Retrial In '93 Slaying To Begin

TO FRIENDS, Robert Falkner is an easygoing truck driver who loved his children and liked to keep a clean house. To prosecutors, he is a wife-killer. Falkner was convicted of the murder he insisted he did not commit. Now new developments raise the question: Was an innocent man sent to prison?

On a moonless summer night in 1993, 29-year-old Robert Falkner lay awake in the dark of his home in an Auburn trailer park, listening to the thunder of freight trains across the street. Hours passed. He heard the crunch of car tires on gravel, the bark of the family poodles and then his wife's footsteps on the deck.

She had been drinking. She had been out with another man. It was one more chapter in the turbulent marriage that both Falkners knew was coming to an end.

Just what happened that night, a jury will once again decide as the case is retried, beginning today in King County Superior Court.

Prosecutors claim Falkner bludgeoned his wife to death with an unknown weapon on the deck as Barbara's 7-year-old daughter stood on her toy box, watching from her room.

Falkner denies it. According to the state Appeals Court, he may be right. In May 1997, the court overturned the guilty verdict for second-degree murder that jurors had taken little more than three hours to decide. Falkner was sentenced to 16 years in Clallam Bay Corrections Center.

The judges unanimously agreed that attorney William Michael Foshaug of Federal Way had ineffectively represented Falkner, citing a number of holes in the case against him. The judges ruled that had Foshaug done a better job, Falkner might not have been convicted.

To Falkner, who is in the King County Regional Justice Center in Kent, the ruling means "there's somebody out there walking around laughing at the system, knowing that an innocent person is locked up. That really hurts."

Foshaug has declined comment on the ruling, as have police.

But prosecutors say they are confident Falkner will be convicted again. Falkner's wife was killed only days after she had filed for divorce, and prosecutors contend he was in a jealous rage. They also note that he lied to police about when he last saw his wife, whose body was found in a car parked in a Puyallup lot.

"Nothing has changed since the last time," said Deputy Prosecutor Joe Solseng, who with Dan Soukup handled the case in 1993. "We certainly felt there was plenty of evidence to convict."

Why verdict was overturned

In looking at the case, the appellate judges said they found three areas of Foshaug's defense "so deficient" that they had to overturn the verdict:

-- His failure to effectively research and question the testimony of the victim's 7-year-old daughter. She recalled the event months after her mother's death and after living with her maternal grandmother.

-- His failure to investigate the state's claim that testing with a substance called Luminol on Falkner's carpet turned up evidence of blood in the home. The appellate judges ruled that the jury should have been told that Luminol, routinely used by police, also can react to cleaning solvents like the type Falkner said he had used.

-- His failure to challenge the Pierce County coroner. Had the defense lawyer "investigated the scientific evidence, he could have raised serious questions about the state's theory of the timing and location of the murder," the court wrote.

The judges said they also considered these other factors:

-- Two other men who were often seen with Barbara Falkner and also seen near where her body was found were never interviewed by police, prosecutors or the defense attorney.

-- DNA tests that could have shown that she may have been raped or had sex with another man before she died were not done.

Also, a woman working at a deli near the parking lot where Barbara Falkner's body was found said she saw two men looking for her the night before her body was found.

The woman didn't testify in the first trial, but will in the second trial. She gave her account of the evening to a private detective working for Falkner's new attorneys, and it was included in the material considered by the Court of Appeals.

A stormy marriage

Falkner met Barbara Burch at a Federal Way bar in 1989. Within weeks, Burch and her young daughter moved in with him. By October, Burch was pregnant with their son.

The relationship was stormy. Burch and Falkner often parted, then reunited. In January 1993, Burch and Falkner decided to marry and said their vows and cut a simple wedding cake at Aukeen District Court in Kent. Hoping for a new start, they moved to Laurelwood Park, a mobile-home park in Auburn. It was here, at least for a while, the Falkners got along.

Then the old patterns returned. Both drank. Both argued.

Court documents show that Barbara Falkner had made claims of domestic violence against her husband, but that she later told the court the incidents didn't happen, and the charges were dismissed.

