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An Ohio murder case in which the prosecutor secured two separate convictions by using irreconcilable theories that each defendant fired the fatal shot has prompted the U.S. Supreme Court to consider whether that violates due process protections. The use of inconsistent theories to gain convictions of two defendants for an action only one could have committed occurs more frequently than might be expected. The pending appeal in the Washington-area sniper shootings challenges the use of inconsistent theories against John Allen Muhammad by prosecutors in two separate counties. “As long as courts allow the people involved to take inconsistent positions and say it is not a problem, then there is no solution,” said Muhammad’s co-counsel, Peter Greenspun of Fairfax, Va.’s Greenspun & Mann. Moreover, the California Supreme Court overturned a death sentence two weeks ago because the prosecutor told separate juries that each defendant supplied the murderous hatchet blows. In re Sakarias, No. S082299. And a South Carolina appeals court heard arguments on March 9 on a similar question in a noncapital case. State v. Edwards, No. 13322. In a half-dozen death penalty cases in California alone, the question has been raised in defense appeals in recent years. In one of those cases, the defendant was executed without a resolution to the constitutional question raised by conflicting prosecution theories. In 2003, a Tennessee state court wrote, “no uniform body of law exists for addressing the issue.” State v. Gregory Robinson, 146 S.W.3d 469. Changes in the wind The U.S. Supreme Court has never held the practice unconstitutional or given much guidance to courts dealing with the dilemma. But that could change. The high court agreed to re-examine the 6th U.S. Circuit Court of Appeals decision last year that prosecutors violated John Stumpf’s due process rights in the Ohio murder case because of the inconsistent claims used to convict Stumpf and his co-defendant. Bradford v. Stumpf, No. 04-637. “The danger with these inconsistent positions is that the wrong person will end up executed or convicted,” said Alan Freedman, an attorney with the Midwest Center for Justice in Chicago who is Stumpf’s lawyer. “We want a search for the truth,” he said. In 1984, Stumpf and Clyde Wesley shot an Ohio couple that let the pair inside their home to use a telephone. Norman Stout survived. His wife, Mary Jane, did not. The prosecutors told a three-judge Ohio panel considering the reliability of Stumpf’s guilty plea that he fired the shots that killed Mary Jane. Stumpf received a death sentence. But during Wesley’s trial a year later, the state used a jailhouse informant who testified that Wesley, not Stumpf, fired the deadly shots. Wesley’s cellmate testified that Wesley said Stumpf shot Norman in the face then dropped the gun and ran. Wesley then picked up the weapon and killed Mary Jane, according to the informant. Wesley was convicted and sentenced to life in prison. When Stumpf tried to withdraw his guilty plea on the basis of Wesley’s conviction, the state opposed the motion, arguing that the informant’s testimony was unreliable. Ohio Deputy Solicitor Diane Brey, who is handling the Stumpf appeal, said she finds nothing improper in the case and doesn’t see the government assertions as inconsistent. The evidence against the co-defendant was not available at the time Stumpf pleaded guilty, she said. “Either or both could have been liable and death-eligible,” she said. Brey declined to speculate about how the high court might fashion a means to cure the inconsistency problem. “I would hesitate to announce a broad rule,” she said. Some lawyers expressed concerns that prosecutors’ regard for truth-seeking has given way to an attitude of win at all costs. “When I was a young lawyer, prosecutors were taught, and were duty bound, to do the right thing,” said Gerald B. Lefcourt, a New York City criminal defense attorney and former president of the National Association of Criminal Defense Lawyers. “Now all the prosecution cares about is winning. They have become adversaries in the true sense of the word. This is an example of that change,” he said. Richard Wintory, a deputy county attorney in Tucson, Ariz., and a vice president of the National District Attorneys Association, agreed that prosecutors have an obligation not to cross an ethical line, but he did not see a due process violation. “There is an ethical issue. It is not the way [prosecutors] should approach their job,” he said. But he added, “Defense lawyers grab due process like a pool cue in a bar fight.” If both defendants are legally culpable, “then I don’t see how there is a due process violation,” Wintory said. Just what limits the Supreme Court may impose, if any, on prosecutors remains an open question. “The current Supreme Court is not very receptive to fairness-based arguments,” said Anne Bowen Poulin, a professor at Villanova University School of Law. She has written about the problem of inconsistent prosecution theories and offered legal remedies to curb the conduct. She suggested that judges could force prosecutors to stick to the first theory they present, barring a contradictory one in a subsequent trial by expanding use of collateral estoppel in criminal proceedings. She also proposed the use of judicial estoppel to expand judicial authority to prevent the presentation of irreconcilable prosecution theories. But few courts have expressed interest in those options. Lefcourt said that in New York a judge has the power to dismiss a case in the interest of justice. But, he added, “I don’t think collateral estoppel works much.” He said a prosecutor could take a legitimately inconsistent position after discovering the first one was wrong. The 6th Circuit, in Stumpf, said the proper standard under a due process claim was to consider whether there was a “reasonable probability” that the prosecutor’s use of an inconsistent theory left the conviction unreliable. That would place the review on the same plane as tests for ineffectiveness of counsel or claims that the prosecution is withholding exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). In a 1979 per curium decision, the U.S. Supreme Court overturned a death sentence in a rape and murder case because hearsay evidence was excluded from the sentencing phase of the defendant’s trial-even though those statements indicated a co-defendant was the killer. The Georgia Supreme Court held that it violated Georgia hearsay rules to allow the statement to be used during the sentencing. The high court found that the hearsay rule “may not be applied mechanistically to defeat the ends of justice.” That decision contained a lone dissent by then-Justice William H. Rehnquist. Green v. Georgia, 442 U.S. 95. A disturbing case One of the most disturbing of the cases came in 1998, when California executed Tommy Thompson without the Supreme Court resolving the constitutional questions raised by two competing murder theories in his case. Two informants testified in Thompson’s trial that he had confessed to the rape and murder of a woman in Orange County in 1981 and that David Leitch, the victim’s former boyfriend, helped dispose of the body. But in Leitch’s trial, the prosecutor held out Leitch as the killer who wanted to get rid of his girlfriend so he could reconcile with his wife and recruited Thompson to help. Leitch was convicted of second-degree murder. The 9th Circuit ruled that the inconsistent theories in his case constituted a due process violation and would have overturned his death sentence. But the appeals court missed a procedural deadline to rehear the case en banc, and the Supreme Court vacated the decision on a procedural basis. Thompson v. Calderon, 523 U.S. 538 (1997). In his dissent from the 11-judge en banc panel decision, Judge Alex Kozinski wrote, “Whether or not the United States Constitution allows them to argue inconsistent theories to different juries, it surely does not inspire public confidence in our criminal justice system for prosecutors to leave themselves open to charges of manipulation.” The circuits have differed in approach. The 8th Circuit found a due process violation by a prosecutor who used witnesses’ contradictory statements to advantage in separate cases, Smith v. Groose, 205 F.3d 1045 (2000). But the 11th Circuit in Atlanta found it proper for prosecutors to argue in three separate trials that each defendant shot the victim. Parker v. Singletary, 974 F.2d 1562 (1992). Wintory said he hopes for a clear-cut Supreme Court decision: He doesn’t want prosecutors to have a ruling that requires case-by-case review.

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