"To fail to present important mitigating evidence in the penalty phase -- if there is no risk in doing so -- can be as devastating as a failure to present proof of innocence in the guilt phase."
-- United States District Court Judge William Dwyer

Despite the hope of Rick Anderson and many Chinatown residents that the frenzy surrounding the Wah Mee killings was over, it was not. Indeed, the Wah Mee killings had become international news. Hong Kong newspapers had fervidly covered the trials, as had the major news-wire services that provided articles for newspapers and magazines across the United States.

During Tony Ng's trial, CPG International Film Production Company, Inc., announced that they would begin filming a low-budget movie based on the killings at the Wah Mee Club. According to the script, the movie would start out with three young men -- Key, Danny, and Joe -- robbing, hog-tying, and shooting fourteen people at the Ko Wah Club in Chinatown. All the victims would die, except for "Old Man" Kuan. And Joe would flee to Canada, pursued by a Seattle police detective named Randy Walker, along with a tong member named "Shadow," who was hired by a Chinese American City Council candidate to retrieve a mysterious black book taken from one of the victims. Before Joe is caught, he befriends a Vietnamese prostitute, escapes the attack of two drug dealers, and eventually saves the life of Detective Walker.

The script was silly, and the relatives of those killed at the Wah Mee Club were irate about the idea of such a movie being filmed in their neighborhood. "I think it's disgusting," said one relative. "They can't do that, can they?"

The movie's writer-director, Michael Chu, offered to meet with the Chinese community to explain his project, and told the International Examiner, "My intention is to use the film to make a statement to the American public and the Chinese community that crime doesn't pay, that no matter what, if you take the wrong step, you will be stopped."

But Chu's crew received no support from local residents and law enforcement. "We can't legally force them not to come up here and film," said Doug Howard, an industrial relations officer at the Seattle Police Department. "We just won't cooperate with them." When Chu wanted to shoot a night scene with a guy leaving a bar, he was required to hire two police officers, which he was unable to do.

Whether or not the movie was ever produced is uncertain.

Prosecutors William Downing and Robert Lasnik were appointed as King County Superior Court Judges. Ironically enough, their courtrooms were located on the same floor of the King County Courthouse, across the hall from one another. In 1998 Judge Lasnik was shortlisted for a position as a United States District Court Judge.

Defense attorney John Henry Browne continued to represent high-profile clients. His most celebrated case since representing Benjamin Ng was that of counsel for a man accused of setting fire to his family's frozen food warehouse in Chinatown in 1994; battling the blaze, four Seattle firefighters were killed. Browne's client, Martin Pang, fled to South America before being extradited to Seattle for trial. Browne argued that Pang intended to burn down his family's warehouse but never to kill firefighters in the process.

Lieutenant Robert Holter, who had headed up the Wah Mee Task Force and, along with the RCMP, had cornered Tony Ng in Calgary, Alberta, retired in 1984. He moved to Shelton-Mason County, where he and his wife bought a modest home in Grapeview, Washington. He restored cars, fished, taught law-enforcement classes, and served as commissioner of the Grapeview volunteer fire department. But Holter grew restless and, in late-1986, he ran for Shelton-Mason County Sheriff. He won the election, unseating incumbent Sheriff Nat Stairs, who had served as sheriff for nearly three decades. Eight days after Holter became sheriff, Stairs collapsed and died from a heart attack. "It was a rocky way for Nat to finish and me to start," Holter told a reporter. "Even though he had a different perspective, we were good friends."

Holter proved as effective as Sheriff as he had as leader of the Wah Mee Task Force. A veteran reporter for the Shelton-Mason County Journal remarked, "Nat Stairs was the nicest guy in the world, but not a good administrator. He didn't seem to really have control of the department. But Holter impresses us with his experience. He's obviously a well-trained professional."

Less than three years after the Wah Mee murders, gambling in Seattle's Chinatown was on an upsurge. True, police officers reported, gambling had declined in late-1983 and 1984. "People were no longer willing to go down there with large sums of money," commented Captain Pat Lamphere, head of the Seattle Police Department's vice and gambling unit during the mid-1980s. In early-July 1987, police raided the Bing Kung Association -- the same association that largely bankrolled the gambling at the Wah Mee. They seized $273 dollars cash, a twenty-dollar check, cards, dice, poker chips, and miscellaneous papers. Officers also cited ten men and one woman for being present or participating in illegal gambling. The officers netted very little, but they had raided the association based on leads from complainants. In one complaint, a player said he had lost between $25,000 and $50,000 in one week, and reported there were at least six illegal games being played there. Informants also told police that a high-stakes card game known as thirteen-card poker was being played, and that the house was taking a four-percent cut, which made the game illegal. Captain Lamphere reported that gamblers were losing approximately $500 to $600 per hand. Other informants were relatives and friends of people who had lost large amounts of money gambling. "[The relatives and friends] didn't want another Wah Mee or another robbery situation," Lamphere commented.

One month prior to the Bing Kung raid, police searched the Ng Family Association where they found seventeen people present. No citations or arrests were made, simply because police were unable to persuade an informant to come forward and testify in court.

In March 1988 police raided the Golden Wheel Club at 670 South Weller Street in Chinatown. Officers had been eyeing the Club for four years, but only acted on a raid after managing to get an undercover officer inside the operation. Police officers entered the Club at 3:00 a.m. and arrested two dealers, seventeen gamblers, and confiscated more than $18,000 cash. The Golden Wheel Club was similar to the Wah Mee. It was a place for high-stakes gambling, and was financed by a half-dozen wealthy people. Seattle Police Spokesman Don Church reported that it was not uncommon for the winning hand in thirteen-card poker, one of the Club's popular games, to net $4,000 -- the house claiming as much as ten-percent of the gambler's winnings. The entrance to the Club was monitored by closed-circuit television cameras. "Wah Mee could have happened again," Church commented.

Two major tongs -- Hop Sing (of which Benjamin Ng was rumored to have been affiliated) and Bing Kung (which bankrolled the Wah Mee) -- were still operating in Seattle's Chinatown. And gambling clubs operated by these tongs generated a lot of income for these tongs. Seattle police Major Dale Douglass reported, "We've had a lot of discussions with tong leaders about how they might do legitimate fund-raising." But rather than modifying the behaviors of the tongs, Douglass suggested lobbying the State Gambling Commission to legitimize certain forms of gambling in Chinatown. Stopping gambling activities altogether was not an option: after all, Seattle vice had more than a half-century of affiliation with and monetary kickbacks from illegal gambling in Chinatown.

Obviously, gambling in Chinatown had not changed since the Wah Mee murders. Even a decade after the killings, gambling clubs were still operating in Chinatown. In 1992 Seattle police and FBI agents raided six separate Chinatown gambling clubs. Collectively, eight people were arrested and more than $12,000 cash was seized. According to Seattle Police Sergeant Mike Nelson, the clubs were very similar to Wah Mee. They were set up like Nevada casinos, only they were entered by alleyways and were heavily guarded. Every night from 9:00 p.m. to 5:00 a.m., high-stakes gamblers played Pai Kau, Mah Jongg, and other games popular in China and other Asian countries. Gambling pots reportedly reached $10,000. "Did [these clubs] have the potential for Wah Mee?" Sergeant Nelson asked rhetorically. "Yes, indeed. Anytime I see large sums of money in a place and they don't want the police to see or know about it…then it's a prime target for robbery or worse."

But something that did change was the Seattle Police Department's formation of the Coordinated Criminal Investigation Squad (CCIS). The CCIS was formed as a direct result of the Wah Mee Massacre -- to help work with the Asian community to crack down on gangs, crime, and extortion. The CCIS was met with cooperation from the Asian community. Despite what the Times had reported, Chinatown was not filled with "shadowy tongs" and "violent hoodlums." The tragedy at Wah Mee had a lasting effect on the community, and much of the Chinatown community wanted to combat crime and violence. Remarking on the Asian community's enthusiasm for CCIS, Police Chief Fitzsimons commented, "This is a very good indication of the kind of cooperation that the police are getting with the Asian community."

Seattle police Detective Gary Fowler remarked, "[Wah Mee] actually had sort of a positive effect. Community leaders came forward to help us in ways we'd never seen before. Henry Locke (head of one of the Chinatown associations) was less concerned about catching bad guys than helping police get in touch with the community. If we needed to get in touch with a witness or get a phone number or get a translator, he helped. It was a role you couldn't assign anyone to and he continued in that role afterward. Many of these people were shy originally about having a relationship with me or my contemporaries, not because they were doing anything wrong, but because that was how it was in the community."

Seattle City Councilwoman Cheryl Chow remarked, "There have been many positive things people have done [in the community]." Chow, daughter of Ruby Chow (a Wah Mee notable during the 1940s who was also called upon shortly after the murders to help translate conversations and identify victims), added, "The community has concentrated on…making residents aware of the services that are available to them and on keeping [Chinatown] a place people from all over the city want to visit. The [Chinese] community is beginning to work with institutions that weren't always friendly to our grandparents. Remember, immigrants coming from war-torn countries are used to seeing officials that are corrupt."

