March 3 CALIFORNIA: Is Justice Done in 2 Versions?----A California murder case in which 2 juries were told differing accounts of events raises concerns about fairness, ethics and tactics. Los Angeles prosecutor Steven J. Ipsen, arguing his first murder case in 1990, told a jury that Tauno Waidla had used a hatchet to inflict "the death blow" that killed a woman in her North Hollywood living room. Waidla was sentenced to die. Several months later, the same prosecutor told a different jury that Waidla's accomplice, Peter Sakarias, had "finally ended" the life of the victim, Viivi Piirisild. Sakarias also was sentenced to die for the murder. The lethal blow could not have been inflicted by both men. Did the prosecutor mislead the jury? If so, should the death sentences be thrown out? More broadly, how far should prosecutors be allowed to go in presenting conflicting facts to different juries? Both the U.S. Supreme Court and the California Supreme Court are considering that issue. In both cases, death sentences sit in the balance. The California court could rule in the Piirisild murder cases as early as today. The U.S. Supreme Court is reviewing an Ohio case involving 2 men who broke into a home, killed a woman and wounded her husband. In that case, in which the court is expected to rule later this year, a prosecutor who argued that one of the defendants had fired the fatal shots accepted a guilty plea from him. The man received the death penalty. In a later trial, the prosecutor told a jury that the co-defendant had fired the fatal shots. The co-defendant received a life sentence. Courts and legal ethicists have split on the question of whether such tactics are proper. Prosecutors, as representatives of the government, are responsible for more than just advocacy. Legal ethics say they must seek justice and truth, not just victories. Because of that, some courts and ethicists say prosecutors should not take contradictory positions knowing that one must be false, particularly in a death penalty trial. A prosecutor is more likely to win a death sentence if he or she can show that the defendant was directly responsible for the death. "The prosecutor cannot argue for an inference he knows is false," said Stephen Gillers, a professor at New York University School of Law who specializes in legal ethics. "Defense lawyers can," Gillers said, but "the prosecutor has an obligation to an accurate verdict. The defense lawyer's obligation is to win." Others say that prosecutors should be free to make the most convincing case possible using the available evidence. "A prosecutor is entitled to ask different juries to draw different inferences provided both arguments are made in good faith and not based on any false evidence," California Deputy Atty. Gen. Michael C. Keller argued before the California Supreme Court. No one knows for certain how often prosecutors blame different defendants for the same criminal act. University of San Francisco law professor Steven Shatz, who has reviewed cases of inconsistent arguments in California, found 14 trials during the last couple of decades in which prosecutors made inconsistent arguments about the roles played by co-defendants. "I was quite surprised to find out how often it happens," Shatz said. In some cases he reviewed, prosecutors presented substantially the same evidence at both trials but argued that the juries should draw different inferences. In others, prosecutors provided different evidence. Such tactics appeared to bother several justices of the California Supreme Court during a hearing in December on the Los Angeles cases. "In each trial, there is a selective manipulation of the evidence - to create a false impression that the case is a done deal," complained Justice Joyce L. Kennard. Other justices argued that it was the defense lawyer's job to police the prosecutor's argument. "What we have here is a horrendous murder - as bad as any I have seen - and 2 defendants working in concert to accomplish that murder," Justice Marvin R. Baxter said. Defense lawyers could have "put on a case" to expose any inconsistent arguments, he said. Defense lawyers, however, note that doing what Baxter suggested is not always possible because of the rules that govern trials. The trials for Piirisild's murder show how a prosecutor can create different impressions using the same evidence. The 1988 killing of Piirisild, 52, stunned Estonian immigrants in Los Angeles. Piirisild, an Estonian community activist, and her husband had met Waidla and Sakarias through a group opposed to Soviet occupation of the Baltic states. At first the couple warmly embraced the young men, who had defected from the Soviet Army and escaped to West Germany. The Piirisilds invited Waidla to live with them. For a year, he did jobs around the house in return for room and board. Sakarias