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Saturday, December 27, 2003 - Page updated at 12:00 AM

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Rafay jury settles in for long haul in big trial

Seattle Times Eastside bureau

Jurors who will decide the guilt or innocence of Atif Rafay and Sebastian Burns have heard from approximately 30 witnesses, viewed 82 exhibits, taken a bus ride to Bellevue and seen one of their members expelled, all in the first month of a trial that's expected to stretch into spring.

The trial is set to resume Jan. 6.

Last week, King County Superior Court Judge Charles Mertel accompanied jurors on a trip to Bellevue, allowing them to get a look at the house where the Rafay family was killed on a July night nine years ago.

Eleven of the 12 original jurors and their eight alternates also got to see the restaurant and movie theater where Atif Rafay, the son in the slain family, and his friend Sebastian Burns ate dinner and took in a movie the night Tariq, Sultana and Basma Rafay were bludgeoned to death in their home in the Sommerset neighborhood.

The Bellevue trip followed weeks of testimony from police and medics, who went to the Rafay house early July 13, 1994, and from neighbors, who heard noises from the split-level home that both sides acknowledge were most likely the sounds of slaying.

Jurors also have heard from wait staff and cinema employees who saw Rafay and Burns the night of the slayings, testimony that is slowly building a timeline of events and revealing state and defense theories about what happened that night.

Rafay, 27, and Burns, 28, are accused of killing Rafay's parents and sister with an aluminum baseball bat, supposedly to cash in on an approximately $350,000 inheritance.

So far, testimony in the triple aggravated-first-degree-murder trial has focused on a roughly 72-hour period, between the time Rafay and Burns said they left the family home the night of the killings to their arrival at the Canadian border on July 15, 1994.

Aerial photographs, diagrams, floor plans, the defendants' taped statements and an extremely graphic crime-scene video — replete with close-ups of the victims — are part of a growing body of evidence jurors will consider.

Logistical challenges have surfaced in trying such an old case: Witnesses have moved and/or married and changed names.

Earlier this week, the court took the unusual step of allowing telephone testimony from a Bellevue police officer who is on a United Nations mission in Kosovo.

But perhaps the most telling indicator of time's passage has been the frequency that witnesses have replied with "I don't recall," "I don't know," or "I'm sorry, but I don't remember," when attorneys have attempted to scour their memories for 9-year-old details.

Still, the questions asked of witnesses are beginning to uncover state and defense versions of events.

For instance, Deputy Prosecutor Roger Davidheiser spent a good deal of time asking Jose Martinez, a former Factoria Cinemas manager, about the number and placement of exit doors inside the theater where Rafay and Burns watched a 9:50 p.m. showing of "The Lion King" the night of the slayings.

Though Martinez and another employee remembered Rafay and Burns buying tickets and refreshments and playing video games, and later recalled that Burns alerted staff to a problem with the stage curtains, no one saw them leave.

Davidheiser's questions — and testimony that the alarms on the exit doors weren't activated that night — were apparently geared to furthering the state's theory that Rafay and Burns slipped out of the movie early, killed Rafay's family between 10 p.m. and midnight and drove to a Seattle diner, where they ordered hash browns, a milkshake and a sundae.

The defense has argued that the two film buffs remained in the theater until after the end credits rolled.

Though prosecutors still are building their case against Rafay and Burns, defense attorneys have scored some points.

The defense challenged the credibility of Mark Sidell, who lived next door to the Rafays. In his first statement to police, Sidell said he heard noises from the Rafays' house after 9:40 p.m. the night of the killings, a time consistent with another neighbor, who testified she heard dull, thumping sounds between 9:45 p.m. and 10:15 p.m. But in later statements to police — and on the witness stand — Sidell said he heard the noises after 9:10 p.m.

On cross-examination, he acknowledged reading newspaper articles that reported Rafay and Burns were at a 9:50 p.m. movie; he apparently didn't know that another witness, a waiter at The Keg Restaurant, had served the two dinner between 8:45 p.m. and 9:25 p.m.

Defense attorneys, who in opening statements implied bias on the part of Bellevue investigators, elicited an apparent acknowledgement from Bellevue police Lt. Ed Mott that detectives intentionally isolated Rafay and Burns from their family and friends immediately after the slayings, something police long denied.

Mott testified that David Burns, Sebastian's father, called police four times to find out where his son was; Mott also said some of the defendants' friends traveled from Vancouver, B.C., to Bellevue to look for Rafay and Burns.

But Mott declined to tell the elder Burns or the friends that police had checked the two, then 18, into a motel room without a phone, saying on the witness stand that he was worried they would come to Bellevue to tamper with the defendants' alibis.

Over the course of 16 trial days in front of the jury, attorneys on both sides have fiercely argued their cases, prompting the judge at one point to comment, "You are all so competitive in arguing every detail — as you should be."

But as the courtroom drama unfolded, Mertel also dealt with drama in the jury room. Earlier this month, he dismissed Juror No. 7 after the man apparently tried to engage other jurors in a discussion about the case, despite at least twice-daily warnings from the judge not to talk about it with anyone.

Tuesday, the last day of testimony before Mertel adjourned proceedings until Jan. 6, Deputy Prosecutor James Konat made his sixth on-the-record complaint about an alternate, Juror No. 17, who seems to keep falling asleep during testimony. Mertel denied the state's motion to have the juror dismissed but said he'd keep an eye on the man to make sure he is paying attention.

Sara Jean Green: 206-515-5654 or sgreen@seattletimes.com

Copyright © 2003 The Seattle Times Company

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