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An upcoming trial in Washington State may involve two defendants and two juries � at the same time. A Superior Court judge is scheduled to hold a hearing Friday about whether a mother and son should be tried together in front of two juries. Each jury would decide the fate of one of the defendants in a “dual jury” format � an unprecedented development in Washington State and rare nationwide. Prosecutors have been pushing for the dual jury, while defense lawyers have said the simultaneous trials would be difficult logistically and leave room for error. Washington v. Carlson, Nos. 01-1-038553-4 and 01-1-03854-2 (Pierce Co., Wash., Super. Ct.) Carol Carlson and her son, Daniel Carlson, were convicted in 2003 of first-degree murder of Lisa Carlson, Daniel’s wife and Carol’s daughter-in-law. An appeals court reversed the rulings, saying among other things that the trial court erroneously admitted incriminating statements the two made against each other. Because neither testified at the trial � during which both were tried together in front of one jury � the appeals court said their Sixth Amendment rights to confront witnesses were violated. Carlson v. Washington , Nos. 30435-OO-II (Wash. Ct. App.). The dual jury format most often occurs when one defendant makes a confession that implicates the other defendant. In a landmark decision in 1968, the U.S. Supreme Court said that in a joint trial, an incriminating statement of a defendant who does not testify violates the other defendant’s Sixth Amendment right to confront witnesses. Bruton v. United States, 391 U.S. 123 (1968). Difficult logistics? Prosecutors in the Carlson case have now proposed trying the two together in front of two juries. In dual jury trials, most evidence is typically heard by both juries, but each jury leaves the room when evidence is being presented that is not admissable against the client whose verdict they are rendering. Mary Robnett of the Pierce County Prosecuting Attorney’s Office did not return repeated requests for comment. Prosecutors have said a dual-jury trial would be fair and expedite the case by relieving the burden of two trials on the court system and witnesses. But Linda King, who is one of two defense lawyers representing Daniel Carlson, said the trial would not only be difficult logistically, but could be unfair. The courtrooms are not designed for two juries, and there were more than 400 exhibits admitted at the first trial, she said. “It would be very difficult to administer and there is a huge risk of compromising the fairness of the process because something may be admissible against one defendant but may not be admissible against the other,” said King, a public defender in the Department of Assigned Council in Tacoma, Wash. Raymond Thoenig of the Office of Public Defense in Tacoma, Wash., who is representing Carla Carlson, said he would not comment on the case. The New York experience While lawyers in Washington said they believe the case could lead to the state’s first dual-jury trial, such trials typically take place once a year in Suffolk County, N.Y., which even has a courtroom designed for two juries, said Steven Wilutis of Wilutis & Wilutis in Miller Place, N.Y. Wilutis has defended clients in two murder trials with dual juries, both of which led to convictions. The most recent case was in 2001. “What makes it difficult is for an attorney to remember what is said before which jury,” he said. “You have to be cognizant of what your jury heard. It can be delicate that way.” In the 2001 case, four defendants were tried at the same time, with one jury determining the fate of three of them and the other jury deciding on the fourth defendant, who had given testimony implicating the other three defendants. People v. Argentina, Nos. 371A to 371D-2000, (Suffolk Co., N.Y., Co. Ct.). Wilutis said he kept notes on each jury on separate papers to keep track of what each jury heard. Gary Schoer of the Law Office of Gary Schoer in Syosset, N.Y., who represented the defendant with the jury that was only deciding on his client’s charges, said dual juries sometimes made the trial confusing, but the process was efficient. “The judge had done it before so he had some control so it was not a logistic nightmare,” he said. The prosecutor in the case, Richard T. Dunne, said the dual-jury trial saved taxpayer money and was effective. “We worked very hard to make sure it was not confusing,” said Dunne, now an assistant county attorney in Suffolk County. “From a prosecutor’s standpoint, it was difficult because I had to do two opening statements back to back because they were done to two separate juries . . . So while it’s fairly cumbersome it’s still very efficient.” In dual-jury trials, court officials have to take extra caution to ensure the two juries are completely separate and do not interact in the courtroom or outside of it during the impaneling and the trial, said Jeffrey Frederick, director of jury research services at the National Legal Research Group in Charlottesville, Va. “It’s a very thorny issue and if you’re going to do it with dual juries, you have to do it right,” he said.

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