PROSECUTORS BLAME INSTRUCTIONS FOR MRS. DIEHL'S LIGHTER SENTENCE

Date: 1987-07-25

Richmond Times-Dispatch

Failure to furnish a crucial instruction to the jury hearing testimony against Karen Diehl may have resulted in the woman receiving a lighter sentence than her husband, according to prosecutors in the case.

"We blew it," Commonwealth's Attorney Paul A. Sciortino said yesterday. "Things like that happen."

Mrs. Diehl, 36, was convicted last week of involuntary manslaughter in the October 1986 beating death of her 13-year-old adopted son, Dominick J. "Andrew" Diehl.

Her husband, Michael Diehl, was convicted of the more serious charge of first-degree murder, although his wife testified she was the one who struck Andrew in the head with a wooden stick, a blow prosecutors said damaged his brain and caused his death.

Attention focused on the jury instructions almost immediately after Mrs. Diehl's unexpectedly light verdict was handed down July 17.

The trials took place simultaneously in separate courtrooms. Diehl's verdict was handed down two days before his wife's and kept secret from her jury.

Both were found guilty of abduction, felony child neglect and assault and battery, but his jury recommended a 41-year prison sentence and her jury recommended a 31-year prison sentence.

Sciortino and other lawyers said Diehl's jury was given instructions that made it easier to convict him of first-degree murder.

"My position is that if our jury had that instruction, it might have been different," Sciortino said. "We might have gotten a different verdict. I have to admit that."

Jury instructions are a list of the only possible convictions from which the jury must choose during deliberations. Instructions are argued over by lawyers on both sides and ruled upon by the presiding judge.

At issue is the instruction given to Diehl's jury that allowed it to infer malice, or intent to harm, from the crime of abduction. Specifically, the jurors did not have to decide whether he meant to kill Andrew, they only had to find there was a killing and that it occurred during an abduction.

The law defines abduction as a malicious act and calls for a first-degree murder conviction when it leads to a death.

According to instructions given the jury during Mrs. Diehl's trial, jurors had to establish malice as a separate finding in order to convict her of first-degree murder. Its instructions did not allow it to infer malice from the abduction.

Kenneth A. Phillips, the assistant commonwealth's attorney who aided Sciortino in the prosecution of Mrs. Diehl's trial, said there was "no question" that the missing instruction lessened the chances for a first- degree conviction.

Both juries believed an abduction occurred and convicted the parents on this charge, but neither jury believed the parents' violent punishment of Andrew was done with malice, Sciortino said. Both panels reduced charges of malicious wounding to assault and battery.

Sciortino and Phillips said they had decided it was unnecessary to give Mrs. Diehl's jury instructions that would allow it to convict her of a charge such as second-degree murder.

"Given Michael Diehl's verdict, I felt that there wasn't going to be any problem getting first degree," Phillips said. "That was a conscious act . . . I rolled the dice" and decided not to argue for a second-degree murder instruction.

"Ken just put all his eggs in one basket," Sciortino said.

Neither of Karen Diehl's lawyers, Thomas B. Shuttleworth or Robert G. Morecock, could be reached for comment yesterday.

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