On July 13, just after 2 a.m., police were called to a crime that would take them 10 years to bring to justice.
"It was a plan. A well-rehearsed, well-thought-out plan," say James Konat, a senior deputy prosecutor in King County. He and a team of detectives have been haunted by the first triple homicide in the history of Bellevue -- and the killers who got away.
The search for the truth would lead police to another country, through a web of intriguing clues, including a screenplay describing the murder. In the end, would a sophisticated undercover operation, set up in the make-believe world of crime, catch the real killers? Correspondent Peter Van Sant reports for 48 Hours.
The story begins with a call for help. Sebastian Burns and his friend, Atif Rafay, had stumbled onto a horrible scene. Atif's parents had been found murdered, bludgeoned to death with a baseball bat.
"There is nothing that I can imagine about my parents that could have justified anyone to do what was done to them," says Atif.
Sultana Rafay, Atif's mother, was the first to be killed. "We saw Atif's mom lying on the floor," recalls Sebastian.
Tariq Rafay was the next to be murdered. "It was basically an overkill," says Det. Bob Thompson, who has been on the case since the night it began. "And it just looked like someone had hit him 40 or 50 times."
As the boys waited for help to arrive, a third victim, Atif's autistic sister, Basma, was clinging to life, moaning in her bedroom. "It would make sense that she was murdered last because everybody knows she can't make a 911 call," says Konat.
Basma died a few hours later at the hospital, taking with her the secret of who killed the Rafay family.
The Rafays had just moved to Bellevue from Vancouver, Canada. Sultana, who had a doctorate in nutrition, devoted her life to raising her gifted son and disabled daughter. Tariq Rafay was a structural engineer who had worked on buildings around the world.
Who would take the lives of this quiet family, and spare the life of their only son? Detectives began to look more closely at the crime scene.
In his 911 call, Sebastian said there was a "break in" when he reported what had happened that night. "Just looking at that room, you start realizing this looks like someone set it up," says Thompson. "Boxes were tipped over. Drawers were opened, but nothing appeared to have been gone through."
That night, Atif reported that two things were taken: his Discman and a VCR. "Someone murdered three people and took his walkman and a VCR? I mean, it makes no sense," says Thompson.
Detectives probed deeper into the case. Who were these two teenage boys who reported the crime?
Sebastian and Atif had been best friends since high school. They shared a sarcastic sense of humor, and an interest in reading and debate.
"They became very good friends because they were both precocious. They were both intelligent," recalls Sarah Issacs, Sebastian's high school sweetheart.
Sebastian was raised in a loving family with English roots, and grew up playing classical cello. "He was very smart. He's definitely what you would call intellectual," says his sister, Tiffany, now a television reporter with the CBS station in Cleveland.
Sebastian became a member of the Royal Canadian Air Cadets and was given an award by Prince Edward. Atif attended Cornell University. It was the summer of their freshman year of college when their lives took that unexpected turn.
"It's sort of like a jigsaw puzzle, where you know ... you start fitting it together and pretty soon, you get a picture," says Thompson.
Police took Sebastian and Atif to the station, where they were examined for traces of blood. They found nothing. When asked where they had been that evening, the boys provided a full account. At 8:30 p.m., they drove to a restaurant for a bite to eat. Then, they went to a 9:50 p.m. showing of "The Lion King." After the movie, they stopped for a bite to eat, and left the waitress a $6 tip on a $9 tab.
"Everywhere they went, the people who had contact with them remembered them," says Konat.
But something else troubled police. How could Atif and Sebastian provide so much detail about where they had been that evening, but not recall key moments at the murder scene -- like what Atif did when he discovered his mother's body, or when he discovered that his sister was still alive.
One by one, police pressed the boys further on what happened in that house. "By the time they left, they were suspects," says Thompson.
Three days after the murders, relatives of the Rafays gathered in Bellevue to bury Sultana, Tariq and Basma. But the only surviving member of the immediate family, Atif, was nowhere to be found.
On the day of the funeral, Atif was on a bus headed across the border to Vancouver, Canada, with his best friend, Sebastian. In Vancouver, they were out of reach of Bellevue detectives, who admitted they had no physical evidence against the boys, but still considered them prime suspects.
"I believe him to be totally innocent as is Atif. And they had been damned," says Sebastian's father, Dave Burns. Sebastian denies that he committed the crime.
