Barry Tarlow is a nationally prominent criminal defense lawyer practicing in Los Angeles, CA. He is a frequent author and lecturer on criminal law. He was formerly a prosecutor in the United States Attorney's Office and is a member of The Champion Advisory Board. The author wishes to thank Blair Bernholz Berk and Kevin Jon Heller, members of his firm, for their invaluable assistance in the preparation of this column.
Limitations on the Prosecution's Ability To Make Inconsistent Arguments in Successive Cases
Over 60 years ago, the Supreme Court recognized that "because the prosecutor is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer . . . it is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate method to bring about one." Berger v. United States, 295 U.S. 78, 88 (1960).Berger, unfortunately, has done little to prevent some prosecutors from engaging in a wide range of misconduct that can distort the fact-finding process and result in the conviction of the innocent. Particularly sordid incidents include presenting and arguing false evidence to juries, see, e.g., Miller v. Pate, 386 U.S. 1 (1967) (prosecutor described a pair of men's underwear as "bloody shorts," even though he knew the stains were paint, not blood), providing informers and witnesses with overwhelming incentives to perjure themselves and then withholding that crucial impeachment information from the defense, see, e.g., United States v. Andrews, 824 F. Supp. 1273 (N.D. Ill. 1993) (prosecution did not disclose to defense that its incarcerated informers had testified positive for drug use; that witnesses had sex in government offices while under guard by federal and local law-enforcement agents; that a prosecution paralegal had phone sex with a witness; and that informers were allowed to use government phones and call-forwarding services free of charge, which they may have used to contact drug suppliers), engaging in improper and highly inflammatory closing argument, see, e.g., Tyson v. Indiana, 1993 Ind. Ct. App. LEXIS 926 (Aug. 6, 1993) (prosecutor read selected portions of Justice White's partial dissent in United States v. Wade, 388 U.S. 218 (1967) to the jury, in which Justice White wrote that although "[l]aw enforcement officers have the obligation to convict the guilty and to make sure that they do not convict the innocent . . . defense counsel has no comparable obligation to ascertain or present the truth"), coercing guilty pleas by threatening to prosecute the defendant's friends and family, see, e.g., United States v. Tashjian, No. CR-88-124(B)-PAR (C.D. Cal. 1988) (prosecutors indicted wife of high-profile defendant, then attempted to coerce guilty pleas from the both by threatening to indict the husband on additional charges if the wife did not plead, and by refusing to accept a plea from one spouse without a plea from the other), and using a witness whose testimony at trial was obtained in a foreign country through torture, and who would have been returned to that country, where he faced almost-certain death, had he refused to testify falsely, see, e.g., Wang v. Reno, 837 F. Supp. 1506 (N.D. Cal. 1993), aff'd, 81 F.3d 808 (9th Cir. 1996) (district judge permanently enjoined deportation of Chinese national brought to United States by federal prosecutors to testify at a heroin-smuggling trial on the ground that he would be executed if he returned to China; Chinese police officials, who were cooperating with the prosecutors, obtained testimony of the national through beatings, sleep and food deprivation, and shocks from an electric prod; AUSA falsely denied knowing of the tactics of the Chinese police).
This list of various forms of misconduct is more illustrative than exhaustive. Indeed, in the past few years another form of troubling misconduct has emerged: namely, the increasingly common prosecution practice of using irreconcilable fact-based arguments in successive trials to convict two defendants of the same crime.
Consider, for example, two recent cases involving the fatal shooting of an Asian man in Torrance, California. Although the defendants, John Patrick Winkelman and Stephen Edmond Davis, were jointly tried, their cases were decided by separate juries that heard different portions of the state's case. At Winkelman's trial, the prosecutor, Todd Rubenstein, argued to the jury that "[i]t is unrefuted that Winkelman [was] the actual killer." The very next day, however, Rubenstein argued to Davis' jury that it was "quite clear" that Davis was the actual killer. Both men were convicted; Winkelman was sentenced to life in prison without possibility of parole. Alan Abrahamson, Conviction Upheld in One-Bullet Case, L.A. Times, June 7, 1997, at B1, B8.
The verdicts outraged numerous legal commentators, including Ira Reiner, the former District Attorney for Los Angeles County, who described Rubenstein's inconsistent arguments as "sophistry," the kind of argument "that could fool only a lawyer." Conviction Upheld in One-Bullet Case, supra, at B8. Nevertheless, the trial court refused to grant either Winkelman or Davis a new trial on the ground of prosecutorial misconduct.
Fortunately, there are some limitations on the ability of prosecutors to make inconsistent arguments in successive trials. Perhaps most important are two cases, United States v. GAF, 928 F.2d 1253 (2d Cir. 1991), and United States v. Salerno, 937 F.2d 797 (2d Cir. 1991) ("Salerno II"), rev'd on other grounds, 505 U.S. 317 (1992), in which the Second Circuit held that certain documents used and certain statements made by the prosecution at an earlier trial are admissible in a later trial against the prosecution as admissions of a party-opponent under Rule 801(a)(2) of the Federal Rules of Evidence.
