Byron Scherf's attorneys again are questioning whether Snohomish County Superior Court Judge Thomas Wynne can give the defendant a fair trial.
The lawyers are basing their latest argument on statements Wynne made in February, the second time he declined to step down. In his ruling last month, Wynne concluded that the defense attorneys had made false allegations against him and, in doing so, also violated ethical standards.
In asking for a new judge, the lawyers alleged that Wynne had operated under a flawed understanding of the law and had ceded his authority in the past to prosecuting attorney Mark Roe.
In that motion, they accused Wynne of entering a "wink-and-nod" agreement with Roe in the 2006 trial of convicted child killer Richard Clark.
Wynne called the defense's allegations a "bold-faced fabrication."
He said that if they were attempting to intimidate him, it wasn't working. He declined to step down, saying he wouldn't allow the defense's ethical lapse to affect his rulings.
The latest motion by the defense argues that because Wynne "publicly passed judgement on Mr. Scherf's attorneys, labeled them unethical liars, and thereby created a situation where it is no longer possible for him to preside over the trial with the appearance of impartiality."
The defendant is either being represented by liars, or heading into a death penalty case where the judge is mistakenly convinced his attorneys are liars, according to the motion.
Defense attorneys Jon Scott and Karen Halverson deny that they fabricated anything. They said they acted in good faith and have an ethical obligation to their client to make motions that they believe have merit, even if it offends the judge.
The latest motion was filed by Seattle attorney James Lobsenz, one of the state's most experienced attorneys on death penalty appeals. He's joined Scherf's defense for the limited purpose of arguing that Wynne should step down and a new judge be assigned the case.
In 1994, Lobsenz attempted to halt the execution of convicted killer Charles Campbell. A jury had sentenced Campbell to die for the 1982 murders of a woman, her 8-year-old daughter and the woman's neighbor in Clearview. Campbell was executed May 27, 1994.
Lobsenz has been recognized for his work by the Washington Coalition Against the Death Penalty.
Wynne is expected to take up the latest motion Friday morning.
Prosecutors asked Wynne to strike the hearing. They argue that the defense's motion is without merit and seems to be "little more than an effort at judicial baiting."
The defense is attempting to use the rejection of a baseless motion as grounds for the judge to recuse himself, prosecutors wrote. Additionally, the prosecutors argue that the defense didn't simply say that they disagreed with Wynne's ruling, they asserted that the judge had dishonest motives, the prosecutors wrote.
Scherf's lawyers have brought cases before Wynne for more than 11 years and records show they never have sought to have him removed before, the prosecutors said.
Wynne has twice said that he will give Scherf a fair trial.
Scherf, 53, is accused of strangling corrections officer Jayme Biendl in the chapel at the Washington State Reformatory. He allegedly told detectives that he was upset over something Biendl said earlier in the night. Scherf was serving a life sentence without the chance of release for violent crimes against women.
Diana Hefley: 425-339-3463; firstname.lastname@example.org.
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