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The Laci Peterson Murder: “Reading the Defense”

Ongoing Reflections by the Former Alameda County Public Defender

 

This narrative began 1-20-04 and ended with some final observations on March 16, 2005 after the page was visited more than 40,000 times. I’ve received complementary emails from the working press, law enforcement and general readers. Will I cover another trial? Stay tuned…

JBG

 

 

DEATH ROW FINALLY ARRIVES

 

March 16, 2005.

 

As predicted ALL defense motions were denied, and Judge Al Delucchi has imposed the sentence of death for Scott Peterson.

 

The rest of the story will be less exciting because news tends to track vivid events that have immediate impact.  But there are two important questions to follow: What will happen to Geragos? 

What will happen to Scott Peterson?

[This material is now found at the conclusion of the Peterson Narrative.]

 

 “Reading the Defense”

 

Here are all the postings in Chronological Order from jury selection through  the death verdict

 

Part One: Shadow Boxing: The Pretrial Show

 

The Shadow of Death Row

1-20-04

 

As I first wrote this, Scott Peterson’s defense team had won a change of venue. [Or “menu” as a former associate might say.]  This meant that Mr. Peterson, accused of murdering and possibly dismembering his wife and unborn child (the bodies having turned up in that condition in SF Bay), won’t face a home town jury. [Note: later evidence confirmed that the bodies deteriorated while submerged in the bay. The absence of blood at the presumed scene of the killing supported the theory that it was a bloodless killing, probably by strangulation or smothering.]

 

Why is it that media saturation very, very rarely prompts the defense to seek escape from trial in the urban jurisdictions?  I don’t think I’m giving away any secrets to state the obvious: Urban jurisdictions tend to be more defense friendly than rural and suburban ones.

 

The ostensible defense rationale for any venue change is to protect the defendant from adverse prejudicial pretrial publicity.  But the impact of publicity in the most notorious cases is often not affected by the change of venue from small town to big city.  So the publicity rationale is more pretext or opportunity than actual, animating reason for a typical defense change of venue motion.  The defense typically seeks to have murder cases transferred out of a rural or suburban jurisdiction in murder cases because urban jurors are less likely to impose the death penalty. No doubt, there are other reasons, too. But in a case liker Peterson’s, where the California AG has been quoted as saying that the prosecution has a “slam dunk” case, penalty considerations tend to dominate litigation tactics.

 

When the intensity of pretrial publicity reaches critical mass, particularly in smaller communities, the court has little real discretion but to grant the venue change if it is requested by the defense and the case is well documented. Note that the prosecution doesn’t get to ask for a venue change on these grounds at all.

 

Transferred cases tend to end up in urban courts because of a simple logic: The urban pool of prospective jurors, however tainted by media hype, provides a larger number of so called “Mars dwelling” jurors, i.e., those isolated souls who somehow have gotten through the last few months without watching TV news, reading a newspaper, People Magazine or the supermarket tabloids.

 

From the defense perspective, typical urban areas (here think LA and Oakland) give a client the benefit of the “crime dilution” effect. In a jurisdiction where there are dozens of spousal murders a year, bended with rape, kidnapping, carjacking and robbery murders, some with multiple victims, a single spousal killing, however aggravated, tends to lose some of its lurid glamour. This assists the defense in making the classic, spare-my-client plea for mercy: The death penalty is reserved for the worst of the worst. This argument plays better in a high crime urban context where there are several other candidate killings every year for the “worst of the worst” awards.

 

All in all, Scott Peterson’s odds of ultimately escaping the death penalty – assuming it is vigorously sought by the prosecution – are much better than even. Consider that of the more than 600 convicted killers lined up before him on California’s death row, fewer than 2% have been executed in the last decade. Even if California executions were stepped up to one a month (which assumes certain reforms in the appeals process) it would take the state of California FIFTY YEARS to clear the backlog ahead of someone like Peterson.

 

Old age works faster…which brings me to the following aside:

 

As I’ve noted in my article on the death penalty (also on this site), the prospect of being subject to society’s ultimate penalty, however remote the prospect of actual execution, still deters some murders in a way that the threat of a mere return to prison does not.

 

Recently, two carjackers, having stuffed their victim in the trunk of his stolen car, drove around for some time before finally deciding to let the man get out alive in Oakland. In other cases, the carjack victim has not been so fortunate. There are many situations in which the life-death decision – to kill or risk leaving behind a live witness – is influenced by the prospect of spending one’s last years on death row.

 

Finally, a parable:

 

A fearsome, smoke belching dragon guards a treasury. Every year, several hundred greedy souls attempt to sneak into the dragon’s lair to steal gold. Many are frightened away by the dragon’s snarl and smoke. Many fall into a crevice and die. And some succeed.

 

So every year the number of challengers increases. Rumors grow that the dragon has no fire and no teeth. 

 

The rumors are true.

 

 

Subpart B: Forum Shopping [1-22-04 and 2-3-04]

 

The defense team in the Laci Peterson murder trial cannot be happy that, given the available Northern California venue choices (including Alameda County and San Francisco), the case has landed in the heart of Silicon Valley for trial. The chances of a death penalty verdict for “widower” Scott Peterson following a conviction have just increased.

 

But then the prosecution exercised its prerogative under CCP 170.6 to reject the assignment of veteran trial Judge Richard Arnason, whose assignment presented the defense with its worst nightmare, given an apparently strong prosecution case: the prospect of a fair, error free trial. I assume the DA acted on advice from someone here, but it was bad advice.  The next judge cannot be challenged under 170.6 (because the law gives each side only one such “free shot”). All the procedural shadow boxing is still driven by the death penalty issue and each side’s assessment of advantage. Presumably, Judge Arnason, a palpably decent man, was rejected because of fears he might guide a jury towards improvident mercy.