In the late-1980s, Seattle was marked by many violent crimes involving gangs. It was actually a national epidemic, with a very visible emergence of Skinheads, Vice Lords, Black Gangster Disciples, Bloods, Crips, and the Japanese Mafia. No later than the mid-1980s, every major West Coast city formed a gang detail to combat gangs. Summer 1987 was particularly rich in Seattle gang violence. In that year, ninety-two members of three separate gangs were arrested for everything from loitering to felony violations involving weapons, narcotics, and auto theft. Gang members were responsible for three killings that year -- two near Garfield High School and one in the Yesler Terrace housing project.

"It's 'West Side Story' with machine guns," commented Seattle Police Detective Tommy Helms. Police began turning up sawed-off shotguns and semi-automatic firearms. Gangs dealing in drugs posed the biggest problems. "There is almost a mathematical correlation between drugs and other crime," observed Helms. "Five-hundred thousand dollars worth of crack cocaine brought in from Los Angeles means seven-million dollars must be begged, borrowed, or stolen by users at the street level."

The more notable instances of gang violence in Seattle involved the Vietnamese. In April 1985 several Vietnamese youths used chains and pool cues to smash a window and countertop in a small family-run pool hall, restaurant, and bookstore in the Rainier Valley. Vietnamese gangs were attempting to extort Vietnamese business owners in South Seattle, but with little success. In the instance of the Rainier Valley merchant, because he refused to pay the $200 demanded by the hoodlums, none of the other businesses would pay the fee. "If I pay [them]," the man commented, "then others have to [pay them]."

Seattle Police Lieutenant Mike Germann confirmed such, remarking, "Extortion has to be stopped early or not at all. Once it gets started and the cash starts flowing, it's not going to stop." But Vietnamese business owners didn't want to be viewed as the kind who go to the police. "They prefer to handle such problems through the parents of the youths or through community groups," Germann observed. "[But] we encourage them to report those things right away rather than wait and see what happens. We would like to catch the [youths] red-handed instead of after the fact. That makes for a better case."

Small businesses owned by Vietnamese were especially vulnerable to extortion because they were often run by family members, making the wives, sons, daughters, or other relatives possible targets of violence. Less than one month prior to the Rainier Valley incident, Vietnamese-owned restaurants and pharmacies also fell prey to extortion attempts.

In early-June 1987, seven home robberies involving Asian Americans occurred. In one instance, four Asian youths wielding handguns tied and robbed eleven members of a Vietnamese Bellevue family -- a wealthy family that owned a restaurant in Seattle. The youths entered the home through an upstairs bedroom shortly after 3:00 a.m. They cut the phone lines and questioned the family about its money and jewelry. The home was looted. The thieves fled. One family member freed himself. He called the police from a neighbor's telephone.

In another instance, five Vietnamese youths wearing black leather jackets and dark pants entered a Cantonese family's home and proceeded to hog-tie and rob the victims.

The CCIS proved effective during this rash of Vietnamese crimes. In less than three months, charges of first-degree robbery, conspiracy to commit robbery, and first-degree kidnapping were filed against three young Vietnamese men. Two suspects were being held in California. Another suspect, a fourteen-year-old boy, was held at the King County youth center.

The CCIS was credited for halting extortion attempts on Vietnamese business owners. Two of the youths charged in the Rainier Valley incident were charged with assault; another with threatening the owner after the arrests. The CCIS also began to keep track of young Asian criminals who jumped from city to city, depending on where they had gotten into trouble. "We are aware of activity of those coming from out of State," said Police Lieutenant Roy Gleason. The CCIS also worked hand-in-hand with the International Rescue Committee, and organized a conference in May 1987 to discuss law enforcement and the Southeast Asian community. One-hundred-and-fifteen people attended the conference; half law-enforcement officials and half Southeast Asians.

DESPITE THE PRISON sentences handed to Willie Mak, Benjamin Ng, and Tony Ng, the three men continued to appear in Seattle newspapers. After each of the trials, attorneys for the accused appealed their clients' cases.

Benjamin Ng's attorneys appealed his case on several merits.

First, Ng's attorneys believed the trial court erred by denying their motion to suppress evidence. They believed that, because a police officer was placed in front of Ng's bedroom door while a warrant was obtained, the police engaged in an unreasonable seizure of the bedroom. They argued that, although the Izumi family allowed the officers in their home and extended an invitation to search the residence, they never received permission from Ng to search Ng's bedroom. At Ng's trial, the court denied Ng's motion that the evidence be suppressed; they countered that securing the bedroom was a reasonable action because it was "minimally intrusive and served to preserve evidence of a recent violent crime." Furthermore, when authorities arrived at the Izumi residence (where Ng was sleeping with Kennis in her bedroom), George Izumi (Kennis's father) offered to allow the police to search his entire home. Major Douglass, who was the lead investigator, testified in court that he declined this invitation in favor of "[a] little more conservative approach to make certain we didn't err in any way." Responding to this aspect of Ng's appeal, the appellate judges decided that the seizure was lawful and that "the police needed only probable cause to impound the bedroom while a warrant was being secured. Because probable cause clearly existed and the warrant was obtained expeditiously, the seizure was reasonable."

Second, Ng argued that the trial court erred by refusing to admit a statement of admission made by Willie Mak. Shortly after Mak was arrested, he told Sergeant Sanford, "I did all the shooting." Later, Mak repudiated the statement. Mak's statement was inculpatory. Ng's attorneys cited ER 805(b)(3) which clearly states, "A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." This means Mak's statement could only be admissible if Mak believed the statement to be true and, furthermore, the statement could be corroborated. Mak obviously didn't believe the statement to be true for several reasons. First, he made the statement while trying to cut a deal with Sergeant Sanford. He told the Sergeant, "If I identify the third man, I'm dead." Then he said, "There is no third man, and I did all the shooting." Furthermore, he indicated that he drove a Pontiac on the evening of the killings, when actually he borrowed his nephew's Opal. Mak was cornered at the time, trying to find a way out, and his statements could not be corroborated nor were they trustworthy. The appellate judges concluded, "Because the surrounding circumstances do not clearly indicate the statement's trustworthiness, the trial court did not abuse its discretion in excluding the statement."

Strike two for Benjamin Ng.

Third, Ng appealed on the merit that, because his case was a capital case, it should have been initiated by a grand jury indictment. His attorneys cited the Fifth Amendment to the United States Constitution, which states, in part, "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…." Furthermore, they contended that the due process clause of the Fourteenth Amendment made this provision binding on the states in capital cases.

The appellate judges responded, writing, "Every American court that has confronted this contention has rejected it. Over 100 years ago, the United States Supreme Court held that the grand jury provision of the Fifth Amendment does not apply to state prosecutions." Although the Due Process Clause guarantees a fair trial, it does not require the States to observe the provision for presentment or indictment by a grand jury.

Ng also argued that Judge Howard erred by refusing to sequester the jury. Ng's trial was by far the most publicized of the three. During that trial, Wai Chin's first-hand account was broadcasted and reprinted in newspapers around the world. For the first time the public could see Benjamin Ng and hear exactly what had happened at the Wah Mee Club. The media hyped the story to an audience hungry to hear it. Because of the publicity surrounding the trial, attorneys for Benjamin Ng appealed on the merit that the jury should have been sequestered to avoid developing biases toward Ng. Ng's attorneys cited CR 6.7, which states, in part, "[t]he jury may be allowed to separate if the court finds that good reason exists to believe that such would not jeopardize a fair trial."

The appellate judges decided that, to demonstrate that a trial court abused its discretion, Ng must show that (a) jurors were exposed to publicity during the trial, or (b) the publicity during the trial was so sensationally prejudicial that mere risk of exposure created a probability of prejudice.

Ng believed that a probability of prejudice was created by (a) a headline in the P-I that stated "Chinatown Confession Disclosed"; (b) an article in the Times that erroneously summarized the prosecutor's opening statement; and (c) the phone call received by one of the juror's children in which the caller asked, "Are you going to hang the gook?"

The appellate judges decided that, although the Times article contained a paragraph that misstated the prosecutor's opening statement, the underlying facts were "true and the article was not sensational." With regard to the confessional P-I headline, the appellate judges believed the "headline pertained to Mak's confession and both it, and the article to which it pertained, were factually accurate. In addition, the information that formed the basis of the article was revealed to the press by Ng's counsel after the State's motion to exclude the confession was granted." Finally, the appellate judges supported Judge Howard in his decision that no juror was prejudiced by the racist phone call placed to the juror's residence. The appellate judges concluded by writing, "Ng presents no evidence that any juror saw or heard publicity during trial….[T]he defendant has not shown a probability of prejudice, and the trial court did not abuse its discretion by refusing sequestration."

Finally, Ng contended that the prosecutor denied him due process of law by arguing during his trial that he fired the .22 Ruger and subsequently in Mak's trial that Mak fired the Ruger. Prosecutors Downing and Lasnik argued that Mak was the master planner who recruited Ng to help him carry out his plan. They never argued -- either during Ng's trial or in Mak's trial -- that Mak had fired the Ruger in question. The appellate judges did note one prosecutorial inconsistency about the weapons; during Ng's trial, the prosecutor argued that the Ruger was Ng's, but during Mak's trial, he argued that Mak purchased the gun. "Even if these arguments are inconsistent," the appellate judges wrote, "the inconsistency has no bearing on the basic issues at trial….Ng was not prejudiced by any arguments the prosecutor made in either case. Therefore, Ng was not denied due process of law."

