A Snohomish County judge is weighing that question as prosecutors and appellate attorneys spar over what details should become public in court papers connected to Byron Scherf's defense.
The repeat rapist in May was convicted and sentenced to die for strangling Biendl in January 2011. Officials already have disclosed that it cost more than $1.5 million to bring him to trial.
The Scherf-related expenses began accruing as soon as the murder was discovered at the chapel in the Washington State Reformatory where Biendl worked. The city of Monroe billed the state Department of Corrections $300,000 to cover the costs of its investigation. More expenses piled up for the county during the two years Scherf was locked up at the jail in Everett while lawyers honed their cases.
About $400,000 was paid to the two defense attorneys who -- in keeping with state law governing death penalty cases -- were appointed to vigorously represent Scherf. They logged some 4,100 hours working on his behalf, according to county officials.
The lawyers also received court approval to spend about $120,000 on experts they believed necessary to Scherf's defense.
Access to records explaining who was paid that money, and for what services, are now the focus of legal argument.
On Friday, Snohomish County Superior Court Judge Linda Krese was asked to balance the rights Scherf still is guaranteed, as the defendant in a criminal case, with the public's interest in monitoring the legal system. She doesn't expect to rule until after the start of the new year.
There are several hundred pages of documents. They were filed with the court in roughly 20 installments during the long buildup to Scherf's trial. They were kept from prosecutors and the public after Scherf's lawyers made the case that his right to a fair trial could be hampered if the paperwork became public.
Krese earlier reviewed each spending request. She left public the amount spent, but redacted the name of the person who was paid. The judge sealed some documents altogether if they revealed too much about the defense strategy.
On Dec. 20, Krese said she supports the importance of people understanding how money is spent in a death penalty case, but also is mindful of a defendant's rights to a fair trial.
"That would be the first consideration," she said.
The judge's original order to seal the records was set to expire 30 days after Scherf's trial was completed. A jury found him guilty of aggravated murder and on May 15 decided he should receive a death sentence.
Scherf's trial lawyers did not seek fresh court orders to keep the records secret. County clerks unsealed the documents in mid-October.
By then, Scherf was represented by appellate attorneys, Mark Larranaga and Rita Griffith of Seattle. The pair have been assigned to assist Scherf while his conviction and death sentence undergo mandatory review by the state Supreme Court.
Questions about public access to the paperwork didn't surface until this fall when deputy prosecutor Seth Fine, one of the county attorneys who handles appellate challenges to local convictions, joined Scherf's new lawyers on a conference call. A Supreme Court clerk told the lawyers to take their disagreement to Krese.
During an Oct. 17 hearing, the judge ordered the records once again temporarily sealed. She also directed Fine to box up the previously sealed documents he'd already gathered from the court file and to place them in her care.
In court papers, Fine said the public has a legitimate interest in how money is spent in death penalty cases, and that if Scherf's lawyers had wanted to keep the records sealed, they should have done so with a timely motion.
In court, Fine suggested that Scherf's attorneys were offering a "paternalistic attitude" about what people should know.
The inmate's new attorneys said the concerns that prompted the records to be sealed earlier haven't gone away since the conviction, and problems would result if Scherf's appeal is successful and he wins a new trial.
They supported telling people how much was spent by the defense, but asked Krese to consider reviewing each record and again weighing whether the public interest outweighs the defendant's fair-trial rights.
Scherf was not at the hearing. He is locked up at the state penitentiary in Walla Walla.
Scott North: 425-339-3431, firstname.lastname@example.org
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