 

Granted, no death verdict is ever a sure thing in a murder case– however heinous – especially one that is “just in the family”.  That said, should Scott Peterson actually be sentenced to death, you can look for him to be an earlier target for execution (in spite of the waiting list – note my article on the death penalty posted on The Policy Think Site www.jaygaskill.com . In California’s politically correct pecking order, an apparently remorseless white male may well jump over other more sympathetic cases to a preferential place in the “Green Room”. 

 

Of course there is still time for a change of heart. But, from this distance, the problem with the defense strategy seems to be Mr. Peterson himself, whose prospective “OJ” style defense may prove to be an act of suicidal arrogance.

 

Then Judge Al Delucchi, one of the most experienced death case judges in the state, was assigned. Again, the defense faces the prospect of a fair, error-free trial, conducted by a jurist whose easy going manner is coupled with a brook-no-nonsense charm.  At this writing, Judge Delucchi hasn’t ruled on whether to sequester the yet-to-be picked jury in some hotel for the duration.  I wouldn’t bet on it.  Had the judge admitted TV cameras to his courtroom, ramping up the media coverage ten fold, a sequestered jury might have been necessary. It’s far less likely now.

 

There will be other motions and rulings, but the next life-or-death step for Mr. Peterson is jury selection, a process that will probably take weeks.

 

 

Subpart C: Some of the Defense Problems [2-5-04]

 

As the defense faces the problem of jury selection (I’ll cover that topic on another day) consider for now the core dilemma faced by every death penalty defense team:

 

Background: Almost always, these cases are tried two separate phases, the first to determine guilt, then -assuming the jury has turned in a first degree, special circumstances murder conviction -- the second phase will decide between life without parole and death row. It takes a twelve of twelve juror votes to convict and twelve of twelve to approve the death penalty, and the same jury decides.  Should the Peterson jury reach a conviction, but not reach unanimity on the penalty question, there can be another, later entirely separate trial devoted exclusively to that question. This would probably take place months later before a brand new jury. In effect, the defendant would have already been guaranteed life without parole, but the death penalty still could be imposed. In the second penalty trial, the prosecution gets to show the gory details of the crime to the new jury. Therefore the time, energy and effort of the penalty retrial is nearly the same as the entire first trial.  Prosecutors tend to give serious thought before embarking on a penalty retrial simply because of the enormous effort and resources involved. A decision to go with a penalty retrial is more likely when the “death count”, i.e., the number of juror votes for death, is high, as in 10-2 or 11-1.  The retrial burden on the defense is even greater, because all those reasonable doubt arguments about guilt are essentially worthless.  The burden is especially hard on the defense if the government is not paying the bills. If a retrial scenario unfolds, I’d not be surprised if Scott Petersons’ team drops out and refers the matter to the public defender.

 

The Core Dilemma:  We are led to believe that Scott Peterson is actively claiming his innocence. Any defense team that seriously presents such a defense in a death case risks a jury backlash should the defense be summarily rejected.  Imagine the problem when the defense tries presenting mitigating evidence in that scenario. I’m reminded of a juvenile case early in my career when the trial judge, now deceased, directed my client, after a finding of guilt – when my client had actively professed his innocence – to write a letter of apology to the victim, the elderly victim of a purse snatch. Knowing that the judge had a kind heart and a sense of humor, I assisted my young client in writing the following–

 

“I’m very sorry that the person who robbed your purse turned out to be me.” 

 

Should a guilty verdict be returned with special circumstances, Scott Peterson will walk in to the courtroom and find twelve stone-faced citizens who have just rejected the entire defense theory of the case.  They will be looking for authentic remorse.  There will be no humor in their hearts.

 

The Core Problem: From a criminal defense lawyer’s point of view, the ideal defendant– innocent or guilty – has at least two traits: reasonableness and a willingness to strictly follow all legal advice.  Out of the thousands of defendants whose cases I’ve personally handled as a trial lawyer or supervised as the county public defender, each of these traits was in short supply. Some of my best clients were the ones who had been tried, convicted and sent to prison on some prior occasion, having paid a price for rejecting their former lawyer’s advice on litigation strategy.

 

From this perspective - -and from my remote viewing platform – Scott Peterson looks like trouble. One early warning sign: Scott Peterson repeatedly talked to the press, even helping supply a motive for the murder of his wife.

 

And if you can’t keep your client from talking to the media….

 

 

Subpart D: The Defendant’s Statements [2-24-04 and 3-3-04]

 

It appears from my remote viewing location that the Laci Peterson murder case is a classic circumstantial evidence murder case bolstered (for the prosecution) by the evasive and (in many instances) obviously false explanations by the accused. Mr. Peterson’s defense team must now be thinking about the problems this will present in final argument, when the prosecution will stress the obvious point: Why tell these lies if you’re innocent? The defense pretrial motions to exclude evidence are primarily aimed at limiting the damage from Scott Peterson’s “talking fool” strategy (as in the maxim that any client who represents him/herself has a fool for a client).

 

Most or all of Mr. Peterson’s press statements will ultimately be admitted into evidence because there appear to be no persuasive legal arguments to exclude them. The practical problem that prosecutors may face will be posed by reporters, themselves, who are typically reluctant to become courtroom witnesses. The usual work-around is to play tapes when available (authenticated by someone other than the reporter) or to show the accused (assuming he testifies) the printed press reports, and ask him to confirm and explain what he said to reporter X. This possible scenario becomes one of several factors in the critically important decision the defense must later make: “Do we dare call Mr. Peterson to the stand in his own defense?” Of course, the decision may not be up to the lawyers; after all, like all defendants, Mr. Peterson has an absolute constitutional right to testify in his own case, even if by doing so he manages to snatch defeat from the jaws of victory.  I’ll get to that one in a later Part of this ongoing analysis.

