BY SARAH BERMAN | VICE.COM
Of all the things police counted against British Columbian teens Atif Rafay and Sebastian Burns, one of the more unsettling points might be their too-perfect alibis.
On the night that Rafay’s parents and sister were brutally bludgeoned to death in the summer of 1994, the 18-year-olds were seen at a movie theatre, at a diner, and at a club in Seattle. “Everybody remembered them,” Bellevue, Washington police detective Bob Thompson points out in episode one of Netflix’s new seriesThe Confession Tapes, adding their drink orders seemed unlikely. “I think they were ordering wine so the guy there would ask for ID, and remember there were two Canadians in here who ordered wine with a salad.”
Whether or not you share Thompson’s skepticism that teenagers would willingly choose wine as a beverage, his interview is revealing. He assembles the same names, times, locations, and evidence as other experts on this case, sometimes with wildly different results. Contrasted with the narratives of other lawyers and criminal justice advocates, none feel entirely compelling—underlining more gaps than pieces that fit together.
Here are the facts we can count on. Atif and Seb were visiting the Rafays’ new place south of the border. Seb was the one who called 911. Tariq Rafay was found in his bed, blood and teeth scattered across the room. His wife Sultana was found face down in the basement, near her daughter Basma, who was still alive but died of her blunt force injuries five hours later. Police questioned Atif and Seb over several days, but ultimately couldn’t find enough evidence to lay charges and allowed their return to Canada.
The rest of the details are disputed, and yet the night of the crime is ultimately not director Kelly Laudenberg’s main focus. Across two episodes, The Confession Tapes dissects an undercover RCMP investigation that employed tactics considered illegal in the United States, where Burns and Rafay would stand trial. The “Mr. Big” sting, in which an undercover cop posed as a gangster claiming he could help destroy incriminating evidence, drew out of the two some vivid details and motives for the crime. They did it naked, Burns told the undercover cop. It went down during the movie. For insurance money, said Atif.
If you ask Ken Klonsky of Innocence International, America’s basic Fifth Amendment rights should have kept the on-camera confession out of the courtroom. “You don’t have to incriminate yourself,” he told VICE. “You have the right to be warned what you’re saying may be used in a court of law. But with Mr. Big they’re not saying if you tell us you committed this crime, you may well go to prison for 99 years. There was no warning. These people are police masquerading as gangsters.”
At the time, confession under any circumstance was seen as “foolproof” evidence by both jury and experts, and Mr. Big stings did not evoke the same cynicism they might in 2017. The tactic was put to embarrassing use on a poor and addicted Surrey couple who under the guidance of undercover RCMP stumbled through a plot to bomb the BC legislature in 2013—something a judge ruled they had “neither the capacity nor sufficient motivation” to actually carry out.
The trial exposed how undercover cops can create a fictional world and manipulate targets into action. “The RCMP gave them all the equipment and everything to do it because they had made some kind of remarks about being sympathetic toward fundamentalists,” Klonsky said of the terrorism case. “It was another case where Mr. Big was used in a profoundly wrongheaded way.”
Today, the science of false confessions has gained some traction, and the lack of clear forensic evidence against Burns and Rafay has grown more troubling. Klonsky says Burns and Rafay were checked for “infinitesimal” traces of blood in their hair and bodies in the aftermath of the murders. “You’re not going to get rid of that with a shower, there will be remnants of blood,” he said. “They were put in a motel without a lawyer and the police essentially examined them every which way, but they never got a shred of forensic evidence.”
The show casts so much new light on the decades-old triple homicide that prosecutors on the case have been forced to publicly respond. King County prosecuting attorney Dan Satterberg released a statement last week claiming the show does not present a full or fair account of the crime, directing readers to an appeal judge’s decision.
“The King County Prosecuting Attorney’s office is aware of cases where defendants have falsely confessed to crimes they did not commit, and is alert to the possibility this could happen anywhere,” reads part of the statement. “However, a full and fair examination of the evidence in this case simply does not support the claim that Burns and Rafay falsely confessed.”
Satterberg points to a string of criminal activity that Burns engaged in with the undercover officers. He also highlights the conflicting statements of their friend Jimmy Miyoshi, who at different points told police Rafay and Burns discussed the murders beforehand.
On Monday, Klonsky released a fiery line-by-line rebuttal, saying police repeatedly denied anything they didn’t want to hear. “What is most egregious, and left out in the press release, is that the RCMP threatened Miyoshi with 99 years in prison, and even a suggestion of the death penalty in Washington, if he didn’t give evidence against his friends,” he wrote.
But if the evidence against Rafay and Burns is thin, the evidence supporting an alternative theory is even thinner. The theory goes that a Muslim extremist group ordered the killings in a dispute over “true east.” Mr. Rafay was adamant that mosques were praying in the wrong direction, not facing Mecca properly. Apparently al-Fuqra disagreed. That narrative came from an FBI informant a week after the murders, and named a baseball bat as the murder weapon, but it wasn’t explored by detectives. No murder weapon was ever recovered.
Much of Rafay and Burns’ guilt hangs on their strange behaviour after the murders. In his emergency call, Seb reported a “break in,” later adding he thought his friend’s parents were dead. A VCR and a walkman were among the only things missing, some boxes of files also tipped over.
The two also apparently failed to grieve in a socially appropriate way. Atif bought a fancy car, and they drove off after media approached them at a memorial. “Sure, their behaviour was inappropriate,” Klonsky told VICE. “They were called heartless, amoral, sociopathic, whatever. But you don’t know what’s going on inside those two kids. That’s the truth—we don’t know what’s inside a person.”
The Confession Tapes does not make it easy to believe in the pair’s guilt or innocence. And yet Klonsky believes the court of public opinion has at least shifted beyond unanimous guilt. “Public opinion has changed to a large extent, though certainly not completely,” he told VICE. “It used to be well over 99 percent thought they were guilty.”
What it does build a case against is the manipulation of teenagers with crime boss theatrics and threats of violence. “It creates this pervasive illusion that the only options you have are those that they’re holding out,” Atif says at the top of episode two. Police manipulation is a theme that gets explored from different angles in later episodes, where cops on other cases press on grieving familyuntil they offer something—even a suggestion that they blacked out and don’t remember a killing.
“There are a series of markers for a wrongful conviction. Certainly the number one marker is a lack of forensic evidence,” Klonsky said. “From my perspective I don’t feel there’s any doubt.”
“If you don’t have forensic evidence, then you should not be using this method.”