Justices toss out rape conviction

A Lynnwood man's conviction for third-degree child rape has been overturned by the state Supreme Court, which ruled that prosecutors were wrong to tell jurors his refusal to discuss the case with police implied guilt.

During his 2004 trial, Justin Burke testified he believed the girl was 16 — the age of consent — when they had consensual sex at a party in 2003. But Snohomish County prosecutors implied to jurors that if Burke had truly believed that, he would have told his side of the story to police during his initial interview.

The jury later found Burke guilty of third-degree child rape and he was sentenced to 13 months in prison.

A sharply divided Supreme Court, in a 5-4 ruling issued Thursday, agreed with Burke's appeal attorneys who argued it was unfair and unconstitutional to use his silence against him.

The court said that while a defendant's pre-arrest silence can be used to impeach later testimony, that silence cannot be used as evidence of guilt.

"Because the State invited the jury to infer guilt from Burke's silence, and attempted to use his silence as substantive evidence of his guilt, we reverse the courts below and vacate Burke's conviction, without prejudice," the court majority wrote.

Burke's attorney, John Henry Browne, said the ruling was gratifying and important, but not new.

"It's a reaffirmation of what has been the law for 200 years," Browne said. "The Supreme Court reinforced the bedrock constitutional principle that a defendant's silence can never be used against them for any reason whatsoever."

Browne said Burke, who has had to register as a Level II sex offender because of the conviction, was "ecstatic" at the reversal.

Snohomish County Deputy Prosecutor George Appel said prosecutors may seek to retry Burke.

According to court documents, Burke was 22 when he met the 15-year-old girl while at a party and had what both agreed was consensual sex. After the girl's older sister learned about it, she confronted Burke and called police.

When police questioned Burke, now 27, at his Lynnwood home, he admitting knowing the girl was in high school, but not to knowing how old she was.

Burke's father interrupted, asking if his son could be charged with a crime. Upon being told yes, Burke's father then advised his son to end the conversation with police, which Burke did.

At his trial for rape of a child in the third-degree, Burke said the girl had told him she was 16, "almost 17."

During cross-examination, the prosecutor asked Burke to explain why he did not initially tell police he thought the girl was 16. The prosecutor also implied during closing arguments that Burke was not credible because he terminated the interview with police before telling "his side of the story," according to court records.

In its minority opinion, dissenting justices wrote that while it was improper for the state to draw attention during trial to Burke's desire to consult an attorney before answering further questions, the impact of that mistake was negligible.

"I do not believe the error is of constitutional magnitude that warrants review for the first time on appeal, let alone reversal of his conviction," wrote Justice Barbara Madsen.

Christine Clarridge: 206-464-8983 or cclarridge@seattletimes.com