GAF, along with its Vice-President, James T. Sherwin, were convicted after three trials of, inter alia, conspiring to violate the federal securities and anti-fraud laws, a violation of 18 U.S.C. 371, manipulating the price of the common stock of Union Carbide, a violation of 15 U.S.C. 78i(a)(2), 78ff, and 18 U.S.C. 2, and committing fraud through manipulative purchases of Union Carbide Stock, a violation of 15 U.S.C. 78j(b), 78ff, 17 C.F.R. 240.10(b)-5, and 18 U.S.C. 2.
Before the first trial, at defendants' request the prosecution filed a bill of particulars detailing the date, number of shares, price per share, of each of the transactions referred to in the portions of the indictment that alleged that the defendants had engaged in a series of transactions on a national securities exchange by fraudulent and manipulative means. According to the bill, the series of transactions was comprised of trades of Union Carbide stock on October 29 and 30, and November 6 and 7, 1986.
After the first trial ended with a mistrial because the prosecution belatedly disclosed an important expert report, the defendants were retried. The defendants argued to the jury at the second trial that because there was reasonable doubt that they were responsible for the November 6 and 7 trades -- they had presented proof that another person had made the trades, not Sherwin -- there must also be reasonable doubt that they were responsible for the October 29 and 30 trades. The prosecution, however, falsely claimed during rebuttal that the November trades were not in the indictment. At the defendant's request, the court then instructed the jury that the "series of transactions" charged in the indictment did indeed contain both the October and November transactions, and also read portions of the bill of particulars to the jury. The jury deadlocked, and another mistrial was ordered.
Prior to the third trial, the prosecution filed an amended bill of particulars that mentioned only the October transactions. During the third trial, the defense attempted to introduce the original bill of particulars, but were prevented from doing so by the trial court, which held that a bill of particulars is not a pleading and thus does not bind the government. The defense then argued, as it had at the second trial, that the jury should infer that the defendants were not responsible for the October trades from the fact that they had presented overwhelming proof that they were not responsible for the November trades.
In rebuttal, the prosecution attacked the defendants' argument, telling the jury that "[t]he defendants want you to focus on the November purchases so that you don't look at the October purchases." The prosecution identified what it believed were key differences between the two sets of purchases, and then noted that "there is another essential difference between the October purchases and the November purchases. The November purchases are not in the indictment. The October purchases are in this indictment." The prosecution also argued that "this case is not about the November trades."
On appeal after conviction, the defendants argued that the trial court erred in denying their motion to introduce the prosecution's original bill of particulars. As summarized by the court, "appellants contend that the prosecution's original version of the events, which linked the October and November trades, had been discredited at the second trial and the prosecution, therefore, deliberately adopted fundamental changes in its version of the facts in order to enhance its chance of success." 928 F.2d at 1259.
The Second Circuit agreed and reversed the convictions. The court began by noting: 1) its decision in United States v. McKeon, 738 F.2d 26 (2d Cir. 1984), in which it had refused to adopt a per se ban on the use of prior opening statements in criminal trials on the ground that "the function of trials as truth-seeking proceedings . . . cannot be affirmed if parties are free, wholly without explanation, to make fundamental changes in the version of facts within their personal knowledge between trials and to conceal these changes from the final trier of fact," id. at 31; 2) its general rule that prior pleadings are admissible as party-admissions, Andrews v. Metro-North, 882 F.2d 705 (2d Cir. 1989); and 3) its earlier suggestion in United States v. Ramirez, 894 F.2d 565 (2d Cir. 1990), that an affidavit filed in furtherance of an application for electronic eavesdropping and subsequent search may constitute an admission of a party opponent and thus may be used as such in a criminal trial by a defendant. Id. at 570 (noting that "an argument can be made that when the government advances a statement of its agent in a judicial proceeding to obtain a search warrant, the government has adopted the content of the statement, and a criminal defendant may introduce the statement as a party admission under Fed. R. Evid. 801(d)(2)(B)").
The Second Circuit then concluded that, despite the fact that a bill of particulars is not evidence in and of itself but is a statement of what the government will or will not claim in its prosecution, United States v. Murray, 297 F.2d 812, 819 (2d Cir. 1962),
[w]e think that the same considerations of fairness and maintaining the integrity of the truth-seeking function of trials that led this Court to find that the opening statements of counsel and prior pleadings constitute admissions also require that a prior inconsistent bill of particulars be considered an admission by the government in an appropriate situation. Although the government is not bound by what it previously has claimed its proof will show . . . the jury is at least entitled to know that the government at one time believed, and stated, that its proof established something different from what it currently claims.
U.S. v. GAF, 928 F.2d at 1260.
The court thus held that "if the government chooses to change its strategy at successive trials, and contradict its previous theories of the case and version of the historical facts, the jury is entitled to be aware of what the government has previously claimed, and accord whatever weight it deems appropriate to such information." Id. at 1262.Whereas GAF dealt with the admissibility of a bill of particulars as an admission of a party-opponent, the Second Circuit's decision in Salerno II dealt with the admissibility of opening and closing statements as such admissions. The defendants in Salerno II, a multi-defendant megatrial known as the "Club Case" that was related to and followed the widely-publicized "Commission Case," United States v. Salerno, 868 F.2d 524 (2d Cir. 1989) ("Salerno I"), were charged in a 35-count indictment with substantive RICO violations, RICO conspiracy, fraud in the concrete construction industry, illegal labor payoffs, attempted extortion, extortion, and illegal bookmaking. The trial itself centered on the fraud counts. The prosecution presented evidence that the defendants had participated in a scheme to rig any contracts that exceeded $2 million for concrete-superstructure work on Manhattan buildings. According to the prosecution, by gaining control over the vital elements of the concrete industry, Anthony Salerno, a.k.a. "Fat Tony," and Vincent Di Napoli, one of Salerno's co-defendants, were able to ensure that only selected contractors (the "Club") were able to bid successfully on those contracts. The Genovese family then allocated the contracts to the contractors by rigging the submitted bids, receiving 2 percent of the total value of the contract as payback.