visited. Eventually, the Piirisilds began to feel alarmed by Waidla's behavior, court records say. Waidla demanded money for the work he had done and threatened to report the couple for construction done without a permit. The Piirisilds evicted him. On a July morning when the Piirisilds were not at home, Waidla and Sakarias, then 21, broke into the house. When Piirisild returned, the two men attacked and killed her, stole some jewelry and credit cards, and fled. They were arrested weeks later near the Canadian border. The evidence, including the defendants' statements to police, indicated that Waidla had attacked first, hitting Piirisild with a hatchet when she entered the door. Sakarias then stabbed her with a knife. The men later dragged Piirisild from the living room to her bedroom. Sakarias told police he then hit her twice with the hatchet. Dr. James K. Ribe, the deputy medical examiner who examined Piirisild's body, said she died from a combination of her wounds. But which wound was the fatal blow? The massive sharp-edged hatchet blow and the stab wounds both were potentially fatal, Ribe said. There also was an abrasion on Piirisild's back consistent with her having been dragged. Ribe believed the abrasion occurred after death. During the 1st trial, prosecutor Ipsen argued that Waidla had wielded the hatchet - "the more devastating of the instruments." He suggested that Waidla had delivered all of the sharp-edged hatchet blows, including "that deathblow" that killed Piirisild in her living room, according to court records. The deathblow was the "critical point" that jurors should consider in deciding whether Waidla should live or die, the prosecutor went on. And he reminded the jurors about the abrasion on the victim's back. "We know she was dead in the front room of her home in her living room. We know she did not live to see or be dragged back into her bedroom because the coroner testified and told you that the burn mark on her back, as she was dragged - was a postmortem, or an after-death wound," he told Waidla's jury. Moreover, he argued, Waidla was "the dominant person between himself and Mr. Sakarias" - "the planner." About 8 months later, Sakarias went to trial. This time, Ipsen presented the evidence very differently: Piirisild was still alive when she was dragged to the bedroom, he told the jury. Sakarias, not Waidla, was responsible for all of the sharp-edged hatchet wounds, which he inflicted in the bedroom, Ipsen said according to court records. And, according to court records, he told jurors, "absolutely no evidence" showed that Waidla was the dominant personality. "In every respect, Peter Sakarias was a partner of Tauno Waidla," he said. This time, Ipsen did not mention the abrasion on the victim's back. He said he no longer believed that the abrasion was significant. Sakarias' lawyer, Deputy Public Defender Daniel Blum, did not ask about it. In an interview, Ipsen said his view of the evidence had changed between the 2 trials. "There were multiple fatal blows, any one of which could have killed her," said Ipsen, president of the Los Angeles Deputy District Attorneys Assn., a vice president of the State Bar of California and a board member of Crime Victims United, a victims' rights group. "They plotted the murder together. They were one," he said. Ipsen also denied telling both juries that each defendant had inflicted all the hatchet cuts, although the state attorney general's office, in its court filings, has conceded that his arguments to the jury "suggested" that conclusion. When the cases reached the California Supreme Court in a constitutional challenge to the inmates' death penalties, defense lawyers contended that Ipsen's arguments had violated the defendants' rights. The justices appointed Los Angeles Superior Court Judge Thomas Willhite Jr. as a special referee to determine what had happened at the trials. Willhite decided that Ipsen had made "an intentional strategic decision - to maximize the portrayal of each defendant's culpability." At the time of the 2nd trial, Ipsen may not still have believed that Piirisild died in the living room, but he had "strong reason" to believe it and "the great weight of evidence" supported it, the judge found. The judge presented his findings to the Supreme Court but did not make any recommendation about how the cases should be resolved. California Atty. Gen. Bill Lockyer and the Los Angeles district attorney's office have urged the state high court to uphold the death sentences, arguing that there was plenty of evidence supporting death verdicts even without Ipsen's arguments. Deputy Dist. Atty. Hyman Sisman, who is representing the district attorney's office as a party in the litigation, said the sentences should stand because Piirisild could have died from wounds inflicted by either man. Sisman nevertheless said he