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Scherf lawyers file civil lawsuit

Attorneys for the man accused of killing a corrections officer want an injunction to delay a death penalty notice.

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By Diana Hefley
Herald Writer
EVERETT -- Defense attorneys for the man accused of killing a Monroe corrections officer are making it clear early on that they aren't going to make it easy for Snohomish County prosecutors to seek the death penalty.
On Wednesday, the day before Byron Scherf was charged with aggravated murder, his attorneys quietly sought a judge's intervention in the case. They claim Scherf's civil rights are being violated.
The civil lawsuit seeks an injunction against Snohomish County Prosecuting Attorney Mark Roe. The injunction asks a judge to bar Roe from swiftly filing a notice to seek the death penalty.
Prosecutors on Tuesday advised lead defense attorney Karen Halverson that Roe wants mitigation information on Scherf by March 7. Roe must consider those materials, which may contain grounds for leniency, before deciding whether to seek a death sentence.
Scherf is accused of strangling corrections officer Jayme Biendl on Jan. 29 at her post in the chapel at the Washington State Reformatory.
Scherf who is already serving a life sentence allegedly has told detectives that he deserves to die for the killing.
Halverson is on the state's list of attorneys qualified to represent defendants facing the death penalty. Also assigned to the case are Neal Friedman and Jon Scott, attorneys with the Snohomish County Public Defenders Association.
To effectively defend Scherf it is critical that they be able to present materials in an effort to persuade Roe to consider leniency, according to the suit. A March 7 deadline is unreasonable, and doesn't afford the defense team enough time to adequately investigate and prepare, Scott wrote in court papers.
"In this way, the prosecutor has effectively denied (Scherf) his right to effective assistance of counsel and jeopardized his constitutional right to a fair trial," Scott wrote.
The defense is requesting a judge give them more time to prepare those materials.
Typically these matters are taken up during the criminal case but until Thursday there was no criminal court file. The lawyers argued they had no other choice but to file the civil lawsuit seeking intervention on behalf of their client. It's unclear if the civil case will be pursued now that a criminal charge has been filed.
Friedman declined to comment and Halverson couldn't be reached on Friday.
Roe on Friday afternoon said he hadn't seen the lawsuit, nor had he been told about it by the attorneys now representing Scherf.
As for the injunction that would seek to block him from announcing a decision on death for Scherf, "This is the first I've heard about it," Roe said. "That would be a novel approach.
"I have known Neal and Karen for over 20 years," he added. "They are smart and good attorneys, but I believe this is my decision to make. I will be happy to talk with them at any time if they feel differently.''
Also named in the lawsuit are Monroe Police Chief Tim Quenzer and state Secretary of Corrections Eldon Vail.
The defense attorneys also allege that their forensic investigator has been denied access to the chapel where Biendl was killed. Scherf's lawyers were scheduled to visit the crime scene earlier this week; however, they were notified that their forensic expert was not welcome. The tour was canceled.
The defense argues that it's critical that the crime scene be preserved and not reopened to inmates until it can be reviewed by forensic expert Kay Sweeney.
Sweeney is a former police officer. He's also the former program manager for the Washington State Patrol crime scene response team and managed the crime lab.
The chapel has been off-limits to inmates since Biendl's body was discovered. Monroe police detectives have yet to release the scene to prison officials.
Scherf's attorneys asked for a temporary injunction, baring police and prison officials from reopening the chapel until Sweeney is allowed access.
Diana Hefley: 425-339-3463;
Story tags » EverettMonroeHomicidePrison

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