What do you tell the jury when Husband and Wife are jointly tried for a crime and, during jury deliberations, Husband jumps out of their hotel room window to his death? Which is what in fact happens here. I guess your choices are basically these:
(A) "Husband is no longer in the case. Don't speculate why. Just decide Wife's fate."
(B) "Husband is dead. Just decide Wife's fate."
(C) "Husband took a header out the window. Make of it what you'd like."
Okay, so (C) isn't a very good choice. But selecting between (A) and (B) is tough. The benefit of (A) is that it ostensibly keeps the deliberations "pure," but the downside is that it will likely cause the jury to speculate -- notwithstanding the contrary instruction -- that Husband may have pled guilty. The benefit of (B) is that it's the truth, and also avoids potential speculation, but the downside is that it might cause jurors to sympathize for the widow.
Judge Clifton's opinion talks a lot about both (A) and (B), but never actually decides which is preferable. He instead simply holds that (A) -- which is what the district court did here -- wasn't reversible error. Which is a holding that seems right to me.
Still, I'd have preferred to know his take on whether (A) or (B) is better. Guidance to district courts is usually a pretty good thing.
P.S. - Don't feel too bad for Wife. She was convicted of various charges -- including false statements and tax evasion -- by concealing from her bankruptcy petition a four-unit condo in Park City and various stock in her dematology practice, and was ordered to pay restitution of $2.4 million. But she still had enough to hire as her appellate counsel Shirley Hufstedler, the former Secretary of Education and Ninth Circuit judge (currently senior counsel at MoFo). Plus she ends up getting a remand on part of her sentence, anyway. So she's hardly someone without resources or who never had a chance in life. She just didn't make the best of it. 'Cause she wanted to go bankrupt and yet still be rich.
