The New Yorker consistently puts out some of the best long-form criminal justice articles around. The recently published “Two Murder Convictions For One Fatal Shot” is particularly jarring. It personifies the concept of “inconsistent prosecutions” — that is, when the government can’t figure out who did a specific crime, they charge and present different cases at multiple trials against different defendants for a single crime that could only have been committed by one person. In other words, the state will argue one theory, and then at a subsequent trial (after a conviction), they will argue a different theory to convict a second defendant. Inconsistent prosecutions can often end with two people convicted for one crime that could only have been convicted by one of them.

On its face, it’s hard to imagine a less moral function in our legal system. Inconsistent prosecutions seem to be almost always used in accomplice liability — i.e. one person pulled the tigger but more than one person was involved in the overall scheme, and the state can’t figure out who committed the most serious offense — but when a person’s life is on the line for a murder conviction, it’s still unfathomable how this prosecutorial tactic still exists today. It speaks to an all-too-common attitude among prosecutors that a criminal trial is a game, and all that matters is winning it. To wit:

More often than not, judges who are confronted with inconsistent prosecutions have affirmed convictions, while, at times, expressing distaste for the tactic. The descriptions applied by judges include “unseemly,” “unseemly at best,” “troubling,” “deeply troubling,” and “mighty troubling.” “The state cannot divide and conquer in this manner,” a federal appeals-court judge wrote in one Georgia case, in which the court threw out a defendant’s conviction on other grounds. “Such actions reduce criminal trials to mere gamesmanship and rob them of their supposed purpose of a search for truth.”

The entire article is worth a read. I’ll be digging into this Columbia Law Review article on this subject in the coming days as well.