Judge says public should see Scherf letter; defense appeals

EVERETT — The public has a right to see a letter that murder suspect Byron Scherf sent prosecutors earlier this month, a Snohomish County Superior Court judge ruled Friday.

The correspondence, however, won’t be released while Scherf’s defense attorneys appeal Friday’s decision.

Scherf

, 52, is accused of killing Monroe corrections officer Jayme Biendl on Jan. 29 at the Washington State Reformatory. Prosecutors are seeking the death penalty.

The criminal case against Scherf took a back seat Friday to a debate over what the public should be allowed to know. Attorneys argued over whether Scherf’s correspondence to prosecutors is a public record and subject to disclosure.

Scherf sent a letter from jail indicating that he wanted to represent himself in his murder trial. The correspondence, postmarked May 4, indicated that Scherf filed a motion with the county’s Superior Court Clerk’s Office and he wanted to be heard on the issue at his next court appearance.

The Herald and a Seattle television station requested a copy of the document after prosecutors notified Superior Court Judge Thomas Wynne at that hearing that they wished to address the contents of a letter they received from the defendant.

Wynne declined to take up the matter then, saying no motion from Scherf had been filed in the court record.

The judge and prosecutors later learned that court clerks had received mail from Scherf containing a motion to represent himself. They didn’t put the letter or the motion in the court file, however, at the request of Scherf’s defense attorney, Karen Halverson. Her legal assistant retrieved the unopened letter.

Prosecutors on Friday requested that Wynne ask Scherf whether he wanted to represent himself. They said it was necessary to clear up any question about whether Scherf wanted to file the motion he sent to the clerk’s office.

Defense attorneys Friday gave Wynne a document signed by Scherf indicating that he wasn’t asking for the court to consider a motion. Wynne asked Scherf if the document was accurate.

“I’m being represented by counsel, your honor,” Scherf said.

Halverson quickly objected, saying that her client shouldn’t have been forced to address the court. She said it was more evidence of prosecutors trying to insert themselves into the relationship between Scherf and his attorneys.

Wynne last week had barred the release of Scherf’s letter until the defense could be heard on the matter at Friday’s hearing.

Defense attorney Jon Scott argued that prosecutors were unethical when they opened the letter. It was only through their misdeeds that the correspondence become subject to scrutiny under public records laws, he said.

“Their unethical handling of the document is why there is a hearing today,” Scott said.

Snohomish County deputy prosecutor Ed Stemler denied that his office did anything wrong. Prosecutors didn’t ask Scherf to send them the letter. The correspondence was addressed to the prosecutors and the envelope indicated that Scherf was representing himself. The correspondence also indicated that a motion had been filed with the court, Stemler said.

Prosecutors have never been accused of unethical behavior because they open mail addressed to them, he added.

Scherf is an intelligent man who is familiar with the court system, Stemler said. Prosecutors had no reason to doubt that he filed the motion, and ignoring the matter could have been a serious error in a death penalty case, he added.

Civil deputy prosecutor Lyndsey Down added that Scherf’s attorneys failed to show that the document was privileged or fell under some other exemption that would prevent its release under state public record laws.

The letter was received by a public agency and is related to how the county’s lawyers are prosecuting a death penalty case, said Eric Stahl, an attorney with Davis Wright Tremaine, representing The Herald. That makes it a public document, he said.

Wynne agreed.

The judge said he didn’t find an ethical violation by prosecutors. But even if there was a violation that doesn’t have bearing on whether the document should be released as a public record, Wynne said.

Diana Hefley: 425-339-3463; hefley@heraldnet.com.