Jurors deliberated for about five hours Tuesday before going home for the day. Around 3 p.m. they sent out a note, asking Superior Court Judge George Appel if they could go home for the night. He declined the request and jurors stayed another 90 minutes, until the regularly scheduled close of the day.
The case went to jurors without any word from Byron Scherf.
Instead, his lawyer Karen Halverson asked jurors not to be "swayed by the voices of vengeance or retribution."
The veteran defense attorney called on the jury to see reasons to show Scherf mercy. She pointed to the years the convicted rapist tried to better himself in prison and beat back the demons of his compulsion. He wanted to be better. He tried to be better, Halverson said.
She asked the jury not to judge the inmate solely on the minutes it took to commit the murder.
Halverson spoke to the jurors about compassion. They can punish her client without taking his life, she said.
Last week it took the jury less than an hour to convict Scherf of aggravated first-degree murder. Under the law, jurors now must decide if prosecutors proved that there aren't sufficient reasons to spare his life.
Prosecutors argued that Scherf is a dangerous predator who has proven he will lash out when he's given an opportunity. He is a twice-convicted rapist, who committed a premeditated murder against a woman, just doing her job, they said.
Scherf, 54, will not go unpunished if he isn't executed, Halverson argued. He will spend the rest of his life in maximum security. He will never have contact with another human being without being in restraints, she said. There is no way that Scherf will ever have the life he had before the murder.
Scherf, who was serving a life sentence, was in medium custody. Among other freedoms, he was allowed to volunteer at the prison chapel — Biendl's post. It was inside the sanctuary that he ambushed Biendl, 34, and strangled her with an amplifier cord.
The state Department of Corrections is "never going to forget that Byron Scherf killed Jayme Biendl," Halverson said.
Her client shouldn't be put to death simply because the state Department of Corrections may fail again, she said. Corrections officials should have managed Scherf better.
Scherf is responsible for Biendl's death, but the state Department of Corrections "is responsible for not protecting Jayme Biendl," Halverson said.
Scherf didn't mastermind the murder. He was given the opportunity because "Jayme Biendl was left alone in that chapel," she said.
Prosecutors, however, disputed the assertion that somehow because Scherf murdered a corrections officer, he will never have the opportunity to kill again.
"The enemy of vigilance is complacency and the ally of complacency is time. And he is serving a life sentence. All he has is time," Snohomish County deputy prosecutor Paul Stern said.
Moving him to a maximum security unit, only means that Scherf will have new routines and new corrections officers to study. He already has proved that he needs just one moment, one lapse in vigilance to unleash the violence in him, prosecutors said.
Prosecutors alleged that Scherf studied his surroundings to such a degree that he was able to get Biendl alone in a place without security cameras or anyone else around, not an easy feat in a prison.
"The defendant killed a corrections officer in a place where a corrections officer was never killed by an inmate before," Snohomish County deputy prosecutor Ed Stemler said.
Halverson argued that Scherf spent years trying to better himself. Every class he took, every hour he spent reading the Bible and every day he went to work without creating problems, he was striving to be more than he had been, she said.
She quoted from a letter Scherf wrote his father from jail in 1995 after he kidnapped and raped a Spokane real estate agent. That crime sent him back to prison for life. He wrote about being proud of the way his life had been going before the rape. He was on a path to earn a bachelor's degree. He wrote about wanting to make his parents proud, but failing.
That letter, Halverson said, illustrates Scherf's struggles.
Prosecutors argued that Scherf's attempts to improve himself over the years aren't reasons to spare his life. His failed efforts point to the opposite conclusion, they said.
He was given repeated chances to better his life, change his ways. He ended up terrorizing more women, earning him a life behind bars, where society believed he couldn't hurt anyone again.
"Yet, here we are. He was able to hurt someone in prison," Stemler said.
With all of the opportunities — college courses, self-improvement classes and bible reading — "Is this the best he can do?" Stern asked, holding up a photograph of Biendl's face, taken at the scene of her death.
He may have tried to change, but the violence escalated, Stern said.
The deputy prosecutor again turned to Scherf's confession. He quoted the exchange between the inmate and detectives a couple weeks after the killing. They wanted to know why Scherf was talking to them.
"'I did a lot of soul-searching. If you take a life, you give a life. That's all I can say,'" Stern said, quoting the inmate.
"Are you OK with that?" the detective asked.
"Yeah, I'm OK with that," Scherf said.
Diana Hefley: 425-339-3463; firstname.lastname@example.org.
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