On appeal, Nicholas Auletta, one of the contractors whom the prosecution alleged to be part of the Club, argued that the district court had abused its discretion by preventing him from presenting evidence to the jury that the prosecution had convicted him in the Club Case on a theory inconsistent with the theory that it had used to prosecute him in the Commission Case, during which the prosecution had argued that Auletta, like many of the contractors allegedly in the Club, was a victim of extortion by the members of the Commission. The following excerpt from the prosecution's closing argument in the Commission Case is illustrative:
[W]hat does Cafaro say? He tells you something that sums it up in just a phrase. Cafaro explains, "You can't really blame Nicky." Using his words, "He is like a puppet on a string."
* * *
[W]hat these gentlemen, the defense counsel, are going to try to get you to believe [i]s that this was nothing more than simply a bid-rigging scheme that was working just to the advantage of the contractors. Well, it is true, certainly, that the Club scheme involved bid-rigging. But the bid-rigging was being dominated, was being controlled not by the contractors, but, as you have heard over and over again . . . it was the mob that was making the decisions about the bids and who would bid high and who would bid low.
Specifically, Auletta contended that he should have been able to introduce the indictment into evidence, as well as the prosecution's opening and closing statements, as admissions of a party-opponent under Rule 801(a)(2) of the Federal Rules of Evidence.
The panel disagreed with Auletta concerning the indictment, noting that "[a]n indictment is not admissible as an admission of a party-opponent, since it is 'the charge of a grand jury, and a grand jury is neither an officer nor an agent of the United States.'" Salerno II, 937 F.2d at 811 (quoting Falter v. United States, 23 F.2d 420, 425 (2d Cir. 1928)). The Second Circuit agreed, however, that the district court erred in refusing to admit the prosecution's opening and closing statements to the jury. Id. at 811-12; cf. United States v. DeLoach, 34 F.3d 1001, 1008 (11th Cir. 1994) (following Salerno II, but refusing to admit prosecutor's statements during closing argument, because they "were neither statements of fact equivalent to a testimonial statement by the client nor clearly inconsistent with the government's position").
The panel began by noting its earlier decision in United States v. McKeon, 738 F.2d 26 (2d Cir. 1984), the case in which, as discussed above, it had refused to adopt a per se ban on the use of prior opening statements in criminal trials.
The opinion then noted that Auletta sought to use the prosecution's prior statements to disprove the specific intent requirement of the mail fraud statute that he had been convicted of violating, 18 U.S.C. 1341, which requires the prosecution to prove that the mailings were done "for the purpose of" rigging bids. In light of that specific intent requirement, the court held,
the district court abused its discretion in refusing to admit evidence that might have disproved that Auletta had the purpose of rigging bids in mind when he deposited the bids in the mail. Had the jury viewed Auletta the way the government did in the commission case, they might have concluded that his purpose was other than bid-rigging when he deposited the bids in the mail.Salerno II, 937 F.2d at 811-12.
Although the decision in Salerno II did not explicitly state that the government's tactics in the Commission and Club cases were unethical, the panel was clearly troubled by them. "Apparently," the court opined, "the government has taken the same evidentiary clay that they used in the commission case and, for purposes of this trial, resculpted Auletta from a 'puppet on a string' to a bid-rigger.'" Id. at 812. The court agreed that the government was entitled to do so, but held that it was not free to keep its earlier view of Auletta from the jury to which it was trying to sell its revised scenario:
Perhaps Auletta was a culpable bid-rigger, perhaps he was a puppet on a string. The government, at different times, has urged both - and the jury was entitled to know that, because the jury, and not the government, must ultimately decide which he was.Id.
The infamous prosecution of Rolando Cruz, an Illinois man who spent 11 years on death row for a rape and murder that he did not commit, illustrates the potential importance of the principles established in cases like Salerno II. On February 25, 1983, 10-year-old Jeanine Nicarico was kidnaped from her home in Naperville, Illinois, raped, and then bludgeoned to death. Her body was found several days later in underbrush on the Illinois Prairie Path, just south of Naperville. Approximately a year later, after he attempted to provide information about the murder in order to earn a $10,000 reward, Cruz was arrested and charged with Nicarico's murder. (Two other innocent men, Alejandro Hernandez and Steven Buckley, were also charged with the murder; both were eventually exonerated. Hernandez, who was originally tried with Cruz, was acquitted after four trials).From the beginning, the prosecution's case against Cruz was extraordinarily weak. There were no eyewitnesses to the crime. Hand prints found at the Nicarico's home did not match those of Cruz. None of the four shoe prints found on or near the home were proven to have been made by Cruz. And, most importantly, DNA testing of seminal fluid found inside the victim failed to match Cruz's DNA.