On December 5, 1985, the appellate circuit of the Supreme Court of Washington denied Ng's appeals and prepared a written summary of their denials. "We find that Ng's arguments on appeal are without merit," the judges wrote, "and we affirm the judgement and sentence."

Benjamin Ng was out of luck.

Tony Ng appealed his sentence, too. While appeals for Benjamin Ng and Willie Mak were lengthy, Ng simply presented three appeal merits.

First, Ng argued that the trial court erred in admitting his confession. Shortly after he was apprehended in Calgary, Alberta, he confessed to Lieutenant Holter that he had hog-tied and robbed the victims at the Club. When this confession was entered as evidence, Ng argued, it violated his rights under the Fifth and Sixth Amendments to the United States Constitution.

The appellate judges disagreed. "Ng concedes that he was advised of his Miranda rights," the judges wrote, "and that he signed a written confession that stated it could later be used against him. Moreover, the record shows that Lieutenant Holter read Ng his Miranda rights in a slow, deliberate manner….Ng indicated he understood his rights and desired to make a statement about his role in the robbery and killings….We conclude that the record contains substantial evidence supporting the trial court's conclusion that Ng's confession was voluntary. We conclude that a harmless error analysis is appropriate."

Second, Ng argued that the jury's verdict convicting him of the robbery charges must be reversed because it is inconsistent with the jury's acquittal on the felony murder charges. After the sentence was handed down, both the defense and prosecution expressed some confusion about the jury's decision. Because the jury found Ng not guilty of murder due to duress, attorneys argued, they should have considered duress when deciding on robbery charges. In essence, Ng's attorney's argued, duress should have been applicable to both the murder and robbery sentences.

The appellate judges wrote, "Ng is correct that the verdicts are inconsistent. Nevertheless, we conclude that considerations of jury lenity, and problems inherent in second-guessing the jury's reasoning as to an acquittal dictate our application of the Dunn rule to this case. As the Supreme Court noted, the Dunn rule establishes 'the unreviewable power of a jury to turn a verdict of not guilty for impermissible reasons'….Consistency between verdicts on the several counts of an indictment or information is unnecessary where a defendant is convicted of one or some counts but acquitted on others. So long as sufficient evidence supports the guilty verdicts, these courts generally uphold such convictions irrespective of their rational incompatibility with the acquittals….We will not reverse on grounds that the guilty verdict is inconsistent with an acquittal on another count. Here, overwhelming evidence supports Ng's convictions for first degree robbery. The jury's acquittal of the felony murder charges is not reversible error."

Finally, Ng argued that the trial court erred in its jury instructions regarding the defense of duress. Ng argued that the court's instructions neither placed the burden of proof on the State with sufficient clarity, nor made the subjective nature of duress adequately clear to the jurors. The court's failure to include duress language in its "to convict" robbery instruction deprived him of a fair trial, particularly because the State's burden to disprove duress was unclear. Furthermore, Ng argued, the court erred by not explicitly informing the jury of the subjective nature of duress.

While the jury deliberated, it asked Judge Johnson whether duress applied to the lesser-included charges. Judge Johnson replied, "Please refer to the instructions. The court cannot provide any additional instructions or explanations." Because Ng believed that the court erred in its instructions of duress, he believed the jury could not justly decide. Because of duress, the jury did not believe Ng was responsible for any deaths at the Club. And, also because of duress, the jury tried to decide if that would make Ng responsible for the robbery. When they referred to their instructions, Ng argued, they were confused. And Judge Johnson merely told them to refer to their instructions. "We conclude that the instructions, read as a whole," the appellate judges wrote, "correctly stated the law, informed the jury as to duress and the State's burden to prove its absence, and allowed the parties to argue their theories of the case."

This was a pivotal argument and, though the appellate judges denied it initially, it was an appeal merit that Tony Ng's attorneys are presently pursuing -- a decade-and-a-half after the fact.

As did Benjamin and Tony Ng's attorneys, Willie Mak's attorneys immediately appealed their client's sentence. Mak's cause for appeal was dire because he was sitting on Death Row. Consequently, his attorneys presented more than five dozen merits for appeal.

A person sentenced to death in Washington State has three separate routes to challenge his or her sentence.

The first route is the Direct Appeal Process, where the sentence is automatically reviewed by the Washington Supreme Court and, if deemed appropriate, appealed to the United States Supreme Court. The second route is a Collateral Challenge through federal courts. It is in this process that a personal-restraint petition is filed in Washington Supreme Court. This petition challenges any aspect of the case, including conduct of trial, sentencing, and effectiveness of counsel. If additional fact-finding is necessary, the case may be sent back to trial court. If deemed appropriate, the appeal is sent to the United States Supreme Court. The third route of appeal is a collateral challenge process through federal court involving a habeas-corpus petition, which raises constitutional grounds to challenge any aspect of the conviction or sentence, is filed in United States District Court. The case is then appealed to the Ninth Circuit Court of Appeals and, if deemed appropriate, the United States Supreme Court.

