EVERETT — The state Court of Appeals has affirmed the conviction of John Whitaker in the 2002 murder of Rachel Burkheimer.
The 38-page ruling was filed Nov. 5, saying there were prosecutor errors, but that Whitaker still had a fair trial.
Whitaker was convicted of aggravated murder in Snohomish County Superior Court in 2004. He was granted a new trial after the appeals court found that it was wrong for the courtroom to have been temporarily closed to spectators.
In 2016, a new Snohomish County jury convicted Whitaker again. Then 35, he was re-sentenced to life in prison.
Whitaker 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 she pleaded for her life.
Burkheimer, 18, was shot to death by her possessive ex-boyfriend John “Diggy” Anderson. Whitaker has argued that he participated in the attack under duress. In his appeal, he said he was not satisfied that the judge gave proper instructions to jurors around that point.
The higher court determined the instructions were fine, as duress isn’t considered a defense in Washington for first-degree murder.
The appeals court did agree with Whitaker that prosecutors committed misconduct in some of their statements to jurors.
Those statements — primarily inviting the jury to imagine Burkheimer’s thoughts and feelings leading up to her death — appealed to sympathy rather than evidence, the ruling states. The prosecutor also made improper comments on the topic of duress.
However, the court found, Whitaker waived his right to pursue those misconduct claims by not raising earlier objections. A number of his other legal arguments also were dismissed in the new ruling, including several regarding the jurors’ conduct.
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