Lacking any eyewitness or physical evidence linking Cruz to Nicarico's murder, the prosecution turned to an all-too-familiar source of fabricated evidence, statements that Cruz allegedly made to jailhouse informers, as well as to statements the police claim he made to them. Cruz's lawyers were able to destroy the credibility of the jailhouse informers on cross-examination. The testimony of a DuPage County detective, Thomas E. Vosburgh, however, was devastating: according to Vosburgh, Cruz had told him and another detective, Dennis Kurzawa, that he had dreamed that a young girl had been dragged from a house in a blanket, anally raped, struck over the head with sufficient force to leave an impression in the ground, and then dumped near a field. The detective also testified that Cruz appeared distraught and upset during this conversation, repeatedly saying, "Tell me it isn't so."
From the beginning, there was reason to doubt the validity of Cruz's "confession." The detectives claimed that they had told their supervisor and the lead prosecutor in the case, Thomas Knight, about the dream statement, but did not prepare a written report of the dream, supposedly on Knight's instructions. Nor did the detectives ask Cruz to repeat his alleged statement when they were taping an interview with him a few days later. Nor did Knight mention the dream when interrogating Cruz before the grand jury a week later. Indeed, Cruz's dream was not mentioned for 18 months - until just a few days before trial. Nevertheless, the jury found Cruz guilty and sentenced him to death.
Three years later, the Illinois Supreme Court threw out Cruz's conviction, citing "a deliberate and constitutionally unacceptable attempt by the prosecution to circumvent.. .the Confrontation Clause" by improperly using each defendant's out-of-court statements to implicate the other. People v. Cruz, 121 Ill. 2d 321, 333 (Ill. 1988) ("Cruz I").
Cruz's second trial began in January 1990, and was essentially the mirror-image of the first, with the prosecution relying almost exclusively on Cruz's dream. Cruz's defense was stronger than it had been at the first trial, because Cruz was able to introduce a statement from a third man, Brian Dugan, confessing to being "the sole perpetrator of the abduction, rape, and murder of Jeanine Nicarico" -- a statement two prosecutors, Patrick J. King, Jr. and Robert K. Kilander, had concealed from the defense for over four years. The trial court, however, refused to let the defense elicit details of two very similar murders for which Dugan had been convicted, and Cruz was again found guilty and sentenced to death for a second time.
Four years later, the Illinois Supreme Court again threw out Cruz's conviction, this time on the ground that the trial court had erred in excluding the evidence of Dugan's other crimes. People v. Cruz, 162 Ill. 2d 314, 355 (Ill. 1994) ("Cruz II"). The decision came as little surprise, given that the gross prosecutorial misconduct involved in the case had already led one courageous prosecutor, Assistant Illinois Attorney General Mary B. Kennedy, to resign her office rather than write an appellate brief supporting Cruz's second conviction. See Darryl Van Duch, "Media Fever Scorches Chicago Prosecutions," The National Law Journal, Nov. 13, 1995, at A27.
What did come as a surprise, however, was that, as a result of the miscarriage of justice involving the three men, an intensive investigation was launched into the actions of the police and prosecutors regarding the case. Indeed, in late 1995, special prosecutor William J. Kunkle, who had been overseeing the investigation, announced that a grand jury had returned a 47-count indictment against seven individuals, including Knight, King, Kilander, Vosburgh, and Kurzawa, for conspiracy and obstruction of justice. Those charges are currently pending.
Buried in the Illinois Supreme Court's lengthy opinion reversing Cruz's second conviction is a discussion of the prosecution's inconsistent account of Nicarico's murder at the first and second trials. At the first trial, the prosecution argued, consistent with the testimony of its informers, that Nicarico had been killed on the Prairie Path, where her body had been found. See Cruz I, 121 Ill. 2d at 306 ("According to the State . . . the victim was murdered where she was found."). That position, however, became problematic for the prosecution at the second trial, because it helped corroborate Dugan's confession to Nicarico's murder (Dugan had confessed to killing Nicarico on the Prairie Path). The prosecution then reversed itself at the second trial and argued to the jury that, contrary to what Dugan claimed, Nicarico had not, in fact, been killed on the Prairie Path.
Because it reversed his conviction on other grounds, the Illinois Supreme Court did not dwell long on Cruz's argument that the trial court should have let him introduce evidence showing that the state's account of the murder at the first trial was completely different than its account at the second trial. See Cruz II, 162 Ill. 2d at 375 (noting that "there can be no question regarding the assistant state's attorney's authority, and the statements were not merely conjectural as to where the murder occurred. As such, the statement's general admissibility is accepted," but declining to find that the trial court abused its discretion in not admitting evidence of those statements). Nevertheless, had the trial court followed Salerno II, which the Illinois Supreme Court cited favorably, see id., the outcome of the trial may well have been different, given the weakness of the prosecution's case.
Cruz II, in short, is a shocking example of how important it is for defense attorneys to argue Salerno II at every possible opportunity. In a close case, evidence that the prosecution has changed its position on a crucial issue may well mean the difference between a conviction and acquittal.
