An Everett man facing life in prison for his role in the Rachel Burkheimer murder is claiming he received an unfair trial and is scheduled Thursday to urge a judge to set aside his conviction.
John Alan Whitaker, 23, was convicted June 21 of aggravated murder. His attorney, John Muenster, early this month filed motions for a new trial and also to stop Whitaker’s sentencing, now set for July 22.
Whitaker’s conviction was unfair in part because jurors received vague instructions about how to apply the law, particularly in determining that he was a major participant in Burkheimer’s killing, Muenster said.
Burkheimer, 18, of Marysville, was shot by John Anderson, of Everett. Anderson was her former boyfriend and a leader in a gang that called itself the Northwest Mafia.
Whitaker belonged to the gang, which came to perceive Burkheimer as a threat. He testified that he participated in her Sept. 23, 2000, abduction, and assisted in digging her grave.
There wasn’t enough evidence for jurors to conclude his conduct met the legal standard for participation in aggravated murder, so the conviction must be set aside and a new trial scheduled, Muenster said in court papers.
Finding somebody to be a major participant in a killing “must be restricted to the person who is so directly involved in the acts which caused the death that no reasonable distinction can be drawn between the actual killer and the second person,” Muenster said.
Somebody who shoots and wounds a person at the same time an accomplice shoots and kills would meet the legal standard of a major participant in the murder, Muenster said. Whitaker didn’t shoot anybody.
Deputy prosecutor Michael Downes said Muenster is ignoring the ways Whitaker did participate in the murder, and also is misinterpreting the law.
“Under the defendant’s theory, virtually no one who had not actually done the killing would be convicted of aggravated murder,” he said in court papers.
At least one juror said Whitaker’s own testimony played the biggest role in deciding his guilt.
When prosecutors rested their portion of the trial, there was some doubt about Whitaker’s involvement, and whether he knew a killing was planned, juror Mark Allen of Edmonds told The Herald last month.
Whitaker maintained he didn’t know what was going on when Burkheimer was attacked and tied up in an Everett-area duplex that doubled as the gang’s headquarters. He said he had no idea she was going to be killed until, hours later, when he was reluctantly helping to dig Burkheimer’s grave.
The story didn’t hold up, Allen said.
“Once he went on the stand and he was cross-examined by Mr. Downes, that’s when we felt he crucified himself,” Allen said.
It was clear Whitaker “knew she was going to be dead,” the juror said. “He just didn’t want to pull the trigger.”
Reporter Scott North: 425-339-3431 or north@heraldnet.com..
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