personally would have argued the cases "a little differently." Ipsen is a "much more flamboyant kind of guy," Sisman said. "I probably would have said that it doesn't matter whether the cause of death was the ax crushing the skull or the knife piercing the heart." Lawyers for the 2 defendants contend that Ipsen's arguments amounted to misconduct. "The evidence cannot be accurate in both trials because the crime could have only occurred in one way: either the scenario the prosecutor asserted at Waidla's trial or the exact opposite scenario at Sakarias' trial," Waidla's lawyers told the Supreme Court. Legal ethicists say prosecutors who are uncertain about who did what during a crime should confess the ambiguity to a jury. "There is no way you can believe two inconsistent things at once," said Fordham University School of Law professor Bruce Green. Based on Willhite's findings, the California Supreme Court could overturn both death sentences or leave them intact. Or the court could order a retrial on the sentence for Sakarias but permit Waidla's death penalty to stand on the grounds that evidence indicates that Waidla probably inflicted the killing blow. That third possibility troubles some legal scholars. "The D.A. knows better than anyone else, and if the D.A. can't pick the truth, how is the appellate court in the position to do it?" asked the University of San Francisco's Shatz. ********************** Crime a Slippery Slope in Election----Hahn says numbers have fallen. Parks cites a dip on his watch; Hertzberg points to some areas' increases. None is wrong, just selective. When the candidates vying to be Los Angeles' next mayor talk about crime, they often seem to be describing different cities. Mayor James K. Hahn describes steep declines in crime rates and a resurgent police force. His opponents cite rising crime in some neighborhoods and Hahn's failure to come even close to the 1,000 additional LAPD officers he promised voters 4 years ago. Finding statistics to back their conflicting claims comes down to timing. Hahn starts counting in 2002 - his 2nd year in office and the year he forced Bernard C. Parks out as police chief. Using that year as his baseline, Hahn touts double-digit drops in violent crime and homicides. The improvements came from his "tough choices," he says. Parks, now a city councilman who is running against Hahn, prefers to talk about 1998 and 1999. In that period, under his watch, the city - and much of the rest of the nation - posted the lowest crime rates in years. Crime then was as low or lower in many categories as it is now, he says. He doesn't mention that crime rates started rising before he lost his job. Bob Hertzberg has taken a more microscopic approach, posting select figures on an interactive map on his campaign website. His figures emphasize increases in some crime categories even in neighborhoods where overall crime is down. Although none of the statements are untrue, all are incomplete. The dueling numbers underscore how politicians, who understand the power of public safety concerns to get out the vote, try to shape public perceptions to their advantage. Overall, serious crime citywide in 2004 was less than in 1998 - the best year under Parks. Last year, 162,252 serious crimes - a category that includes homicides, robberies and burglaries - were reported. In 1998, the LAPD confronted 167,087 serious crimes. Those who study crime trends caution that comparing numbers from year to year can mislead. Meaningful change can be tracked only over longer periods, they say. For example, in 2004, the number of homicides was flat compared with 2003, although the number of shootings declined more than 9%. "The problem is when the crime rate goes down, they like to claim too much credit, and when the crime rate goes up, there is too much finger-pointing and blame," said James Fox, professor of criminal justice at Northeastern University in Boston. What drives crime up or down has long been a matter of debate. Most criminologists say police are only one factor among many, such as the economy, joblessness and quality of education. Politically, however, the police force is the factor for which voters are most likely to hold elected officials accountable. Hahn has hung his record as a crime-fighter - and much of his reelection chances - on his selection of William J. Bratton to take over a demoralized LAPD tainted by the Rampart Division corruption scandal. Hahn's reliance on Bratton to boost his campaign is no accident. The chief remains considerably more popular than the mayor. In a Times poll taken Feb. 22-27, 63% of the registered voters surveyed said they approved of how Bratton was handling his job; 20% disapproved. When Hahn took office in June 2001, the LAPD was losing officers at an alarming rate. At its largest, in 1998, the department had 9,777 