Prosecutor Says 2 Men Fired Same Bullet; Each Is Convicted

One bullet. Just one.

Fired 18 months ago in a park in the South Bay, it hits a drug dealer in the back, killing him.

Two young men are promptly arrested. But who fired the shot? At a trial, before separate juries, a deputy district attorney tells one jury that John Patrick Winkelman was the shooter. Then the same prosecutor tells the other jury that Stephen Edmond Davis was the shooter.

Both are convicted of murder. Both face sentences of life in state prison without the possibility of parole. Is this justice?

The answer will be forthcoming in hearings in Torrance Superior Court in a case that tests a prosecutor’s obligation to win fairly--and that highlights the issues that arise when a trial, which lawyers and judges like to call a search for the truth, ultimately produces different versions of the truth.

In legal briefs, defense lawyers allege that the prosecutor committed misconduct. At hearings set to begin Wednesday before Judge Francis J. Hourigan, they intend, before the scheduled sentencings, to request new trials.

“When you’ve got one bullet in a guy, you cannot argue that two different guys fired that bullet,” Winkelman’s defense lawyer, Peter Giannini, said in an interview. “That’s wrong.”

In their briefs, which recite some of the most famous propositions in the annals of U.S. jurisprudence, Giannini and Davis’ lawyer, Robert Courtney, point out that the prosecutor’s job is not just to win but to do justice by seeking the truth. Among the famous sayings: A prosecutor “may strike hard blows” but is “not at liberty to strike foul ones.”

The prosecutor, Deputy Dist. Atty. Todd D. Rubenstein, denies any wrongdoing and says he followed the letter and the spirit of the law. The verdicts, he says, are just.

Rubenstein adamantly insists that he did not lie to the separate juries.

He said he spent considerable time pointing out to each jury the rule that both a shooter and an accomplice can be convicted of murder. And in his closing arguments to both juries Rubenstein did make that point--that it really didn’t matter who fired the fatal round.

Rubenstein did, however, go on to tell the Winkelman jury separately that Winkelman fired the fatal shot; and the next day, tell the Davis jury separately that Davis was the shooter.

Because the different juries had heard from different witnesses, Rubenstein said, he merely argued “logical inferences that can be drawn from the evidence.”

At the time, Giannini did not object because he was not in the courtroom to hear the arguments made solely to the Davis jury. Courtney, who similarly did not object, said he did not hear the arguments made to the Winkelman jury.

And, Rubenstein said, despite the propositions put forward by defense attorneys Giannini and Courtney, their diligent search through the annals of legal history did not produce anything on point--that is, nothing to say a prosecutor may not argue different facts to different juries in the same trial.

There is no such precedent, Rubenstein asserted.

“Legally, I’m on solid ground,” he said, adding, “I don’t want to come across as a jerk who feels he can do anything to secure a conviction. That’s absolutely not my personal philosophy or what I did in this case.”

Legal experts said Rubenstein may very well be right about his solid legal footing. But they also said it’s problematic when a verdict doesn’t seem to mesh with common sense.

“The real problem is when [the public] hears about this, it undercuts the credibility of prosecutors and [public] confidence in the system,” said Laurie Levenson, a Loyola law school professor and former federal prosecutor.

“They may not appreciate why this was done in good faith or based upon two different sets of evidence. What they hear is that the prosecutor has the audacity to stand up and say, ‘Two different people did it,’ depending which one he wants to get a conviction on.

“From a legal point of view,” Levenson said, “you may be able to explain this. But from a common-sense point of view, it’s not fair.”

The case stems from the Oct. 29, 1995, killing of Willie Yen, described by authorities in court documents as a drug dealer.

Prosecutors allege that Davis and Winkelman--who were sharing a bedroom in the Torrance home of Davis’ parents--planned to rob Yen to get a stash of cash.

About 6 p.m. in Entradero Park in the northwest corner of Torrance, a young man asked a park regular, Adam Asbury, for the time, according to a police report.