Ninth Circuit Suggests that Inconsistent Arguments in Successive Cases May Violate Due Process
Another potential limitation on the ability of prosecutors to use inconsistent arguments in successive cases to convict two defendants of the same crime comes from the recent case Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc), cert. granted on other grounds, 66 U.S.L.W. 3128 (Aug. 4, 1997), in which four judges of an en banc panel of the Ninth Circuit wrote that, had they not concluded that a death-row inmate had received ineffective assistance of counsel, they would have reversed his capital-murder conviction on the ground that the prosecution's inconsistent accounts of his crime denied him his Fifth Amendment right to due process. Id. at 1055.Although the facts and procedural history of Thompson's case are complex, a careful reading reveals outrageous prosecutorial misconduct. Thompson involved the murder of Ginger Fleischli, the girlfriend of the other man prosecuted for her murder, David Leitch. The crime occurred on September 11, 1981, in an apartment in Laguna Beach, California, that Thompson and Leitch shared. Fleischli, Thompson, David Leitch, and Tracy Leitch, David's ex-wife with whom Fleischli had been living, spent the evening of September 11 drinking and dancing at a nearby bar. Around 9:30 p.m. David and Tracy Leitch left, leaving Fleischli, Thompson, and another man, Afshin Kashani, together at the club. Around 1 a.m., Fleischli, Thompson, and Kashani walked to Thompson and Leitch's apartment, where they smoked hashish. Fleischli left at around 2 a.m. to buy some soda at a liquor store close by, and Kashani left before Fleischli returned.
Two days later, Fleischli's body was found wrapped in an old sleeping bag and pink blanket near an interstate highway. Two sets of footprints appeared near the body; one print matched a wavy-soled shoe worn by David Leitch. Fibers from the blanket matched fibers found in Leitch's automobile, and a stain on the rope used to tie Fleischli's body matched paint from the trunk of his automobile.
Both Thompson and Leitch were charged with rape and capital murder. At the preliminary hearing, when Thompson and Leitch were still joined as co-defendants, Deputy District Attorney Daniel Brice argued that Leitch had wanted Fleischli dead, and that he had enlisted Thompson to join in the killing. In support of that theory Brice presented the testimony of four jailhouse informers who claimed that Thompson had confessed to them: David Vogel, David Wright, Timothy Gravelle, and Robert Evans. Each informer told the same story: Leitch had wanted Fleischli dead because she was interfering with his attempts to reconcile with Tracy, and thus had recruited Thompson to help him kill her. Vogel also testified that Thompson had told him that he had consensual sex with Fleischli the night of the murder. The magistrate dismissed the rape charge, which the state then realleged in an information.
After the state filed the information, Deputy District Attorney Michael Jacobs replaced Brice as lead prosecutor. Several months later, Thompson and Leitch moved to set aside the rape charge because it was unsupported by probable cause. At the hearing on the motion, at which Jacobs was present, one of Jacobs' assistants argued that Leitch "is the only person throughout the record who has a motive" to kill Fleischli. The motion was denied. Leitch then moved, successfully, to sever his case from Thompson's. Jacobs elected to try Thompson first.
As the plurality pointed out in Thompson, "the prosecutor presented markedly different and conflicting evidence at the two trials." Id. at 1056. At Thompson's trial, Jacobs did not call any of the jailhouse informers who had testified at the preliminary hearing, choosing instead to call two new jailhouse informers, John Del Frate, who had "come forward" after the preliminary hearing, and the aptly named Edward Fink, whose testimony had been made available to the state prior to the preliminary hearing. Del Frate and Fink also claimed that Thompson had confessed to them, but their version of Thompson's "confession" was completely different than the version he had supposedly given to the previous informers. According to Del Frate and Fink, Thompson had confessed that he had raped Fleischli and killed her before Leitch had returned home, that he killed her to prevent her from reporting the rape, and that Leitch had assisted Thompson in disposing of the body afterward. During closing argument, Jacobs described Del Frate and Fink's testimony as "dispositive"; and "very, very damaging," because they had "no reason whatsoever to lie." Id.
Jacobs did not call either Del Frate or Fink at Leitch's trial. Instead, he called a number of defense witnesses from Thompson's trial, "most of whom he subpoenaed for Leitch's trial immediately after objecting to their testimony at Thompson's trial." Id. (emphasis added). These witnesses told essentially the same story that the state had presented at the preliminary hearing: that Leitch had wanted Fleischli dead because she was interfering with his attempts to reconcile with Tracy, and thus had recruited Thompson to help him kill her.
The "glaring inconsistency," as the Thompson plurality put it, between Jacobs' accounts of Fleischli's murder is driven home by a comparison of his closing arguments at the two trials. At Leitch's trial, Jacobs argued that Leitch "is the only one, before the victim's death, who expressed any hatred for her and the only one with any motive for her death." At Thompson's trial, by contrast, Jacobs rhetorically asked, "Why did Ginger Fleischli die? Because she said she was going to tell for what he [Thompson] did to her. So he killed her. . . . The defendant said he raped the victim and killed her to prevent being caught for rape."
Moreover, at Leitch's trial, Jacobs argued that "all of the evidence we have incriminates Mr. Leitch, at best, equally, and more so than Mr. Thompson. . . . Both men were together inside that apartment with Ginger Fleischli." At Thompson's trial, however, Jacobs directly contradicted his earlier statement, arguing "[w]e have the evidence that establishes Mr. Thompson alone in an apartment with a girl who is raped and murdered. . . . What evidence do we really have that [Leitch] did anything, had any part except that his car was used to move the body and his shoe print was at the scene?"
