Prosecutors followed law in Scherf death penalty case

EVERETT — Prosecutors followed the law two years ago when they reached a swift decision to seek the death penalty for a convicted rapist who is accused of killing a Monroe corrections officer, a Snohomish County judge ruled Monday.

Lawyers for Byron Scherf claimed his rights were violated in 2011 by Prosecuting Attorney Mark Roe’s decision to include capital punishment as one option for jurors to consider if Scherf is convicted.

Defense attorneys Jon Scott and Karen Halverson urged Snohomish County Superior Court Judge George Appel to remove a death sentence as one potential outcome for the case.

They argued Roe abused his discretion by not providing Scherf’s lawyers sufficient time to make a case for mercy after he allegedly strangled corrections officer Jayme Biendl.

Scott told Appel it has been an “evolving practice” for prosecutors in potential capital cases to delay making a decision until hearing from the defense about potential evidence that could mitigate.

State law requires prosecutors to provide written notice of intent to seek the death penalty within 30 days of a defendant being arraigned for aggravated murder.

Scherf was arraigned March 16, 2011. Prosecutors filed the notice of intent to seek a death sentence the same day.

“The rigid, statutory requirements were complied with,” Seth Fine, a senior deputy prosecutor, told the judge.

Appel agreed, and said that evolving practice and statutory requirements aren’t the same thing. He also said the defense had failed to show that Roe abused the discretion reserved for prosecutors under the law.

“There has been nothing that has been demonstrated so far that indicates the Constitution has been violated,” the judge said.

Biendl was killed Jan. 29, 2011, in an ambush attack in the chapel at the Washington State Reformatory in Monroe. Scherf was found seated outside the killing scene. Within days he provided detectives videotaped statements, admitting responsibility and claiming remorse, according to court papers.

A repeat rapist, Scherf already was serving a life sentence under the three-strikes law when Biendl was killed. Roe said he reviewed nearly 6,500 pages of police reports about the killing and records about Scherf’s decades in prison before deciding that jurors should have the option of considering death for the defendant.

On Monday, Scott repeatedly told the judge that he’d reviewed the same materials and they were “chock full” of evidence that could support mercy for Scherf.

Appel asked whether the defense team had considered submitting mitigating evidence after Roe announced his decision.

Fine said the prosecutor would be open to hearing more from the defense. Scott, however, said that the only appropriate outcome would be for Appel to bar the state from seeking his client’s death.

Scherf’s lawyers in 2011 made nearly identical arguments about Roe’s handling of the death penalty decision, also without success. They plan to appeal.

A pair of King County Superior Court judges recently sided with defense attorneys who raised similar challenges in unrelated murder cases there.

The decisions have effectively stopped the capital-murder prosecutions of Joseph McEnroe and Michele Anderson, who are accused of killing her family near Carnation in 2007, and Christopher Monfort, who is charged with the 2009 killing of Timothy Brenton, of Marysville, who was a Seattle police officer.

King County prosecutors are appealing to the state Supreme Court.

Jury selection in Scherf’s trial is scheduled to begin early next month.

Diana Hefley contributed to this report.

Scott North, 425-339-3431, north@heraldnet.com.

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Local News

A firefighter stands in silence before a panel bearing the names of L. John Regelbrugge and Kris Regelbrugge during the ten-year remembrance of the Oso landslide on Friday, March 22, 2024, at the Oso Landslide Memorial in Oso, Washington. (Ryan Berry / The Herald)
‘Flood of emotions’ as Oso Landslide Memorial opens on 10th anniversary

Friends, family and first responders held a moment of silence at 10:37 a.m. at the new 2-acre memorial off Highway 530.

Julie Petersen poses for a photo with images of her sister Christina Jefferds and Jefferds’ grand daughter Sanoah Violet Huestis next to a memorial for Sanoah at her home on March 20, 2024 in Arlington, Washington. Peterson wears her sister’s favorite color and one of her bangles. (Annie Barker / The Herald)
‘It just all came down’: An oral history of the Oso mudslide

Ten years later, The Daily Herald spoke with dozens of people — first responders, family, survivors — touched by the deadliest slide in U.S. history.

Victims of the Oso mudslide on March 22, 2014. (Courtesy photos)
Remembering the 43 lives lost in the Oso mudslide

The slide wiped out a neighborhood along Highway 530 in 2014. “Even though you feel like you’re alone in your grief, you’re really not.”

Director Lucia Schmit, right, and Deputy Director Dara Salmon inside the Snohomish County Department of Emergency Management on Friday, March 8, 2024, in Everett, Washington. (Ryan Berry / The Herald)
How Oso slide changed local emergency response ‘on virtually every level’

“In a decade, we have just really, really advanced,” through hard-earned lessons applied to the pandemic, floods and opioids.

Ron and Gail Thompson at their home on Monday, March 4, 2024 in Oso, Washington. (Olivia Vanni / The Herald)
In shadow of scarred Oso hillside, mudslide’s wounds still feel fresh

Locals reflected on living with grief and finding meaning in the wake of a catastrophe “nothing like you can ever imagine” in 2014.

Lynnwood
Crash in Lynnwood blocks Highway 99 south

The crash, on Highway 99 at 176th Street SW, fully blocked southbound lanes. Traffic was diverted to 168th Street SW.

The view of Mountain Loop Mine out the window of a second floor classroom at Fairmount Elementary on Wednesday, Jan. 10, 2024 in Everett, Washington. (Olivia Vanni / The Herald)
County: Everett mining yard violated order to halt work next to school

At least 10 reports accused OMA Construction of violating a stop-work order next to Fairmount Elementary. A judge will hear the case.

Imagine Children's Museum's incoming CEO, Elizabeth "Elee" Wood. (Photo provided by Imagine Children's Museum)
Imagine Children’s Museum in Everett to welcome new CEO

Nancy Johnson, who has led Imagine Children’s Museum in Everett for 25 years, will retire in June.

Kelli Littlejohn, who was 11 when her older sister Melissa Lee was murdered, speaks to a group of investigators and deputies to thank them for bringing closure to her family after over 30 years on Thursday, March 28, 2024, at Snohomish County Superior Court in Everett, Washington. (Ryan Berry / The Herald)
‘She can rest in peace’: Jury convicts Bothell man in 1993 killing

Even after police arrested Alan Dean in 2020, it was unclear if he would stand trial. He was convicted Thursday in the murder of Melissa Lee, 15.

Ariel Garcia, 4, was last seen Wednesday morning in an apartment in the 4800 block of Vesper Dr. (Photo provided by Everett Police)
Search underway to find missing Everett child, 4

Ariel Garcia was last seen Wednesday morning at an apartment in the 4800 block of Vesper Drive.

The rezoned property, seen here from the Hillside Vista luxury development, is surrounded on two sides by modern neighborhoods Monday, March 25, 2024, in Lake Stevens, Washington. (Ryan Berry / The Herald)
Despite petition, Lake Stevens OKs rezone for new 96-home development

The change faced resistance from some residents, who worried about the effects of more density in the neighborhood.

Rep. Suzan DelBene, left, introduces Xichitl Torres Small, center, Undersecretary for Rural Development with the U.S. Department of Agriculture during a talk at Thomas Family Farms on Monday, April 3, 2023, in Snohomish, Washington. (Olivia Vanni / The Herald)
Under new federal program, Washingtonians can file taxes for free

At a press conference Wednesday, U.S. Rep. Suzan DelBene called the Direct File program safe, easy and secure.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.