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I have been meaning to ask you. What's the rationale behind allowing prosecution to have two different theories for two different trials for the same crime? How

I have been meaning to ask you. What's the rationale behind allowing prosecution to have two different theories for two different trials for the same crime? How was this precedent set? Do you personally agree with it?

rayiner 11y ago
As far as I'm aware the Supreme Court has not specifically considered the issue of whether inconsistent theories of prosecution in two different trials violates due process. The federal appellate courts have been pretty negative on the practice. See 653 F.3d 426 (6th Cir. 2011).[1] That being said, criminal trials are inherently statistical and that admits some level of inconsistency. If the standard of conviction is say 95% certainty, the evidence might prove a 95% probability of guilt, while still leaving a range of facts undefined (e.g. where exactly was Halbach killed?) In fact, it's possible for the evidence to establish a 95% probability of guilt for two different people, even when only one could be guilty. Thus, the focus of courts reviewing these sorts of cases seems to be not on whether the theories are inconsistent, but on the prosecutor's ethical duty to submit only evidence they believe to be true. In the Stumpf case, the prosecutor presented in Wesley's trial a statement from a jail-house informant that Wesley admitted to being the one to pull the trigger. He did not present that evidence at Stumpf's plea hearing, and in a subsequent proceeding with Stumpf, argued that the jail-house witness was not credible. The problem was not that the two theories were inconsistent, but that in either the trial or the later hearing, the prosecutor must have advanced evidence he thought to be false. [1] In that case, there were two defendants accused of participating in the murder, but it was unclear who actually "pulled the trigger." One, Stumpf, pled guilty to aggravated murder, and in his plea hearing the state argued he was the primary shooter. He was sentenced to death. In the trial of the other, Wesley, the state argued that he was the primary shooter. He was sentenced to life. Stumpf filed a habeas petition in federal court. The Supreme Court held that the inconsistent theories did not require vacating Stumpf's guilty plea, because under Ohio law an accomplice who did not actually pull the trigger could be guilty of aggravated murder. However, it remanded to the Sixth Circuit to determine whether the inconsistent theories necessitated re-sentencing. On remand, the Sixth Circuit held that the inconsistent theories did violate Stumpf's due process rights and granted his habeas petition, unless Ohio granted him a re-sentencing.
- solutionyogi 11y ago
  Thank you so much for writing that up, that surely makes a lot of sense. What is your opinion on Ken? The way he organized press conference before Avery's trial? The way he proposed two wildly different theories in two trials? Do you think it was right on Ken's part to do that? What is your opinion on Dean Strang/Jerry Buting? Do you think they could have done more to establish reasonable doubt?
  - deleted 11y ago
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  - rayiner 11y ago
    > What is your opinion on Ken? Chief Judge McKee's concurrence in this case summarizes how I feel about such tactics: http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1462&context=thirdcircuit_2014 http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?...: > Bribery has thus undergone a metamorphosis that has transformed it from a prosecutorial theory that “just doesn’t have any place in this,” to the lynchpin of the Government’s argument on appeal. I understand why the Government adopted this adversarial bait and switch after Skilling. However, the argument could have – and should have – been made in a less disingenuous and more candid manner. > Although I agree with, and fully join the analysis in the Per Curiam opinion of my colleagues, I feel compelled to write separately to ensure that the “now you see it, now you don’t” approach to advocacy adopted by the Government in this case does not pass without comment.

rayiner 11y ago

As far as I'm aware the Supreme Court has not specifically considered the issue of whether inconsistent theories of prosecution in two different trials violates due process. The federal appellate courts have been pretty negative on the practice. See 653 F.3d 426 (6th Cir. 2011).[1] That being said, criminal trials are inherently statistical and that admits some level of inconsistency. If the standard of conviction is say 95% certainty, the evidence might prove a 95% probability of guilt, while still leaving a range of facts undefined (e.g. where exactly was Halbach killed?) In fact, it's possible for the evidence to establish a 95% probability of guilt for two different people, even when only one could be guilty. Thus, the focus of courts reviewing these sorts of cases seems to be not on whether the theories are inconsistent, but on the prosecutor's ethical duty to submit only evidence they believe to be true. In the Stumpf case, the prosecutor presented in Wesley's trial a statement from a jail-house informant that Wesley admitted to being the one to pull the trigger. He did not present that evidence at Stumpf's plea hearing, and in a subsequent proceeding with Stumpf, argued that the jail-house witness was not credible. The problem was not that the two theories were inconsistent, but that in either the trial or the later hearing, the prosecutor must have advanced evidence he thought to be false. [1] In that case, there were two defendants accused of participating in the murder, but it was unclear who actually "pulled the trigger." One, Stumpf, pled guilty to aggravated murder, and in his plea hearing the state argued he was the primary shooter. He was sentenced to death. In the trial of the other, Wesley, the state argued that he was the primary shooter. He was sentenced to life. Stumpf filed a habeas petition in federal court. The Supreme Court held that the inconsistent theories did not require vacating Stumpf's guilty plea, because under Ohio law an accomplice who did not actually pull the trigger could be guilty of aggravated murder. However, it remanded to the Sixth Circuit to determine whether the inconsistent theories necessitated re-sentencing. On remand, the Sixth Circuit held that the inconsistent theories did violate Stumpf's due process rights and granted his habeas petition, unless Ohio granted him a re-sentencing.

solutionyogi 11y ago
Thank you so much for writing that up, that surely makes a lot of sense. What is your opinion on Ken? The way he organized press conference before Avery's trial? The way he proposed two wildly different theories in two trials? Do you think it was right on Ken's part to do that? What is your opinion on Dean Strang/Jerry Buting? Do you think they could have done more to establish reasonable doubt?
- deleted 11y ago
  [deleted]
- rayiner 11y ago
  > What is your opinion on Ken? Chief Judge McKee's concurrence in this case summarizes how I feel about such tactics: http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1462&context=thirdcircuit_2014 http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?...: > Bribery has thus undergone a metamorphosis that has transformed it from a prosecutorial theory that “just doesn’t have any place in this,” to the lynchpin of the Government’s argument on appeal. I understand why the Government adopted this adversarial bait and switch after Skilling. However, the argument could have – and should have – been made in a less disingenuous and more candid manner. > Although I agree with, and fully join the analysis in the Per Curiam opinion of my colleagues, I feel compelled to write separately to ensure that the “now you see it, now you don’t” approach to advocacy adopted by the Government in this case does not pass without comment.