EVERETT — A Snohomish County judge won’t grant a new trial to the man twice convicted in the 2002 killing of Rachel Rose Burkheimer.
In a 14-page decision filed Tuesday, Superior Court Judge Linda Krese ruled that John Alan Whitaker received a fair and public trial despite contentious jury deliberations that included allegations of threats among jurors. One juror was rushed out of the courthouse on a stretcher after suffering an apparent heart attack. He had claimed Whitaker was being railroaded.
The man, known as Juror. No. 2, also claimed that the other jurors were ganging up on him. He criticized them for eating lunch together and for buying raffle tickets from each other.
Krese declined a defense motion to throw out the verdict.
“The events regarding Juror No. 2, while unusual, did not violate the defendant’s constitutional rights or any rights pursuant to the criminal rules. Juror No. 2 was not excused because he was a holdout juror but because he suffered a serious medical emergency that rendered him unable to deliberate,” Krese wrote.
Jurors convicted Whitaker on June 30 of the aggravated murder of 18-year-old Burkheimer. Whitaker, now 35, was accused of taking part in Burkheimer’s kidnapping along with several other young men. He also helped dig her grave in the Cascade foothills and took her jewelry as the young woman pleaded for her life.
Whitaker is scheduled to be sentenced Friday — 14 years to the day Burkheimer was shot to death by her ex-boyfriend, John “Diggy” Anderson. Whitaker faces a mandatory life sentence.
“We are very disappointed with the Court’s decision. Mr. Whitaker plans to appeal, ” Seattle defense attorney Cooper Offenbecher wrote in a statement to The Daily Herald.
He and his father Peter Offenbecher argued that the trial was so flawed that the only remedy was a redo.
Burkheimer’s family had been waiting for days to learn of Krese’s decision. They’ve been in limbo for years, though, the teen’s father Bill Burkheimer said.
Whitaker’s 2004 aggravated murder conviction was appealed but stalled as the state’s higher courts considered other cases with similar appellate arguments. Eventually in 2013 the appeals court ruled it was wrong for the courtroom to have been temporarily closed to spectators in the first trial while six prospective jurors were individually questioned about their fitness to hear evidence in Whitaker’s case.
“It took us five years to get to this point,” Bill Burkheimer said Tuesday.
And yet there is no joy in the judge’s decision, Burkheimer’s mom Denise Webber said.
“It’s just a relief, but I feel sad, too. I feel sad for his family. I know what it’s like to lose a child. At least they get to talk to him, see him and hear his voice,” Webber said.
He received two chances — two trials, she said.
“Rachel didn’t get a second chance,” Webber said.
Bill Burkheimer said his family is grateful for the jurors who ultimately rendered a verdict. The jurors endured a long and emotional trial only to be brought back to answer questions about what went on in the jury room, he said.
Krese convened a hearing last week to question jurors about Juror No. 2’s claim that he was threatened. She also inquired about reports that one juror had said “I hope they fry the (expletive) bastard,” after hearing testimony from the county medical examiner.
“Whether any (juror) expressed an opinion about the defendant’s guilt prior to beginning deliberations does not establish prejudice and is not grounds for the grant of a new trial,” Krese wrote in her ruling.
Diana Hefley: 425-339-3463; hefley@heraldnet.com.
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