Adds Atif: "The single most distressing thing about this entire experience is the fact that I would even have to speak out and say, 'Yeah, no, I did not do that.'"
But if the boys didn't do it, who did? Detectives searched the Rafay house for clues, and discovered something eerie: The killer used the shower before leaving.
But Thompson still did not have enough evidence to arrest the boys, who had stopped talking to the police on the advice of a lawyer. So Thompson kept digging into the boys' past, and discovered that Sebastian was in a high school play called "Rope," about two kids who commit the perfect murder. Detectives believed the fictional murder story may have inspired the real plot line.
In Vancouver, the boys tried to rebuild their lives, but they said they had become so notorious that no one would give them a job.
Using money from his parent's estate, Atif bought a convertible. The boys moved into this house with another friend from high school, Jimmy Miyoshi. But what the trio didn't realize was that the Royal Canadian Mounted Police (RCMP), who were targeting the boys, were listening in on their conversations. Their goal was to set a trap, by posing as members of a powerful criminal organization.
On April 10, 1995, nearly a year after the murders, RCMP investigators intercepted a phone message confirming a salon appointment with Sebastian.
The next day, as Sebastian left the salon, a stranger approached him. The RCMP's plan was to win the trust of the boys, who were out of work, by offering to help them make easy money.
Within minutes, Sebastian told this stranger, who was actually an undercover RCMP agent, that he and Atif had written a screenplay about their lives. The script was called "The Great Despisers."
"It worked perfectly," says Konat. "If they could get Sebastian Burns into their fold, they knew that Atif Rafay would shortly follow."
Sebastian says the screenplay was "inspired a lot by the fact that we were being wrongfully accused and that our lives had been ruined."
The stranger was Sgt. Haslett of the RCMP, one of Canada's most elite undercover operators. Sebastian believed that Haslett was the head of a powerful criminal organization. And Haslett told Sebastian that he knew a wealthy investor who might put up some cash for their movie -- but Sebastian would have to earn it.
Over the course of four months, Sebastian and Jimmy Miyoshi worked in a make-believe world of crime, which included laundering money at local banks. For a day's work, they were paid $2,000 cash.
"He had to realize that he was dealing with individuals that had something to offer him," says Haslett. "And we had to build up to that."
The mobsters then brought up the topic of the Bellevue murders, which had been widely reported in Canada. Haslett told Sebastian that they already knew exactly what happened, and that they had a memo from the Bellevue police listing physical evidence that linked him to the murders. This was all captured on an undercover tape.
Haslett agreed to help destroy the so-called memo, but first, he said he needed Sebastian to describe how he killed the Rafay family. On July 18, 1995, one year after the murders, the cameras were rolling on Sebastian as he told his story.
"The dirty little secret that he's been protecting for the last 12 or 13 months starts to unravel on video for the whole wide world to see," says Konat.
The next day, Sebastian brought Atif to the crime boss to tell his story, which was recorded on an undercover tape.
Two weeks after the confession, Sebastian and Atif were arrested and charged with the murders of the Rafay family. But Sebastian says he was lying, and that undercover officers had intimidated him into making a false confession. "I believe that if I crossed them, they would have me killed."
It's been nearly a decade of legal wrangling since Sebastian Burns and Atif Rafay were arrested in Canada for murder.
Canada refused to send them back unless prosecutors promised not to seek the death penalty. So the Americans finally agreed, and Atif and Sebastian, now 28, went on trial last fall.
Jeff Robinson and Song Richardson defended Sebastian, alongside a team of lawyers representing Atif. They were up against James Konat and Roger Davidheiser, King County's most seasoned prosecution duo.
The prosecution argued that there was a startling flaw in the boys' plan to commit the perfect crime. "They made that 911 call too quickly," said Davidheiser.
Det. Thompson retraced the two best friends' drive home from downtown Seattle, where they were seen that night. "My belief is that they just walked straight into the house and made the 911 call," he said. "Eighteen minutes would give them three minutes in the house."
Remember, it wasn't just the murders. The boys also needed time to figure out there had been a burglary, too. But their innocence was bolstered by testimony from two neighbors who heard the murders at a time the boys were seen at the movies.
However, the prosecution argued that even though the boys were seen going to the 9:50 p.m. movie, there's no proof that they stayed. Theater employee Jose Martinez showed 48 Hours how they could easily sneak out from the movie theater.
