Prosecutors are expected to begin today trying to convince jurors the inmate doesn't deserve leniency.
An aggravated murder conviction carries only two possible punishments in Washington -- life in prison without the chance of release, or execution.
Scherf, 54, already was serving a life sentence when he strangled Jayme Biendl on Jan. 29, 2011 at her post in the chapel at the Washington State Reformatory.
In this next phase of the trial jurors are required by law to answer this question: "Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?"
It will be up to the prosecutors to prove that there aren't reasons Scherf deserves mercy.
The law spells out some of the relevant factors that the jury may consider, including Scherf's past criminal history. However, jurors likely won't be allowed to hear the details of his prior crimes. The state Supreme Court has overturned death sentences because jurors were given too much information about a person's past crimes.
Before Scherf's trial began, lawyers argued over whether jurors should know that he was serving a life sentence when he killed Biendl. Prosecutors said they should be allowed to prove Scherf's prior convictions by giving the jurors a certified copy of the judgment and sentence for each of his offenses.
Scherf's defense team argued that their client would be unfairly prejudiced if jurors know he was already serving a life sentence.
Telling jurors about Scherf's prior life sentence "allows the jury to wrongly weigh whether the sentence of life without possibility of parole in this case would be punishment at all because he was already serving a life sentence," they wrote.
Snohomish County Superior Court Judge George Appel ruled against the defense, saying case law clearly allows prosecutors to provide juries with certified copies of the judgment and sentence of the defendant's past convictions.
Jurors heard testimony during the week-long trial that Scherf was serving life. Prosecutors also were allowed to enter into evidence a message Scherf wrote to prosecutors not long after the murder.
He noted that he was already serving a life sentence. He urged prosecutors to charge him with aggravated murder and to seek the death penalty.
"I WILL plead guilty!" Scherf wrote at the time. "I have a moral obligation to do so. The Biendl family deserves no less. I will not put them through any more suffering than they are already enduring. They deserve swift justice and closure."
Diana Hefley: 425-339-3463; email@example.com.
Byron Scherf's criminal history:
1978 -- Second-degree assault: Scherf, then 19, and two friends picked up a 16-year-old hitchhiker. Scherf threw the girl to the ground, cut off her shirt with a large knife and threatened to kill her. One of his friends intervened, stopping the attack. Scherf later admitted to prison officials that he intended to rape the girl.
1981 -- First-degree assault and rape: Scherf, then 22, stalked and kidnapped a waitress in Pierce County. He drove her to an abandoned house, bound her, raped her and lit her on fire. The woman, who jumped out a second-story window, survived the attack. At the time Scherf was on parole for his 1978 conviction. He said he planned the attack while in prison. Scherf was sentenced to life without the possibility of parole. Under the laws at the time, he was paroled after 12 years.
1997 -- First-degree rape, kidnapping and illegal firearm possession: In 1995, Scherf arranged to meet a Spokane real estate agent at a home for sale. Scherf, then 37, choked the woman and forced her into the trunk of his car. He drove her to a wooded area, where he raped her. He was armed with a butcher knife and rifle. Scherf was sentenced to life without the chance of release under the state's persistent offender law.
2013 -- Aggravated first-degree murder: Scherf ambushed a Monroe corrections officer in 2011 at the Washington State Reformatory. He strangled Jayme Biendl with an amplifier cord inside the prison chapel. There was no evidence that Scherf sexually assaulted Biendl.
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