Mak's most notable appeal merits included the following:

The trial court erred in admitting into evidence weapons recovered from the bedrooms of Ng and Mak, yet these weapons were not used at the Wah Mee Club. His attorneys argued that admitting such evidence was "prejudicial, inflammatory and violated his constitutional right to bear arms in self-defense." But the appellate judges found this argument without merit, as Mak had testified in court that he had conducted illegal firearm sales during other illegal activity. "There was no error," the appellate judges wrote, "evidentiary or constitutional, in admitting the firearms into evidence."

Mak's attorneys also questioned the merits of Chin's testimony. During the guilt phase of Mak's trial, the court refused to allow as evidence expert testimony on eyewitness identification. Chin became unconscious after being struck by the bullets. A defense witness, a doctor with expertise about victims of retrograde amnesia, would have testified that a) a person experiencing gaps in memory or perception fills in such gaps in order to complete the logical picture within his or her mind; b) suggestive questioning immediately following the incident influences the type of information the person uses to fill the gaps; c) post-event information is also used by the person to fill the gaps; d) the subject's confidence in his or her version of the facts increases each time it is recalled and recounted to another.

The appellate judges disagreed with this merit of appeal, and ruled, "The decision of whether or not to admit expert opinion evidence is within the discretion of the trial court, and we will not disturb a discretionary ruling of this court absent a showing of abuse. There was no abuse shown here."

Mak's attorneys also argued that Judge Howard erred by failing, near the verdict phase of his trial, to instruct the jury as to the requirement of jury unanimity. When the jury was given instructions, the final paragraph was inadvertently omitted. Said paragraph read, "Since this is a criminal case, all twelve of you must agree for you to return a verdict. When all of you have so agreed, fill in the proper form of verdict to express your decision. The foreman will sign it and notify the bailiff who will conduct you into court to declare your verdict." Furthermore, the court reporter did not indicate whether Judge Howard had even read that paragraph aloud to the jurors; it definitely wasn't included in the written instructions, and court records fail to indicate that the instructions were given orally. This, however, was not enough to sway the appellate judges. The jury was polled before the verdict was signed and sworn by the foreman. Each juror unanimously concluded that Mak was guilty and, whether the above instructions had been given, was a moot point. The appellate judges wrote, "[W]e have no doubt that in this case all twelve jurors concurred on both the general and special verdicts returned at the conclusion of the guilt phase of the case."

For each argument of appeal that Mak's defense attorneys presented, the appellate judges found them to be hands-down without merit.

Except one.

Mak's attorneys effectively appealed his death sentence. In Washington State, some District Court judges opposed the death penalty. Indeed, in three highly publicized homicide trials following those of the Wah Mee, District Court judges would overturn the death penalty for each killer. Brian Keith Lord, found guilty of raping and murdering a sixteen-year-old Poulsbo girl, had his death sentence overturned by U.S. District Judge Barbara Rothstein. Judge Rothstein ruled prosecutors were unfairly allowed to cross-examine Lord after he made a sworn statement to the jury. In another case, Benjamin Harris, convicted of killing a Tacoma mechanic, saw his conviction and death sentence overturned, and prosecutors chose not to try him again. Harris was eventually released from state custody. Finally, David Lewis Rice, accused of murdering a Seattle attorney and his family on Christmas Eve 1985, received a new trial. Rice used a toy gun to enter the Goldmark residence, then murdered the family of six. Family friends arriving for a holiday celebration found the Goldmarks in an upstairs bedroom of their Madrona home. The two adults were handcuffed, and the boys had sweaters tied tightly around their necks. All four boys had been severely beaten.

Among the nine appellate judges considering Mak's requests for appeal, one judge was of particular interest to Mak and his attorneys. Justice Utter was fundamentally opposed to the death penalty. "As I have indicated elsewhere," Justice Utter wrote in his dissenting summary, "I do not believe that our death penalty statute meets constitutional standards." Justice Utter's concern was that, if the death penalty was going to be handed down to Mak, it also should have been handed down to the Ngs. Justice Utter wrote:

"There would seem to be little that could be said that might convince a jury that one who participated in the killing of thirteen people should have his life spared. And yet, under the bizarre facts of this case, two of the three participants in this crime have been spared the death penalty. One, Tony Ng, because he escaped to Canada, could not be charged with a capital offense and be successfully extradited to the United States. The other participant, who fired most of the shots, did not receive the death penalty. Only one actor in this most brutal of all killings committed within this state, received the death penalty. The appellant here was characterized by the State as the planner, the one who orchestrated the whole event, and on this basis the State argued as one of its two distinct grounds, that he deserved the death penalty when the other participants in this crime did not."