The defense also argued there was no evidence to prove that this happened and that there was real evidence at the crime scene that proved there were three killers. Forensic experts looked at the patterns of blood on the wall and found there were a no drops of blood in one area of the room -- indicating another killer may have stood there during the attack. They also said a pillow had been moved during the crime.
"We have killer No. 1 moving the pillow. We have killer No. 2 bludgeoning Dr. Rafay with the bat," said Song. "We have killer No. 3 who has to remain in the exact same place throughout the entire duration of the attack on Dr. Rafay, thereby creating the shadow on the wall."
If that were true, then that means that Sebastian made a false confession when he said he acted alone. But there is something else intriguing. Police found a single hair in Tariq Rafay's bed, and they were convinced that it came from the killer.
"They thought this hair belonged to Sebastian," said Song. "They sent the hair for DNA testing, and who does it come back to? Not Sebastian, but an unknown person."
Prosecutors, however, said they didn't need forensic proof when they had Jimmy Miyoshi, Sebastian and Atif's best friend from high school, as a witness. The boys once told RCMP undercover agents that Miyoshi, who was arrested along with Sebastian and Atif, would never betray them.
Under pressure, Miyoshi, who once told the RCMP that Sebastian and Atif were innocent, agreed to cooperate with investigators. He was granted immunity from charges of conspiracy to murder, and his story changed.
Miyoshi testified it was during a drive from Seattle to Vancouver when Atif first mentioned the idea of killing his family. Just weeks before the murders, Miyoshi said Sebastian and Atif confided in him how they would do it. But not only did Miyoshi say he'd been privy to planning the murders, but that Sebastian had bludgeoned the family, while Atif stood by.
"I remember from Atif hearing about how he was fairly distraught," says Miyoshi. "From the moment that Sebastian had struck his mother ... there was no going back."
Sebastian denies ever discussing a plan with Miyoshi. So why does he think he testified? "Because he had a life sentence held to his head," says Sebastian. "If he didn't say what the police and the prosecution wanted him to say, that life sentence was gonna go off."
More than 100 witnesses would take the stand in the Rafay Burns trial. But the question remains: Why would Sebastian confess to a murder he says he didn't commit?
"At that point, it seemed like the only safe choice," says Sebastian. "It seemed like the best choice."
The defense set out to prove that the undercover operation was built on lies, manipulation and threats. But Sebastian would have to convince the jury to believe him now -- and not what he said on tape.
"I believed that if I crossed them, or if they weren't happy with me, or if they thought I was going to betray them, that they would have me killed," said Sebastian, even though on tape he boasted that he wouldn't "have any dilemma" about working as a hit man. "My plan was to claim to be the murderer that they insisted -- that they believed - that I was."
On tape, Sebastian confirmed the police theory that the weapon was a baseball bat, and that the killer had showered before leaving the crime scene. He even talked about how they would profit from the crime. On tape, Atif also explained that he staged a break-in while Sebastian killed his family.
After six months of testimony, Konat closes the prosecution's case by trying to lay to rest any notion that the boys are innocent: "Ultimately, the words that came out of Sebastian Burns' mouth led to his demise. His hubris led to his demise."
Finally, it is up to the jury to make its decision. After four days of deliberations, 10 years after the murders, the jury finds Sebastian and Atif guilty of murder.
"I did not believe that they didn't have a reasonable doubt. I just didn't believe it," says Sebastian. "I was looking at individual jurors just to see if they, I don't know, I guess I was just looking for some kind of answer."
His look convinced some jurors that they had done the right thing. "Sebastian was scary," says one juror. "He's a killer."
"I wonder how they sleep at night," says Sebastian's sister, Tiffany. "I wonder how they came to that decision."
It's taken prosecutors a decade to send Atif Rafay and Sebastian Burns to prison for life. "Justice has been done for the three victims and our community has held the two individuals accountable for their conduct," says Konat. "There's a great deal of satisfaction in being part of that. A great deal of satisfaction."
Go hence, to have more talk of these sad things;/ Some shall be pardoned, and some punished;/ For never was a story of more woe
The sheer terror of a wrongful conviction is only possible to understand through imagination and empathy. Far easier to turn away and forget the suffering of the wrongly convicted, or, easier still, to accept the verdict of a misinformed jury. This need for closure is a powerful motivator for the victim’s family, the public and the legal officers of the court, police, lawyers, judges. But just, for a moment, think of what it must be like to have done no crime and hear the iron doors close behind you for ‘life without the possibility of parole’.
