An attorney for an Everett man who could face the death penalty for his alleged role in the September 2002 killing of Rachel Burkheimer tried to convince a judge Monday that his client’s own words should not be used against him.

John Alan Whitaker, 23, provided FBI agents with a detailed written statement about Burkheimer’s kidnapping and killing. But his attorney, John Muenster of Seattle, said the statement should be barred at trial.

Whitaker is one of eight young men accused of playing a role in the abduction, beating and shooting of the 18-year-old Marysville woman.

Whitaker was tracked to California in October 2002 and arrested on an aggravated murder charge. He asked FBI agents when he could speak with a lawyer.

The agents answered by explaining how attorneys are assigned in criminal cases. They then questioned Whitaker after obtaining his written permission.

Muenster said the questioning, and the five-page statement Whitaker prepared, violated his client’s Sixth Amendment right to legal counsel.

"He’s saying he wants to talk to a lawyer. It is legalistic, in the extreme" to contend otherwise, Muenster told Snohomish County Superior Court Judge Linda Krese.

Deputy prosecutor Michael Downes countered that Whitaker clearly understood that he could consult with an attorney and stop the questioning by FBI agents at any time.

"He made the choice to speak," Downes said.

Prosecutors allege Burkheimer’s killing was arranged by John Phillip "Diggy" Anderson, 21, 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.

Trials for Whitaker, Anderson and two other defendants are set for early 2004. Only Anderson and Whitaker are at risk for the death penalty. Prosecutors expect to announce by Jan. 30 whether they will seek capital punishment.

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.

In his statement to the FBI, Whitaker said Anderson struck him and otherwise forced him into participating. He also said he tried to talk Anderson into releasing the young woman.

When they first reached the place where Burkheimer died, "Diggy then talked to me and asked me what I thought," Whitaker wrote. "I said I thought we could let her go even though she was beaten a little bit. Diggy told me it was too late."

After Burkheimer was buried, Whitaker said he spoke with two other young men who were present: Maurice Rivas, 19, and Matthew Durham, 18, both of Lynnwood.

"Myself, Maurice and Matt had a few words about the whole thing, and all agreed we didn’t want this outcome, nor did we understand it," Whitaker wrote.

Reporter Scott North: 425-339-3431 or north@heraldnet.com.