Conviction Turns On Grammar, Ambiguity State Supreme Court Decides Jury Could Have Misunderstood

Frustrated Stevens County Prosecutor Jerry Wetle plans to retry a man whose 1990 manslaughter conviction was recently overturned because of grammar.

It wasn’t even bad grammar, Wetle complained.

He’s right, according to Gonzaga University grammar expert Sister Phyllis Taufen. However, she said the Washington Supreme Court correctly concluded that a perfectly grammatical jury instruction was still ambiguous.

Victor A. LeFaber’s jury could have misunderstood the law of self-defense, the court ruled.

Both Wetle and defense attorney Pat Stiley went to a blackboard and diagramed the sentence for the Supreme Court, reaching opposite conclusions. LeFaber, who has been free during the appeals, “has been waiting years to find out what the effect of that sentence diagram is going to be,” Stiley said.

Taufen, an associate professor of English, analyzed the jury instruction at the request of The Spokesman-Review.

Trial testimony indicated LeFaber and Evan Stephens were drinking in December 1989 when Stephens became belligerent and LeFaber shot him to death. LeFaber was charged with second-degree murder, convicted of first-degree manslaughter and sentenced to three years in prison.

LeFaber claimed he feared imminent death or “great personal injury” when he shot Stephens. Such a “reasonable belief” is all that’s required for self-defense under Washington law.

One of Superior Court Judge Fred Stewart’s instructions could have caused the jury to believe wrongly that LeFaber actually had to be in danger, not just fearful, the Supreme Court ruled in a 5-4 decision.

Stewart told the jury: “Homicide is justifiable when committed in the lawful defense of the defendant or any person in the defendant’s presence or company when the defendant reasonably believes that the person slain intends to inflict death or great personal injury and there is imminent danger of such harm being accomplished.”

At issue is whether jurors realized that “reasonably believes” applied to the “imminent-danger” clause as well as to the preceding “intent” clause.

Before the case went to the Supreme Court, LeFaber’s conviction was upheld by state Appeals Court judges in Spokane, who said in a 2-1 ruling that a jury would apply “reasonably believes” to both parts of the sentence.

Dissenting Judge John Schultheis argued it was equally possible the jury thought it had to find LeFaber actually was in imminent danger - even if LeFaber reasonably believed Stephens intended to harm him.

The distinction is important because the evidence showed LeFaber was armed and Stephens was not.

Schultheis suggested several ways to clarify the jury instruction, including repeating the phrase “reasonably believes.” With tongue in cheek, Schultheis admitted his proposed wording is “redundant, repetitive, reiterative, duplicative and says the same thing twice.”

But, the judge continued, “stylistic niceties must give way to serving the function of jury instructions, which is to declare the law with as much accuracy, precision and neutrality as can be mustered.”

A majority of the Supreme Court agreed.

Dissenting Justice Gerry Alexander faulted defense attorney Stiley for not raising the issue at trial. Alexander chided his colleagues for “grammatical scrutiny so intense that it would warm the heart of a seasoned professor of English.”

Seasoned professor Taufen sided with Schultheis and the Supreme Court majority: “It’s a grammatical sentence, but it can be read both ways. There is no grammatical indication as to which should be done.”

Taufen said the case is the second she has encountered in which a legal issue turned on one of the points she teaches in English composition and business-writing classes. In the other case, a comma changed the meaning of a sentence.

Even with clearer instructions, jurors have a tough job in self-defense cases.

Although jurors aren’t supposed to decide whether there was imminent danger, they still must decide whether a defendant could reasonably have feared imminent harm under the circumstances and whether the defendant used only as much force as necessary.

, DataTimes