During Mak's trial, his attorneys had tried to enter evidence that he was not the "controller" of the killings at the Club. Others had their hand in what happened and, as Mak had testified, he had only gone to the Wah Mee to "rough up" a leader of a rival tong. Furthermore, Mak testified that Benjamin Ng "lost control" and opened fire on those in the Club. Though Mak's attorneys attempted to present evidence that others participated in the killings, they were unsuccessful. Justice Utter wrote in his dissenting summary:

"The defendant attempted to introduce evidence from which he could argue someone else in fact orchestrated the crime and, in particular, that Benjamin Ng's role, as the one firing most of the shots, was more central than the prosecution had maintained. To fail to allow this evidence before the jury is something I cannot reconcile with either our statutory procedures of constitutional due process. The evidence should have been admitted in at least the penalty phase of the trial under RCW 10.95.060. It also was properly offered in the guilt phase of the trial and admissible under ER 401.

Appellant Mak's offer of proof consisted of the following evidence: 1) a third party planned to control gambling in the International District; 2) the third party contacted Benjamin Ng on the day of the Wah Mee killings; 3) the party was a "banker" for an International District gambling club that had just closed down; 4) an informant told the police that this person directed young gang members; 5) Benjamin Ng's car had been seen at person's restaurant an hour before the crime; and 6) the person offered to sell Benjamin Ng a bulletproof vest a week before the Wah Mee incident.

Without this evidence, the jury was unaware of a possible third party connection, a connection about which appellant Mak claims he was ignorant. Because the evidence, if believed, tended to decrease appellant Mak's guilt, it was relevant under the definition outlined in Renfro and ER 401….Since the…evidence was relevant, the trial court erred in refusing to receive this evidence during the sentencing phase of trial.

Had the contested evidence been admitted, it could have raised doubts about Mak's alleged autonomy and control in the crime. Because the issue of Mak's control was so central to the death penalty proceedings, the evidence of a third party's involvement in the crime was relevant both to the issue of control and the issue of premeditation. The jury itself should have been allowed to weigh that evidence in determining whether Mak should die while his accomplices live."

Justice Utter, then, feared an imbalanced sentencing. Three men were involved in the same crime, yet received separate sentences -- ranging from death to aggravated robbery. Essentially, Justice Utter was saying, if you are going to impose the death penalty, you should impose it on all the parties involved.

As much as Justice Utter disagreed with his colleagues, majority ruled, and Mak's sentence was not overturned. But it was enough to volley Mak's appeals through the appellate court system for more than a decade. Finally, almost a decade after the killings at the Wah Mee, the case would reach District Court Judge William Dwyer.

It would be the best thing to happen to Willie Mak.

Judge Dwyer was a Pacific Northwest native. He was born in Olympia, Washington, and attended Queen Anne High School and the University of Washington. He spent thirty years as a trial attorney in Seattle. In 1976 he helped to arrange a settlement that would help bring the Mariners baseball team to Seattle. Dwyer, a Democrat, was nominated to fill a vacant federal judgeship in 1986 -- an appointment that sparked a political fight. Washington Senator Slade Gorton, a supporter of Dwyer, persuaded President Reagan to continue with his nomination and Dwyer was appointed United States District Court Judge.

As a Federal Judge, Dwyer presided over some of Washington State's most prominent legal cases. In a 1991 ruling that sparked controversy, he banned most new timber sales in the Northwest, declaring that the U.S. Forest Service hadn't complied with environmental laws requiring protection of the northern spotted owl and other wildlife. And he sparked a reshuffling in King County government when he ruled the makeup of the old Metro Council was unconstitutional.

Sadly, in 1997, Judge Dwyer would announce that he had been diagnosed with early Parkinson's disease and would ask to cut back to part-time senior status. "They tell me that lots of people with this condition continue working for a long time," Judge Dwyer wrote, in a letter to President Clinton. "I've had a phenomenal run of long, good luck, in all aspects of my life, for many years."

Mak's case reached Judge Dwyer in late-1990. Whereas Mak's previous appeals were flooded with merits, Mak's attorneys approached Judge Dwyer with only one merit: He received inadequate defense. In reviewing Mak's case, Judge Dwyer noted:

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

Mak argued that, during the sentencing phase of his trial, his attorneys failed to present mitigating evidence that may have dissuaded the jury from choosing the death penalty. During Benjamin Ng's sentencing phase, defense attorney Browne brought Ng's mother to the stand to testify that her son was slapped as a small boy. Browne argued that this lashing resulting in a "broken arm of the brain" and had psychologically adverse affects on his client. The jury was moved sufficiently by Mrs. Ng's tearful testimony to consider it applicable to Ng's sentencing. Ng was thus spared the death penalty.