 

The most difficult of Judge Delucchi’s rulings in this area to date concerned the admissibility of Peterson’s wiretapped phone call tapes – the recordings made of his telephone calls before trial, that included confidential conferences with an attorney. Such communications are supposed to be zealously protected from eavesdropping. We can safely assume that judge Delucchi, having admitted the tapes, has taken care to redact those parts of the recordings that contain confidential communications between Peterson and his former lawyer. Such a redaction is absolutely required, and the trial court’s decision will later be reviewed by the California Supreme Court and at least one federal court in the event Peterson is convicted and sentenced to death.  Although courts have not yet clarified the ground rules, the defense on appeal (following a conviction) could be expected to argue that even derivative use of the contents of an overheard confidential communication is prohibited. In other words, the prosecution would be required to prove that it had in no way used any of the information gleaned by eavesdropping on the attorney/client conversation to assist it in preparing the case, or developing its investigation, even though the overheard statements themselves would be kept from the jury. If Peterson hadn’t already been talking so much the press (thus allowing the prosecution to argue in effect, “we learned nothing we didn’t already know”) it might be have been very difficult for the DA to prove that the eavesdropping conferred no prosecution advantage. In this case, it appears Peterson’s statements to his former attorney were innocuous. Because they were redacted, Peterson loses this issue on appeal should he be convicted.

 

So all of the major pretrial defense motions have been ruled on, and the prosecution’s case, a web of circumstantial evidence, remains largely intact. Even the dog sniffing evidence comes in, although limited in scope.  When all the trial evidence has been heard, Scott Peterson and his legal team will have some explaining to do. 

 

For now, the jury selection process, tedious, but critical to Peterson’s ultimate fate, will occupy the next several weeks.  How does the defense pick a jury in a case like this?

 

 

Subpart E: JURY SELECTION

 

“Of Course I can be fair”

 

When would you ever agree to spend about six months locked in a courtroom with eleven strangers, essentially uncompensated for your time, in order to decide the fate of an accused murder suspect, any accused, let alone one who has given press interviews on national television? Add to the mix: the intensity of public scrutiny attached to the Peterson case; the probability that all major media outlets will bug you for a post-decision interview; and that you will lose your privacy. 

 

Now consider Judge Delucchi’s problem: Anyone who says that he or she has not been influenced at all by the pretrial publicity surrounding this lurid drama has (a) been on a year long camping trip in Tibet or (b) is probably fudging the truth.

 

Neither the defense nor the prosecution actually wants an unbiased jury; both prefer a subtle tilt in their direction (subtle, of course, because the potential jurors with an obvious tilt will never make it into the jury box).  Of all the players in the courtroom, only Judge Delucchi is truly interested in achieving that approximation of effective impartiality that, frankly, is the best that can be ever accomplished in a high profile case.

 

Given the hardships imposed by jury service in such a long trial, the pool is effectively limited to retirees, those of independent means, and those (mostly employees of government and large corporations), and the long term unemployed.  Because any long case imposes hardships in the “major inconvenience” sense (think interruption of travel plans, curtailment of family outings, increased stress, and so on), the court cannot afford to grant hardship exemptions except in the blatant cases. 

 

This leaves a large number of nominally available potential jurors who will ramp up their misgivings about the case, hoping to prompt a disqualification for cause.  Here are the four major profiles:

  1. willing to serve out of a sense of civic obligation;
  2. eager to serve because of the publicity (as in I want to be on Opra or write a book);
  3. eager to serve because of an undisclosed bias (as in “It’s my civic duty to nail the defendant” or “somehow I must block the death penalty”);
  4. caught in the crosshairs of justice because of an inability to lie.

 

In other words, most of the real pool of “availables” will consist of the civic duty types, the publicity hounds, the stealth or sleeper agents, and the “how did I get into this?” jurors.

 

I have never seen a lengthy death penalty trial in which all the originally empanelled jurors managed to serve until the final decision. Illnesses, family crises, other unanticipated events almost always intervene.  This is why the court always selects alternate jurors, who watch the entire trial, are bound by the same rules as the sitting jurors, and remain available to be selected by lot to substitute in when one of the original jurors falls out. The alternates form a jury bullpen as it were. And the alternates present a potential forensic nightmare for both sides because a jury is a dynamic unit whose basic composition can be dramatically altered by the substitution of even one new member.

 

[Note 11-21-04.  This observation proved out with dramatic effect when two jurors were removed during deliberations and a conviction immediately followed. JBG]

 

As I write this, individual juror questioning is proceeding with the goal of producing a courtroom full of “pre-qualified”, pre-questioned, potential jurors for that fateful day, weeks hence, when the Peterson jury is actually selected. Given the number of available challenges, and assuming several alternates are needed, the number of pre-qualified jurors must be a number greater than 58. [On May 19, Judge Delucchi settled on 76—the goal to seat twelve and with six alternates.]

 

This last day of jury selection in a death case is what my fellow criminal trial lawyers used to call the “shootout.”