officers. That number was reached through an aggressive effort by then-Mayor Richard Riordan to add 1,500 new officers (half of what he had promised when he first ran). But by the time Hahn became mayor, the force had fallen to 9,018 sworn officers, according to police officials. Police union officials and others have said that Parks' unpopularity among officers was a factor. Officers who left the department cited better work schedules in nearby jurisdictions, a cumbersome LAPD disciplinary system and low morale. On the day Parks left the job in May 2002, there were 8,867 sworn officers. As of Wednesday, the force was up to 9,131 officers. Arrests, which had fallen, have risen by about 18% since 2002. Though Hahn and Bratton can claim to have reversed the downward trends, the overall gain is just slightly more than 100 officers since the day Hahn became mayor, far less than the 1,000 additional officers he promised during his campaign. Bratton has argued that the city ultimately needs 12,000 officers to be properly patrolled. Politicians have struggled for years to get the political backing and money to greatly expand the force. Currently, the public's approval of Bratton has not translated into support for a goal that he and the mayor have sought - increasing the city sales tax to pay for more officers. In the Times poll, only 26% said the city needed to hire 1,200 more officers and raise taxes to pay for them - the proposal Hahn tried to place on the ballot this year. A majority, 52%, said the city needed more police but could afford to meet that goal without the tax increase. An additional 18% said more police were not needed. Hahn's opponents agree that a new tax is not needed to expand the force and have offered other strategies. They charge that the mayor has done too little to find more money in the city's $5.3-billion budget to expand law enforcement. Hertzberg has said that he will squeeze more officers out of the existing city budget, noting that revenue is expected to rise in coming years. Councilman Antonio Villaraigosa says the city can expand the force through budget savings and his plan to borrow against future tax refunds from the state. He and Hahn have said they each would put 720 officers through the Police Academy in the next year if elected. Police officials say that number is about the academy's annual capacity. Parks has focused his criticism on flexible work schedules approved by Hahn. The changes, which the police union pushed hard for, allow officers to work either three 12-hour shifts or four 10-hour shifts each week. Parks says those schedules impede law enforcement. Assistant Chief George Gascon, who runs daily operations, said the shifts had not diluted his ability to keep officers on the streets. Ultimately, he said, retaining officers who might otherwise take jobs elsewhere outweighs other concerns. "It's a huge retention factor, if you factor in how much it costs to hire and train a police officer," Gascon said. "So, as an employer, we have to find a balance between the realities of the marketplace and our needs to deploy people." (source for both: Los Angeles Times) OHIO: Lawyer barred from visiting death row inmate who tried to escape An attorney stopped from taking items including black electrical tape onto Ohio's death row the day before her one-time client tried to escape has been barred from the prison, the state said Wednesday. Margery Koosed will not be allowed to visit Richard Cooey as an attorney beginning Wednesday, said Andrea Dean, spokeswoman for the Department of Rehabilitation and Correction. She could apply to be a normal inmate visitor if Cooey requested her, but that would require her undergoing a different approval process, Dean said. A federal appeals court removed Koosed from Cooey's case in the summer of 2003 and a new attorney was appointed to represent him. He was 12 hours from execution in July 2003 when a federal judge granted his new attorney more time to study the case. But Dean said the prison system learned that Koosed was not Cooey's attorney of record from an Associated Press story Tuesday. Cooey and another inmate used black tape to help build a homemade ladder as part of the escape attempt. The tape and a sewing kit the inmates were found with were similar to items Koosed had with her when she tried to visit Feb. 2, but they could not have been the same items since she was prohibited from bringing them in, Dean said. Koosed has said she didn't know anything about the escape. A message was left seeking comment about the prison announcement. Also Wednesday, Dean said prison officials have discussed moving death row to the state's supermaximum security prison in suburban Youngstown. She said there are no immediate plans for such a move, and it was discussed before the Feb. 3 escape attempt. Attorney General Jim Petro