Herald Writer

EVERETT — Lawyers planned to make closing arguments today in the case against a man accused of taking part in the 2002 kidnapping and killing of 18-year-old Rachel Rose Burkheimer.

Yet, it isn’t clear if the case will reach jurors.

Snohomish County Superior Court Judge Linda Krese on Friday declined to rule on a defense motion seeking a mistrial until after she’s heard closing arguments. She also indicated that she may postpone her decision until after jurors deliberated.

John Alan Whitaker’s lawyers argued that their client’s constitutional rights had been violated during questioning of one of the final witnesses in the three-week trial.

On Thursday, Snohomish County deputy prosecutor Edirin Okoloko was eliciting evidence about statements Whitaker made to veteran homicide detective Brad Pince. Okoloko asked the detective if Whitaker had evoked his right to remain silent.

Okoloko told Krese on Friday that he was “stunned” by the detective’s affirmative answer. The deputy prosecutor believed that Whitaker had waived his rights because he later talked to the detective. He didn’t ask the question to get testimony before the jury that Whitaker declined to talk, Okoloko said. He was attempting to get in the statements Whitaker made later.

“It was a question from a tired mind,” the deputy prosecutor said, adding that he is an experienced trial attorney who knows it’s improper for witnesses to comment on whether a defendant has invoked his constitutional rights.

Defense attorney Peter Offenbecher argued that the bell couldn’t be unrung, and a mistrial was the only remedy. His client was prejudiced when jurors heard that he declined to speak to Pince. That prejudice was even more egregious because jurors also had heard testimony that the other codefendants had cooperated with police.

“It’s a very serious violation of this man’s right to remain silent and his right to counsel,” Offenbecher said. “The court is in the position, unfortunately, that it must grant a mistrial.”

Snohomish County deputy prosecutor Julie Mohr later argued that the testimony was not prejudicial in large part because jurors had heard that Whitaker had waived his rights and spoken to FBI agents at length and given a written statement after his arrest in California.

“He had explained his side of the story,” Mohr said.

This isn’t a case in which a defendant declined to speak at all, she said. He invoked his rights and then told the detective he’d already spoken to FBI agents.

Krese said that prosecutors shouldn’t have asked the question, although it appeared that Okoloko wasn’t aware ahead of time what the witness would say. The detective certainly isn’t at fault, having simply answered the question he was asked, the judge said.

The legal question becomes whether it irreparably harmed Whitaker’s right to a fair trial, Krese said.

“It’s clearly a very significant error. It’s a high burden to proceed to trial,” she said.

Krese said she’d allow the lawyers to complete the trial and make her ruling after hearing closing arguments. Prosecutors asked that she make her ruling before jury deliberations.

“I’ll think about it,” Krese said.

This is the second trial for Whitaker, now 35. He was convicted in 2004 of aggravated murder and sentenced to life in prison. His conviction was overturned by the state Court of Appeals in 2013. The court cited new case law decided since Whitaker’s first trial.

The courtroom in the 2004 trial was temporarily closed to spectators while six prospective jurors were individually questioned about their fitness to hear evidence in the case. The court ruled that Whitaker’s right to a public trial was violated.

His attorneys in this trial have argued that Whitaker isn’t guilty of aggravated murder because he never intended for Burkheimer to die. Jurors were told that Whitaker tried to protect Burkheimer from her jealous ex-boyfriend, John “Diggy” Anderson.

Whitaker never was in on a plan to abduct and kill her, the defense said. He and the other young men involved were afraid of Anderson, who was armed and acting like a “psychopathic maniac.”

Prosecutors allege that Whitaker was part of the plot to lure Burkheimer to an Everett duplex. He wasn’t forced to participate, Mohr told jurors in opening statements. He assaulted Burkheimer and helped in the kidnapping, robbery and murder, she said.

Burkheimer was bound, beaten and stuffed into a duffle bag. She was driven out to the Reiter Pit area outside Gold Bar. She was forced to disrobe, hand over her jewelry and ordered face down in a makeshift grave. Anderson shot Burkheimer multiple times.

Prosecutors allege that Anderson and other young men, including Whitaker, called themselves the “Northwest Mafia.” They suspected Burkheimer of setting them up for a rival group. Whitaker helped dig the grave.

Anderson was convicted of aggravated murder and is serving a life sentence. Three others were convicted of first-degree murder and are serving decades behind bars.