Metropolitan News-Enterprise


Friday, March 4, 2005


Page 1


Death Sentence Overturned Over Ipsen’s Inconsistent Arguments


By KENNETH OFGANG, Staff Writer/Appellate Courts


One of two men sentenced to death after a prominent local prosecutor argued inconsistent theories at their separate trials had his sentence overturned yesterday by the California Supreme Court.

“[W]e conclude that fundamental fairness does not permit the People, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed,” Justice Kathryn M. Werdegar wrote for the court.

The justices overturned the death sentence of Peter Sakarias for the 1988 murder of Viivi Piirisild, saying Deputy District Attorney Steven Ipsen engaged in willful misconduct by arguing different theories of each defendant’s role in order to maximize the possibility of winning two death sentences.

Ipsen is president of the Association of Deputy District Attorneys and a member of the State Bar Board of Governors.

The court accepted the conclusion of its appointed factfinder, Los Angeles Superior Court Judge Thomas Willhite Jr., that Ipsen acted deliberately when he argued that Sakarias struck the victim three times with a hatchet, even though he had previously argued that Sakarias’ accomplice, Tauno Waidla, inflicted the same three blows.

The trials took place eight months apart because Sakarias had been initially found incompetent to stand trial.

What most likely happened, according to all of the evidence, is that Sakarias was telling the truth when he told police that Waidla struck the first blow and that Piirisild was already dead when Sakarias struck the last two blows after the body had already been moved from the front of the house, where the victim was attacked, to a bedroom, Werdegar wrote.

The court voted 6-1 to overturn Sakarias’ death sentence, but unanimously rejected Waidla’s bid for resentencing. Any violation of Waidla’s rights was harmless, Werdegar reasoned, because there is no reasonable doubt he would have drawn the death penalty under any theory supported by the evidence.

Waidla and Sakarias were convicted 14 years ago of murdering Piirsild, an Estonian American. The victim and her husband had befriended the two men, young Estonians who defected from the Soviet military, but had a falling out with them.

The defendants’ direct appeals were rejected by the high court in 2000.

Willhite found “unconvincing” Ipsen’s testimony that the inconsistency was inadvertent.

“Despite a lapse of eight months between trials, it is unlikely that a competent and committed prosecutor like Ipsen, handling the severed trials of two defendants jointly charged with capital murder, would simply forget at the second trial what specific factual theory of the gruesome killing he presented at the first,” the judge wrote.

Willhite also noted that at Waidla’s trial, Ipsen solicited testimony from the autopsy physician that an abrasion on the victim’s back was nonhemorrhagic and therefore appeared to have been inflicted after death; when the same witness testified at Sakarias’ trial, Ipsen did not ask him about the abrasion, thus avoiding testimony consistent with Sakarias’ claim that the body was dragged into the bedroom after the victim died.

None of the parties argued that Willhite’s findings were unsupported by substantial evidence, Werdegar noted yesterday.

Justice Marvin Baxter, who voted to uphold both death sentences, argued in dissent that Ipsen did not act in bad faith.

“Our referee found that Ipsen himself was sincerely uncertain which of the two murderers had committed this particular act,” Baxter wrote. “Under these circumstances, I cannot find bad faith in Ipsen’s efforts to make a plausible case against each petitioner.”

Each theory, Baxter argued, was sufficiently plausible that the prosecutor could reasonably have presented each of them at the separate trials.

There is a considerable split of authority in the federal courts, Baxter went on to note, as to the extent to which conflicting theories or facts may be used to convict defendants who are separately tried for the same or related crimes.

The U.S. Supreme Court, , he noted, has granted certiorari in Stumpf v. Mitchell (6th Cir. 2004) 367 F.3d 594, in which the Court of Appeals overturned an Ohio death sentence for a murder that occurred in the course of a home invasion robbery.

The court held that the defendant’s rights were violated when prosecutors obtained a death sentence on the theory that he fired both the fatal shot and another that wounded the victim’s husband, then presented evidence at his accomplice’s trial that the accomplice had admitted firing the fatal shot in a conversation with a fellow inmate at the jail.

Baxter also argued that given the brutality of the crime, and the evidence that the two men had broken into the victim’s house and waited for her with the intent to kill her as well as to steal property, Sakarias would have received the death sentence regardless of who struck the fatal blow.

“The undisputed details of Sakarias’ role in the brutal murder are aggravated in the extreme,” Baxter wrote.

Attorney General Bill Lockyer’s spokesman, Nathan Barankin, said the decision clarifies that “district attorneys will need to identify their theory for the crime that was committed and argue it consistently.” He declined to say whether that is good law, and said no decision has been made as to whether to seek rehearing.

Sakarias’ attorney, Cliff Gardner, told The Associated Press that Ipsen’s conduct “was egregious and it’s a travesty that the state defended it.” He added that if prosecutors retry the penalty phase, “it will come into evidence that he took a squarely different position in a different trial.”

Ipsen did not return a MetNews phone call, nor did Waidla’s attorney, Deputy Federal Public Defender Sean Kennedy.

The case is In re Sakarias, 05 S.O.S. 1187.

The justices yesterday also decided another capital case, unanimously upholding the death sentence of Cedric Harrison for killing two Oakland women as a result of what was alleged to be a drug deal gone sour.

Justice Carlos Moreno, joined by Werdegar, insisted in a concurring opinion that the prosecutor argued improperly by using Biblical references that the majority concluded were more “literary allusion” than an appeal to substitute religious principles for public law.

The argument was not prejudicial, however, given the strength of the prosecutor’s case, Moreno said.

That case is People v. Harrison, 05 S.O.S. 1169.


Copyright 2005, Metropolitan News Company