EVERETT — Lawyers for the prisoner accused of killing Monroe corrections officer Jayme Biendl for a second time are asking for a new judge.
They are claiming this time that Superior Court Judge Thomas Wynne failed to uphold the law in another death penalty case and are again questioning the judge’s ability to give Byron Scherf a fair trial.
Defense attorneys Karen Halverson and Jon Scott filed a motion late last week asking that Wynne withdraw from the case. In their motion, they claim that Wynne is operating under a flawed understanding of the law and has ceded his authority in the past to prosecuting attorney Mark Roe.
They go so far as to claim that there appeared to be a “wink-and-a-nod” agreement between Wynne and Roe in the 2006 retrial of convicted child killer Richard Clark.
The way decisions have gone in Scherf’s case “gives the appearance that Mr. Scherf will not be treated fairly unless it is the prosecutor who is soliciting that fair treatment,” Scott wrote.
Scherf, 53, is accused of ambushing Biendl a year ago inside the prison chapel at the Washington State Reformatory. The convicted rapist allegedly admitted to detectives that he strangled the corrections officer with an amplifier cord after he became upset over something he told investigators Biendl said earlier in the night.
Scherf is serving a life sentence without hope of release for a series of attacks on women dating back to the 1970s. Prosecutors are seeking the death penalty for Biendl’s slaying.
Halverson and Scott first asked Wynne to step down from the case in late September. The attorneys claimed that Wynne had demonstrated a bias and prejudice in favor of prosecutors and against their client.
They hung their argument on an Aug. 3 hearing when they requested that Wynne order prosecutors to identify which information Roe considered before deciding to seek the death penalty for Scherf. Roe reached his decision before the defense lawyers provided any materials to persuade him to show Scherf leniency.
Wynne denied the motion, ruling that Roe had substantial documents to consider because Scherf had spent most of his adult life in prison. The judge said he didn’t have the authority to compel Roe to reveal his thought process.
He also told the defense attorneys that they could still provide Roe with materials that may make the prosecutor reconsider seeking the death penalty.
He referenced his experience in 2006 with the Richard Clark case. Roe, then a senior deputy prosecutor, also was assigned that case.
Clark was convicted in 1997 of killing 7-year-old Roxanne Doll and sentenced to die. The state Supreme Court, however, found that a different trial judge erred when he allowed jurors to hear during the penalty phase some of the details of Clark’s previous convictions.
“(W)e reverse his death sentence and remand to the trial court where, if the state desires, a new special sentencing proceeding may take place,” the justices wrote in their 2001 opinion.
In the end, Wynne allowed prosecutors to withdraw their intent to seek the death penalty after Clark agreed to admit his involvement in the girl’s death and waived further appeals. That resolution was supported by Roxanne’s family. Clark is serving a life sentence in prison without parole.
Scherf’s attorneys argue that Wynne’s 2006 decision was in conflict with case law. They cite a 1985 state Supreme Court decision, which they say clearly indicates that once the prosecutor files his notice to seek the death penalty, he can’t abandon the effort. He is compelled to let a jury decide, the lawyers said.
The defense attorneys wrote that they don’t disagree with the end result in the Clark case. However, they accuse Wynne of ignoring the law in 2006 and continuing his misinterpretation in Scherf’s case.
The judge is either willing to let the prosecutors have powers beyond the law or has such deference for the prosecutors that the law can be ignored, Scott wrote.
He and Halverson “cannot take the risk that this bias will percolate through Mr. Scherf’s case …,” the public defender added.
The motion also accuses Wynne of treating the defense with “sarcasm and scorn” at a January hearing that focused on preparations for next week’s hearings to determine if jurors will be allowed to hear statements that Scherf allegedly made to detectives and corrections officers.
The first time the defense team sought to have a new judge, prosecutors accused them of “judge shopping” and trying to intimidate Wynne.
The judge declined to remove himself from the case. He told the defense they could renew their motion with another judge assigned by presiding Superior Court Judge Ellen Fair.
On Monday afternoon, prosecutors responded to the latest motion by Scherf’s lawyers, accusing them, among other things, of not adequately researching the decision in the Clark case.
“Being unable to defend the defendant factually, the defense instead — again — resorts to assailing the ethics of those involved in his case,” deputy prosecutor Paul Stern wrote.
“The latest defense motion for recusal is another desperate effort at delay and intimidation. It also portends the defense strategy: Anyone connected to this case, be they prosecutor, judge investigator, corrections officer or witness, can anticipate attacks on their integrity in lieu of a professional discussion of the merits of the matter,” the prosecutor added.
Diana Hefley: 425-339-3463; hefley@heraldnet.com.
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