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Criminal Justice Magazine
Winter 2005
Volume 19 Number 4

ETHICS
Should Prosecutors Use Inconsistent Arguments?

By Peter A. Joy and Kevin C. McMunigal

Peter A. Joy, is is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri. Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western University School of Law in Cleveland, Ohio. Both are contributing editors to Criminal Justice magazine.

Should Prosecutors Use Inconsistent Arguments?
Is it permissible for prosecutors to advance inconsistent fact-based arguments in successive trials seeking to convict different defendants of a crime that only one could have committed? Should the prosecutor’s duty to protect the innocent in such cases outweigh the duty to convict the guilty? If so, does arguing inconsistent positions violate the duty to protect the innocent? Or, does arguing inconsistent positions better enforce the rights of the public by maximizing the possibility the guilty will be punished? Courts and legal commentators have explored these questions, which have arisen in a number of cases.
Initially, one might wonder how one jury could conclude that there is proof beyond reasonable doubt that A committed a crime only one person could have committed when there exists enough evidence for a second jury to conclude that B committed the same crime. It would seem that the evidence against B would create reasonable doubt regarding A, and that the evidence against A would create reasonable doubt regarding B. But courts routinely exclude from criminal trials evidence that a person other than the defendant committed a crime. This exclusion of alternate perpetrator evidence is what allows prosecutors to make the sort of factually inconsistent arguments addressed in this column.


Advancing inconsistent arguments
Inconsistent factual arguments by prosecutors can be made in a variety of scenarios. Consider the following example, based on Jacobs v. Scott, 31 F.3d 1319 (5th Cir. 1994). There is evidence pointing to two different persons, A and B, as the perpetrator of a crime. Each person denies responsibility for the crime. In a trial against A, A denies any wrongdoing and claims to have witnessed B commit the crime. The prosecutor urges the jury to reject A’s testimony, and the jury returns a verdict against A. In a second and subsequent trial against B, the prosecution calls A as the key witness who testifies again that B was the sole perpetrator. The prosecutor argues to the jury to return a verdict against B based on A’s testimony, and the jury convicts B.
In the first trial, the prosecutor attacked and discredited A’s testimony in order to convict A. In the second trial, the prosecutor endorsed A’s testimony in order to convict B. In this example, if the jury convicted both A and B, it is certain that an innocent person was convicted, though the prosecutor may not have known which of the defendants was innocent.
Here is another example, based on Nichols v. Collins, 802 F. Supp. 66 (S.D. Tex. 1992), rev’d sub nom. Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995). Each of two robbers exchanges gunfire with police as they attempt to escape the robbery scene. A bullet from one of the robbers’ guns kills an innocent victim, but the police are unable to determine which of the robbers fired the fatal shot. Assume that both robbers are guilty of felony murder, but that under the applicable law only the robber who fired the fatal shot qualifies for the death penalty. The prosecutor, though, charges both defendants with capital murder on the basis of having fired the fatal shot. The prosecutor knows that it is a factual impossibility for both defendants to have fired the fatal shot, but in separate trials the prosecutor introduces and relies on evidence that points to each defendant as the responsible shooter. In this example, both defendants have committed robbery and felony murder, but only one qualifies for the death penalty. Thus, if both are sentenced to death, one will receive a punishment he does not deserve.
The 2003 trials of John Allen Muhammad and Lee Boyd Malvo for sniper killings in the Washington, D.C., metropolitan area represent a third type of prosecutorial use of factually inconsistent arguments. In the first case, the prosecutors’ theory was that the 42-year-old Muhammad brainwashed the 17-year-old Malvo, rendering Malvo an irresponsible agent of Muhammad. At the same time the prosecutor was delivering his closing argument in the Muhammad case, the prosecutor in Malvo’s case maintained that Malvo was an equally responsible participant in the shootings. In his closing argument, the prosecutor argued that the jury should reject the defense theory that Malvo was not responsible for his acts because he had been brainwashed by Muhammad. The prosecution’s theories of Malvo’s responsibility in the two different trials directly contradicted one another. Should the prosecutors have been allowed to make such inconsistent arguments?


A prosecutor’s options
The prosecutor usually has three options when there is evidence pointing to two different defendants and only factually inconsistent arguments could convict both. First, the prosecutor can acknowledge the uncertainty of the evidence and decide not to pursue against either defendant charges that require the use of inconsistent factual arguments.
Second, the prosecutor may select the defendant most likely to have committed the offense and pursue a case only against that defendant. The prosecutor may be wrong, but at least the prosecutor is not certain that an innocent person will be convicted. In the first example, this may result in pursuing charges only against A. In the other two examples, the prosecutor would pursue the death penalty against only one of the defendants.
Finally, the prosecutor could choose to pursue inconsistent charges against both defendants. As mentioned previously, this means in the first example that an innocent person will be convicted. In the felony murder hypothetical, it means that one defendant will receive an undeserved punishment.