About 10 minutes later, Asbury later told police, he heard the squeal of tires.

Asbury looked up and saw someone running after a Mazda RX-7 while holding out a gun and firing--the same young man who had asked him for the time.

The gunman came up alongside the driver’s side of the car, shot the driver and pulled him out of the Mazda, Asbury said.

Yen, who had been driving the Mazda, was shot just once, in the upper left back. The bullet ripped down toward his heart, slicing an artery.

Later, Asbury identified Winkelman, then 19, as the shooter. At the trial, he said he was “100% certain,” according to court documents.

The day after the shooting, police arrested Winkelman and Davis, who was also then 19.

Winkelman refused to talk to detectives. But Davis, according to the police report, said he had been the one running behind the car.

He said Winkelman had gotten into the Mazda, next to Yen, and then pulled a gun.

A struggle ensued inside the car. Davis said he heard shots and went running toward the car, firing his own gun, eventually coming up to it along the driver’s side.

Davis said he did not, however, fire the fatal shot. He intimated that it was Winkelman who shot Yen.

Asbury said he did not see anyone besides Yen in the car.

In court, Winkelman’s defense was that he was not in the park when Yen was shot. Rubenstein, however, said in an interview: “Both guys were there. Both guys had guns. Both guys fired their guns.”

The prosecutor added that both Winkelman and Davis carried nearly identical guns, each a .25-caliber semiautomatic pistol. Ballistics tests on the bullet that hit Yen were inconclusive, Rubenstein said.

Because Davis spoke to police while Winkelman did not, Judge Hourigan decided to run the trial with two juries. The procedure is uncommon and unwieldy but not unheard of; it was used, for instance, in the first trial of the Menendez brothers.

In such cases, some testimony is presented to both juries at the same time, and at other times, one jury leaves the room while the other remains to hear specific witnesses or arguments.

For example, the judge ruled that Winkelman’s jury could not hear about Davis’ statements. Even if he really was telling the truth when he implicated Winkelman in speaking with police, Davis had a powerful incentive to lie--a premise long recognized under the law.

So the Winkelman jury heard Asbury identify and implicate Winkelman.

And, ultimately, Davis did take the stand--before his jury only.

As far as the Winkelman jury was concerned, Davis’ remarks to the police never happened--a legal fiction and, in retrospect, an “over-extended legal fiction,” said Robert Pugsley, a Southwestern University law professor.

But, making his closing arguments to the Winkelman jury, Rubenstein recounted Asbury’s eyewitness testimony and, according to a transcript, went on to say that Asbury “looks around and sees John Winkelman holding a gun outstretched in his arm, bang-bang-bang.”

Later, he said: “The evidence is manifest. It’s unrefuted that John Winkelman is the actual killer.”

The next day, making his closing argument to the Davis jury, Rubenstein said the evidence was “quite clear” that Davis was the killer:

“Mr. Davis told us that the person that Adam Asbury described as running up and firing was him. Runs up to the passenger side. Excuse me, the driver’s side. Right in the door. Bang. Who do you think shoots Willie Yen in the back, the left back? That is 100% consistent with Stephen Davis firing that fatal round.”

The Winkelman jury came back first--guilty. A few hours later, the Davis jury returned with the same verdict.

Speaking of Rubenstein, Giannini said later: “He can take the position that Davis was the shooter or Winkelman the shooter, but he knows damn well that both weren’t the shooter.”

Rubenstein replied that the law is quite clear about what he can do, and not do. For instance, the law explicitly says he could not have argued to the Davis jury that Davis was guilty but Winkelman was innocent, then turned around and argued to the Winkelman jury that Winkelman was guilty, Davis not.

Short of that, he said, he has leeway.

True enough, experts said.

But, said Pugsley, the Southwestern law professor, it’s up to the prosecutor to see to it at a trial that the truth does come out. Who fired the shot that killed Willie Yen? It’s still not clear.

“You’ve got just one bullet,” Pugsley said. “It just doesn’t add up.”