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Friday, February 16, 2001 - Page updated at 12:00 AM

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Canada says pair can't face death penalty

Seattle Times staff reporter

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King County Prosecuting Attorney Norm Maleng will have to guarantee not to seek the death penalty against two fugitives before Canada will send the men back to stand trial in the slaying of a Bellevue family.

In a 9-0 ruling, Canada's Supreme Court yesterday ruled that the case against Atif Rafay and Glen Sebastian Burns failed to meet the exceptional circumstances that would allow them to be extradited without a guarantee against their execution.

Rafay and Burns, who are Canadian citizens, are suspects in the 1994 bludgeoning deaths of Rafay's parents and sister, who lived in Bellevue's Somerset neighborhood. Rafay and Burns fled to Vancouver, B.C., after the killings. In 1995, they were charged with three counts each of aggravated first-degree murder.

If Maleng seeks life imprisonment, lawyers for Rafay and Burns said their clients will be extradited immediately. But should he refuse, Rafay and Burns, by law, will be freed in Canada.

While Canadian Minister of Justice Anne McLellan announced yesterday that she has begun formal diplomatic procedures to secure Maleng's promise, the King County prosecutor's office did not reveal its intentions.

"At this point, we aren't giving any lengthy response about what we're going to do," said Maleng spokesman Dan Donohoe. "We're going to review the (Supreme Court's) opinion, consult our attorneys here and the attorneys in Canada, and then we'll make a decision."

Maleng, a Republican prosecutor who took office 22 years ago, has sought the death penalty 18 times out of 68 possible aggravated-murder cases since capital punishment was reinstituted in the state in 1981, Donohoe said.

Jurors sentenced five people to death. Although some of those cases are pending, no one has been executed.

In previous interviews, Maleng has said that he asks for the death penalty only in the most extreme cases and allows defense attorneys and family members to present mitigating evidence on behalf of the accused. In 1997, he described the Rafay killings as "exactly the kind of case" that Washington's capital-punishment law was designed to cover.

Canada abolished the death penalty in 1976. Extraditing Rafay and Burns to a country that supports the death penalty, the Supreme Court ruled, violates their rights as Canadian citizens, even if they are fugitives.

"In Canada, the death penalty has been rejected as an acceptable element of criminal justice," the Supreme Court wrote. "Capital punishment engages the underlying values of the prohibition against cruel and unusual punishment. It is final and irreversible.

"At the international level, the abolition of the death penalty has emerged as a major Canadian initiative and reflects a concern increasingly shared by most of the world's democracies."

Breese Davies, one of Rafay's lawyers, said the court went further than almost anyone expected in denouncing the death penalty. Legal scholars had predicted a split decision.

The lengthy court process, meanwhile, has frustrated local police.

According to police, in July 1994, Rafay watched as Burns beat Rafay's parents and sister to death with an aluminum baseball bat. Later, the two friends allegedly told undercover Canadian police officers that they killed the family to cash in on a life-insurance policy.

"We weren't surprised by the decision because we know the Canadian government has a strong stance against the death penalty," said Bellevue police spokeswoman Marcia Harnden. "At this point, we just want Rafay and Burns back here so we can have some closure and get some justice for the family, in whatever form that takes."

Lawyers for the accused men said the high court's ruling allows them to move to the more crucial business of proving their clients' innocence. Rafay and Burns, both 25, are being held at the Vancouver Law Center. Rafay marked his 25th birthday in jail yesterday.

"If they are extradited, if there are assurances given, we are confident that a jury will acquit them,'' said Neil Fox, one of Burns' attorneys.

"The issue of their innocence can be fairly decided without the cloud of death hanging over their heads."

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