When Mak's attorneys were preparing for trial, they focused solely on the verdict phase of the trial, and were unprepared for the sentencing phase. Moreover, the sentencing phase commenced only hours after the verdict phase. In essence, Mak's attorneys had no time to prepare. When Mak's attorneys were asked whether they had any evidence or witnesses to present during the sentencing phase, they brought one eye-witness expert to the stand in hopes of discrediting Wai Chin's testimony. When this was unsuccessful, Mak's defense rested.

Yet, in reality, there was ample mitigating evidence. In his summary, Judge Dwyer noted:

"There was substantial and important mitigating evidence readily available. The testimony of family members and others could have been offered to show that [Mak] was the beloved youngest son of a traditional Chinese family; that he had been a good student and dutiful son in Hong Kong; that after coming to this country he did well in citizenship, and in some school subjects, for the first few years; that he worked and gave money to the family; that he helped his parents in other ways; that he was kind to other members of the extended family; and that he was a 'favorite uncle' to young nieces and nephews."

Judge Dwyer decided the above after family members provided depositions during the appellate stages of Mak's case. Mak's parents, Yen Sou Mak and Won Hoi Wong, declared during these depositions that Willie Mak was "a good son" who "never presented any disciplinary problems." They also provided the young man's exemplary school certificates and awards.

Mak's father was questioned during his deposition:

Q: You still believe that your son is innocent of these crimes, don't you?

A: I trust my son. I do not think he has done something like this, and he is so (obedient and respectful) to us all these years.

Q: It is your position Kwan Fai always told you the truth?

A: He never lied to me. Everything he told me is the truth.

Mak's nephew testified during his deposition that Mak was a "quiet person" with a "mellow personality." Mak was a "good" family member who had a "very close parent-son relationship."

Mak's sister-in-law testified, "I saw [Mak] all the time. Like, when I first got [to the United States], I did not know how to drive, and he was who took me to work [sic] and took we [sic] back home. A lot of times he took my kids to play. He's a good guy."

Judge Dwyer wrote, "Benjamin Ng, tried earlier by a different jury, was the subject of evidence in mitigation, including the testimony of his mother. [Mak] did not have the benefit of such evidence, although it was available. It is impossible to know with certainty whether the mitigating evidence would have changed the outcome, but it very well might have -- especially since the death penalty could not be imposed if even one juror was not convinced beyond a reasonable doubt that it should be. There is thus a reasonable probability that, but for the deprivation of counsel's effective assistance at the penalty phase, the result would have been different."

Mak's defense attorneys planned to present evidence that the Hop Sing tong's youth leader either "directed or set in motion" the massacre at the Wah Mee -- hoping to present some form of a duress aspect. However, the court ruled this evidence inadmissible. Had Mak's family members been called to testify during the sentencing phase of the trial, they would have conveyed Mak's likeable characteristics to otherwise skeptical jurors.

Were Mak's defense attorneys inept? Judge Dwyer did not believe so, though he did have his reservations about their assignment to this case. Judge Dwyer wrote, "Neither Mr. Madsen nor Mr. Robinson had any capital trial experience at the time. Each had tried only one murder case. Mr. Madsen had been out of law school about four years, and Mr. Robinson just over three years, and both had begun work at ACA (Associated Counsel for the Accused) soon after being admitted to the bar….Their failure to gather and present mitigating evidence was not in any way calculated or purposeful, nor were counsel lacking in devotion to their client's cause. The failure was the result, rather, of a combination of their inexperience, the short time available to them to get ready to prepare for trial after their belated appointment, the cultural and linguistic barriers they failed to surmount, the pressure of events, and their single-minded concentration on the guilt phase."

Judge Dwyer concluded: "[Mak] was deprived of his Sixth Amendment right to the effective assistance of counsel when his trial attorneys failed to present readily available mitigating evidence at his sentencing hearing….The petition is therefore granted as to the sentence of death, and the sentence is vacated."

Mak's life was spared -- and just in time. Five days before his scheduled execution, Judge Dwyer ordered a stay while he reviewed Mak's requests. The judge had concluded that Mak had indeed received inadequate legal defense.

In 1992 Mak was removed from Death Row by Dwyer's directive and given a new sentence -- life in prison without the possibility of parole.

Chapter Fifteen | "There was nothing else like this -- nothing so horrible -- in Seattle."

This story originally appeared as a serialized feature in Asian Focus newspaper