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Bringing killers to justice is one thing, but doing so by knowingly presenting false evidence is another. That seemed to sum up the feelings of the California Supreme Court on Tuesday during oral arguments in a case in which a Los Angeles County prosecutor is accused of arguing contradictory theories in separate trials in order to win death sentences against two men. Deputy DA Steven Ipsen had argued that each of two former Soviet soldiers struck the fatal hatchet blow that killed a woman in her North Hollywood home 16 years ago. “Is that possible — that they both could have delivered those blows?” Justice Ming Chin asked L.A.-based Deputy Attorney General Michael Keller, acting as co-counsel with L.A. County Deputy DA Hyman Sisman. Chief Justice Ronald George weighed in by saying that Ipsen won conviction in both cases by hammering home his allegation that each man was the actual killer. “We’re talking about the critical factor at trial,” he said. “The question is, who merits the death penalty and who doesn’t?” The case was argued in an auditorium at the Joan B. Kroc Institute of Peace & Justice during a special session honoring the 50th anniversary of the University of San Diego School of Law. Security at the institute was tight, with a heavy police presence, a metal detector and bomb-sniffing dogs. More than 1,000 high school and college students watched the argument either in person, by video in adjacent rooms or in classrooms via the California Channel. What the kids heard were arguments concerning an especially grisly killing — one that Justice Marvin Baxter called “a horrendous murder, as bad as any I’ve ever seen.” The case centered on Peter Sakarias and Tauno Waidla, who were sentenced to death for murdering Viivi Piirisild, an Estonian-American woman who had tried to help the two young men adjust to life in the United States after they escaped the Soviet Army. The relationship eventually soured, and Sakarias and Waidla ambushed Piirisild at her home. She died from several stab wounds and three chopping wounds from a hatchet. There was testimony that the life-ending blow cut off the top of her head. At the first of two separate court trials, Ipsen, who’s also a State Bar governor, argued that Waidla struck the death blow with the hatchet during the initial attack in the woman’s living room. But in a subsequent trial, he argued that Sakarias had inflicted the mortal wound after dragging the victim into her bedroom. After an evidentiary hearing ordered by the Supreme Court, a Los Angeles County Superior Court judge found that Ipsen had deliberately — and inappropriately — argued inconsistent theories in order to secure death sentences in both cases. The AG’s and DA’s offices have argued that prosecutors are entitled to rely on mutually exclusive theories at related trials as long as both are consistent with the physical evidence and the prosecutor doesn’t have reason to believe either is untrue. It was impossible, they argued Tuesday, for Ipsen to really know exactly who dealt the final murderous hit. That logic didn’t fare well on Tuesday. “If something’s impossible,” Chief Justice George asked, “is that the equivalent of knowing something is false?” Justice Kathryn Mickle Werdegar asked whether a prosecutor is “authorized to manipulate the evidence at each trial?” According to court records, Ipsen had left out evidence at the second trial that might have helped Sakarias. But Deputy AG Keller said there is a distinction between omitting evidence and presenting false evidence. Justice Carlos Moreno asked what the prosecutor would have done if the trials hadn’t been held separately. Keller said he should have focused on the most culpable defendant, but sought the death penalty for both because each had a hand in the crime. “So,” Moreno asked, “why couldn’t he have argued that in the separate trials?” Keller and Deputy DA Sisman seemed cornered at every move. When Sisman noted that Waidla was tried separately because of security concerns about Sakarias, the chief justice said Ipsen apparently “took advantage” of the separate trials to present inconsistent facts. When Sisman indicated that Ipsen had engaged in “hyperbole” by referring to an actual death blow — something that was unknowable in fact — Justice Chin pointed out that prosecutors still tried to saddle both men with the murder. “You see nothing wrong with that?” he asked. The court’s reaction, however, doesn’t necessarily mean that both men will get new trials or reduced sentences. The inconsistent theory didn’t arise until the second trial, Justice Joyce Kennard told L.A.-based federal Public Defender Sean Kennedy, who represented Waidla, so the court could reach different conclusions for each man. Sakarias was represented by San Francisco lawyer Cliff Gardner. The cases are In re Sakarias, S082299, and In re Waidla, S102401. The court has 90 days in which to rule. Later in the day, the high court tackled a case that has gone from a scintillating fight over a man and woman’s e-mail attack against their former employer to a soul-draining discussion over a narrow issue regarding appellate procedure. Michelangelo Delfino, who was fired from Varian Medical Systems in 1998, and his friend Mary Day, who resigned two months later, were sued after posting dozens of negative Internet messages about Varian and some of its executives. Delfino and Day eventually filed an anti-SLAPP motion — strategic lawsuit against public participation — claiming that the company was trying to impede their speech. The trial court denied the motion, as did the appeal court. A jury later awarded Varian $775,000. Delfino and Day argued that the judgment couldn’t stand, claiming that their first appeal of the denial of their anti-SLAPP motion should have stayed all proceedings. San Jose’s 6th District Court of Appeal disagreed, despite a 2002 2nd District decision � Mattel v. Luce, Forward, Hamilton & Scripps, 99 Cal.App.4th 1179 � saying just the opposite. On Tuesday, Joyce Kennard was the only justice who posed multiple questions. She seemed to have problems with the 6th District ruling, pointing out that the plain language of the anti-SLAPP statute seems to imply an automatic stay of all trial court proceedings when an anti-SLAPP motion is appealed. Menlo Park lawyer Lynne Hermle, who represented Varian, argued that such a ruling would result in reams of frivolous appeals aimed at simply stalling the process. She also argued that the state Legislature originally included an automatic stay in the anti-SLAPP statute, but pulled it before putting the statute into law. “That,” she said, “is the clear statement of the legislative intent.” Delfino and Day were represented by Jeremy Rosen, of Encino’s Horvitz & Levy. The case is Varian Medical Systems v. Delfino, S121400.

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