An attorney for an Everett man at risk of the death penalty has not turned in paperwork seeking leniency for his client, and Snohomish County prosecutors want to know why.
John Muenster of Seattle, attorney for John Alan Whitaker, 23, didn’t meet a Dec. 19 court-ordered deadline to provide prosecutors with a "mitigation package" containing information that could persuade them not to seek capital punishment for Whitaker.
Whitaker is one of two men charged with aggravated murder in connection with the September 2002 killing of Rachel Burkheimer, 18, of Marysville.
Prosecutors face a Jan. 30 deadline to announce whether they will seek death for Whitaker or for John PhillipAnderson, 21.
Deputy prosecutor Michael Downes on Wednesday filed a motion asking for a hearing on Friday to explore the delay in receiving information about Whitaker. Under orders already filed in the case, prosecutors are required to consider defense arguments against the death penalty before the Jan. 30 deadline for announcing their decision.
Anderson’s attorneys provided mitigation information about their client, who, according to court records, grew up in the care of the state, including a stretch at the OK Boys Ranch, a home for troubled youths that was closed after residents were found to have been subjected to physical and sexual abuse.
A group of prosecutors is scheduled to meet Wednesday to debate behind closed doors whether to seek death for Whitaker. The decision ultimately rests with Prosecuting Attorney Janice Ellis.
"We would like to have whatever information the defense is going to present for discussion," Downes said in court papers. "Clearly, the court orders on the topic contemplate that we would receive the information in sufficient time to review it, i.e., in time for it do some good."
Downes declined to discuss his motion. Muenster, who is handling a murder trial in King County, also declined comment.
Downes said he was told by Muenster late Wednesday that prosecutors may get the information they seek before Friday’s hearing.
Muenster’s e-mails to Downes were filed along with the prosecutor’s motion.
Among other things, the e-mails show that Muenster plans on filing detailed legal arguments contending that seeking death for Whitaker would be legally indefensible because the man didn’t actually kill Burkheimer but is charged as an accomplice in her murder.
The lawyer also said that seeking death for Whitaker is unfair in light of the plea agreement King County prosecutors reached with confessed Green River killer Gary Ridgway. Ridgway is now serving life in prison without hope of release after admitting to the murders of 48 young women and girls.
Whitaker is one of eight young men charged with participating in Burkheimer’s death.
Prosecutors allege the killing was arranged and carried out by Anderson, a former boyfriend of Burkheimer. A host of motives have been suggested, ranging from Anderson’s jealousy over her dating other men to a drug conspiracy with gang overtones.
Only Anderson and Whitaker are at risk of the death penalty. Trials for two other defendants are set to begin in February. All the other defendants have already pleaded guilty and agreed to testify.
According to court papers, Burkheimer was tied up and beaten in a garage at an Everett duplex. She was then driven to the Cascade Mountain foothills near Gold Bar, forced into a grave and shot.
Reporter Scott North: 425-339-3431 or north@heraldnet.com.
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