Although the Ninth Circuit reversed Thompson's conviction on the ground that he received ineffective assistance of counsel at trial, four judges on the en banc panel - Judge Fletcher, Chief Judge Hug, Judge Pregerson, and Judge Reinhardt - wrote that they would also have reversed his conviction on the ground that "the prosecutor's use of fundamentally inconsistent theories at his and Leitch's trials violated due process." Id. at 1055. In their view, Jacobs "manipulated evidence and witnesses, argued inconsistent motives, and at Leitch's trial essentially ridiculed the theory he had used to obtain a conviction and death sentence at Thompson's trial." Id. at 1057. Citing to the passage from Berger quoted earlier, to EC 7-13 of the ABA Model Code of Professional Responsibility ("The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict"), and to the line of Supreme Court cases forbidding prosecutors to knowingly present false testimony, see, e.g., Napue v. Illinois, 360 U.S. 264 (1959), the four judges concluded that:
from these bedrock principles, it is well-established that when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime. . . . Here, little about the trials remained consistent other than the prosecutor's desire to win at any cost.Id. at 1058-99.
The plurality's view in Thompson appears to be the first of its kind, and in his dissent, see id. at 1066, Judge Kozinski noted the dearth of direct legal support. Indeed, the authority offered by the plurality, in defense for that view, was limited to references to then-Judge Kennedy's statement in Haynes v. Cupp, 827 F.2d 435 (9th Cir. 1987), that inconsistent prosecutorial conduct does not require reversal where the underlying theory "remains consistent," id. at 439, and an to en banc Eleventh Circuit case in which Judge Clark wrote, in a concurrence, that the prosecutor's "flip flopping of theories of the offense . . . violate[d] the fundamental fairness essential to the very concept of justice." Drake v. Kemp, 762 F.2d 1449, 1479 (11th Cir. 1985) (en banc). Nevertheless, in light of Cupp and Thompson, the groundwork has been laid for arguing that the prosecution violates due process when it uses inconsistent arguments in successive trials to convict two defendants of the same crime. It remains to be seen if the Ninth Circuit and other circuits will take the next step and hold exactly that.Clearly, though, it can be successfully advanced in future cases, the due-process rationale of the plurality's opinion in Thompson will be far more useful than the evidentiary rationale of the Second Circuit's opinions in Salerno II and GAF.
First, both Salerno II and GAF involved multiple proceedings against the same defendants, while Thompson involved a single proceeding against different defendants. The latter situation is likely to be more common than the former, so attorneys should be able to raise a Thompson argument more often than a Salerno II or GAF argument.
Second, although none of the decisions specifically deals with the issue, the evidentiary errors in Salerno II and GAF are probably much more likely to be found harmless than the due-process violation in Thompson. Indeed, given the plurality's favorable reference to Judge Clark's belief that "flip flopping of theories" violates "the fundamental fairness essential to the very concept of justice," it is possible that the Ninth Circuit would consider such flip-flopping to be structural error -- an error that "def[ies] analysis by harmless-error standards," Arizona v. Fulminante, 499 U.S. 279, 301 (1991) -- requiring automatic reversal of the second defendant's conviction.
Third, and finally, whereas Salerno II and GAF most likely require an attempt to introduce the inconsistent evidence in order to preserve the issue for appeal, a Thompson argument can almost certainly be raised for the first time on appeal or, as in Thompson, in a habeas petition. The plurality decision makes no mention of Thompson's attorney objecting to the prosecution's change of theories, and in certain cases -- such as the Torrance, California cases mentioned earlier, in which the prosecution's two closing arguments were separated by less than 24 hours -- it would be unrealistic to expect an attorney to do so.
Nevertheless, in cases involving multiple proceedings against a single defendant, Salerno II and GAF do provide a powerful weapon against prosecutorial misconduct. As noted earlier in the discussion of Cruz II, Salerno II and GAF are useful because they allow attorneys to turn the prosecution's own words against it -- only the most fervently pro-conviction jury could avoid being suspicious of the prosecution's case against the defendant upon learning that the prosecution previously believed that the defendant had done something completely different.
True Purpose of Local Federal Rules Prohibiting Lawyers from Contacting Jurors After a Verdict A fundamental principle of our criminal justice system is that a defendant has the right to confront those who testify against him, and the right to conduct cross-examination. When a juror communicates extrinsic facts regarding the defendant or the alleged crimes to other jurors during trial or deliberation, that juror becomes an unsworn witness within the meaning of the Confrontation Clause of the United States Constitution. Experience has demonstrated that jurors, particularly in high-profile cases, often introduce prejudicial extra judicial information into the deliberation process.
Almost four decades ago, the United States Supreme Court held that a new trial is mandatory where it affirmatively appears that individual jurors brought in outside evidence into the jury room, previously not admitted at trial, concerning the fact that the defendant had been previously convicted of a crime. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171 (1959). The Marshall court stated:
We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution's evidence. See F. Michaelson v. United States, 335 U.S. 469, 475. It may indeed be greater for it has been not tempered by protective procedures.Marshall v. United States, supra, 79 S. Ct. at 1173.
