Vail Law: Why are co-defendants being tried separately in recent Vail Valley murder case? (column) |

Vail Law: Why are co-defendants being tried separately in recent Vail Valley murder case? (column)

Rohn K. Robbins
Vail Law

Two weeks ago, one of the co-defendants in the tragic Catherine Kelley murder pleaded guilty. His co-defendant/wife is set to go to trial in early January next year. Had the husband not pleaded to his crimes, he would have gone to trial separately from his wife. You may be wondering why.

Before we get there, there are a few things to chew off and digest. First, under Article III, Section 2 of the federal Constitution (“The trial of all crimes, except in cases of impeachment, shall be by jury”) and the Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury”), at least in most circumstances, a criminal defendant is entitled to trial by a jury of his or her peers.

In the Supreme Court case of Baldwin v. New York, 399 U.S. 66 (1970), the Court determined that right to a jury trial right applies only when “serious” offenses are in play. Petty offenses do not invoke it. For purposes of the right to a jury trial, a serious offense is one that carries a potential sentence of more than six months’ imprisonment. So when one is faced with an offense such as murder, it is the jury — not the judge — who decides the accused’s fate.

Before we come back to that, there is another thing to think about: a joint trial of co-defendants (known as “joinder”) occurs when a judge merges the cases of two or more defendants.

Joint trials occur when the issues in the defendants’ cases overlap enough to make a single trial both fair and more efficient. That said, the defendants don’t have to face precisely the same charges for a judge to join their trials. All that’s necessary is that the charges relate to substantially the same facts.

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A judge may not join the trials of defendants who simply happen to be charged with the same crime. If two guys commit two separate burglaries, for example, joinder is not appropriate. If they cooperate in the same burglary, then joinder may be indicated.

Why, then, are the trials of co-defendants (that is, two or more persons alleged to have committed wrongful acts together) not always tried together?

Here’s where it gets a little squishy. First, there is no constitutional rule governing joint trials. Judges have broad discretion to decide whether to join trials or not and will weigh a variety of factors when making this decision.

Judges usually will join trials only if the prosecution has charged the defendants together. However, there is no absolute rule forbidding joinder when defendants are charged separately, as long as certain conditions exist, including:

• The charges against the defendants are based on the same evidence;

• The defendants allegedly participated in the same acts or transactions;

• The crime allegedly involved a common scheme, conspiracy or enterprise; or,

• The charges are so closely connected in time and place that proof of one charge would require proof of the others (for instance, when one defendant is charged with robbing a bank and the other defendant is charged with being the getaway driver).

The primary consideration in determining whether a judge has properly joined trials is fairness. Not only will a judge typically not join trials if none of the above circumstances are present but, importantly, a judge will not join trials if the co-defendants’ strategies are antagonistic to each other. In such circumstance, a joint trial would be inherently unfair. Defensive strategies are considered antagonistic either when

• Each defendant asserts his own innocence and accuses the other of committing the crime or

• The jury can’t believe one defendant without disbelieving the other(s).

The bottom line is fairness and each defendant’s constitutional right to a fair trial. If a joint proceeding may reasonably impede that right, then the judge must sever the trials.

Generally, either side — defense or prosecution — may request separate trials.

To prevail upon a judge to split a trial that’s already begun, the defendant must establish impingement of his or her right to a fair trial. This may occur when evidence is admissible against only one defendant but is unfair to the other defendant(s).

Suppose, for example, co-defendants are charged with breaking and entering but only one is charged with murder. A judge would likely rule that a joint trial of these defendants should be severed because the evidence of murder wouldn’t be relevant to whether the co-defendant participated in the break in. Instead, it might inflame the jury to find the lesser-charged co-defendant guilty.

This is, however, not absolute and other “bumpers” exist to safeguard a fair trial even in the instance of evidence that may admissible as to one co-defendant or the other. These “bumpers” may include appropriate jury instructions, witness admonishments or other curative measures.

What, then, of the confessed murderer in the Catherine Kelley case? At his sentencing, he incriminated his co-defendant/wife, telling the judge that they — together — committed the horrendous crime. Doesn’t that compromise her at her trial, rendering it “unfair”?

Well, no.

It is the jury, not the judge, who will decide her innocence or guilt. Not only was that jury not in the courtroom when the murderer detailed his crime, but the jury in his co-defendant’s case has not yet been picked. When they are vetted as potential jurors in the process known as voir dire, no doubt they will be asked about her co-defendant’s confession. If they have in any way been tainted, they will be excused from serving on the jury.

Joinder is a tool of judicial efficiency and, where appropriate, conserves limited judicial resource. Where, however, severance preserves the right to a fair trial, separate trials instead will rule the day.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address,

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