In a 37-page motion filed Tuesday, the defense team representing Byron Scherf claims his rights were violated two years ago by the way Prosecuting Attorney Mark Roe reached his decision to seek the death penalty.
Defense attorneys Karen Halverson and Jon Scott again are asking that capital punishment be removed as a potential sentence in the case.
It's true that before announcing his decision Roe reviewed nearly 6,500 pages of police reports about the killing and records about Scherf's years in prison, but he failed to follow statutory timelines or to give Scherf's defense team a meaningful opportunity to offer information that may have argued against seeking death, the pair wrote.
"In proceeding as he did the prosecutor was manifesting a belief that there was nothing in the universe of information outside of the first 6,454-pages of discovery that was worthy of his consideration on the life-or-death question that (state law) required him to answer," the attorneys wrote. "This is an abuse of discretion. Such hubris exhibits a profound failure to meaningfully consider the question at all," and also ignored the law.
Roe had no comment on the latest defense motion.
"We will litigate this case in court as we have done so far and our response will be laid out in court," he said.
Scherf's lawyers in 2011 made nearly identical arguments challenging Roe's death penalty decision.
What's different now are decisions reached in the last two months by a pair of King County Superior Court judges. They sided with defense attorneys who raised similar challenges in unrelated death penalty cases there.
The decisions have effectively derailed the death-penalty prosecutions of Joseph McEnroe and Michele Anderson, who are accused of killing her family near Carnation in 2007, and Christopher Monfort, who is charged with the 2009 killing of Timothy Brenton, of Marysville, who was a Seattle police officer.
King County prosecutors are appealing. Scherf's lawyers attached copies of the King County judges' decisions to the motion they filed Tuesday. In court papers, they accused Roe of making the same errors that the King County judges ruled had been made by prosecutors there.
Scherf's trial is scheduled to begin March 29. A repeat rapist who set one of his victims on fire, he already was serving a life sentence under the three-strikes law when he allegedly ambushed corrections officer Jayme Biendl on Jan. 29, 2011. The attack occurred in the chapel at the Washington State Reformatory in Monroe.
Within days of the killing, Scherf wrote detectives and prosecutors that he wished to plead guilty and swiftly receive a death sentence. He agreed to videotaped interviews with investigators, during which he confessed to strangling Biendl with an amplifier cord. He said he was angry over something he claimed she'd said that evening.
In the motion filed Tuesday, Scherf's attorneys accused Roe of attempting to put Scherf on a fast track to a guilty plea and a death sentence before his lawyers even had the opportunity to begin exploring a meaningful defense or potential grounds to argue against a death sentence.
Scherf, however, has written detectives and The Daily Herald that his motivations in seeking to fight prosecution and punishment is driven by anger over being denied snacks and other jail privileges he believes were promised by investigators.
"We're done!" Scherf wrote one detective on March 7, 2011. "See you in about five years when the case finally makes it to trial -- and many years beyond, on appeal, if it comes to that!"
It wasn't immediately clear what affect, if any, the motion filed Tuesday may have on the timing of Scherf's trial.
In recent weeks, lawyers and Superior Court Judge George Appel have been working out the details of jury selection. More than a 1,000 summonses were sent out and at least a couple of hundred potential jurors are expected to show up April 2 at Comcast Arena. Lawyers, however, expect that it could take at least month to seat a jury to hear the case.
Diana Hefley contributed to this report.
Scott North: 425-339-3431; email@example.com
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