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Published: Monday, November 14, 2011, 7:16 p.m.

Judge to rule on Byron Scherf's seized medical records

EVERETT -- A judge is expected to take a week or two to decide if police acted legally when they seized medical records about the man accused of killing Monroe corrections officer Jayme Biendl.
Byron Scherf's attorneys argued on Monday that the search warrant was too broad and investigators failed to prove that there was a nexus between the records they seized and the killing. Everett defense attorney Jon Scott argued that Scherf's medical records should be returned and prosecutors shouldn't be allowed to use them.
Scherf, 53, is accused of ambushing Biendl on Jan. 29 inside the prison's chapel, where he volunteered. Biendl was strangled with an amplifier cord. Scherf allegedly told investigators that he planned to kill Biendl because of something she said to him earlier in the night. Scherf was serving a life sentence without the chance of release for sex crimes against women.
Prosecutors are seeking the death penalty.
Snohomish County deputy prosecutor Ed Stemler on Monday argued that the detective clearly identified why he was seeking Scherf's records when he applied for the search warrant. Scherf's medical records, including psychological records, could help investigators determine if Scherf had some condition that could have affected his ability to form intent or plan the killing, Stemler said. Additionally, investigators had learned that Scherf had missed taking his medication the day of Biendl's death. Detectives needed to learn more about his medical condition and what possible effect skipping his medication could have on his behavior, Stemler said.
Snohomish County Superior Court Judge Thomas Wynne told the lawyers he would issue a written decision in the coming weeks.
Meanwhile, the state Supreme Court recently denied Scherf's request to review two of Wynne's rulings. First Scherf argued that the judge erred when he concluded that a letter Scherf sent to prosecutors was subject to public disclosure. Scherf had argued that prosecutors shouldn't have opened the letter.
"On that point Mr. Scherf provides no authority from Washington or elsewhere suggesting that receiving and opening a letter constitutes communication by the recipeint," state Supreme Court Commissioner Steven Goff wrote.
Then early last week, the high court also declined to review Wynne's refusal to take the death penalty off the table. Defense attorneys argued that the notice was defective because prosecutors filed an intent to seek the death penalty before Scherf was arraigned.
Wynne ruled that the law does not preclude prosecutors from filing the death penalty notice before the arraignment.
"No greater protection would be afforded defendants by construing the statute to require filing only after arraingment," Goff wrote in a separate ruling.
Scherf's trial now is scheduled for September 2012.
Diana Hefley: 425-339-3463;
Story tags » EverettMonroePrisonHomicide

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