 

When that day comes, think of watching a rapidly played poker game.  Each side in a death penalty case has a total of 20 peremptory challenges for use during the selection of the first 12 jurors. The total is 26 because six alternates will be selected.]  Volumes of notes will have been perused about each juror who will show up on that last day as well as – in this case- the evaluations of hired jury experts who will have been watching body language and other cues.  The peremptory challenges (which the court must allow without any reason stated by the lawyer making a challenge) are exercised in turns, like in a ping pong match.  On shootout day (May 27), the final process can be shockingly swift, because the attorneys will have thought their jury selection strategy through beforehand.

 

What are the defense and prosecution lawyers looking for in a jury?

 

 

“But What IS The Defense?” [5-3-04 and 5-11-04]

 

Ultimately all intelligent jury selection is about receptivity.  Which of the potential jurors are likely to be most or least receptive to my case?  This, in turn boils down to that final piece of the trial, the closing arguments.  Often, a trial lawyer reviews all the available information about a given prospective juror, and tries to imagine making the final argument.

 

This is more science than art and lawyers tend to get help wherever they can find (or hire) it.  I’ll deal with some specific jury selection issues and the question of the hired jury selection experts in this case later.

 

For now, consider the special problems of the defense. In the usual case, a prosecutor knows the contours and contents of his/her final argument well in advance.  This is rarely true for the defense. In “B” movie and television stereotypes, the “Perry Mason” archetypical defender knows well in advance the tone, content, and general tenor of his or her final argument to the jury.  How could he/she not? The defense argument is, after all, the classic “movie moment” designed to save the day. 

 

Actually, the ultimate summation of the case is often little more than a few scrawled noted on a pad. Only when all the evidence has been heard does the argument begin to take real shape.

 

Many lawyers convince themselves that the case is won or lost in argument.  True, it can be lost by an inept argument, but usually the case was won or lost  at some earlier point, that point when the weight of  the evidence has begun to convince (or fail convince) a critical mass of jurors.

 

Seasoned trial lawyers quickly learn that jury trials tend to take strange and surprising twists, and no few of these turns are the direct product of your client’s own change in position. 

 

Image the classic defense nightmare: Your client tells you a “not guilty” version, sticks to it for months, and commits to take the witness stand.  You announce in your opening statement “and you will hear the truth from my client!”  Then your client backs out.  The ultimate decision, to testify or not, belongs to the client alone. 

 

In many criminal cases the client testifies so unconvincingly that an otherwise shaky prosecution case suddenly looks strong.  Veteran criminal defense lawyers know that any client, any time is full capable of wresting defeat from the jaws of victory.

 

This is why most trial lawyers, in a close circumstantial case, are more comfortable when the client agrees not to testify, relying instead, on the “state of the proof”, the reasonable doubt standard, and the eloquence of counsel, untarnished by a flaky defense effort to “prove” innocence.

 

This is why defense lawyers, more often than not, tend to rely on general stereotypes when selecting a jury.  Experience has generally confirmed that some groups of people are slightly more prone to vote for or against the prosecution than others.  And the Peterson defense team is no different.  I doubt very much that the shape of this defense can adequately be predicted so early in the case.

 

Where jury selection is concerned, many specific factors alter stereotypes. Jury experts are able to make more subtle judgments.  They are even sometimes right.

 

One illustration of the complexity of the problem: Peterson’s case presents the side issue of the defendant’s possible infidelity to the wife he is accused of murdering.  This question has come up during jury selection.  Why? We are asked to believe that the defense is concerned that someone who is strongly moralistic about that issue would be more prone to convict.  Perhaps.  However, if the defense can present substantial evidence exonerating Mr. Peterson, or raising a reasonable doubt on that issue, the infidelity suspicions would be useful to suggest why police suspicion focused on the husband.

 

No, I suspect there is a much more important reason for exploring the issue.  Defense is necessarily concerned about a juror’s predisposition to vote for the death penalty following conviction. This is not an easy to probe directly, once the jurors who admit to a bias one way or the other have been eliminated.  Asking about infidelity opens a psychological window into the judgment processes of a potential juror. The answers will tend to reveal attitudes that might predispose one to favor or not favor execution.

 

On May 11, Judge Delucchi denied the defense’s second motion for a change of venue.  The judge’s call for an additional 100 potential jurors was a signal.  He intends to stay the course until a sufficient number or jurors plus alternates are seated for the “Big Spin”, the day when each side, armed with all the available information about each prospective juror, plays the ultimate poker game.  Twenty challenges (the limit for each side in this case, not counting alternate jurors) can be exercised in just a few short hours. 

 

What will be the defense strategy on Big Spin day? 

 

 

Anatomy of The “Big Spin” [5-20-04]

 

I’ve been there.  In more cases than I can remember and in a particular death penalty case that I can never forget, I’ve sat at the counsel table, facing a jury box full of prospective jurors, armed with a set of peremptory challenges and some educated guesses about which of these people might be more likely to do my client in.  Think of a card game.  In a capital murder case, you’ve been dealt twenty cards.  When you run out, your opponent, assuming he/she still has some cards left, controls the game.  You dare not let that happen, so you hoard your challenges, thinking that, however bad juror “A” might seem, prospective juror “X” sitting in the room behind you (“X” being the next random selection to fill an empty chair created by the exercise of a challenge), might be even worse.

 

The case against Scott Peterson is a circumstantial one in the sense that: (a) no one now alive can testify to having actually seen him do the crimes; and (b) nothing he is reputed to have said constitutes a confession to the crimes. 

