Is Justice Done in 2 Versions?

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 two 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

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 two 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 first 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 eight 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 two 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 second 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 two 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.