, mother and sister to cash in on an insurance policy.

The killings occurred July 13, 1994, and charges were filed in 1995. But the case has been delayed by a lengthy extradition from Canada, complications in evidence-gathering and replacement attorneys.


Sebastian Burns

Former lead prosecutor Jeff Baird was moved from the Rafay case last year to work on the Gary L. Ridgway murder trial. Earlier this year, Rafay asked for — and received — new attorneys because he said he couldn't get along with his old ones.

Dan Donohoe, prosecutors' spokesman, said he's "not aware of another case that's taken this long to get to trial."

Now the incident at the King County Jail creates another delay.

A detailed report released to the public yesterday outlined the following:

About 8:50 a.m. Aug. 10, four corrections officers saw Olson, 43, and Burns having sex in a small conference room on the east wing of the 11th floor. They watched for a few seconds through a small window and then walked into the room and asked what was going on.

The report says Olson replied, "I was just giving him a hug, and it got a little out of hand."

She then was asked to leave.

Jail guards later said they thought Olson and Burns had been having sex the past three or four months, but they just didn't confirm it until then, the report says.


Judge Charles Mertel

"The guards noticed some behavior that was uncommon to what other attorneys and clients did during their visits," said Jim Harms, King County jails spokesman. "For example, normally, attorneys and clients talk across the conference table, but (Burns and Olson) would sit right next to each other, stand close to one another. It was that kind of cumulative behavior over a couple months."

But it wasn't sufficient to warrant any additional surveillance, he said.

Burns was disciplined for having sex with Olson, but neither Mertel nor the attorneys would divulge the extent of his punishment. The Washington State Bar Association is investigating Olson for violating its rules of ethics. Punishment could range from a warning to disbarment.

Olson and her co-counsel at The Defender Association, Neil Fox, had spent nearly three years crafting Burns' defense. Fox said he expects to help provide the new attorneys with strategies and insight.

"What I feel is secondary to what is best for Mr. Burns," said Fox, who had hoped to stay on the case. "It's my hope that the case against Burns and Rafay will be resolved and they will return to Canada as free men."

The Office of Public Defense estimates that about $840,000 in taxpayer money has been spent defending Rafay and Burns since they were extradited from Canada early last year.

Each of Rafay's and Burns' public defenders is making about $110,000 a year, plus expenses.

Mertel has scheduled a hearing for next Tuesday to meet the new attorneys. Among the issues to resolve is the fate of a box of items seized from Burns' cell, believed to contain legal documents and intimate letters between Olson and Burns. A retired judge will step in and decide who gets what.

Mertel recommended that any legal documents be given to Burns and his new attorneys, and that any personal letters be turned over to prosecutors.

Michael Ko: 206-515-5653 or mko@seattletimes.com.

Copyright © 2002 The Seattle Times Company