By Diana Hefley Herald Writer
Byron Scherf’s attorneys Wednesday filed another harshly worded response to legal paperwork submitted by prosecutors. They again accused prosecutors of trying to sway public opinion before Scherf is given a fair and impartial trial.
“The prosecutor’s office is attempting to create an expectation in the public (and possibly in Mr. Scherf himself) that Mr. Scherf has a responsibility to plead guilty and throw himself on the executioner’s slab for final condemnation. If Mr. Scherf fails to meet this wholly unrealistic expectation, the prosecutor’s office will surely welcome the scorn of a vengeful public to be seated with the potential jurors in this case,” defense attorney Jon Scott wrote.
Scherf, 52, is accused of killing officer Jayme Biendl on Jan. 29 inside the chapel of the Washington State Reformatory. At the time, Scherf was 14 years into a life sentence. Prosecutors allege that Scherf attacked Biendl at her post in the chapel and used an amplifier cord to strangle her.
Scherf on Wednesday made his first court appearance since prosecutors charged him with aggravated murder and announced their plans to seek the death penalty.
His attorney, Karen Halverson, entered a not-guilty plea on his behalf during the brief hearing.
Scherf didn’t speak, only nodding affirmatively after Superior Court Judge Thomas Wynne asked if he was declining to enter a plea himself. Scherf remained seated next to his attorneys.
Biendl’s family attended Wednesday’s hearing, their pain apparent in their falling tears. After the hearing they were quickly escorted from the courtroom, flanked by victims’ advocates and police detectives.
Prosecutors wrote in a memorandum filed Tuesday afternoon that Biendl’s family planned to attend “in case the defendant was sincere in his statements of February 14. The State has plea paperwork prepared.”
Prosecutors say Scherf last month sent a note that he planned to plead guilty at the arraignment. In that same note, he reportedly wrote that Biendl’s family deserved “swift justice and closure.”
“The State is in agreement with the sentiment expressed by the defendant that swift justice is highly desirable in this case,” deputy prosecutors Ed Stemler and Paul Stern wrote. “The decision to plead guilty belongs to the defendant.”
Defendants typically plead not guilty at arraignment hearings, which often occur before the defense has been provided much information about the case.
Court rules allow for defendants to plead guilty at arraignment. However, a judge has the discretion to reject the plea if he isn’t convinced the defendant understands the charge and the consequences of pleading guilty.
Scherf’s attorneys called the prosecutors’ memorandum a guise.
“Mr. Roe is unfairly using the understandable and heartfelt sympathy the community has experienced and expressed for the Biendl family as a point of leverage to heighten public condemnation for the accused,” Scott wrote.
“We didn’t have that expectation” that their client would plead guilty at the arraignment, Scott said after Wednesday’s hearing.
Wynne scheduled Scherf’s trial for May 6. Halverson said the defense likely will be asking for more time. They have received some materials from prosecutors but they haven’t received everything, she said. They expect to prepare mitigation material that would argue for leniency for Scherf, she said.
The lawyers plan to schedule a hearing sometime next week to be heard on a motion they filed Tuesday.
In the motion, the lawyers asked that their client be allowed to wear clothes other than his jail uniform and remain unshackled during all future court hearings. They said that was necessary to offset what they called poisonous pretrial publicity. The motion also asked that the probable cause affidavit that prosecutors filed along with the charge be removed from the public record. Scott wrote that the six-page affidavit served no purpose but to “poison the pool of jurors.”
Prosecutors expect to argue against the motion. They file similar affidavits in nearly all felony cases.
Scherf’s prosecution will be the first capital murder case in Snohomish County since Barbara Opel’s prosecution in 2003*. Opel was convicted of aggravated murder. Jurors declined to sentence her to death. James Homer Elledge was that last man put to death for crimes in Snohomish County. Elledge was convicted and sentenced to die. He waived his rights to appeal his conviction and was executed in 2001. That was three years after he pleaded guilty and told a jury that he should die for the 1998 murder of Eloise Fitzner. Roe was one of the prosecutors on that case.
Diana Hefley: 425-339-3463; firstname.lastname@example.org.
* Correction, March 21, 2011: An earlier version of this article incorrectly stated the last capital case in Snohomish County.