 

At the end of the case, Judge Delucchi will instruct the jury about the law of the case and the decision rules that govern how to weigh the evidence.  They will be told, in effect, that circumstantial evidence is neither better nor worse than direct evidence, but that the following test applies (and I’m going to paraphrase from memory here): “To convict, you must find that the evidence convinces you beyond a reasonable doubt that the defendant is guilty.  If, after consideration of all the evidence, you find that the evidence is susceptible of two reasonable constructions, one consistent with the defendant’s guilt and the other with his innocence, you must adopt the construction that favors his innocence.”  The judge will go on to explain that to support an acquittal, the jury can’t rely on an unreasonable construction of the evidence, that all human affairs are susceptible to some possible doubt, and so on.

 

The defense is looking for jurors who have a very high threshold of persuasion in a circumstantial evidence case, the men and women for whom any conviction on “mere” circumstantial evidence would make them uncomfortable.  The defense will attempt throughout the presentation of the evidence to raise the specter of an alternative theory of the case, one that potentially exonerates the defendant through cross examination and innuendo, (and though the presentation of defense witnesses who will probably attack the prosecution case at the edges).  From this distance, it appears that is the best the defense will be able to do, since the availability of one or more powerful exonerating witnesses probably would have leaked out by now, the gag order notwithstanding.

In any given year, there are a number of cases in which the accused was factually guilty, but that the prosecution’s particular theory was flawed in some respect, providing an opening for the defense lawyers to insert reasonable doubt.  This is the classic prosecution nightmare, the general notion that “We’re sure we’ve got the right defendant here, but did we get all the details right?” A prosecution case can sometimes be like a stack of cards, no stronger than its weakest link.  Recall the “OJ” case, in which a single glove, linked to the crime, didn’t fit the defendant’s hand.  A competent prosecutor selects the elements of the circumstantial case very, very carefully, to avoid this kind of trap.

 

Peterson’s defense team has a major problem in jury selection.  Having argued strenuously for the defendant’s innocence during the guilt phase, the defense will face the same jury in the penalty phase, if the jury convicts and finds the special circumstance clause true.  There are subtle differences between jurors that can make a life and death difference for Peterson, since unanimity of required in the penalty phase as well. For example, a particularly careful, thoughtful juror might be prone to but reasonable doubt as to guilt in a circumstantial case, but much less hesitant to impose death.  Another juror might be more easily persuaded of the defendant’s guilt, but very squeamish about the death penalty for someone with no prior criminal history. 

 

The defense team will give serious consideration to picking a jury that will have difficulty working together, hoping though bad interpersonal dynamics, to provoke a hung jury.  If Peterson’s lawyers think they have a realistic chance to “hang” the jury in the guilt phase, look for them to attempt to keep Peterson off the witness stand.  In a retrial following a hung jury, nothing is more difficult for the defense than to have to deal with the defendant’s prior sworn testimony.  But recall that the ultimate authority, whether to testify or not, belongs to Mr. Peterson himself, not his lawyers. Not all clients are compliant.

 

I am very interested in following what happens next, because the defense so far has hinted at a “go for broke” stance in this trial, which may affect jury selection strategy.  This would be a very high stakes gamble, indeed, because everything would be geared to the guilt phase, with few or no concessions to penalty phase considerations. [Note 11-21-04. With the guilty verdict, it has become clear that the strategy has backfired; and it seems that that the defense has not prepared much for a penalty phase defense.]

 

PART TWO:

 

[4-26-04, 5-11-04 & 5-26-04]

THE DEFENSE GHOSTS and Other Sightings

 

Every defense in a criminal case consists of evidence and the “ghost” factor.  Most criminal cases force the defense to rely more on the latter than the former, because the cases in which there is very strong evidence favoring the defense position rarely go to trial.  Prosecutors attempt to plea bargain away the cases they might lose, or failing that, are inclined to dismiss them rather than face the prospect of a quick not guilty verdict. 

 

The internet buzz is already filled with Peterson “ghost” stories, the phantom theories about the mysterious “others” who “actually did” these killings. Only the actual trial will reveal whether any part of these tales has evidentiary support.  We now hear of an anonymous ghost letter (not an unusual development in a high profile media saturated case), providing unspecified “exculpatory” information. Judge Delucchi has acted properly in keeping the letter’s contents confidential.  No doubt the attorneys have been ordered not to talk about its contents lest the word leaks out and affects the jury. You can be confident that if this letter contains evidentiary leads, both defense and prosecution investigators will quickly pursue them.  And you can be equally confident that, unless at least one live competent witness materializes from those leads, providing information relevant to Mr. Peterson’s culpability, the referenced letter will go nowhere.  Such letters are hearsay, statements produced not under oath, authored by unknown declarants of untested reliability.  We might legitimately wonder: Why was the letter sent to the court instead of Mr. Peterson’s lawyers?  The letter smells more like a publicity stunt than a legitimate attempt to aid the defense.

 

Ghost Hair?

 

On Monday, April 26, Judge Delucchi revealed that another letter had arrived, also shown to counsel, but sealed. Press reports suggested that it was mailed from outside California, and claimed that its author knew who “really” killed Laci. Included were a bit of hair and a fingerprint. We can be sure a forensic examination will be swiftly done, and that if either the print or the hair are case related in any way, investigators will move heaven and earth to locate the sender.

 

Is this a prank? Someone interested in derailing the prosecution case? Someone with a real story to tell? 

 

More about the ghosts: The defense is legitimately entitled to argue defense theories that are not strongly supported by evidence, but are based on legitimate inferences permitted by holes in the prosecution’s case.  Defense ghosts inhabit the dark “reasonable doubt” places where the DA’s proof leaves unanswered questions.  The brighter the light, the fewer the ghosts.  At the end of the day, every criminal case is either a test of which set of witnesses are to be believed (as when the defendant and others swear to his innocence) or between the light cast by the DA’s proof and the ghosts conjured up by the defense in the dark places where that proof didn’t go far enough.  We should be able to tell right away from the defense opening statement whether to expect some version of the classic ghost defense or something more substantial.