In 1957, Howard Marshall was tried and convicted, after having his medical license suspended, of dispensing amphetamine tablets without a prescription from a licensed physician. Marshall did not offer any evidence at trial, nor did he take the stand. Rather, he argued entrapment as a matter of law based on the fact that a government agent, posing as a salesman, had solicited drugs from him claiming he was having trouble staying awake on long automobile trips. The trial court allowed the issue of fact regarding the entrapment to go to the jury, but refused to find entrapment as a matter of law.When the prosecution asked to be allowed to prove that Marshall had previously practiced medicine without a license (as refuting the defense of entrapment), the court ruled that the prior criminal record would be inadmissable as unduly prejudicial. Marshall v. United States, supra, 79 S. Ct. at 1172. During the course of the trial, a substantial number of jurors were exposed to two newspapers containing information that Marshall had a record of two previous felony convictions relating to the practice of medicine without a license. Upon learning of the exposure of the jurors, they were individually voire dired and responded that they would not be influenced by the news articles. The trial court, finding no prejudice, denied on subsequent motion for mistrial. Id.
In reversing Marshall's conviction, the U.S. Supreme Court found that the exposure of jurors to information of a character which was so prejudicial it could not be directly offered as evidence, was "certain to be as great as when that evidence reaches the jury through news accounts as when it is part of the prosecution's evidence." The court held that it may in fact be greater because it is not tempered by "protective procedures." Id. at 1173. The requirement that a jury's verdict "must be based upon the evidence developed at the trial," goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury. Turner v. State of Louisiana, 379 U.S. 466, 85 S. Ct. 546, 549 (1965).
As noted in Turner, a case in which the Supreme Court seven years after Marshall reversed a murder conviction based on the fact that two deputy sheriffs had fraternized with jurors after testifying during trial, the Court found that extrinsic information introduced to the jurors undermined the ability of Wayne Turner to receive a fair trial in his murder case under the Sixth Amendment:
In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the "evidence developed" against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.Turner v. State of Louisiana, supra, 85 S. Ct. at 550.
These same principles were recently reaffirmed by a Ninth Circuit case in which an en banc panel made the important determination that prejudice from juror misconduct comes from a close analysis of the substance of the contamination, and should not ever be distinguished by whether it came from an outside or "external" source. Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997).Patrick Jeffries was convicted in Washington state for two murders and sentenced to death. During trial, one juror informed at least two other jurors that Jeffries was a convicted armed robber. The juror who made the comment to the other jurors was promptly told by a third juror that consideration of prior conviction was not permitted. In addition, two jurors who heard the improper comment later stated in affidavits that they did not consider the prior convictions in reaching the verdict.
Under Federal Rule of Evidence 606(b) as well as in most states, evidence of the jurors subjective thought process is inadmissible and cannot be used to support or attack a verdict. The questioning of a juror who has been exposed to extraneous information "is limited to the circumstances and nature of the improper contact", and questions bearing on the "subjective effect of the contact on the juror's decision-making" are prohibited. Id.
The jury found Jeffries guilty of two counts of aggravated first-degree murder, and issued a special verdict finding three counts of aggravating circumstances permitting imposition of the death penalty, namely: (1) that the murders were committed to conceal the commission of a crime or to protect or conceal the identify of the person committing the crime; and, (2) that there was more than one victim and the murders were part of a common scheme or plan, or the result of a single act by the defendant. Id. at 1488.
Jeffries' conviction and sentence were affirmed on direct appeal, and his subsequent petitions in state court were denied. State v. Jeffries, 105 Wash. 2d 398 (en banc), cert. denied, 107 S. Ct. 328 (1986); State v. Jeffries, 722 P. 2d 99(Wash. 1986); Petition of Jeffries, 110 Wash. 2d 326 (en banc), cert. denied, 109 S. Ct. 379 (1988); Matter of Jeffries, 114 Wash. 2d 485 (1990)(en banc). Jeffries also sought federal habeas corpus relief, alleging among other things that he was denied a fair trial because the juror had informed the other jurors that he was a convicted armed robber. Originally, the district court rejected this claim without making findings as to whether the jury misconduct had occurred (Jeffries v. Blodgett, 771 F. Supp.1520 (W.D. Wash. 1991)), and the original Ninth Circuit panel to consider the issue upheld that decision. Jeffries v. Blodgett, 974 F.2d 1179 (9th Cir. 1992)(Jeffries I).
Upon granting rehearing, however, the same panel concluded that its prior decision conflicted with Dixon v. Sullivan, 849 F.2d. 403 (9th Cir. 1988) (which held that external jury contamination by deputy sheriffs required reversal), finding that if the jurors were informed about the extrinsic information, the error would have not been harmless under the standard of Brecht v. Abrahamson, 507 U.S. 619 (1993). The same Ninth Circuit panel remanded the case to the same district court for further proceedings on the question of juror misconduct. Jeffries v. Blodgett, 988 F.2d 923 (9th Cir. 1993)(Jeffries II), as amended, Jeffries v. Blodgett, 5 F. 3d. 1180 (9th Cir. 1993)(Jeffries III).
On remand, the trial court found that jury misconduct had indeed occurred and concluded that a writ of habeas corpus must issue. Bizarrely, on appeal of that decision by Washington State, the same panel again reversed course and decided that it had previously read the issue too broadly, "because it failed to discern the significant difference between external contamination of a jury by officers of the court (the facts of Dixon), and internal misconduct by a fellow juror...." Jeffries v. Woods, 75 F.3d 491,494 (9th Cir. 1996)(Jeffries IV). It illogically held that there was a "principled ground for distinguishing cases in which improper communications came to the jury through an official external source from cases involving 'intra-juror communication.'" Id. Ironically, under the death penalty procedures adopted for the Ninth Circuit under the new Antiterrorism Act and Effective Death Penalty Act, the same three-judge panel which decided Jeffries I, II, & III, was assigned the appeal in Jeffries IV. The Jeffries IV panel also concluded that the law of the case did not prevent reversal of its own prior decision because Jeffries III was, in its words, "clearly erroneous and would work a manifest injustice," citing Leslie Salt Co. v. United States, 55 F. 3d 1388, 1393 (9th Cir. 1995).
