Byron Scherf wrote a scathing letter last week, accusing Snohomish County Superior Court Judge Thomas Wynne of being in "the prosecutor's hip pocket." He claimed that the veteran judge was biased against him.
Scherf questioned Wynne's intelligence and criticized the judge's previous rulings in the case.
"Judge Wynne gives me the distinct impression that he would like to ride out this case with the least amount of effort as possible," Scherf wrote.
Scherf, 53, is accused of murdering Jayme Biendl in January at her post in the chapel at the Washington State Reformatory. Scherf was serving a life sentence for violent sex crimes against women. Biendl was strangled with an amplifier cord inside the chapel sanctuary. Scherf, a volunteer in the chapel, allegedly confessed to the murder, telling detectives that he became angry with Biendl after a conversation earlier in the evening.
His attorneys, Karen Halverson and Jon Scott, also filed a motion requesting that Wynne withdraw. The lawyers claim that there is an "appearance of bias and prejudice against Mr. Scherf in the case."
They point to an Aug. 3 hearing when they requested that Wynne order prosecutors to identify which information Snohomish County Prosecuting Attorney Mark Roe considered before deciding to seek the death penalty for Scherf.
Wynne denied the motion, ruling that Roe had substantial documents to consider because Scherf had been locked up most of his adult life. The judge said he wasn't inclined to compel Roe to reveal his thought process. He also pointed out that the defense attorneys still have the chance to provide Roe with additional materials that may make him reconsider seeking the death penalty.
Halverson and Scott claimed that Wynne offered opinions on issues that he had not been asked to review and "in doing so demonstrated his bias and prejudice in favor of the prosecutor's office and against the accused, Byron Scherf."
Prosecutors filed a response Monday, accusing the defense team of "judge-shopping," and attempting to intimidate Wynne.
Lawyers have a right to file one affidavit of prejudice against a judge to keep him from hearing a case. The affidavit must be filed before the judge has made any ruling, Snohomish County deputy prosecutors Paul Stern and Ed Stemler wrote.
"The parties may not challenge the judge's ability to continue hearing the matter because they do not like his or her ruling," the prosecutors wrote.
Prosecutors couldn't and didn't ask for a new judge when Wynne ruled against them and ordered parts of the probable cause affidavit stricken from the record because he believed they could be prejudicial to the defendant, Stern and Stemler wrote.
Halverson and Scott accepted Wynne as the judge back in February and were well acquainted with his 19-year history on the bench. In the past decade neither defense lawyer has ever filed an affidavit of prejudice against Wynne, prosecutors wrote.
Stepping down from the case would set a "horrible precedent for Snohomish County," Stern and Stemler wrote.
"It declares that defendants can remove a judge after they receive an unfavorable ruling, by merely making an allegation of prejudice," they wrote.
Wynne is expected to take up the issue Thursday.
Diana Hefley: 425-339-3463; firstname.lastname@example.org.
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