Prosecutor's comments cited in call for new Sebastian Burns trial

The King County prosecutor who won a murder conviction that was overturned by the state Supreme Court this month for what it labeled "racist" trial arguments also is accused of using prejudicial language in a notorious Eastside murder case.

Deputy Prosecutor James Konat's courtroom comments are the subject of an appeal filed by attorneys for Sebastian Burns, who was convicted in 2004 along with Atif Rafay of killing Rafay's parents and sister in the family's Bellevue home 10 years earlier.

Burns and Rafay are serving three consecutive life prison terms for the deaths of Tariq Rafay; his wife, Sultana; and their autistic daughter, Basma, in July 1994.

Burns claims his constitutional rights were violated when Konat during closing arguments compared the slaying of the Rafay family "with the beheading of a United States citizen in Iraq," according to Seattle lawyers Elaine Winters and Jason Saunders. The lawyers are seeking a new trial because Konat's comparison of the murders to terrorist activity in the Middle East was an "unnecessary appeal to nationalism and prejudice," according to the appeal.

Konat during the trial told jurors that, as "grotesque and as horrible" as a beheading might be, the Rafay family's fate was worse.

The Supreme Court this month overturned the 2007 murder and assault convictions of Kevin L. Monday, ruling Konat used "racist arguments" during the Seattle trial.

In that trial, Konat questioned witnesses, many of them black, about a purported street "code" that he alleged prevented some from talking to police, according to the Supreme Court's majority opinion. In questioning some witnesses, he made references to the "PO-leese," the justices found.

Konat is white; Monday is black.

During his closing argument, Konat said "the code is black folk don't testify against black folk. You don't snitch to the police," according to the Supreme Court decision.

The court, in an 8-1 ruling, said the arguments were grounds for the conviction to be overturned because they cast doubt on the credibility of witnesses based on race.

Konat's comments during the Monday trial also have come under fire by the Seattle and King County branch of the National Association for the Advancement of Colored People, which plans to meet Monday with Konat's boss, King County Prosecutor Dan Satterberg.

In addition, King County Superior Court Judge Ronald Kessler, the county's chief criminal judge, told The Times that he filed a bar complaint against Konat on June 9 because of the case.

Kessler did not preside over the Monday case or the Burns-Rafay trial.

In the Bellevue murder case, lawyers for Burns and Rafay objected to Konat's comment during the trial and moved for a mistrial, according to court filings. The trial judge denied their motion.

King County prosecutors, in their response to Burns' appeal, said Konat's comment about terrorists does not justify a new trial.

"In closing argument, a prosecutor is afforded wide latitude in drawing and expressing reasonable inferences from the evidence," Senior Deputy Prosecutor Deborah Dwyer wrote in a November 2008 filing. She added that "the defendants complain that the analogy to the beheading was inappropriate because it involved militant Muslims, and Rafay is of Pakistani heritage."

But Dwyer wrote that Rafay told police that neither he nor his friends were Muslim. "It was the victims in this case who were Muslims, not their killers," she wrote.

Saunders, Burns' attorney, said the appellate court is scheduled to hear the appeal July 8.

James Bible, president of the Seattle and King County branch of the NAACP and a criminal-defense lawyer, said last week that NAACP members and others in the legal community will meet with Satterberg on Monday to discuss Konat.

"We are deeply concerned about the issues that are involved in the Monday case," Bible said.

Konat, currently trying accused South Park killer Isaiah Kalebu, has declined to comment on the case.

However, Konat on Wednesday emailed an apologetic letter to Satterberg, copying it to all employees of the King County Prosecuting Attorney's Office. "I understand my behavior has jarred the confidence of many people who work in this office," Konat wrote.

The Times on Thursday published an op-ed piece by Satterberg in which he apologized for Konat's comments. Satterberg said Konat's way of summing up why witnesses failed to testify against each other was "untrue and offensive."

"We know from experience that the no-snitch ethic is not confined to any particular race or background," Satterberg wrote. "By decrying the no-snitch ethic in this manner, the senior deputy prosecutor created yet another reason for some to believe that our justice system is biased and racist."

The Prosecutor's Office has said it will retry Monday for the 2006 slaying of Francisco Roche Green.

Seattle Times news researcher Miyoko Wolf contributed to this report, which includes information from Times archives.

Jennifer Sullivan: 206-464-8294 or jensullivan@seattletimes.com