In an even more extraordinary move, the Ninth Circuit granted rehearing of Jeffries IV en banc, and a majority (six of the eleven) reached the well-reasoned decision that the introduction of prejudicial material to a jury outside the courtroom is certainly no less a constitutional violation when it is done by one of the jurors than when the material comes from an "external source." As the Ninth Circuit had previously recognized that it is extremely difficult for jurors to ignore prior convictions when deciding guilt (see United States v. Lewis, 787 F. 2d 1318, 1323, modified, 798 F.2d 1250 (9th Cir. 1986)), the en banc court held that possible prejudice is particularly likely when the past record of a defendant is related to the crimes for which the defendant is on trial. Citing United States v. Bagley, 772 F.2d 482, 488 (9th Cir. 1985). The theory of the prosecution in Jeffries clearly tied his prior acts to the alleged theory of robbery in the present murder case, and greatly exacerbated the attendant prejudice. As observed in Bagley, "the human tendency to draw a conclusion which is impermissible in law: because he did it before, he must have done it again. United States v. Bagley," supra, 772 F.2d at 488.
The most important aspect of the en banc Jeffries decision is that it emphasizes that there is no legitimate distinction to be made based solely on the source of information improperly introduced to a jury. Jeffries v. Woods, supra, 114 F. 3d at 1490. Clearly the legitimate inquiry of the court should be on the nature of the information itself. The en banc panel stated:
We agree with Jeffries III that the communication by its nature was intrinsically prejudicial, and necessarily had a substantial and injurious influence on the verdict.Jeffries v. Woods, supra, 114 F.3d at 1491.
The Ninth Circuit rejected the argument that because the jurors engaged in little discussion about the conviction, and the fact that the jurors were promptly told by another juror that consideration of the conviction was not permitted, that the prejudice was somehow ameliorated. As the court noted, "jurors' testimony that extrinsic evidence is not harmful is not controlling . . . the effect of extrinsic prejudicial evidence on a juror's deliberations may be substantial even though it is not perceived by the juror and 'a juror's good faith cannot counter this effect.'" Jeffries v. Woods, supra, 114 F.3d at 1491 (citations omitted).What occurred in Jeffries is certainly not an isolated situation. Factual inquiry of whether such information tainted the jury's deliberation usually can only be undertaken in states or federal districts such as Los Angeles. (See Marino v. Vasquez, 812 F.2d 499, 507 (9th Cir. 1987)), where counsel are free to interview jurors after a verdict. While jurors may often refuse to talk to defense counsel or not admit what in fact has occurred, prejudicial extra-judicial information can never be discovered if juror debriefings are prohibited.
A number of federal jurisdictions have local rules prohibiting counsel from contacting jurors. See e.g., Local Rule of United States District Court, MD Fla. Rule 2.04(c); E.D. New York Local Rule 3.0. Although the rules provide that attorneys can contact jurors with the permission of the court, this permission is rarely granted unless it comes at the request of the government. See, e.g. United States v. Chung An-Lo, 851 F.2d 547 (2d Cir. 1988); See also United States v. Harrelson, 713 F.2d 1114, 1118 (5th Cir. 1983) (upholding trial court restriction on juror interviews). Unless something is revealed to a news reporter, counsel can almost never demonstrate good cause to conduct the interview.
While the cases parrot the rationale that these local rules are designed to protect juror privacy, that in fact is not why these rules exist. Most people familiar with the criminal justice system understand that particularly in high profile cases, (see, e.g., U.S. v. Keating, infra), extrajudicial information will almost always be injected into the deliberative process. In Keating, for example, the Ninth Circuit, in an unpublished opinion, held that the trial court erred in not holding an evidentiary hearing to determine whether there is a reasonable possibility extrinsic evidence affected Charles Keating's conviction in 1993 on federal racketeering, fraud, and conspiracy charges. United States v. Keating, No. 93-50576, 1996 U.S. Lexis 15276 (9th Cir. 1993).
On remand to the district court, Judge Mariana R. Pfaelzer threw out all of Keating's federal convictions last year after finding that jurors who had extra-judicial knowledge of Keating's widely publicized problems had discussed Keating's prior California state court convictions during deliberations; information which had been excluded from evidence. Id.
The only reason this blatant juror misconduct was discovered was because defense counsel in California continue to be free to interview jurors after a verdict. The obvious purpose of these local rules prohibiting interviewing jurors is not to protect the jurors, but to protect the verdicts and prevent counsel from discovering jury misconduct. After all, are federal jurors in New York more vulnerable to invasion of privacy than those in Los Angeles? The answer is, of course, they are not. As in other situations, it is unfortunate but a reality that many members of the federal judiciary are more interested in saving time and money (i.e. protecting a verdict) than in maintaining the integrity of the criminal justice system by eliminating tainted jury verdicts.
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