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State Supreme Court justices on Thursday slammed a Los Angeles County prosecutor for offering “inconsistent” theories at related murder trials and said his behavior forced them to overturn one defendant’s death sentence. The decision — 6-1, with Justice Marvin Baxter dissenting — is a victory for San Francisco solo Clifford Gardner, who represents defendant Peter Sakarias. The justices let stand the death conviction of Sakarias’ accomplice, Tauno Waidla. Los Angeles County Deputy District Attorney Steven Ipsen prosecuted both men in 1990. At issue on appeal was Ipsen’s tactical decision to present evidence to the separate juries that each man delivered a life-ending hatchet blow to the victim, Viivi Piirisild. Prosecutors acknowledged the two trial theories were inconsistent, but argued it wasn’t intentional manipulation of the evidence and could not have affected the verdicts. The majority disagreed. “The state necessarily urges conviction or an increase in culpability in one of the cases on a false factual basis, a result inconsistent with the goal of the criminal trial as a search for truth,” wrote Justice Kathryn Mickle Werdegar. She castigated Ipsen — using his name throughout the opinion — for “bad faith” use of inconsistent theories that deprived Sakarias of his due process rights. Quoting a law review article on “Prosecutorial Inconsistency,” the justices called Ipsen’s behavior an “intentional manipulation” of trial evidence. Ipsen still works for the L.A. DA’s office and also serves as a State Bar governor. He did not return a phone call and e-mail seeking comment. In a statement, L.A. District Attorney Steve Cooley said his office was reviewing the court’s decision and would take “appropriate action,” but didn’t say what that could include. “Prosecutors must be candid and truthful in all dealings with the court and counsel. Candor includes never seeking to mislead a court or jury by an intentionally false or misleading statement of fact or law,” Cooley said. Cooley’s office has not yet decided whether it will retry Sakarias’ penalty phase. Gardner, Sakarias’ attorney, said he felt “vindicated” after working on the appeal for almost a decade. “It’s a travesty that the state defended the prosecutor’s behavior [at trial] for 10 years,” Gardner said. Nathan Barankin, spokesman for Attorney General Bill Lockyer, said Gardner is wrong to characterize the AG’s work as “defending” a prosecutor. “We don’t defend a DA’s behavior; we defend judgments obtained by juries,” Barankin said. “The value of this decision is it clarifies existing case law on the propriety of arguing alternative theories.” Prior to the decision, Barankin explained, the only guideline was to avoid bad faith arguments. “By taking it to the Supreme Court, prosecutors and defense attorneys now have clear guidance on what due process protections apply,” he added. The case reached the Supreme Court on a habeas corpus petition. The justices ordered an evidentiary hearing, and a Los Angeles County Superior Court judge found that Ipsen had deliberately — and inappropriately — argued the inconsistent theories in order to secure death sentences in both cases. The case arose out of the 1988 murder of Piirisild, an Estonian-American woman who had tried to help Sakarias and Waidla — escapees from the Soviet Army — adjust to life in the United States. Piirisild took the young men into her home. But the relationship went south, and Sakarias and Waidla ambushed Piirisild, using a knife and hatchet to kill her. In his dissent, Justice Baxter said he would not vacate Sakarias’ death sentence. “The majority concede, as they must, that Sakarias’ guilt of capital murder is conclusive, and that ample evidence supports his jury’s decision to sentence him to death,” Baxter wrote, adding, “I discern no bad faith in Ipsen’s conduct. � Ipsen adhered to the well-established rule against the knowing presentation of false evidence.” Baxter said he had no problem with Ipsen’s theorizing to the jury, based on circumstantial evidence, that the life-ending hatchet chop was inflicted by one defendant at one trial and another defendant at the other. Baxter also accused the majority of treading on prosecutorial discretion. The cases are In re Sakarias and In re Waidla, 05 C.D.O.S. 1846. In a separate death case decided Thursday, Supreme Court justices absolved another prosecutor of misconduct. Defense attorneys in People v. Harrison, 05 C.D.O.S. 1857, had accused Alameda County Deputy District Attorney William Tingle of prosecutorial misconduct for, among other things, using inappropriate epithets to describe the defendant at trial and making a “biblical reference to evil.” Although the high court has criticized prosecutors for inappropriate biblical references in other cases, Tingle was not appealing to religious authority, the majority said, but rather was making a literary reference. Justices Carlos Moreno and Werdegar disagreed. In a concurrence, they said the reference amounted to misconduct. Even so, they didn’t think it was prejudicial, “given the strong evidence of defendant’s guilt.”

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