Court documents also show that Falkner made a similar claim against his wife and that his mother successfully petitioned the court for a restraining order against her.

Barbara Falkner spent Saturday, July 17, 1993, the last day of her life, shopping with her daughter and sister. She came home, cooked fish sticks and French fries for dinner, put the two children to bed and left about 10 p.m. for a date with a married man she had met weeks earlier at the Royal Bear Tavern south of Auburn, according to court testimony from the man.

About 2:30 a.m. Sunday, she returned home drunk, Robert Falkner testified. She used the telephone, removed two bags of marijuana from a drawer and said she was going to deliver it to someone because she needed money to get an apartment of her own, Falkner said in court.

But he testified she was too drunk to drive and he drove her to the Fred Meyer parking lot in Puyallup, where he left her sitting in her brown Toyota Celica and arranged to have his father, who lived in Puyallup, pick him up and give him a ride home.

Teresa Deady, a woman working at a nearby deli, said in a recent interview that she was slicing meat about midnight Saturday at Hoagy's Corner when two men entered the store and asked about Barbara Falkner. Deady said they were in their 20s, rude and frightening. Deady said she had seen them come in with Barbara Falkner a number of times.

"They always seemed close. I never knew she was a married woman," Deady said.

She didn't think much of it until she saw them again early Monday in the parking lot. Deady said one drove a van and the other a light-colored car. She said she saw them shortly after one of two lot sweepers ran into the store, his face ashen, and asked if she knew how to tell if someone was dead.

When Puyallup police arrived, Deady said she told them about the men looking for Barbara Falkner the night police think she died. She also told police she had seen the men again just that morning. The police, she said, weren't interested.

Deady said she gave Puyallup police the van's license-plate number. She said police told her later that the number was lost and of no value.

Because the case is being retried, neither Auburn nor Puyallup police will comment.

Sverre Staurset, who with Sean Wickens now represents Falkner, thinks Falkner may never have been tried in the first place had police not felt "compelled to tailor the case to overlook the obvious."

The lawyers note that unidentified fingerprints found on the passenger door and rear-view mirror of Barbara Falkner's car - where the body was found - were not sent through the state Automated Fingerprint Identification System (AFIS) until last fall.

Falkner's fingerprints were found on a metal storage box in her car, but nowhere else, records show.

The case also had a lot to do with police observations of Falkner - who admitted he lied to them about the last time he saw his wife - and officers' observations of his home.

Falkner said in an interview that he lied because he thought police were questioning him about his wife's drug dealing and that he thought if he told them he had dropped her off at the parking lot, it would implicate him in the transaction.

According to court records, when Auburn officers arrived at the home the day the body was found, Falkner was in the middle of "a cleaning frenzy." His friends say it was not unusual for him. Both he and his friends denied his manner of cleaning the yard and house was in any way unusual for him.

But police thought otherwise.

They noticed empty bleach bottles. Falkner said he had been saving them to cut in half later for soaking paintbrushes.

They noticed he had washed piles of clothing - even one of the new outfits Barbara Falkner had purchased two days before but had never worn. They saw, too, that the lawn was half mowed - and theorized that he had left that chore to wash away traces of a slaying.

After Falkner's arrest, police went to the home and sprayed Luminol, the substance used to detect blood, onto the carpet and deck. While the deck showed no traces of blood, the carpet, Officer Randy Clark, a lead investigator, testified, "lit up like a Christmas tree."

His testimony that there were "bloody footprints" across the carpet, however, was refuted in court by Auburn's evidence technician, Patti Garcia, who testified the spatters of blood were so small they could not be photographed and were not in the shape of footprints.

Police and prosecutors say that Falkner successfully washed away the blood from the untreated wood and that the body was left in the car in the Fred Meyer parking lot 27 hours before it was discovered.

The defense attorneys argue that Barbara Falkner was killed elsewhere by some other assailant and at some other time.

"There is no perfect investigation," said David Boerner, a former King County chief criminal prosecutor now at Seattle University law school. "The question is, is there enough here for the jury to convict?"

Nancy Bartley's phone message number is 206-515-5039. Her e-mail address is: nbar-new@seatimes.com