Prosecutor Portrayed Slaying 2 Ways, Judge Says

A Los Angeles judge has found that Deputy Dist. Atty. Steve Ipsen intentionally argued inconsistent theories of the same murder in two death penalty trials in order to present the most damaging case against each defendant.

The findings were referred this week to the California Supreme Court to determine whether Ipsen, president of the local prosecutors’ association, engaged in misconduct in the two 1990 capital cases and what should happen to the death row inmates as a result, attorneys said Thursday.

“Ipsen’s argument of inconsistent factual theories ... was an intentional strategic decision designed to fit the evidence Ipsen presented ... and to maximize the portrayal of each defendant’s culpability,” Los Angeles County Superior Court Judge Thomas L. Willhite concluded this week in a written report.

The state high court had ordered a hearing after inmates Tauno Waidla and Peter Sakarias filed petitions alleging misconduct by the prosecutor. Ipsen first argued in Waidla’s trial that Waidla struck the fatal blow, and then argued in Sakarias’ trial that Sakarias was the one who struck the fatal blow, according to the judge’s report.

Attorneys said Thursday that the high court has the power to order a retrial or reduce the sentences to life without the possibility of parole.

Deputy Dist. Atty. Ipsen maintains that he inadvertently made the conflicting arguments. “I didn’t intend to mislead the jury,” Ipsen testified to Willhite in a hearing in October. He did not return calls for comment Thursday.

The attorney general’s office also argued in court papers that the inconsistent arguments did not affect the guilt or sentences of either defendant.

But attorneys for the inmates said that Ipsen purposely manipulated the evidence and violated their clients’ due process rights.

“There were just too many things to believe that it was a coincidence,” Cliff Gardner, an attorney for Sakarias, said Thursday. “I think that the state should not be intentionally arguing inconsistent theories just to put two people away.”

Gardner said the judge’s findings “are good for us and good for the system.”

Waidla and Sakarias were convicted of robbing and murdering fellow Estonian immigrant Viivi Piirisild. The men, who had both deserted from the Soviet army, lived with Piirisild and her husband in North Hollywood. She ordered them to move out in 1988 after arguing about money. Two months later the men broke into the house and stabbed and bludgeoned Piirisild to death. They were arrested six weeks later in New York, tried separately and each was sentenced to death.

The inconsistent accounts came during the arguments in each trial, according to the judge’s findings.

In Waidla’s trial in January 1990, Ipsen argued that Waidla alone wielded the hatchet and delivered the fatal blow, while Sakarias inflicted all the stab wounds. Then, in Sakarias’ trial in September 1990, the prosecutor argued that although Waidla did use the hatchet, Sakarias struck the fatal blow.

Ipsen testified this fall that the conflicting arguments were inadvertent and that when preparing and prosecuting Sakarias, he didn’t remember what he had argued against Waidla.

But the judge disagreed, writing, “It is unlikely that a competent and committed prosecutor like Ipsen ... would simply forget at the second trial what specific factual theory of the gruesome killing he presented at the first.”

Willhite concluded Ipsen made an “intentional strategic decision” to change his arguments.