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Prosecutors like win-win situations. However, ethical lines can be crossed when a prosecutor uses inconsistent factual theories in separate trials of co-defendants. As the recent case, In re Sakarias, 2005 DJDAR 2558 (Calif. Mar. 3, 2005), demonstrates, if a prosecutor argues in one trial that a particular defendant delivered the fatal blow, that prosecutor cannot then argue to a different jury that it was another defendant who actually struck the fatal blow. “A criminal prosecutor’s function ‘is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of the criminal prosecution and trial.’ ” Sakarias at 2563, quoting United States v. Kattar, 840 F.2d 118, 127 (1st Cir. 1988). In Sakarias, Peter Sakarias and Tauno Waidla were charged with first-degree murder with special circumstances for the brutal killing of Viivi Piirisild. Viivi was stabbed and hacked to death in a brutal attack involving a hatchet and knife. The trials of the two defendants were severed when Sakarias was found incompetent to stand trial. The prosecutors then proceeded against Waidla and sought the death penalty. During the penalty phase of Waidla’s trial, the prosecutor argued that Waidla struck the first, antemortem blow with a hatchet blade and that Sakarias inflicted the two post-mortem chopping wounds. By the prosecutor’s theory, Waidla was the true killer because he hacked Viivi to death with the hatchet blade. When Sakarias regained competency, the same prosecutor tried Sakarias for Piirisild’s murder. This time, the prosecutor claimed that Sakarias, not Waidla, inflicted the fatal wounds. To make this inconsistent theory believable, the prosecutor intentionally omitted evidence showing Sakarias to be the actual killer. Whereas at Waidla’s trial the prosecutor argued Waidla was the dominant actor, at Sakarias’ trial he argued the opposite. Both Sakarias and Waidla were found guilty by juries and sentenced to death. The defendants’ convictions were affirmed by the California Supreme Court, but it ordered that a special referee be appointed for their habeas corpus claims to determine whether the prosecutor intentionally presented inconsistent factual theories at trial. After holding a hearing and reviewing the trial transcripts, the referee found that “[the prosecutor's] inconsistent factual theories to the juries in the trials of Waidla and Sakarias was an intentional strategic decision designed to fit the evidence [the prosecutor] presented at the successive trials, to meet the proffered defense theories, and to maximize the portrayal of each defendant’s culpability.” Sakarias at 2560. In its review of the habeas petition, the California Supreme Court relied heavily upon the referee’s findings that the prosecutor had intentionally argued inconsistent theories in obtaining the death penalty against each defendant. Yet those findings did not answer the key question before the court: Whether it is improper for a prosecutor to rely on inconsistent theories when prosecuting co-defendants. The U.S. Supreme Court has never held that it is unconstitutional to use inconsistent theories in prosecuting defendants. It has held, however, that inconsistent verdicts in criminal cases will generally be upheld. See, e.g., Standefer v. United States, 447 U.S. 10 (1980). However, lower courts have slowly been coming to a consensus that it is wrong for prosecutors to rely upon inconsistent theories in prosecuting defendants. For example, in Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000), the prosecutors used inconsistent theories in prosecuting two defendants who were charged with burglary and felony-murder. In the trial of the first defendant, the prosecutor claimed that the defendant’s own group of burglars had killed the occupants. However, in the trial of the second defendant (who had not been a member of the group but had arrived later), the prosecutor shifted theories and argued that the second defendant committed the killing. Although felony murder law holds all co-felons responsible for the death of a victim, the court was troubled that the prosecutor shifted theories between trials. As the court noted, “In short, what the State claimed to be true in [the first defendant's case] it rejected in [the second defendant's case] and vice versa.” Id. at 1050. In reversing the convictions, the Smith court concluded, “the use of inherently factually contradictory theories violates the principles of due process.” Id. at 1052. Basic notions of fairness require that prosecutors engage in a search for the truth and not tailor their strategies simply to win. Other courts have reached similar conclusions. See, e.g., United States v. Butner, 2000 WL 1842410, 15-17 (W.D. Mo. 2000) (following Smith); Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997), rev’d on other grounds sub nom. Calderon v. Thompson, 523 U.S. 