Above All Things, Be Honest With A Jury (5/22/97)
An article on the AP Wire caught my attention the other day. In Torrance, California a murder case took place where two defendants were on trial at the same time. California does some strange things and one procedure the jurisdiction utilizes is to have two juries listening to the same evidence with each jury required to decide whether separate defendants are guilty. You might recall that the same methodology was used in the Eric and Lyle Menendez case a while back.

The concept is to give each defendant a fair trial. For example, in the Torrance case, one of the defendants (Stephen Edmond Davis) gave police a confession while the other (John Patrick Winkelman) did not. Consistent with legal principles, it would be improper for the jury who would decide the fate of Winkelman to hear the confession of Davis. (I don't necessarily agree with this, but established precedent makes this the law). Consequently, Winkelman's jury would be excused from the courtroom while the confession is read to the Davis jury. In a similar vein, when it is time for closing arguments, the prosecutor summarizes his case two times with neither jury being allowed to hear the argument presented to its counterpart.

And that's where the trouble started.

According to the Associated Press, the prosecutor in the case, Todd D. Rubenstein, told the first jury that John Patrick Winkelman was the triggerman. However, an hour later he told the other jury that it was Stephen Edmond Davis who pulled the trigger. Both men were convicted.

Of course, both could not have pulled the trigger. Everyone agrees on that. But the evidence in the case was unclear as to exactly who fired the fatal shot. Under Texas law, it is not necessary to prove that a person pulled the trigger in order to be convicted of murder. The non-triggerman could be convicted of murder so long as he "solicits, encourages, directs, [or] aids" the shooter. I would be stunned if California does not have a similar law.

But legal principles aside, is it ethical for a prosecutor to make conflicting statements to two different juries? I will not go so far as to say it violates the Canon of Ethics, but it sure smells to me. Prosecutors are somewhat different from every other lawyer in that we want the "right" thing to happen regardless of whether it means a conviction. The defense lawyer, on the other hand, is required to zealously represent his client by pointing out the evidence, or lack thereof, which creates a reasonable doubt about his client's guilt regardless of the truth. Sometimes a defendant is guilty but the prosecution cannot prove it. It is the defense lawyer's job, therefore, to make sure that the reasonable doubt is clearly understood by the jury even though, in truth, the defendant committed the crime. (Frankly, some would argue that since the Supreme Court has ruled that the State must prove a defendant's guilt beyond a reasonable doubt, the defense lawyer is doing the "right" thing by making sure his client is not convicted when the State cannot meet this burden).

The prosecutor's job, however, is different. If I have evidence in my file that indicates the defendant might not be guilty, even though the overwhelming evidence is to the contrary, I give that information to the defense lawyer. Likewise, if the victim had a criminal history, I hand over those facts as well. In fact, I let the defense lawyer see every piece of paper in my file. My position has always been: "I represent the State of Texas. If the facts hurt my case, so be it. Why should I be afraid of the truth?"

This attitude must be transferred to criminal jury trials as well. The jury must believe that I seek justice, not a win for political purposes. And if I were to ever choose the latter over the former, I have no doubt that a jury would see through it.

Now back to the California case. It seems to me that it is simply wrong to tell two separate juries that the same evidence means different things. The true facts in the California murder case were that only one of the defendants pulled the trigger. If the prosecutor did not know which one did the act, I believe it is dishonest to tell the two juries that both defendants pulled the trigger.

Those that sit in judgment of another need to be able to believe that the district attorney means (and believes) what he says. If they lose that confidence, then the justice system is in shambles.

The alternative for the prosecutor in California was to to evaluate the evidence honestly and intellectually before the trial began and decide which individual is more likely than not the shooter. Once the trial begins, tell the jury who will stand in judgment of the believed triggerman why you think he killed the victim. When it comes time to address the "non-shooter jury", tell them the same thing: the other defendant was the shooter. If the facts support your position, however, follow it up with equal passion that although the second defendant may not have fired the deadly shot, he still needs to be convicted based upon the law that makes a person responsible as an accomplice.

It's not brain surgery. It is very simple.

More importantly, it is very honest.

Barry Green is the District Attorney for the 271st Judicial District.

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