When speaking of the innocence of Atif Rafay and Sebastian Burns, the first reaction of many people in the public, especially in Vancouver, was, until recently, hostile disbelief. These two, who at the time of the crime (1994) were teenagers, must be despicable murderers. Case closed. Much time, effort and resources went into the 2004 convictions in the state of Washington, including a long extradition battle in Canada to protect Sebastian and Atif from facing the death penalty. There is more than a hint of complicity amongst the press and the legal systems of two countries, especially the use of the often discredited RCMP sting operation, ‘Mr. Big’. Never mind that three innocence projects agree that no forensic evidence ties the pair to the crime. Never mind that the two were seen at a movie theater while the crime took place, alibi evidence that the prosecution went through gyrations to discredit. Never mind that the crime was the hideous bludgeoning of Rafay’s parents and sister and that the motive given for this savagery was the desire to make a film with the family inheritance. That such a motive could be applied to such a crime, when no hint of familial abuse or previous criminal activity can be found, is perverse in the extreme. And yet it was applied and was successful, if success can be measured by getting a wrongful conviction. Were Sebastian Burns to have carried through on such a thing, he would have been insane (not financially motivated), but clearly he was not. We strongly believe that this case was decided on extorted evidence and prejudice rather than concrete forensic evidence. The convictions of Burns and Rafay are a textbook example of tunnel vision; other suspects and theories to account for this hideous crime were never seriously investigated.
We make the following speculative assertion while recognizing that it also entails prejudice. The style or method of killing is more in keeping with either psychosis or religious fundamentalism. The fact that Tariq Rafay, Atif’s father, was the head of the Canadian Pakistani Association before he moved to Bellevue,Washington for employment, cannot be divorced from this crime, even though it was at the trial. The family had moved there in 1993 but had not been living at that address for even a year when the killing took place. Was Mr. Rafay considered an apostate Muslim when, as a civil engineer, he discovered that Canada’s mosques were not facing Mecca? Were there groups within Bellevue that did not want the Rafay family to live in that community? Five days following the Rafay murders, an FBI informant, Douglas Muhammad, gave information about the weapon used in the crime and the motivation mentioned above, i.e. Islamic fundamentalism. Another reliable informant in Canada told the RCMP about a possible hit on a Canadian-Pakistani family that had just moved to Bellevue, Washington. These possibilities are dealt with on the rafayburnsappeal.com website; I will not address them any further except to say that they were disallowed in the courtroom as prejudicial and that the failure to follow up on the leads was an example of tunnel vision.
The most recent (November 2012) amicus brief for this case was presented by the Innocence Network, a large and prestigious group of innocence projects both in the United States and Canada. The brief, sent to the Washington State Supreme Court, deals with the right of a defendant to use expert witnesses. Burns and Rafay sought to have Richard Leo and Michael Levine speak to the jury about the issue of false confessions (Leo) and the dangers of sting operations such as Mr. Big (Levine). Both were disallowed in the courtroom. Since the case hinged so strongly on the confessions, the two defendants were denied the ability to defend themselves fully.
The appeal court for the State of Washington ruled earlier this year against Rafay and Burns. Without question, their ruling was as perverse as the trial itself, although it would have been unusual for a lower appeal court to overturn a conviction in such a high profile case. Along with agreeing with the judge that the jury would be perfectly competent to decide between truth and lies while viewing confessions extracted through a sting operation, they also supported the contention that outside experts should not have been allowed to testify. These two rulings are, in effect, Siamese twins. Since the methodology of obtaining the confessions could not be challenged or explained, the confessions had to be accepted at face value. The question then becomes: How does a juror know that a confession is true simply by the way the confessor is behaving?
Another aspect of the ruling was the use of the sting itself. The court held that the confession was not made to people “in authority” (i.e. police interrogators) but to police masquerading as gangsters. For some reason, it was believed that gangsters were less likely to produce false confessions, even if those RCMP gangsters made it clear that Burns would be in for physical harm and legal danger if he didn’t confess. In fact, Burns was under increasing pressure as the sting, which went on for three months, progressed. (A recent appeal ruling in Newfoundland (Nelson Hart) held that the Mr. Big sting produced more coercion and pressure to confess than a regular police interrogation. Mr. Hart was therefore granted another trial.)
