UPDATE: A Snohomish County jury on Thursday found John Alan Whitaker guilty of aggravated murder and conspiracy to commit first-degree murder. That means he will face a mandatory life sentence.
The verdict was announced shortly after 4:15 p.m.
The jury was instructed Thursday morning to begin deliberations anew with an alternate juror.
Snohomish County Superior Court Judge Linda Krese told lawyers that the juror who complained of chest pains and who was carried out on a stretcher Wednesday remained hospitalized.
The judge instructed jurors to “start over.”
The newly constituted jury began working on the case just after 10 a.m.
It was Whitaker’s second trial and conviction for the killing of Rachel Burkehimer.
The judge said she will decide in mid-July whether to grant a defense motion for a mistrial.
This is a developing story.
Earlier story:
EVERETT — Day 17 in a Snohomish County murder trial ended with one of the jurors being carried out of the courthouse on stretcher after he complained of chest pains.
The day before, the same juror asked to be released from deliberations, accusing his fellow jurors of ganging up on him. He wanted to be separated from the rest of the jury and allegedly complained that the others were exchanging phone numbers and having lunch together.
The man said he was concerned that John Alan Whitaker wouldn’t get a fair trial.
The juror returned Wednesday morning but hours later Everett firefighters rushed to the courthouse. The juror reportedly feared he was having a heart attack. Snohomish County Superior Court Judge Linda Krese suspended deliberations for the day, saying she wanted more information about the man’s condition before deciding how to proceed.
The emergency call, which sent a corrections officer scrambling for a defibrillator, was just one of a series of strange twists that unfolded Wednesday in Whitaker’s aggravated murder trial.
The former Lynnwood man, 35, is accused of taking part in the 2002 kidnapping and killing of Rachel Rose Burkheimer. The 18-year-old Marysville girl’s body was discovered in a shallow grave in the Cascade foothills in 2002. She’d been shot multiple times by her ex-boyfriend, John “Diggy” Anderson.
Whitaker is charged with aggravated murder and conspiracy to commit first-degree murder. His defense lawyers argued that prosecutors failed to prove aggravating circumstances. That distinction could spare Whitaker a mandatory life sentence instead of decades behind bars.
At one point Wednesday, Snohomish County deputy prosecutor Edirin Okoloko requested that the ammunition and handgun admitted as evidence in the case be removed from the jury deliberation room. The judge had received a note Wednesday morning, indicating that some jurors feared for their safety.
The judge briefly questioned the presiding juror about the note.
“There is a juror who is just having a hard time following your instructions and that causes stress among the other jurors,” she said. “Accusations were made and snowballed into threats.”
Earlier in the morning, the defense sought a mistrial based on Tuesday’s events, saying that it was improper when a juror, at his request, was separated from the rest of the jury for a time. They said it also was improper for him to have talked to court staff during deliberations. The juror’s communication should have been written so it could be provided to all parties in open court, defense attorney Peter Offenbecher said.
Prosecutors opposed the motion, saying that they believed that the juror should be questioned about his exposure to news coverage. The man’s statement about Whitaker not getting a fair trial appeared to be evidence that he saw stories in The Daily Herald about the case, Okoloko said. The jurors repeatedly were instructed to avoid all media coverage of the case.
“There’s not a shred of evidence the juror was exposed to anything,” Offenbecher said. “This is an attempt to manufacture extrinsic evidence to get him off the jury.”
It appears that the juror is a hold-out for the defense, Offenbecher argued.
Krese didn’t question the juror nor did she grant a mistrial. It’s not proper to ask about deliberations, she said. It also wasn’t clear if the juror’s discomfort arose because of his views of the case, she said. The judge declined to take any action after learning that all 12 jurors had returned Wednesday morning.
A short time later, however, the jury sent out the note, saying “a lot of unbelievable things have happened.” The note indicated that jurors had safety concerns. “Our stomachs are churning in here,” the note read. That’s when Krese decided to narrowly question the presiding juror about the note.
Okoloko wanted a more specific inquiry, saying that is was important to know the nature of the reported threats.
“I’m concerned enough about their safety,” he said. He suggested that the ammunition and gun admitted as evidence and sent with the jury into the deliberation room be removed.
Offenbecher insisted that the jurors be left to deliberate. The process is emotional, he said. He speculated that they were simply at an impasse and had to work it out.
Krese sided with Offenbecher, saying that she wasn’t allowed to ask questions that might elicit information about what has been happening behind closed doors. She agreed to inquire whether jurors believed they could reach a verdict.
Some jurors appeared to have been crying.
Can the jury reach a verdict in a reasonable time?
Krese’s question was met with silence.
The judge then asked if the jury could reach a verdict on any count.
“Yes,” the presiding juror said.
Prosecutors told Krese they weren’t opposed to a mistrial at that point, citing the jurors’ safety concerns and the reported threats. The defense argued against a mistrial , insisting that Krese reserve her ruling until after the jury reached its verdict.
Krese said there weren’t grounds to stop deliberations. About 90 minutes later, lawyers were told that the man who’d made complaints Tuesday was headed to a local hospital.
That’s when prosecutors argued that the juror should be excused and deliberations begun anew with one of the alternate jurors. They also said they no longer supported the judge declaring a mistrial.
Offenbecher said it was premature to call in an alternate juror. “A lot of people think they’re having a heart attack,” he said. The juror could be back on his feet within the hour. There’s no reason to rush to a decision, especially as it appears that this is the “minority juror who feels like everyone is ganging up on him,” Offenbecher said.
Krese asked jurors to return Thursday morning.
This is Whitaker’s second trial. The state Court of Appeals overturned his conviction and life sentence in 2013 after ruling that Whitaker was deprived a public trial because the courtroom was closed for a few minutes while prospective jurors were questioned about their fitness to hear evidence.
Burkheimer’s family filed out of the courtroom Wednesday, asking prosecutors what came next. This is the fourth time they’ve awaited a verdict since Burkheimer’s killing.
A jury convicted her ex-boyfriend Anderson of aggravated murder in 2004. He is serving a life sentence. Yusef “Kevin” Jihad was found guilty of first-degree murder for his role in the killing. He was sentenced to 37 years in prison. Maurice Rivas and Matt Durham both pleaded guilty to first-degree murder and were sentenced to 25 years in prison. Three other men also pleaded guilty for their part in Burkheimer’s kidnapping.
Diana Hefley: 425-339-3463; hefley@heraldnet.com. Twitter: @dianahefley.
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