A quantitative look at the two-suspect scenario.

AuthorNetter, Brian

Two men are placed at the scene of a homicide. Each has an unsavory past and either could be the murderer--or an innocent man. It all depends on whether a witness should be believed, how the evidence is pieced together, and how the prosecutor decides to proceed. Should he try one man and set the other flee? If the first prosecution fails, will he then try the second man? Can he try them simultaneously?

It seems disconcerting, at best, that a prosecutor would go after two men for the same crime, knowing full well that at least one was innocent. But this is what happened in Bradshaw v. Stumpf, (1) a case in which a prosecutor sought the death penalty against two men--admittedly accomplices--by arguing inconsistently that each was the primary aggressor who fired the fatal shot. John Stumpf was sentenced to death on a theory of the case that the same prosecutor later attacked in the trial of Stumpf's accomplice. (2) On federal habeas review, Stumpf claimed that this tactic violated his due process right to a reliable trial. (3) The Supreme Court left this issue unresolved when it remanded the case to the Sixth Circuit. (4)

This Comment presents a quantitative thought experiment to evaluate the claim that prosecutorial inconsistency is fundamentally unreliable. It concludes--perhaps counterintuitively--that when a prosecutor is genuinely unable to decide which of two suspects is guilty, bringing both cases to juries is the most reliable approach so long as there are protections against simultaneous convictions. While there may be other reasons to disfavor dual prosecutions, courts should reject claims of unreliability in cases in which the prosecutor has not manipulated the evidence in order to pursue multiple trials. Part I introduces the debate in the lower courts and sets out the controversy. Part II then offers a model that challenges the reliability claim.

  1. EXISTING APPROACHES FOR INCONSISTENT PROSECUTIONS

    Courts across the country have entertained arguments that it is unconstitutional for a prosecutor to conduct multiple trials with contradictory theories of a single crime. (5) Although there is no single approach for evaluating these claims, reliability is a frequent theme. (6) This appeal to reliability appears to be an outgrowth of Supreme Court decisions on prosecutorial misconduct that proscribe the presentation of testimony prosecutors know to be false (7) and require prosecutors to correct testimony they elicit that would mislead the jury. (8) Commentators (9) and litigants (10) have extended this reasoning to deduce that if the state pursues two defendants under mutually exclusive factual theories, the state must have educed false testimony in one of the trials, even if the state does not know which. Accordingly, the government must be increasing the risk that an innocent person will be convicted. This line of reasoning, while initially appealing, ultimately proves misguided when subjected to a fairly simple probabilistic analysis. (11) As some courts have already realized, in evaluating the risk to the innocent, a distinction should be drawn between multiple prosecutions that involve unethical conduct and those that arise from a prosecutor's good faith uncertainty.

    When defendants prevail on reliability claims, it is often due to blatant prosecutorial misconduct in the dual prosecution. Courts sensing that prosecutors are out to win at any cost have vacated convictions in several federal and state jurisdictions. (12) These courts have gestured toward reliability concerns in their judgments. For example, when the Eighth Circuit condemned a prosecutor's extraction of two conflicting stories from a single witness before either trial began in order to use the more convenient story in each subsequent trial, the panel concluded that "the state's error rendered unreliable" the conviction under review. (13) The California Supreme Court similarly wrote that when a "change in theories between the two trials is achieved partly through deliberate manipulation of the evidence put before the jury, the use of such inconsistent and irreconcilable theories impermissibly undermines the reliability of the convictions or sentences thereby obtained." (14) In both of these cases, the findings of bad faith were central to the outcomes.

    When prosecutors' decisions to undertake dual prosecutions appear to stem from good faith uncertainty, however, courts are divided. The two extremes are set out by the Fifth Circuit in Nichols v. Scott (15) and the Sixth Circuit in Bradshaw v. Stumpf. (16) In Nichols, two men admitted to firing bullets at a victim who died from a single gunshot wound. Both men were convicted and sentenced to death under the mutually exclusive factual conclusions that each man fired the fatal shot. The Fifth Circuit affirmed, finding...

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