revealed the proposed move Wednesday when asked about the escape. He said it's in the talking stages. The supermax facility "is different in its construction, it's a state of the art, supermaximum security prison," said Petro, a Republican running for governor next year. "It's not a bad idea to examine that utilization for the most dangerous of our convicted criminals." The facility, called the Ohio State Penitentiary, opened in Youngstown in 1998. It holds about 465 inmates considered unmanageable in less secure institutions. Cooey, 37, was sentenced to die for raping and killing two University of Akron students in 1986. His new attorney, public defender Gregory Meyers, questioned how prison officials could not have known he was representing Cooey. "They had to know," Meyers said Wednesday. "That's the only way I got in." Meyers said Koosed worked with Cooey on issues still in the state court during the summer of 2003, while Meyers handled the federal appeal. The state case is now closed, Meyers said. "The state litigation is over, so whether or not Marge has a reason to claim an attorney-client relationship with Cooey is between Marge Cooey and the prison," Meyers said. Prison officials blamed "gross deficiencies in supervision" for the escape attempt, and on Wednesday reprimanded Mansfield Correctional Institution's top official, Warden Margaret Bradshaw. Death row is at the Mansfield facility. The letter of reprimand said there was "a notable lack of mid-management supervisory presence in the entire death row unit." "As a Warden it is necessary to have a system in place to ensure an incident of this serious nature could not occur," the letter said. "Additionally you are expected to lead by example, use good judgment, properly supervise and enforce work rules." Bradshaw declined to comment. On the Net: Mansfield Correctional Institution: http://www.drc.state.oh.us/public/manci.htm Supermax: http://www.drc.state.oh.us/Public/osp.htm ********************* State won't retry inmate in slaying State prosecutors have dropped efforts to retry an Ohio prisoner on potential death-penalty charges stemming from the slaying of a bartender during a 1984 robbery. At the state's request, Hamilton County Common Pleas Judge Richard Niehaus on Monday dismissed aggravated murder charges against Derrick Jamison, 44. His retrial in the death of Cincinnati bartender Gary Mitchell was to begin this week. A federal judge in 2000 ordered a new trial for Jamison, ruling that Hamilton County prosecutors withheld eyewitness statements and other evidence that could have been used to defend him. The 6th U.S. Circuit Court of Appeals upheld the decision in 2002. Several witnesses from the original 1985 trial have died, prosecutors said. Jamison was convicted of aggravated murder, aggravated robbery, robbery, receiving stolen property and carrying a concealed weapon. He was sentenced to death on the aggravated murder conviction. Charles Howell, a co-defendant who had initially identified Jamison as the killer, was in court Monday and testified he couldn't remember anything about the August 1984 robbery and slaying. Howell was convicted and has served his sentence on charges from the robbery. His comments left prosecutors with little to support the charges at a retrial, defense lawyer Elizabeth Agar said Tuesday. Jamison won't be leaving prison anytime soon. He was convicted of a series of violent robberies in the early 1980s and is serving up to 105 years in prison. Jamison has been in state prison since 1985 and isn't eligible for parole for 10 years. Niehaus said Tuesday that he still considers Jamison dangerous. He said he plans to urge the state parole board to keep Jamison locked up for life. (source for both: Associated Press) CONNECTICUT: Caucus aims to overturn death penalty The uphill fight to repeal Connecticuts death penalty gained some momentum Wednesday with new support from minority lawmakers and predictions that a repeal bill will survive a key committee vote next week. 2 strong repeal advocates, state Reps. William R. Dyson, D-New Haven, and Michael P. Lawlor, D-East Haven, said they now believe there will be enough votes to get an anti-death penalty bill through the legislatures Judiciary Committee. Lawlor is co-chairman of the panel. Lawlor and Dyson, a member of the legislatures Black & Puerto Rican Caucus which announced that groups support for repeal, said they believe sentiment may be shifting in Connecticut and nationally against the death penalty. "I still dont think the votes are there in both [House and Senate] to repeal it, let alone override a veto," Lawlor warned. "But you never know." Gov. M. Jodi Rell has refused to grant convicted serial Michael Ross a reprieve from his death sentence and has warned she would veto any repeal bill passed by the General Assembly. Ross execution