538 (1998) (en banc court noted that inconsistent prosecutorial theories may present a due process violation). Last year, the 6th U.S. Circuit Court of Appeals held in Stumpf v. Mitchell, 367 F.3d 594 (6th Cir. 2004), cert. granted sub nom. Mitchell v. Stumpf, 125 S. Ct. 824 (2005), that “the use of inconsistent, irreconcilable theories to convict two defendants for the same crime is a due process violation.” Id. at 611. As the Sakarias court noted, the vice that rests in arguing two inconsistent and irreconcilable theories is that one must be false. Ethically, all lawyers have a duty to seek justice, not just a conviction. ABA Model Rule 3.3(a)(1) provides that a lawyer “shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” Moreover, prosecutors have a special duty. Even if a prosecutor might claim that he does not “know” for certain whether his argument is false, he has a special duty to seek justice. See ABA Model Code Prof. Responsibility, EC 7-13. “A criminal prosecutor’s function ‘is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of the criminal prosecution or trial.’ ” Sakarias at 2563, quoting U.S. v. Kattar, 840 F.2d 118, 127 (1st Cir. 1988). As many judges have noted, even if courts do not believe inconsistent positions, by themselves, constitute constitutional error, it is “disturbing to see the Justice Department change the color of its stripes to such a significant degree . . . depending on the strategic necessities of the separate litigations.” Kattar, 840 F.2d at 127. See also Thompson, supra, 120 F.3d at 1072 (Kozinski, J., dissenting) (prosecutors do not inspire public confidence in the criminal justice system when they rely upon inconsistent factual theories). There is a special danger when prosecutors intentionally rely on inconsistent and irreconcilable theories, particularly to obtain death sentences. While it is true that co-felons are both responsible for any death that occurs during the commission of a felony, it matters to the jury whether the defendant was the actual killer. In death penalty cases, jurors are specifically instructed to consider the defendant’s role in the offense in determining the appropriate sentence. This does not mean that every time the prosecutor gives different emphasis to evidence that the defendants are entitled to argue a due process violation. See Haynes v. Cupp, 827 F.2d 435, 439 (9th Cir. 1987) (“variations in emphasis” not cause for reversal where “underlying theory of the case” is consistent). Also, prosecutors are free to argue to jurors that the evidence is consistent with either of two theories and that the jury is free to decide what actually happened. Cf. Parker v. Singletary, 974 F.2d 1562, 1578 (11th Cir. 1992) (uncertainty of the evidence justified prosecutor’s use of “alternate theories” in separate cases). However, when a prosecutor intentionally manipulates the evidence and an argument to craft inconsistent theories, the prosecutor runs the risk of impinging on the defendants’ right to a fair trial. Additionally, in order to obtain relief when a prosecutor has argued inconsistent theories, a defendant must demonstrate prejudice. As in Sakarias, if the court finds that the prosecution’s arguments only presented false evidence as to one defendant, the other defendant is not entitled to relief, even if the prosecutor argued inconsistent theories. Soon, the U.S. Supreme Court will have an opportunity to weigh in on this important issue. Having granted certiorari in Stumpf, the court may soon shed some light on whether a prosecutor’s inconsistent theories deprive a defendant of the right to a fair trial. In that case, the court has been asked to decide whether the due process clause requires that a defendant’s guilty plea be vacated when the state later prosecutes another person in connection with the crime and presents evidence at the second defendant’s trial that is allegedly inconsistent with the first defendant’s guilt. See Bradshaw v. Stumpf, No. 04-637 (Brief for Petitioner, filed Feb. 22, 2005). Both recent lower court decisions and legal commentaries tend to support the argument that inconsistent prosecution theories violate defendants’ due process rights. See, e.g., Anne B. Poulin, “Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get Its Story Straight,” 89 Cal. L. Rev. 1423 (2001). At minimum, prosecutors must take note that such a tactic is controversial because it smacks of game-playing. While prosecutors are not expected to know exactly what happened during the crime, they are not free to mislead the jury if they are not sure. A prosecutor’s goal must be “not simply to obtain a conviction, but to obtain a fair conviction.” Brown v. Borg, 951 F.2d 1011, 1015 (9th Cir. 1991). Laurie L. Levenson is a professor of law, William M. Rains Fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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