 

When the opening statements after the Memorial Day weekend, we should be able to glimpse the outlines of the defense and sort the ghosts from the substance.

 

The Van Sighting – Ghost or Prosecution Misconduct?

 

The press, crippled to an extent by the gag order, is confined to watching the courtroom drama unfold in real time, but sometimes just reading the motions and pleadings yields real news.  The press hit pay-dirt Tuesday by reading Mark Geragos’ latest motion. 

 

Peterson’s lawyers have alleged prosecution misconduct, presumably by hiding potentially exculpatory evidence from them until the last minute.  According to Mr. Geragos’ filed allegations, a witness (described as an ex police officer) had reported to the Modesto police that he had seen Laci being pulled into a van sometime in December.  Clearly, under prevailing law, it would be improper for the prosecution to withhold such a report (whose potential exculpatory value should have been apparent); disclosure to rthe defense was required within a reasonable time after it became known to them. 

 

Apparently someone decided to withhold this bit of information until the witness could be interviewed in connection with the trial.  That delay was a mistake.  That interview did eventually take place, but shortly before the recent disclosure to the defense. 

 

The prosecution will now argue, “no harm no foul” in that the witness is available to testify, possibly corroborated by another report, already known by the defense, to the effect that a neighbor spotted a “suspicious” van in front of Laci’s residence the day of her disappearance.  The defense will seek sanctions for the conduct (presumably in violation of the court’s standing discovery order as well as case law everybody knows about) that could include some limitations on the prosecution’s argument or a jury instruction favoring the defense.  The defense might press for more, but no court would order dismissal under these circumstances, even though Geragos may argue that timely disclosure of the report might have led to further investigation, uncovering additional defense witnesses, and so on.

 

I would expect the court to take the matter under submission after a brief argument, and defer the question of sanctions until the evidence is in.  But the defense, though entitled to a delay in opening statements in light of this development, has elected to go forward…. 

 

 

[5-31-04]

Rack Twelve: The Real Trial Begins

 

As predicted the “Big Spin” went quickly; the main jury and alternates were selected in a single session on Thursday, May 27. 

 

At the crucial moment when the prosecution passed, declining to exercise a challenge, the defense had only four challenges left compared to the prosecution’s seven remaining. 

 

There are two competing explanations for the DA’s decision to pass at that moment, while still ahead on challenges:

(1)   Prosecutor Distaso was happy with the current composition of the jury;

(2)   Distaso was not happy, but gambled that the defense would exercise another challenge (presumably assuming that Geragos would kick the former police officer who had once been falsely accused of assault).  But the defense didn’t bite, and the twelve were sworn in. 

 

It is impossible at this distance to second guess the jury selection strategy of either side, in part because each had the benefit of the research and insights of jury selection experts (Jo-Ellan Dimitrius for the defense and Howard Varinsky for the prosecution) which will have enabled the trial lawyers to go behind the usual stereotypes. 

 

But note: Jury selection strategy might be affected by an asymmetry of purpose here.  Often, one side (usually the defense) will be content with a hung jury.  In this situation, the side seeking a clean win (typically the prosecution) seeks a perfect jury, while the other side seeks to select personalities who are not likely to agree with each other.  If Geragos, for example, had located a very strong defense juror, he might have been be willing to fake out the DA by passing the challenge in a situation when a very strong prosecution juror remains seated.  The defense is often content to mix oil and water on a jury, hoping to block a unanimous verdict.  Did this happen?  We can’t know. 

 

What we can know is that the defense is facing a strong circumstantial evidence case in which the defendant has talked entirely too much, supplying the possible motive.  Evidence of the putative van abduction of someone resembling Laci Peterson will be very persuasive to at least a few jurors unless: (a) the prosecution convincingly discredits the accounts or (b) is able to tie Scott Peterson to the event.  Even a tenuous tie between defendant and van would be fatal for the defense. 

 

Prosecutor Distaso might take a lesson from the OJ case: He should avoid making the whole prosecution theory hang on a single, vulnerable element:  Whether or not the van incident is real, Distaso may try to argue that the evidence of the defendant’s culpability is so overwhelming that even if others were involved, the defendant is guilty.

 

So we now know the broad outlines of the defense opening statement.  The defense will attack every piece of the chain of the circumstantial evidence, chipping away at any weakness. Then Geragos will offer the alternate stranger-kidnapping theory, partially bolstered by the van witnesses.

 

Will the DA attempt to take on the van evidence in the opening statement?  There are pitfalls in every direction. Assume the prosecution doesn’t have any affirmative evidence discrediting this defense theory, other than the usual cross examination. To attack the van theory in opening statement will unreasonably raise expectations.  [Opening statement is not argument, but a summary or road map of the poof to be presented.] But if the prosecution tries to ignore the van, some initial credibility may be lost.  I’d predict a passing dismissive mention in the DA’s opening.

 

This trial is not, as Attorney General Lockyer was quoted after Peterson was charged, “slam dunk.”  Neither side can afford to make a claim not later supported by the proof.  In a close case, credibility is everything. [Note: 11- 21-04. It turned out that the AG’s call was a good one.  Not a slam dunk, perhaps, but enough to persuade 12 jurors after several days of discussion.  The “neither side can afford to make a claim not later supported” maxim was adhered to by the DA, but not by the defense team, and Geragos is now suffering a catastrophic credibility collapse as a result.]

