There is no question that John Athan raped, strangled and dumped 13-year-old Kristen Sumstad's half-naked body in a box behind a Magnolia TV store back in 1982.
But how he was caught and convicted more than 20 years later was the subject of a recent 6-3 state Supreme Court decision that has the ACLU feeling jittery and lawyers feeling peeved.
The decision affirmed Athan's 2004 conviction for a crime he committed when he was only 14, so he's obviously none too pleased, either.
Athan - who was running a New Jersey construction company when he was finally busted - was a suspect early on. For one thing, his brother told police he'd seen Athan pushing a shopping cart with a large box in it near the TV store on 34th Avenue West the night of the murder. Athan claimed he was stealing firewood, and his brother later changed his story to say he'd seen Athan a few nights earlier.
Genetic evidence was also found inside and on Sumstad, but DNA analysis was practically nonexistent in those days and police ultimately dropped the case.
A couple of SPD cold-case detectives reopened it in 2003, though, and nailed Athan with a DNA sample they got from an envelope he licked.
It was the kind of envelope that was the problem.
The detectives posed as lawyers and sent Athan a letter asking if he wanted to take place in a class-action lawsuit over parking tickets. DNA extracted from Athan's saliva matched the DNA recovered from Sumstad's body.
And it's that ruse that brings up a classical legal concept often referred to as "fruit of the poisoned tree." It means that evidence collected illegally can't be admitted in court based on a pesky Fourth Amendment prohibition against illegal search and seizure. You gotta have a warrant, which requires probable cause, which the cold-case detectives didn't have.
The state Supreme Court didn't see it that way. "We find there is no inherent privacy interest in saliva," wrote Justice Charles W. Johnson in the decision. Johnson likened the way the evidence was obtained to picking up a cigarette butt or recovering evidence when someone spits on the sidewalk - something that happens all the time.
The State Bar Association, the Washington Association of Criminal Defense Lawyers and the ACLU begged to differ. All three organizations submitted "friends of the court" briefs supporting Athan's appeal.
Another of the issues brought up in the appeal was that, since Athan thought he was writing back to lawyers, the state broke client-lawyer confidentiality standards.
Not a problem, according to a majority of the Supremes. As far as the Justices were concerned, the saliva wasn't communication, and Athan's lawyer never tried to suppress the letter itself. Besides, the Supremes argued, "there is no absolute prohibition of police ruses involving detectives posing as attorneys in the state of Washington."
Finally, Athan's team argued that the state privacy act protects "sealed messages, letters and telegrams from being opened or read by someone other than the intended recipient."
Also not a problem, according to the state Supreme Court, which argued that the letter was opened by its intended recipient. Furthermore, it was immaterial that the recipients listed on the letterhead of a fictitious law firm were detectives not lawyers, according to the May 10 decision.
And that's where the slippery slope comes in. The federal government has been routinely reading people's print and Internet correspondence in the name of the war against terror - often without a usually slam-dunk FISA warrant, it turns out.
People's library records are up for grabs under the so-called Patriot Act, federal no-fly lists have included young children who aren't allowed to board planes, and there was that poor Portland lawyer who is a Muslim convert. If you remember, the FBI screwed up big time and thought they had the man's fingerprints when some were found on a bag linked to the Madrid train bombings. The feds even secretly searched the lawyer's home.
It's true that Athan got what he deserved when he was found guilty of second-degree murder and was sentenced to 10 to 20. Still, the decision in his case is yet another example of the slow erosion of civil rights in this country, and it could have been avoided if some New Jersey cops had simply picked up something that Athan had tossed.
The ACLU described the decision as scary, and it is. What's most disconcerting is to find out that Big Brother is now sitting behind the bench in Olympia. And you have to wonder: what's next???
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