Key witness testifies via videotape at Rafay-Burns murder trial

The original plan was to get the triple-murder case against Atif Rafay and Sebastian Burns into the jury's hands by Easter.

That's not likely to happen, concede participants and observers involved in the case against the two Canadians accused of bludgeoning Rafay's family to death in their Bellevue home almost 10 years ago.

The aggravated-first-degree murder trial — a case that's been complicated by the intricacies of international law since Rafay and Burns were arrested in Vancouver, B.C., a year after the 1994 slayings — turned high-tech last week, with the state's star witness appearing on a large video screen suspended from the ceiling of King County Superior Court Judge Charles Mertel's courtroom.

In the weeks to come, the jury is expected to hear from a Canadian border official, the King County medical examiner, a DNA expert from California and numerous officers with the Royal Canadian Mounted Police (RCMP). They also are expected to view videotapes of the defendants in a British Columbia hotel room, where Rafay and Burns tell two undercover RCMP detectives of their involvement in the killings — confessions the defense contends are false.

Jimmy Miyoshi, the defendants' high-school friend who was arrested with Rafay and Burns in July 1995, has provided the most damaging testimony to date. In a videotaped deposition recorded in August, he testified he knew about the plan to kill the Rafays before the slayings occurred and knew how the defendants were going to establish their alibis.

On cross-examination — included in the tape, which is to continue tomorrow — defense attorneys attacked Miyoshi's credibility, pointing out inconsistencies in his testimony and suggesting he was saying only what prosecutors want him to say to protect an immunity agreement he signed with Canadian prosecutors.

Rafay and Burns, both 28, are accused of killing Rafay's parents and sister to cash in on insurance money. After their arrests, the two men spent six years in a Vancouver jail while fighting extradition. They returned to Washington in March 2001 but only after King County Prosecutor Norm Maleng assured the Canadian government that Rafay and Burns wouldn't face the death penalty if convicted.

Though the RCMP never suggested Miyoshi participated in the killings of Tariq, Sultana and Basma Rafay, Canadian authorities threatened to charge him with conspiracy to commit murder and fraud, saying he knew of the plan to kill the family before the murders occurred. Miyoshi signed an immunity-from-prosecution agreement with Canadian prosecutors in October 1995.

The jury heard testimony last week that Miyoshi resisted returning to Seattle to testify. It wasn't until Canadian authorities — at the request of King County prosecutors — contacted officials with the American-owned company that employed Miyoshi in Tokyo that he was finally compelled to testify in August. The company told him he could lose his job if he didn't return to the U.S. to testify and suggested he take a leave of absence to do so.

The jury also heard that Miyoshi was apparently talking to both sides; he told prosecutors he was reluctant to testify because he feared retribution by the defendants but contacted a defense attorney, asking what would happen if he reneged on his immunity agreement and testified for the defense.

In the end, Miyoshi testified for the state. But after he returned to Japan, he was fired — a turn of events that restricted the state's ability to call him for trial.

"We would prefer that Mr. Miyoshi come to Seattle to testify in front of this jury, but we have no way to compel him to do so," said senior deputy prosecutor James Konat.

Konat explained that the United States doesn't have a treaty with Japan to compel witnesses to testify; he also said because Miyoshi was fired, prosecutors couldn't go through his company to get him back to this country. And as far as Canadian authorities are concerned, Miyoshi's under-oath pretrial testimony fulfilled the agreement he signed with them, Konat said.

In his videotaped deposition, Miyoshi — who has changed his name to James Hiroshi Kira to distance himself from the murder case — said he spoke to both Rafay and Burns about the plan to kill the Rafay family and discussed Rafay and Burns' alibi ahead of time — that they planned to go to a movie, sneak out before the end, kill the family, then go to restaurants and other public places, making sure they drew enough attention to be remembered.

Miyoshi also testified that Rafay told him that Rafay's sister, Basma, was still alive when the defendants left the family's Somerset home.

He also spoke of a plan Burns allegedly hatched to give two Canadian undercover police officers — who posed as high-rolling criminals during a monthslong sting investigation — no other details about the murders other than information that had already appeared in news accounts.

On cross-examination, Burns' defense attorney Jeffrey Robinson hammered Miyoshi on each point.

"It's the first time in eight years you've said anything like that," Robinson said. "You're making it up as you go along."

"No, I don't believe I am," Miyoshi responded.

Sara Jean Green: 206-515-5654 or sgreen@seattletimes.com