was originally set for Jan. 26 but has been repeatedly postponed because of legal issues and he is now tentatively scheduled to die by lethal injection May 11. Even lawmakers who strongly support the death penalty have expressed mounting frustration about the apparently endless legal delays in the case. The U.S. Supreme Court this week ruled that executing people under the age of 18 is unconstitutional, noting in its decision that the United States is the only nation in the world that still sanctioned the execution of minors. Connecticut does not allow the execution of minors. Dyson and several other members of the Black & Puerto Rican Caucus said their group opposes the death penalty because of moral, constitutional and ethical issues. "Its been demonstrated across the country that we have had people on death row who were not guilty," Dyson said. State Rep. Juan Candelaria, D-New Haven, said one issue for the caucus was the racial "disparities of the people sent to death row." The ranking Republican on the judiciary committee, state Rep. Robert Farr of West Hartford, said he agrees the panel will most likely vote out a repeal bill next week. (source: Bristol Press) NORTH CAROLINA: Lawyers claim prosecutors withheld information in death case A man sentenced to die next week for a brutal 1991 killing should not be executed while the courts consider whether prosecutors improperly withheld information about a deal struck with one of their witnesses, defense lawyers said. They also argued Wednesday that his crime does not rise to the level of other capital punishment cases. William Dillard Powell, 58, was sentenced to death in 1993 for killing Shelby convenience store clerk Mary Gladden as he tried to rob her for drug money. Powell was high on cocaine and beat Gladden to death in a panic because she fought back, his lawyers said. He is scheduled to be executed on March 11 in Raleigh. His lawyers want the sentence reduced to life in prison. On Wednesday, Cleveland County District Attorney Bill Young and 2 retired Shelby police detectives visited with Gov. Mike Easley for about 30 minutes during a clemency hearing. Several people representing Powell then met in Easley's office for about an hour. The detectives said Gladden was beaten to death with a tool used to repair tires. Detective Dale Ledbetter said it was a brutal attack. "It was probably the most heinous crime I had ever investigated," said Ledbetter, who worked on the force for 27 years. Young, who prosecuted the case, declined to comment. Gladden's family members met later with an attorney for Easley. They also didn't want to talk with reporters. Powell's lawyers said during an afternoon news conference that they plan to argue that the courts haven't adequately considered a claim of prosecutorial misconduct discovered last week. Young failed to reveal a deal with Powell's girlfriend, Lori Yelton Donohue, in exchange for her testimony at the 1993 trial. Prosecutors are required to tell the defense about any promises made to witnesses. "We think it's a big deal," Powell attorney David Teddy said. "The point is (Powell's trial lawyer) was deprived of the opportunity to question Lori Yelton (Donohue) on this question." The alleged prosecutorial misconduct was discovered a week ago when Teddy interviewed Donohue in preparation for Powell's clemency hearing. Donohue told Teddy a felony larceny charge against her was dismissed three months after she testified, according to her affidavit. Last week, a judge refused to conduct a hearing about Donohue's alleged deal. That ruling will be appealed to the state Supreme Court, lawyer Bill Massengale said. The lawyers also intend to argue that Powell's case does not warrant a death sentence by today's standards, though it probably would meet the test for a "strong" 2nd-degree murder charge, Teddy said. Peter Bearman, a former sociology professor at the University of North Carolina at Chapel Hill, was hired by a lawyer in a separate North Carolina murder case in the mid-1990s to analyze consistency in the state Supreme Court's reviews of death penalty cases. Bearman's review of more than 100 death sentences between 1978 and 1995 found that cases most like Powell's didn't result in the death penalty, based on criteria such as age, drug use, and premeditation. "Cases that look like Mr. Powell's case look like life cases, not death cases," said Bearman, now director of the sociology department and Institute for Social and Economic Policy at Columbia University. Powell's attorneys also said the judge in his trial was convinced Powell had not intended to commit murder, and that evidence was withheld from defense attorneys. The state Supreme Court upheld Powell's conviction and death sentence in 1996. The U.S. 4th Circuit Court of Appeals rejected his appeal in 2003. (source: Associated Press)
