EVERETT — Lawyers for a convicted rapist charged with killing Monroe corrections officer Jayme Biendl now contend Snohomish County prosecutors illegally jumped the gun in announcing plans to seek the death penalty.
As a result, state law requires that inmate Byron Scherf shouldn’t continue to be at risk of execution if convicted, they said in a motion filed Monday.
Prosecutors didn’t adhere to the statutory timeline for providing Scherf with formal notice that they plan to seek his execution and that “failure in and of itself precludes death as a punishment in this case,” defense attorneys Jon Scott and Karen Halverson said in Snohomish County Superior Court papers.
“In a death penalty case the defendant often will make every conceivable motion. We will respond to those motions in court,” Prosecuting Attorney Mark Roe said Tuesday.
Scherf’s attorneys maintain county prosecutors ran afoul of state law when they announced plans to seek the death penalty the day before Scherf’s March 16 arraignment.
Biendl was strangled Jan. 29 while working at her post in the Washington State Reformatory chapel. Scherf, who was serving a life sentence after being convicted of three violent attacks on women, was found outside the chapel. He allegedly admitted killing Biendl, according to court papers. He also reportedly wrote prosecutors, telling them he planned to plead guilty at his arraignment and expected to receive a death sentence.
Scherf’s lawyers contend that prosecutors did not follow state law, which says they shall file and serve notice of intent to seek death “within 30 days after the defendant’s arraignment” on an aggravated murder charge.
The law also states that if prosecutors do not heed the state’s code, they are precluded from seeking death, Scherf’s attorneys noted.
It wasn’t immediately clear when the new Scherf motion will be argued.
Questions about proper notice and timing of decisions in a death penalty case also arose in 1995 during the prosecution of Richard Clark. He was charged with killing 7-year-old Roxanne Doll. Snohomish County prosecutors announced plans to seek Clark’s death but did not personally serve the notice on either Clark or his lawyer. Instead, they placed it in a box in the prosecutors’ office to be picked up by a messenger from Clark’s public defenders.
A judge ruled that was insufficient. It took nearly a year of appeals before the State Supreme Court decided the matter in the prosecution’s favor.
Clark was convicted and sentenced to die, but the state’s high court later ruled there were problems and ordered a new sentencing trial. Under an agreement reached with prosecutors in 2006, he admitted his involvement in the girl’s death, waived further appeals, and was sentenced to life in prison without parole.
Scott North: 425-339-3431; north@heraldnet.com.
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