I love being a criminal defense lawyer. Two imperatives alone govern: the duties of zealous advocacy and of candor toward the tribunal. It must be Hell on the prosecution side of aisle. Imagine the burden of having to do justice, too?
Question? Is it unjust to present inconsistent prosecution theories?
The California Supreme Court thinks so, and it just rapped the knuckles of Los Angeles County Deputy District Attorney Steven Ipsen. Why? He prosecuted two capital cases involving one murder. To the first jury, Ipsen presented evidence that one defendant wielded the fatal hatchet blow. Another jury got another version, someone else did the chopping. Capital Twofer
The two theories were inconsistent.
Of course, the California Court was only half outraged. They overturned the death sentence of one man, but let the other conviction stand. Does that mean it's all right to be unjust half the time? Or did the jurists decide which defendant they disliked more?
Also stunning in this case is the failure of imagination on the prosecutor's part. Apparently, he charged both men as principals. Does aiding and abetting not exist in California?
Oh, that some Supreme Court somewhere would take as exacting a look at prosecutorial use of conspiracy charges. You know the drill. Target a drug gang and then arrest several dozen people. Flip those marginally involved into justice's frying pan and then saute the kingpin. I suspect that often in big conspiracy cases prosecutors are clueless about who did what to whom.
Frankly, I am not outraged by Ipsen's creativity. We plead in the alternative all the time in civil cases. Oh, I know, criminal defense is different and in the high-stakes forum of capital litigation, death's difference should yield different rules.
But do we ever really know what happened in the cases we try? We interview witnesses, hire experts and then cross-examine everything that breaths. In the end, we approximate truth and hope to get it right.
