In a brief supporting Muhammad's appeal, his lawyers alleged 102 errors in the trial and sentencing, including the inconsistent prosecution theories.I'm interested to see how that argument is dealt with. As I remember it (harkening back to law school) in federal interpretation the State is viewed as one body rather than a series of subordinate entities (counties, townships, cities). As well, the prosecutor (the representative of truth, justice, and all that is ma'at in the universe) would seem to be required to adopt a specific theory as to reality.
The state argued in the Muhammad case that he controlled his younger accomplice, but it claimed in the Malvo case that the teenager was "an independent thinker, and not under the sway of John Muhammad," defense lawyers Jonathan Shapiro and Peter Greenspun wrote.
"Pressing these absolutely contradictory positions in an attempt to win convictions and a death sentence runs afoul of the Due Process clause," they said in the 140-page brief.
Now, I understand that in a particular case the prosecutor's theory might have to change a couple times pre-trial or mid-trial because of new evidence. However, trying one person on a particular theory and another on a theory the prosecutor knows conflicts with the first does not come across as just.
Not that I expect the result to be overruled; I just want to see how twisted the reasoning gets to uphold the decision.