Prosecutor won’t need to explain decision to seek execution for Scherf, judge rules

EVERETT — A judge on Wednesday declined to order Snohomish County Prosecuting Attorney Mark Roe to spell out why he decided to seek the death penalty for a convicted rapist accused of killing Monroe corrections officers Jayme Biendl.

Attorneys for Byron Scherf asked that the prosecutor specifically identify which information he considered before deciding that Scherf didn’t deserve leniency.

The defense lawyers already have attacked the timing of how prosecutors notified Scherf that they intended to seek the death penalty. Superior Court Judge Thomas Wynne last month declined to throw out the death penalty as a sentencing option and agreed to let prosecutors proceed with their case.

In the latest motion, defense lawyer Jon Scott argued that Roe didn’t give the defense team enough time to prepare materials that potentially could have persuaded Roe not to seek Scherf’s execution. Because they weren’t able to provide those materials, he and his co-counsel Karen Halverson don’t know what Roe reviewed, he said.

“Unless we know what he considered, we can’t check the discretion of the prosecutor,” Scott said Wednesday.

There are limits to his discretion, Scott added.

Roe relied on about 6,500 pages of documents, including psychological and medical evaluations, and Scherf’s alleged statements to detectives after the Jan. 29 slaying, Snohomish County deputy prosecutor Ed Stemler wrote in court papers.

Because Scherf has spent most of his adult life in prison there already was significant amounts of information available, Stemler said.

Roe sent Halverson a letter in February saying that he was strongly considering the death penalty. He asked her to provide materials for his consideration by March 7. He also said he would review additional materials the defense lawyers provided after that date.

Roe announced at a March 15 press conference that he planned to charge Scherf with aggravated murder and plans to ask a jury to sentence Scherf to death if he is convicted.

Scherf is accused of strangling Biendl with an amplifier cord inside the chapel at the reformatory in Monroe. He already is serving a life sentence without the possibility of release under the state’s “three-strikes” law.

Scott asked Wynne to compel Roe to provide the page numbers of the materials that he considered before making his decision.

Stemler argued that the defense was asking Roe to explain his thought process.

“We provided (the defense lawyers) 6,454 pages before a decision was made. All those pages were reviewed and Mr. Roe considered all the information,” Stemler said.

Roe and his senior prosecutors reviewed the criteria as established by the law, Stemler added.

Wynne said he had no authority to compel Roe to provide the defense with specific pages. The judge said he was confident in the process that the prosecutor used. Wynne also said he believes Roe had substantial materials on which to base his decision.

“I’m satisfied Mr. Roe has done what he’s said he’s done and considered mitigating evidence,” Wynne said.

Diana Hefley: 425-339-3463;

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