 

THE EVIDENCE

 

[June 3, 2004]

Opening Statements

 

As expected, the prosecution has methodically laid out a circumstantial case based on the classic motive, means, opportunity, evasion and attempted escape model. And as expected (and typical of almost every criminal investigation) the police have made some mistakes along the way.

 

The immediate splash effect of the opening statements will quickly be forgotten as the evidence begins to roll in over the next few days.  What will remain is the sense of expectation created by Mark Geragos, who has managed to present the illusion of Scott Peterson as a testifying witness without actually committing to put his client of the stand and subject him to cross examination. 

 

So the real news from the opening statements is that – barring the unforeseen – Scott Peterson will not testify in this trial. 

 

The defense strategy is to shift the jury’s focus to a flawed police investigation hoping to create the impression of irredeemable incompetence. 

 

As part of this approach the defense team used a reported interview of the suspect in which Mr. Peterson insisted that he’d last seen his wife alive in 12-24 – he claimed he’d remembered the date specifically because she was watching a particular Martha Stewart episode.  In a wiretap application, a Modesto PD detective alleged that Peterson had lied about the date of episode because it had really run the previous day, presumably supporting an inference that the suspect was hiding the fact that he’s already done away with his wife on 12-24.

 

By playing a Martha Stewart video of the December 24th episode that undercut the detective’s assertion the Peterson lied about the episode on that occasion, Geragos adroitly shifted the jury’s attention away from the prosecution’s evidence of Mr. Peterson’s other prevarications. The significant thing about this entire line of argument is that it depends almost entirely on hearsay, yet the impression is left with the jury that somehow Scott Peterson has now testified to an alibi corroborated by Martha Stewart herself.

 

The challenge for the prosecution is that, despite the web of suspicious circumstances surrounding an unfaithful husband, the search for clear and unambiguous evidence of the date and place of the murders has apparently come up short.  Again, the prosecution faces the “OJ” trap. When the prosecution commits to a very detailed scenario, the derailment of a single element can take down the entire case.  But this can also true of the defense.  Having promised, Geragos must now deliver.

 

Two elements, among others will very likely tilt this case:  

 

(1)   Whether the van abduction sighting alluded to by Geragos actually holds up under closer scrutiny.  Given its potential impact, I note that defense seems to have underplayed this piece, perhaps because of a concern that the witness may turn out to be less persuasive than advertised.

 

(2)   Whether the defense forensic experts who are prepared to suggest that Laci’s baby had actually been born when the murders occurred are very credible.  This point has potentially decisive significance because it would support the defense theory that the murders took place much later, during the time that Scott Peterson was already under close police surveillance.

 

It’s far too early to predict an outcome in this trial, but the defense needs only raise a reasonable doubt in the mind of a single juror to prevent a conviction.  At this point I imagine that the prosecution is hoping that Scott Peterson will testify.  This would make his credibility the centerpiece of the case.  And I imagine that Mark Geragos has his client fully under control and will not let that happen unless it becomes absolutely necessary.

 

 

[June 15, 2004]

The Ghost of Griffin

 

Like an impressionist painting, the prosecution is beginning to add detail to a canvas that shows us an evasive, contradictory (and - dare we say it? – guilty looking) ex husband whose fishing vs. golfing alibi increasingly looks like a homicide cover up. 

 

We are now witnessing in real time the modern era’s latest legal phenomenon: the exploitation of a 1965 U.S. Supreme Court case, Griffin v. California (380 U.S. 609), by “celebrity” defendants.  The so called Griffin rule has been trenchantly criticized by knowledgeable legal scholars, among them my former colleague, professor Gordon Van Kessel in his brilliantly researched Notre Dame Law Review article, “Adversary Excesses in the American Criminal Trial”  (67 Notre Dame L. Rev. 403).  Van Kessel is in a position to know how things really work in the criminal courtroom.  After he and I served together as public defenders, Van Kessel has also served as a prosecuting attorney in San Francisco.

 

Griffin, in effect, forbids a prosecutor or judge to even call attention to the fact that a defendant has declined to testify in his own defense. All defendants have an absolute right to rely on the state of the evidence by exercising their 5th Amendment rights. But, until Griffin, they did so at the risk of having their silence used against them in argument.  As Professor Van Kessel has pointed out, this “lack of consequences” rule tends to deprive the jury of the single most important witness in a criminal case, the accused, by encouraging defendants to rely on “the state of the evidence.”

 

The Griffin doctrine has created a serious “game advantage” for those defendants like Peterson, “OJ”, and others who have access to the major media before trial where they are able to float defense versions and theories of the case without the risk of an effective cross examination.  The hope is to create such a strong impression of pretrial innocence that it will somehow remove the stigma attached to trial silence. You can bet that the prosecution in Peterson’s case is hoping that the cumulative effects of the “squirm” evidence will make this ex husband take the witness stand. 

 

The elephant in the courtroom is Mr. Peterson’s silence.  Will he talk?

 

 

[June 25]

 “The Pawn Shop, The Booted Juror & That Fishing Trip”

 

Predictably, the prosecution’s case is unfolding methodically, brush stroke by brush stroke, still too early to assess whether we are seeing the production of a masterpiece or some prosaic paint-by-the numbers portrait.  Among the key developments of the last few days, these four stand out:

 

  • Scott Peterson appears on a videotape in which he calmly outlines his fishing alibi.

 

  • Detective Brocchini reveals that, after the investigation was well under way, still as a search of a missing person, Peterson called to ask whether the search was being done with cadaver sniffing dogs.

 

  • Mark Geragos produces a pawn shop receipt, during cross examination that purports to show that someone other than Scott Peterson pawned a diamond studded watch belonging to Lacy, about a week after her disappearance.

