EVERETT — Jurors in a Snohomish County murder case will be headed to the witness stand next month as a judge tries to sort out whether a man’s rights to a fair trial were undermined by contentious deliberations that allegedly included threats of violence.
Superior Court Judge Linda Krese on Wednesday said she plans to convene hearings next month to question jurors who decided the case against John Whitaker.
The judge told lawyers she wants to learn whether what happened in the jury room is, as the defense contends, grounds for a mistrial. The defense has claimed that a juror was bullied out of deliberations because he wasn’t going to convict Whitaker.
“He was not excused because he was the holdout juror,” Krese insisted Wednesday. He was removed because of a medical condition. There is no evidence that he faked a medical emergency to get off of the jury, she said.
When the defense continued to push its point, Krese said she’d bring in the entire panel and ask them about what happened behind closed doors and whether they had discussed the case before deliberations began.
Jurors on June 30 convicted Whitaker of aggravated murder in connection with the 2002 death of Rachel Burkheimer.
As the trial concluded, Whitaker’s lawyers already were arguing that their client’s constitutional rights had been violated during questioning of a final witness.
They asked Krese to declare a mistrial after deputy prosecutor Edirin Okoloko asked a homicide detective whether Whitaker had invoked his right not to be questioned after arrest. That was a problem because Krese had previously ordered that jurors not be told about the instances when the defendant had decided not to speak with police.
Whitaker defense attorneys, the team of Peter Offenbecher and his son, Cooper Offenbecher, argued the prejudice was real, particularly after jurors heard testimony about other defendants cooperating with police.
Krese opted to postpone ruling on that motion, instead directing lawyers to make their closing arguments, and sending the jury off to deliberate.
The unresolved mistrial request was soon overshadowed by the crisis that developed in the jury room.
A juror alerted the law clerk that he’d been threatened, and he refused to return to the deliberation room. He waited alone in a different room while the judge and lawyers tried to make sense out of what transpired and what steps to take next. Krese eventually sent jurors home for the day with instructions to return the next morning. Some jurors were in tears.
The defense asked for a mistrial. Meanwhile prosecutors reacted by asking that a gun and ammunition admitted as evidence in the case be stored away from the jurors.
Jurors returned the next day and appeared to be deliberating. But the juror who reported to be in conflict with the others collapsed, complaining of chest pains. He was taken from the courthouse on a stretcher.
The man was hospitalized, and Krese excused him from further service.
Over defense objections, she seated an alternate juror who had listened to all the evidence in the trial. She ordered the group to begin deliberations anew. Before the day was over they found Whitaker guilty of aggravated murder.
Whitaker’s attorneys contend the judge’s handling of the jury troubles also requires her to declare a mistrial.
The juror who collapsed, identified in court papers only as Juror No. 2, told them he was inclined not to convict their client of aggravated murder.
“The entire sequence of events with Juror No. 2 —the defense holdout juror — is so entirely irregular that it cannot be said Mr. Whitaker received a fair trial and a unanimous verdict under the state and federal Constitutions,” they wrote.
Whitaker’s attorneys on July 11 obtained a declaration from the juror.
He reported that others on the panel threatened him during deliberations. One called him a “selfish (expletive) bastard” when he said prosecutors had failed to prove Whitaker committed all of the necessary acts to be found guilty of aggravated murder, he said.
Moreover, Juror No. 2 said he didn’t believe Whitaker received a fair trial. After jurors heard testimony from the medical examiner about how Burkheimer died, one broke down crying in the jury room and said “I hope they fry the (expletive) bastard,” he said.
“The majority of the jurors verbally agreed with this sentiment,” he said. “Based on this comment and the reaction of the other jurors to it, it was clear to me that some of the jurors had decided to find Whitaker guilty before the jury was instructed by the judge and before the jury heard closing arguments.”
Whitaker’s attorneys said their client’s rights to a fair trial were violated in numerous ways. The juror was separated from the rest of the panel for a time. He interacted with the judge’s law clerk in private without the defendant present. No record was made.
Those are all grounds for a new trial, they maintained.
Prosecutors argued that it was necessary to hear from the rest of the jury and requested Krese’s permission to interview the panel. A juror had called their office in early July to complain that the rest of the jury’s actions were being mischaracterized by the defense. Her comments contradicted the statements given by Juror No. 2, according to court documents.
The woman denied that the group was ganging up on the juror or that he’d been threatened. A sheriff’s detective was sent to interview the woman last month. She told the detective that even before they began deliberations the man accused the other jurors of railroading Whitaker. The man became unreasonable and aggressive, the woman said.
She said their discussions were put aside while the other jurors tried to calm him down. But he rang for the law clerk, telling the rest of the group that he was going to call the newspapers to expose what was happening.
The woman told sheriff’s detective Jim Scharf that she was taken aback by the man’s comments because they hadn’t started deliberating in earnest. When they returned the next day, he continued to act aggressively, the woman said.
She said the full jury had agreed that Whitaker was guilty of first-degree murder. They then moved on to discuss the kidnapping charge.
Juror No. 2 “keeps sayin’, ‘I can’t save him,’ ” the woman told Scharf.
A short time later his chair flew back and he yelled that he was having a heart attack. The jurors ran to get help, screaming for someone to call 911.
“It was so stressful in there. It was awful. It was just awful. Like the case wasn’t bad enough? It was awful,” the woman said.
She told Scharf that she suspected the man’s plan was to cause a mistrial.
The three-week trial in June was the second for Whitaker, now 35. In 2004 he was convicted of Burkheimer’s murder and sentenced to life in prison. The conviction was overturned by the state Court of Appeals in 2013 citing case law that hadn’t existed at the time of the trial. The appeals court ruled it was wrong for the courtroom to be temporarily closed to spectators while a half dozen prospective jurors were individually questioned about their fitness to hear evidence in the case.
Burkheimer, 18, was bound, beaten and stuffed into a duffle bag. She was driven out to the Reiter Pit area outside Gold Bar. She was shot multiple times after being forced to disrobe and ordered face down in a makeshift grave.
Whitaker was one of more than a half dozen young men charged in connection with the killing.
Diana Hefley: 425-339-3463; hefley@heraldnet.com.
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