Why do prosecutors do it?
Doesn’t fear of convicting an innocent person dissuade prosecutors from prosecuting two different defendants for the same crime? It doubtless does in many situations. But federal and state cases reveal that there are quite a few prosecutors who have been willing to pursue such charges.
What motivates some prosecutors to proceed against two such defendants despite the obvious risk of convicting an innocent person? One explanation may be that, though only one person may have committed the crime, the prosecutor views both defendants as morally bad actors, such as the two robbers in the felony murder example. The prosecutor may also conclude that, although only one defendant committed the crime, both may be able to provide evidence about who committed the crime. The prosecutor thus may be motivated to initiate charges against both in order to force cooperation from both defendants. Another reason for such dual prosecutions may be public pressure to make sure that the guilty defendant does not escape punishment.
Prosecutors may also view themselves as simply advocates in an adversarial system and not responsible for the factual accuracy of the convictions their prosecutions bring about. They may think it their duty only to marshal the evidence and make the arguments, leaving the task of sorting out the guilty and the innocent solely to juries.
Model Rule of Professional Conduct 3.8, outlining the special ethical responsibilities of a prosecutor, states in subsection (a) that the prosecutor shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” Prosecutors advancing inconsistent arguments may feel that if a judge at a preliminary hearing or a grand jury has made a probable cause determination, they are relieved of any further responsibility regarding the guilt or innocence of the accused.
The probable cause standard is a very low one that the Supreme Court has stated is not subject to any precise definition and is essentially equivalent to a “reasonable ground for belief of guilt.” (Brinegar v. United States, 338 U.S. 160, 175 (1949).) Cases involving factually inconsistent prosecutorial arguments, though, do bring into question whether the prosecutor can possibly know that a case is supported by probable cause if there exists enough evidence to convict another person of the same crime. It seems logically inescapable that the evidence against one would negate probable cause against the other. However, the probable cause determinations made by a judge at a preliminary hearing and by a grand jury in returning an indictment are usually made without considering any exculpatory evidence.


The pursuit of factually inconsistent arguments
There are several reasons prosecutors should not pursue factually inconsistent arguments. First, the prosecutor has a different set of duties than the defense lawyer. The defense lawyer has no obligation to make sure the guilty are convicted and has no duty to protect innocent persons, other than the client. The prosecutor, by contrast, has both a duty to convict the guilty and a duty to protect the innocent. These dual obligations are often expressed by describing the prosecutor as both an advocate and a minister of justice. (See MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. 1.) In pursuing factually inconsistent arguments, prosecutors focus solely on procedural justice and ignore any obligation to monitor the substantive injustice of convicting an innocent person.
Second, under our justice system, protection of the innocent and conviction of the guilty are not equally important. As the burden of proof beyond a reasonable doubt reflects, the duty to protect the innocent is given much greater weight than the duty to convict the guilty. As Justice John Marshall Harlan stated, it is a “fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” (In re Winship, 397 U.S. 358, 372 (1970), (Harlan, J., concurring).) Prosecutors, for example, routinely and appropriately exercise discretion not to prosecute some people known to be guilty because the purposes of punishment or the cost of prosecution do not warrant prosecution. Here, the duty to convict the guilty is secondary to other considerations. By contrast, the prosecutor has no discretion to prosecute people known to be innocent. This duty is not subordinated to other considerations.
Finally, public respect and trust in our criminal justice system will suffer if factually inconsistent charges are pursued that result in an innocent person being convicted. Imagine, for example, how the jurors in our first example would feel about the prosecutor and the criminal justice system in which they participated if they learned about the second prosecution. They would likely conclude that they may well have convicted an innocent person. And they would likely conclude that a prosecutor, who after urging them not to believe A, exhorted another jury to believe A, is not worthy of trust or public office.


Ethical requirements for prosecutors
Although one would think that ethics rules other than Model Rule 3.8(a)’s requirement of probable cause might provide clear guidance to prosecutors considering the use of inconsistent arguments, they do not. Model Rule 3.3 prohibits both the defense and prosecution from knowingly presenting false evidence. The Model Rules also ban “destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedures and the like.” (MODEL RULES OF PROF’L CONDUCT R. 3.4 cmt. 1.) But in advancing factually inconsistent arguments, the prosecutor is neither presenting false evidence nor tampering with evidence or witnesses. Instead, the prosecutor is making a selective presentation of often circumstantial evidence and arguing to the jury that it is sufficient to support convictions in each case.
The ABA Prosecution Function Standards provide no specific guidance on the prosecutor’s use of factually inconsistent arguments. But commentary to Standard 3-1.1 states that the prosecutor is a “minister of justice” obliged “to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public.” These standards articulate clearly the dual nature of the prosecutor’s duties, but they do not inform the prosecutor how to balance these duties.


