EVERETT — A Snohomish County judge Monday ruled that prosecutors can continue to seek the death penalty for a convicted rapist accused of strangling Monroe corrections officer Jayme Biendl.
Byron Scherf’s lawyers had argued that Snohomish County prosecutors bungled the timing of when Scherf was notified that prosecutors intended to see him put to death. The paperwork was handed over to the defense attorneys minutes before Scherf was arraigned in March.
State law says prosecutors shall file and serve notice of intent to seek death “within 30 days after the defendant’s arraignment” on an aggravated murder charge.
Scherf is accused of killing Biendl on Jan. 29 at her post in prison chapel. He is serving a life sentence without the possibility of release for violent sex crimes against women. Scherf allegedly told investigators that he strangled Biendl after having an argument with her earlier in the evening, court papers said.
His attorneys argued that the death penalty notification should have happened after Scherf formally answered to the murder charge. They said that because prosecutors failed to properly notify Scherf, the law required that their client not be at risk for execution if convicted.
Wynne denied the motion and sided with prosecutors. He said the law does not preclude prosecutors from filing the death penalty notice before the arraignment.
The statute “does not set a start point but it sets an end point,” Wynne said. The judge concluded that prosecutors didn’t violate the law.
Biendl’s family attended Monday’s hearing. They have told Snohomish County Prosecuting Attorney Mark Roe that they are in favor of seeing Scherf put to death.
Scherf is scheduled to be back in court in October. That’s when the judge is expected to set a trial date.
Defense attorney Jon Scott asked the judge for more time to prepare a list of possible motions. He also wants to line up expert witnesses and have time for other pre-trial preparations. Scott said he expected that the defense would be challenging some of the search warrants and plans to argue constitutional issues. The defense has received more than 16,000 pages of investigative reports, Scott said.
Scherf agreed to waive his right to a speedy trial.
In the meantime, Wynne set a separate date for what likely will be a multiple-day hearing where Scherf is expected to challenge the admissibility of testimony from police officers.
The judge also Monday briefly outlined a possible jury selection process. Wynne said he expects to make about 300 jurors available for initial questioning. That means that jury selection likely will begin at a venue other than the courthouse to accommodate the large number of people. Jurors are expected to undergo rigorous questioning about their thoughts on the death penalty as well as their exposure to any pre-trial publicity. Wynne said he expects to whittle the juror pool to 60 at which time prospective jurors will undergo more questioning.
Meanwhile, Scherf’s defense attorneys have until the end of business Tuesday to ask the state’s higher courts to review Wynne’s decision last week to allow release of about 325 pages of investigative reports. Those documents, requested by The Herald and other news media, primarily contain Scherf’s alleged statements to detectives. Prosecutors already released more than 1,600 pages of investigative reports, mainly detailing events the night that Biendl was found.
Wynne last week denied the defense motion to withhold the disputed 325 pages. He agreed to stay the release of those reports until the defense had a chance to ask the state’s higher courts to review the judge’s decision.
Diana Hefley: 425-339-3463; hefley@heraldnet.com.
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