The 9th Circuit has ruled that it's legal, although deplorable, for prosecutors to convict two persons for the same crime when they know only one can be guilty.

In a 2-1 ruling Monday, the court upheld a 16-month increase in Jonathan Shaw's prison sentence for a 1995 restaurant robbery in Fairfield, based on the jury's conclusion that he held a gun to the restaurant manager's head.

In a separate trial more than two years later, prosecuted by the same Solano County district attorney's office, another jury found that a second participant in the robbery, Mango Watts, was the one who held the gun to the manager's head, a finding that added 10 years to Watts' sentence. That jury was unaware of Shaw's verdict.

Like other courts that have reviewed the case, the appeals court said only one of the two men could have wielded the gun, but no law prohibits prosecutors from making inconsistent arguments to different juries, as long as they don't falsify the evidence. "There is little doubt that the actions of the prosecutors in the case before us may be characterized as something between stunningly dishonorable and outright deplorable,'' said Judge Cynthia Holcomb Hall in the majority opinion.

We agree with the dissenting judge who said: