Wah Mee Sentence To Be Appealed -- Leading Figure In Massacre Of 13 Contends Defense Was Ineffective

The gambler-gunman who prosecutors contend was the mastermind of the Wah Mee massacre in 1983 will use one of the last-resort tactics of the condemned on Tuesday.

Kwan Fai ``Willie'' Mak will go before a federal judge in Seattle in a pivotal move to try to reverse his death sentence.

Mak, at 30, already has spent seven years fighting to save his life for his role in the execution-style slayings of 13 people in a gambling club in Seattle's International District.

U.S. District Judge William Dwyer will hear arguments that Mak's former attorneys were ineffective and failed to present ``humanizing evidence'' at trial - particularly during the penalty phase - that might have helped jurors feel some sympathy for Mak and spare his life.

A Hong Kong native, Mak came to Seattle with his family in 1976. He dropped out of school at the beginning of the 11th grade. This period of Mak's life - particularly before he began spending a lot of time in Chinatown - is a central part of the issue in his appeal.

Mak's appeals attorneys, Kathryn Ross and John Midgley, argue that Mak's trial attorneys did not call Mak's parents to the stand to present helpful facts about his life that might have swung the jury to give Mak the same punishment as another defendant, Benjamin K. Ng, who was sentenced to life in prison without release.

In Ng's case, Ng's mother, speaking in Chinese through an interpreter, went before jurors and bowed in the classical Chinese tradition, begging for mercy for her son, saying he twice had been hit on the head when a child and that was a factor in his later behavior.

Mak's former attorneys, Don Madsen and James Robinson, will be the only witnesses to testify about their defense of Mak in the Feb. 18, 1983, killings that became Seattle's worst mass murder. Madsen and Robinson are public defenders who, as Mak's trial lawyers, were handling their first capital-punishment case.

Dwyer will get opposing views in depositions taken from key figures in the Mak trial: Robert Lasnik and William Downing, the deputy prosecutors who presented the state's case, and Frank Howard, the judge who heard the trial. Lasnik and Downing now are King County Superior Court judges and Howard is a U.S. District Court bankruptcy judge.

Mak was accused of being the chief planner among three armed men who hogtied and shot 14 people in the club on Feb. 18. One man, Wai Y. Chin, survived to testify against all the defendants.

Ross and Midgley want the judge to overturn Mak's death decision and have Mak resentenced - part of a broader effort to reverse the conviction.

Linda Dalton, the lead assistant attorney general and her partner, Paul Weisser, are representing the state in Mak's appeal. They contend Mak's attorneys cannotmeet the ``Strickland test'' of whether actions by Madsen and Robinson were so offensive at trial that they were constitutionally ineffective and not operating at a minimum acceptable level for a lawyer.

The second prong of that test is whether the evidence the trial lawyers failed to produce would have within a ``reasonable probability'' made a difference in the jury's decision.

Dalton and Weisser will be armed with facts such as these, which Mak admitted to the jury:

-- That he and Ng, along with the third defendant, Wai Chiu ``Tony'' Ng, had planned other crimes involving tying people up, robbing and killing them to eliminate witness.

-- That Mak and Benjamin Ng stole a safe and, while dumping it in Lake Washington, Mak watched as Ng fatally shot a jogger who just happened to pass by.

-- That Mak, when questioned if that affected the friendship of the two men, said: ``When you know a friend that long, you overlook the mistake.''

Mak's appeal attorneys then can argue that those facts are all the more reason there should have been some humanizing evidence on behalf of their client.

They have presented Dwyer a deposition from an expert on Chinese culture, Prof. Graham Johnson, of the University of British Columbia, to try to emphasize the opportunities Madsen and Robinson missed.

The ineffective-lawyer tactic - known as ``hindsight lawyering'' - worked for a Nevada man, Henry Deutscher, who killed a woman in Las Vegas in 1977.

The 9th Circuit Court of Appeals ruled in August 1989 that Deutscher should be resentenced because his trial attorneys did not investigate and present mitigating evidence.

The state of Nevada has appealed that decision.