One ruse they used was to show him a fake news report from Washington that indicated hard evidence of his guilt. They told Burns that he was about to be charged with the killings unless he confessed to Mr. Big. If he told Mr. Big that he was responsible for killing the Rafay family, and thereby prove that he was ‘solid, they would make the charges go away. Using such methodology is actually illegal in the United States, and for very good reason. A confession cannot be valid if it is extorted or coerced in any way, because such coercion is a violation of the 5th Amendment, the guarantee against involuntary self-incrimination.
Finally, the appeal court agreed with the defendants that the prosecutor used legally unacceptable and clearly prejudicial language in describing the crime during his summation. They also agreed that the use of grisly photos taken from news reports on Muslim fundamentalists was completely improper. However, they said that the offensive statements and the grisly photos only constituted a small part of the entire summation and ‘it was arguable’ that they made no appreciable difference in the verdict. When we say the ruling was perverse, along with prejudicial, this particular aspect of the ruling best exemplifies those words. What Prosecutor Konat said and the photos he employed may have prejudiced the jury, they held, but only, we guess, if he had acted improperly for a longer time.
At some level, be it state or federal, we believe that Sebastian Burns and Atif Rafay will be granted another trial. They should be granted another trial! They are innocent. Their incarceration is an unmitigated tragedy. Rafay has lost his entire family and his freedom for a lifetime. Burns, presupposed to be the one who actually bludgeoned the Rafay family, has suffered a far worse fate. Living in solitary confinement for the past 8 years, one of tens of thousands of such prisoners in the USA, he has developed psychological problems that may be beyond cure. I ask any reader of this blog to use his/her imagination and, just for a moment, entertain the possibility that the two are wrongly convicted. It’s an inconvenient truth, no? No one wants to believe such a thing, especially when guilt has been presupposed by so many. But think of the suffering if innocence is the issue. Think of Rafay; think of Sebastian Burns; think of Sebastian’s family. And then, know that what I am saying here is TRUE!Three innocence projects (Innocence International, Idaho Innocence Project at Boise State University, and Pacific Northwest Innocence Project at the University of Washington) are 100% certain that the two of them are innocent. Now try to live with that as fact and see if you don’t feel like us; see if you don’t feel the pressing weight of injustice and the culpability of the RCMP who launched a sting without any hard evidence to back up the contention that Burns and Rafay killed the Rafay family. See if you still support a sting operation that can easily manufacture false confessions through inducement and coercion.
LATEST COURT DECISION ON OBNOXIOUS MR. BIG STING
Man acquitted in neighbour’s 1974 killing after judge throws out evidence from ‘Mr. Big’ sting
After 40 years, two murder cases, one failed undercover operation and now an acquittal thanks to Charter violations, Durham Region’s oldest murder case remains unresolved
By:Wendy GillisNews reporter, Published on Mon Jul 28 2014
After nearly 40 years, two murder trials, one elaborate undercover operation and now an acquittal, Durham Regional Police’s oldest murder case remains unsolved.
Dealing the final blow to the first-degree murder case, Justice Bruce Glass acquitted Alan Smith of the 1974 slaying of Beverly Smith in an Oshawa courtroom Monday.
Glass effectively undid the case last month, when he threw out all evidence gathered in an intricate, year-long police sting known as a “Mr. Big” operation.
The undercover investigation — which convinced Smith he was enmeshed in a murderous crime ring, and culminated with the dumping of a fake corpse off a cliff — had violated Smith’s Charter rights and was an abuse of process, Glass ruled in June.
Without the evidence gathered during the sting, namely two widely varying murder confessions, Crown Attorney Frederick Stephens conceded there was little prospect of conviction.
“There is no reasonable alternative but to discontinue the prosecution,” he told court Monday.
About kenI am a former Toronto teacher and writer now living in Vancouver. I work with Dr. Rubin 'Hurricane' Carter, with whom I published Eye of the Hurricane: My path from Darkness to Freedom (Chicago review Press, 2011), as Director of Media Relations and as an advocate for wrongly convicted prisoners. Other publication credits include Songs of Aging Children (Arsenal Pulp Press, 1992) a book of short stories about troubled youth, and Taking Steam, a play co-authored with the late Brian Shein, staged at New York's Jewish Repertory Theatre and Toronto in 1983. Life Without (Quattro Books, 2012) is a novella about a New York cab driver wrongly convicted of killing his pregnant wife. Gary Geddes (Lt. Governor's Award for Literary Excellence) described it as "one of the most brilliant and harrowing short novels I've read since I went on a John Hawkes binge."
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