Jurors testify as convicted murder defendant seeks mistrial

EVERETT — Jurors in a Snohomish County murder case found themselves on the witness stand Wednesday.

A Superior Court judge was trying to get to the bottom of what happened when a juror refused to deliberate, leveled allegations he was threatened by a fellow juror and later was hauled out of the courthouse on a stretcher.

Judge Linda Krese agreed to convene the hearing after John Whitaker’s lawyers argued that their client’s right to a fair trial was undermined by contentious deliberations.

Jurors on June 30 convicted Whitaker of aggravated murder in connection with the 2002 death of Rachel Burkheimer.

On Wednesday, the team of Peter Offenbecher and his son, Cooper Offenbecher, argued multiple motions for a mistrial, insisting that Whitaker’s trial was so flawed that the only remedy is a redo.

“The number of errors call into question the entire fabric of the trial,” Peter Offenbecher said.

After the day-long hearing that included testimony from 15 jurors, Krese declined to issue a decision from the bench. She told lawyers to expect a written ruling by Friday.

“It’s never ending. This has been going on for 14 years,” the victim’s father, Bill Burkheimer, said.

He and his family have endured multiple trials since his daughter’s death.

On Sept. 23, 2002, the Marysville teen was beaten, bound, stuffed in a duffle bag and driven to a rural area in east Snohomish County. The 18-year-old was forced to disrobe and to kneel into a shallow grave. Her ex-boyfriend, John “Diggy” Anderson, repeatedly shot Burkheimer.

Whitaker was accused of taking part in the plot to lure Burkheimer to a south Everett townhouse. Prosecutors also alleged he helped dig Burkheimer’s grave in the Cascade foothills and took the girl’s jewelry.

This was the second trial for Whitaker, whose first aggravated murder conviction was overturned by the state Court of Appeals in 2013. The appeals court ruled it was wrong for the courtroom to be temporarily closed to spectators while six prospective jurors were individually questioned about their fitness to hear evidence in the case.

“To even suggest he hasn’t received a fair trial is crazy. He’s had two fair trials and he’s had two fair appeals,” Bill Burkheimer said.

But even before the June 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 argued the prejudice was real, particularly after jurors heard testimony about other defendants cooperating with police.

Prosecutors said the testimony was harmless because jurors also heard evidence that Whitaker talked to the detective that same day and had already spoken to FBI agents after his arrest.

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 overshadowed by a crisis that developed in the jury room.

A juror alerted the law clerk that he wanted off of the jury and he refused to return to the deliberation room. He waited alone in a different room while the judge and lawyers discussed what steps to take next. Krese eventually sent jurors home for the day with instructions to return the next morning.

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 by paramedics.

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 requires her to declare a mistrial. He shouldn’t have been separated from other jurors and he shouldn’t have been allowed to have a conversation with the law clerk about deliberations, the Offenbechers argued.

“There is no case in Washington where the defense holdout juror has been handled in such an irregular, isolating, and undocumented fashion,” they wrote.

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 man testified by phone Wednesday. He told Krese that he’d had a heart attack — his fourth — and had been hospitalized for two days. He renewed his claims that another juror threatened to break his legs during deliberations.

“Don’t ever talk to me that way again,” Juror No. 2 reported saying to the other juror.

All the other jurors testified that it wasn’t a threat. They said a juror had made a hypothetical statement to illustrate how he viewed a certain piece of the law.

Juror No. 2 again asserted Wednesday that he didn’t believe Whitaker received a fair trial. He complained that the jurors were eating lunch together and selling each other raffle tickets. He said they had “formed a bond.”

He also stood by his claims that some jurors had made up their minds about the case before hearing all the evidence. Juror No. 2 had provided the defense a declaration in July, stating that after the medical examiner’s testimony one of the jurors broke down crying in the jury room and said “I hope they fry the (expletive) bastard.”

“The majority of the jurors verbally agreed with this sentiment,” he wrote in his affidavit.

Several of the jurors testified Wednesday that they heard someone say something to that effect. Some of the other jurors consoled the upset woman but they couldn’t recall anyone saying they agreed with her.

The juror violated the judge’s instructions, but it isn’t grounds for a mistrial, Snohomish County deputy prosecutor Seth Fine said. The juror was expressing an opinion about the evidence. That doesn’t mean the juror couldn’t have changed her mind upon hearing additional evidence, he said.

Several jurors testified Wednesday that they didn’t understand Juror No. 2’s actions during deliberations. One juror testified that the man appeared to have a sudden “meltdown.”

A juror had called prosecutors in early July to complain that the rest of the jury’s actions were being mischaracterized by the defense. She denied that the group was ganging up on Juror No. 2. She told a detective that even before they began deliberations the man accused the other jurors of railroading Whitaker.

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.

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 said.

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.

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