Judge again rebukes lawyers who want him to step down from Byron Scherf’s trial

EVERETT — For the second time in as many weeks, lawyers for an inmate accused of killing a Monroe corrections officer faced a judge’s admonition for their handling of the case.

Snohomish County Superior Court Judge Thomas Wynne on Friday concluded that defense attorneys Jon Scott and Karen Halverson violated professional ethics rules by leveling untrue allegations against him as part of their second attempt to get Wynne to step down from the case.

The lawyers represent Byron Scherf, an inmate serving a life sentence for sex offenses. Scherf, 53, is accused of strangling corrections officer Jayme Biendl in the prison chapel last year. Prosecutors are seeking the death penalty.

The defense attorneys filed a motion last week asking the judge to withdraw. They alleged that Wynne has operated under a flawed understanding of the law and had ceded his authority in the past to prosecuting attorney Mark Roe.

They accused the longtime judge of entering into a “wink-and-nod” agreement with Roe in the 2006 retrial of convicted child killer Richard Clark. They questioned the judge’s ability to give Scherf a fair trial.

Wynne called the defense’s allegations a “bald-faced fabrication.” He went on to say that if they were attempting to intimidate him, it wasn’t working.

“I’m not intimidated,” Wynne said.

He concluded that the defense’s statements alleging that the failed to follow the law in the Clark case were made recklessly. He followed the law then and he stands by his decision now, Wynne said.

The defense alleged that Wynne ignored the law when he allowed prosecutors to withdraw their intent to seek the death penalty after Clark agreed to admit his involvement in Roxanne Doll’s death and waived further appeals. That resolution was supported by the girl’s family. Clark is serving a life sentence in prison without parole.

Wynne on Friday noted that he considered the case law that the defense noted in their motion. However, he concluded that case didn’t apply as the state Supreme Court handed down a specific decision on Clark.

“(W)e reverse his death sentence and remand to the trial court where, if the state desires, a new special sentencing proceeding may take place,” the justices wrote in their 2001 opinion.

The assertions that he ignored the law in the Clark case are “frivolous and totally without merit,” he said.

Wynne declined to step down from Scherf’s case, adding he wouldn’t allow the defense’s ethical lapse to affect his rulings. He hasn’t found Scherf’s lawyers to have engaged in unethical conduct before, the judge said.

Meanwhile, the judge went on to grant the defense’s motion for more time to prepare for key hearings that were scheduled to begin Monday. They now are set for April.

The hearings will determine if jurors will hear statements Scherf allegedly made to detectives after Biendl’s death, including a confession that he killed Biendl after he became upset over something she allegedly said earlier in the night.

In October, the lawyers blocked out three days to hear testimony from detectives and corrections officers. Halverson said the defense has been working diligently to prepare for those hearings, but still has more than a dozen interviews to conduct before they’ll be ready.

Two weeks ago, Wynne scolded Scott for failing to alert the court earlier that there may be a problem providing briefing to the court.

The defense had missed a court-ordered deadline for filing any legal arguments they planned to raise at the Feb. 13 hearing.

Halverson on Friday also told Wynne that the defense likely won’t be ready for trial in September.

“The important thing here is to get things done correctly, rather than quickly,” Halverson said.

Wynne acknowledged that preparing for the pending hearing is complicated. He also said that he has the duty to make sure the case is progressing without unnecessary delays and costs.

He told the defense he expects them to notify him if they need more time, rather than ignore the court’s order.

Diana Hefley: 425-339-3463; hefley@heraldnet.com.

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