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Prosecutors' Puzzle: When to Try, Try Again

Gravity of the offense is one factor when D.A.s seek repeat trials after juries deadlock. But persisting can raise ethics issues, some say.


The first time Carlos Burns was tried for attempted murder, the case ended in a mistrial when a sole juror held out for acquittal.

So prosecutors retried Burns, who is now 21, for allegedly shooting a man in the leg. This time, the majority voted not guilty--8 to 4--and another mistrial was declared.

Legal experts say it is usually more difficult to win a conviction with each successive trial. But Los Angeles County prosecutors nonetheless decided to try the street gang member a third time. The jurors were again split, 6 to 6, when the judge declared a mistrial because of evidence issues.

At that point, Burns' lawyer declared that enough was enough. "If their case was so good, they should have won it the first time," defense attorney Juanita McLean told the judge.

But since a unanimous verdict had not yet been reached, double jeopardy protection did not apply. And prosecutors, confident that Burns was guilty, decided to try him yet again.

The fourth time was the charm. Burns was convicted of attempted murder and is due to be sentenced to up to life in prison.

The Burns case illustrates the tug-of-war between prosecutors who are determined to win a conviction against people they believe are guilty and defense attorneys who believe their clients should not be tried over and over.

Trying 1 Defendant 4 Times Is Rare

Although prosecutors routinely try cases twice, and occasionally even three times, when jurors deadlock, it is rare to try a defendant four times. And it is even rarer for prosecutors to be so persistent in a case that does not involve a murder, lawyers and judges said.

"I think it's unusual, but certainly not unprecedented," said Supervising Criminal Judge Dan Oki, though he could not comment specifically on the Burns case.

In deciding whether to allow a fourth--or even fifth--trial to move forward, Oki said, judges consider several factors, including the seriousness of the crime, whether prosecutors have additional evidence and the cost of trying a particular case. It runs more than $9,000 a day to operate a courtroom, said Kyle Christopherson, a spokesman for the Los Angeles County Superior Court.

With every trial, the likelihood of winning a conviction diminishes, because witnesses are no longer available or their recollections dim, attorneys said. In addition, at that point, defense attorneys have had several dress rehearsals and may know the best ways to attack the prosecution's case.

As a result, prosecutors usually decide to offer a plea bargain, because they don't believe they will get a jury to reach a guilty verdict in another trial, said Peter Keane, dean of Golden Gate University Law School.

Although there is no law preventing repeat prosecutions, Keane said trying someone more than two or three times raises ethical questions. Prosecutors have a duty only to try cases if they firmly believe they can convince jurors beyond a reasonable doubt that the defendant is guilty, he said.

"After three trials, it is very difficult for a prosecutor to ethically justify another prosecution," he said.

Keane said he represented a defendant in a capital murder case in which jurors deadlocked twice. Instead of trying the case a third time, prosecutors allowed his client to plead guilty to a lesser charge of manslaughter, he said.

Diane L. Karpman, an attorney who specializes in legal ethics, agreed that devoting public resources to trying someone over and over "is very questionable." In such cases, attorneys may have become overly zealous.

"That many times, you wonder if the lawyer has crossed over and gotten too emotional," she said.

Type of Crime Is Key, Says Former D.A.

On the other hand, Karpman said, prosecutors should not give up on cases if the alleged crime is egregious.

Former Los Angeles County Dist. Atty. Robert Philibosian says prosecutors have to carefully consider the type of crime when deciding whether to go forward. "Attempted murder is still a very serious crime," he said.

Deputy Dist. Atty. Jose Arias succinctly explained his reason for trying the Burns case a fourth time: "I believe to the best of my ability that he is guilty beyond a reasonable doubt."

On Dec. 1, 1999, two men were walking on 53rd Street just east of Normandie Avenue in South-Central Los Angeles. A red car drove by, made a U-turn and backed into an alley. The passenger of the car fired at the two men, missing one and hitting the other in the knee, according to police.

The driver, Omar Camacho, was arrested that night after a car pursuit by LAPD officers. Camacho told police that the shooter, who fled on foot, was a Rolling 40s gang member named Carlos. Police made wanted signs with Burns' picture on them, leading to his arrest two months later.

Camacho and Burns were each charged with one count of conspiracy to commit murder and two counts of attempted murder, along with a special allegation that the crime was committed to benefit a street gang.

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