Court says two can be tried for one crime / Prosecutions legal, but 'deplorable'

For prosecutors to seek and win convictions against two defendants in a crime, knowing only one of them can be guilty, is dismaying, dishonorable and maybe "outright deplorable."

But it's not illegal, at least not according to the Ninth U.S. Circuit Court of Appeals in San Francisco.

In a 2-1 ruling Monday, the court upheld a 16-month increase in Jonathan Shaw's prison sentence for a 1995 restaurant robbery in Fairfield, based on the jury's conclusion that he held a gun to the restaurant manager's head.

In a separate trial more than two years later, prosecuted by the same Solano County district attorney's office, another jury found that a second participant in the robbery, Mango Watts, was the one who held the gun to the manager's head, a finding that added 10 years to Watts' sentence. That jury was unaware of Shaw's verdict.

Like other courts that have reviewed the case, the appeals court said only one of the two men could have wielded the gun, but no law prohibits prosecutors from making inconsistent arguments to different juries, as long as they don't falsify the evidence.

"There is little doubt that the actions of the prosecutors in the case before us may be characterized as something between stunningly dishonorable and outright deplorable," said Judge Cynthia Holcomb Hall in the majority opinion.

But as a federal court reviewing a state conviction, she said, "we are not at liberty to indulge our own conceptions of justice in the absence of 'clearly established federal law.' " The latter phrase was quoted from a 1996 federal law that made it harder for state prisoners to overturn their convictions in federal court.

Dissenting Judge J. Clifford Wallace said the ruling ignored a prosecutor's well-established duty to seek the truth rather than victory at all costs.

"If extended to other trials, these divide-and-conquer tactics will inevitably produce unjust convictions and undermine public confidence in our criminal justice system," he said.

Deputy Attorney General Christopher Grove, the state's lawyer, said Tuesday the prosecutors of Shaw and Watts were entitled to present their cases differently as long as they didn't manipulate or falsify the evidence. He also took issue with the court's version of the facts and said there was evidence that both defendants had wielded guns.

Shaw's attorney, Suzanne Luban, said she would seek a new hearing before a larger appellate panel. She said the two Solano prosecutors "took ambiguous evidence and twisted it to suit whatever case (they) were prosecuting at the time. That is as underhanded and sneaky as presenting false evidence."

The issue of conflicting prosecution arguments in separate trials has also arisen in death penalty cases. The state Supreme Court has agreed to review the death sentences of two men convicted in separate trials for a fatal 1988 robbery. Last week, a Los Angeles judge found that the prosecutor in both trials made deliberately inconsistent arguments about which defendant actually killed the victim.

In another capital case, Thomas Thompson was sentenced to death for a 1981 rape and murder after the prosecutor presented evidence that Thompson was the only suspect present and had the only motive for murder. In a later trial, the same prosecutor argued Thompson's roommate was present and had the sole motive for murder.

The roommate, David Leitch, was sentenced to prison. The federal appeals court overturned Thompson's conviction because of the conflicting prosecutions, but the U.S. Supreme Court set the ruling aside on procedural grounds, and Thompson was executed in 1998.

These cases differ from the more common situation in which defendants who take different actions can be convicted of participating in the same crime. For example, under the longstanding felony-murder rule, any participant in a dangerous felony that ends in a killing - even the getaway driver - is as guilty of murder as the one who pulled the trigger.

Shaw and Watts, by contrast, were both given increased sentences for an action that only one could have done: pointing a gun at restaurant manager Cheryl Bishop and telling her to open the safe during the $1,500 robbery of a Lyon's restaurant in September 1995.

Shaw, tried first, was convicted and sentenced to 11 years and four months in prison, including 16 months for use of a gun. Prosecutors offered new eyewitness testimony at Watts' trial two years later, and he was convicted and sentenced to 15 years, including 10 years for gun use.