Possible limits on inconsistent arguments
A number of courts have expressed discomfort with the practice of prosecutors using inconsistent arguments because, as stated above, it appears at odds with the prosecutor’s role as a minister of justice. In most of these cases, courts have found other grounds for reversal, such as ineffective assistance of defense counsel or the failure of the prosecution to disclose exculpatory evidence. Some of these courts, though, have stated that the practice can violate a defendant’s due process rights.
In Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc), rev’d 523 U.S. 538 (1998), the prosecution charged roommates Thomas Thompson and David Leitch with rape and capital murder in the death of Ginger Fleischli, Leitch’s girlfriend. At the preliminary hearing, before Thompson’s and Leitch’s requests for separate trials were granted, the prosecution’s theory was that Leitch wanted the victim dead because she was interfering with his attempts to reconcile with his ex-wife. The prosecutor used four jailhouse informants, who testified that Leitch had enlisted Thompson’s assistance in the murder. After the cases were severed for trial, the prosecutor at Thompson’s trial used jailhouse informants who testified that Thompson had confessed that he killed the victim to prevent her from reporting that he had raped her. The prosecutor objected to testimony by defense witnesses who were called to testify about Leitch’s violent disposition, threats toward the victim, and motive to kill the victim. In the trial against Leitch, the same prosecutor called the defense witnesses from the Thompson trial to establish Leitch’s motive to kill the victim. In closing arguments at each trial, the prosecutor argued that only the defendant on trial had any motive to kill the victim. (See id. at 1055-57.)
Although the Ninth Circuit reversed Thompson’s capital murder conviction on ineffective assistance of counsel grounds, four judges stated that they would have reversed based on the ground that “the prosecutor’s use of fundamentally inconsistent theories at his and Leitch’s trials violated due process.” (Id. at 1056.) In reaching their decision, the judges found that the prosecutor had “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 the Thompson trial.” (Id. at 1057.)
Relying on several Supreme Court decisions discussing the prosecutor’s duty to administer justice and the prohibition against presenting false evidence, the four judges stated, “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.” (Id. at 1058.) We could find, though, only one case where a court reversed a conviction on due process grounds arising out of a prosecutor’s use of inconsistent arguments. In Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000), the prosecution used two contradictory statements from an informant to convict two different defendants, Jon Smith and Michael Cunningham, of burglary and murder. The informant implicated Smith in his first statement to the police. Then, in a later statement, the informant recanted his first statement implicating Smith and instead implicated Cunningham. (Id. at 1047-48.)
At Smith’s trial, the prosecutor used the first statement of the informant to impeach testimony in which he implicated Cunningham. The prosecutor successfully argued that under Missouri evidence rules the informant’s prior inconsistent statement could be used as substantive evidence of Smith’s guilt. After Smith’s trial and conviction, the state indicted Cunningham for the murder. At Cunningham’s trial, the same prosecutor relied on the second statement from the informant and his testimony, which was consistent with the informant’s testimony at Smith’s trial, to convict Cunningham. In reversing Smith’s conviction, the court held that using inconsistent theories is a due process violation if the prosecutor presents “inherently contradictory” evidence and arguments that go to the “core of the prosecutor’s cases” in separate trials against the defendants. (Id. at 1051-52.) The court reasoned that “what the State claimed to be true in Smith’s case it rejected in Cunningham’s case, and vice versa.” (Id. at 1050.) In reversing Smith’s conviction, the court stated that the “manipulation of the evidence deprived him of due process and rendered his trial fundamentally unfair. . . . The State’s duty to its citizens does not allow it to pursue as many convictions as possible without regard to fairness and the search for truth.” (Id. at 1051.)
In addition to possible due process grounds for curbing inconsistent arguments by prosecutors, Professor Anne Bowen Poulin has argued that courts should use three legal tools for discouraging prosecutorial inconsistency: introducing the prosecutor’s prior inconsistent statements as party admissions, applying collateral estoppel, and using judicial estoppel. (Anne Bowen Poulin, Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get Its Story Straight, 89 CAL. L. REV. 1423 (2001).


Conclusion
Except in extreme instances of inherently factually contradictory theories such as those in Thompson v. Calderon and Smith v. Groose, current ethics, evidence, and criminal procedure rules provide a prosecutor with wide latitude in pursuing such trial strategies. Because of this latitude, it is all the more important for prosecutors to realize the dual nature of their duties and to realize that, unlike defense lawyers, they have a responsibility to monitor and help ensure the substantive justice their prosecutions produce. Only if the prosecutor is satisfied that the results of factually inconsistent arguments are not likely to produce the conviction of an innocent person should the prosecutor proceed with such arguments.



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