EVERETT — The man accused of strangling a Monroe corrections officer wrote last month that one of his lawyers engaged in a “renegade action” against his wishes when he filed a motion seeking to have the death penalty removed a
s an option in his case.
Inmate Byron Scherf, in a May 3 motion that was sent to Snohomish County Superior Court but never filed, asked the court’s permission to represent himself in the case.
The Herald obtained the documents late Tuesday after a brief public records showdown that went all the way to the state Supreme Court.
Scherf’s defense attorneys, Karen Halverson and Jon Scott, had argued that the motion and a cover letter Scherf sent to county prosecutors should not be considered public records. Snohomish County Superior Court Judge Thomas Wynne ruled against them Friday. Supreme Court Commissioner Steven Goff on Tuesday declined to stay the judge’s ruling.
The documents released Tuesday show Scherf was unhappy over his attorneys’ decision to question how prosecutors had provided notice that they intended to seek death for Scherf. The repeat rapist and lifer inmate allegedly has admitted strangling corrections officer Jayme Biendl while she worked her post Jan. 29 at the chapel in the Washington State Reformatory.
“The defense counsel, in this case, has taken it upon themselves to pursue their own agenda and against my expressed wishes,” Scherf wrote. “(I specifically told them I did not want the death penalty removed as an option in this case!) …. They do so, not representing me, but themselves.”
In the unfiled motion, Scherf asked the court to consider appointing Halverson to be his “stand by” counsel, assisting as he represented himself.
He asked that his other court-appointed attorney, Jon Scott, be removed from the case.
“I did not want to have to take this drastic step given the gravity of the charge and the potential consequences, but Jon Scott — by taking this renegade action — has directly and willfully went against my expressed wishes! and has denied me effective representation,” Scherf wrote.
Scherf apparently has since mended fences with his lawyers, or had a change of heart.
On Friday, his attorneys gave Wynne a document indicating Scherf was no longer asking for a hearing about his legal representation. Wynne asked Scherf if the document was accurate.
“I’m being represented by counsel, your honor,” Scherf said.
Halverson quickly objected, saying her client shouldn’t have had to address the court.
Prosecutors said they worried that ignoring questions about Scherf’s legal representation could lead to legal complications and possibly undermine any verdict in the case.
They also objected to the defense challenging their right to open their mail.
Scott argued that prosecutors behaved unethically when they opened the letter sent by Scherf. He contended that it was only through their improper action that Scherf’s letter became the subject of a public records request.
Wynne on Friday said there was no evidence that prosecutors were unethical. But even if they were, the judge said, that wasn’t a sufficient reason to withhold Scherf’s correspondence from the public.
From his cell at the county jail, Scherf apparently sent out at least two sets of his letter and motion.
One went to the prosecutor’s office, the other to the Superior Court clerks.
Before the court clerks received the letter, however, Halverson called to request that it not be included in the court file. She said Scherf had given her permission to intercept the correspondence. She and Scott told the court they were unaware that Scherf had mailed the correspondence to prosecutors until they received an email from prosecutors May 9.
Prosecutors attempted to address the letter in court that same day. Wynne refused, saying nothing was on file in the court record.
The Herald filed a public records request after the May 9 hearing. Scherf’s lawyers sought a court order barring release of the document. Wynne on Friday allowed the newspaper’s attorney to argue for public access. The judge sided with the newspaper’s argument that state records law contained no legal exemption that would permit prosecutors to keep the correspondence secret.
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