 

  • Juror number five, a man who had bantered in a friendly manner with a Peterson family member in front of cameras, is removed from the jury and replaced by a new juror, a drug company employee with both medical and law degrees. Geragos, not pleased with the development, moves for a mistrial.  Motion is denied.

 

While it’s still too early to keep score, some provisional observations are now in order:

 

The defense has obviously lost a favorable juror, dramatically altering the jury dynamic.  The prosecution, not otherwise privileged to move for a mistrial without the defendant’s consent, could have agreed to the mistrial.  As I’ve already speculated, the defense’s earlier decision to pass during the exercise of peremptory challenges while there were prosecution-leaning jurors yet to be removed, may have been motivated by a “hung jury” strategy.  Was that strategy impaired by the removal of number five? How many other defense leaning jurors are still left? Or is the defense case strong enough to support a unanimous vote for acquittal?

 

The pawn shop receipt and the intimations of the mysterious van kidnapping are potential end-of-case problems for the prosecution. Every reasonable doubt “ghost” must be fully exorcised for twelve jurors to be persuaded beyond a reasonable doubt.

 

The defense’s biggest problem remains: The defendant has betrayed in several ways that he may have known that his wife was dead and that it was not a good thing to be associated with a boat trip on the day of her disappearance. Why ask about cadaver dogs? Why claim golfing instead of boating? Why conceal the boat connection?  The defense team’s job is to suggest innocent explanations. The prosecution is to counter each of them, turning the web of suspicion into a case that points inexorably to guilt.

 

[Developing … 6-29]

“THE BOAT HAIR”

 

During the last session before the weekend break, lead homicide detective Brocchini was caught out by Geragos on cross examination, having edited out a passage in his report that placed Laci close to the location of her husband’s new boat before her disappearance.  So the jury had the entire weekend to wonder whether detective Brocchini had been dishonest with them. 

 

Thursday’s damaging disclosure came on cross examination – it would have much better for the DA had it been on direct examination -- that the hair found in Scott’s boat (forensically linked to Laci) might have gotten there because she was apparently seen near the boat the day before.  Possible damage to the DA’s case: It portrays the detective as deceptive; it bolsters the view that the detective’s bias had warped the investigation; it undercuts the notion that Scott had concealed his boat purchase from his wife; and it potentially undermines the credibility of the prosecution itself.  I was left with the impression that information was withheld from both defense and prosecution by a detective who edited out something that didn’t fit his view of the case.

 

Important Note: The information that evidently came to Brocchini’s attention about Laci having been seen was hearsay. At this point in the case the jury has no direct testimonial evidence about Laci’s presence in or near the boat’s storage location before her disappearance. A woman (who was unnamed at this point in the trial) reportedly told a detective that Laci had used the bathroom in the warehouse near where the boat was housed.  Standing alone, this information is not all that damaging to the prosecution.  But when portrayed as part of a cover up it conflated the importance of the point to the point that one expert opined that the defense had found its Furhman (referring to the OJ Simpson case detective). 

 

Prosecutor Distaso faced the problem of distancing himself from the apparent deception without further damaging his detective’s credibility. And he faced the overriding task of undercutting the seemingly exculpatory significance of Laci’s presence near the boat. 

 

Just as in the van sightings, it seemed necessary to overcome a suggestion made via cross examination with hard evidence. Among other things, the jury will want to know whether the woman really was Laci and why the evidence that she was near the boat was not immediately revealed.

 

We can assume that Distaso’s repair strategy will emerge in the next few days.

 

[June 30th]

Damage Control

 

As Detective Brocchini returned to the stand Tuesday, prosecutor Distaso was able to demonstrate that turnabout is fair play.  Note that Geragos had used his cross examination of the lead homicide detective for two purposes: (1) attacking the credibility of detective Brocchini; (2) introducing hearsay evidence that suggests an innocent explanation for Laci’s hair aboard Scott’s boat. In effect, Geragos got away with introducing hearsay via the implied assertion that the detective used a biased criterion for omitting significant information from his written report. 

 

On redirect examination, Distaso cleverly undercut the bias charge by having the detective refer to a very damaging statement attributed to Scott Peterson by a friend, then having the detective acknowledge that the statement was (presumably) omitted from the detective’s initial testimony because Brocchini thought it was not that “credible.” Implication: The detective was so “fair” to the defendant that he omitted something very incriminating because it didn’t meet his high standards. 

 

In effect, Geragos had opened a door through which Distaso tossed a smelly “so there!” This was a huge “gotcha” because the statement attributed to Peterson (double hearsay, by the way, because it was what Peterson had told friend that friend had told the detective) was in fact very damaging: 

 

The jury was told that Scott had confided to his friend some years earlier that he, Scott, would get rid of a body by tying a bag around the neck, putting weights on it, and toss it into the sea.  Per Peterson, the body would be found with no fingers and no teeth.

 

After delivering that blow, then prosecutor Distaso began the rehabilitation of detective Brocchini’s omission of the “Laci-was-at-the-warehouse” witness.  Again, via redirect examination, the prosecutor brought out that other detectives had in fact interviewed the woman who saw Laci, and that one of them produced a report describing how the witness (Peggy O’Donnell) was approached by Laci who asked permission to use the bathroom in her office next to Peterson’s.  Note: Both offices were in the warehouse. To date there is no evidence that Laci saw or used her husband’s boat while alive. 

 

Did Geragos review the O’Donnell report before his cross examination of the detective? Normal discovery would have included it. The jury might now be beginning to wonder whether they were being misdirected by the defense.  The thrust of Geragos’ approach depends crucially on his own credibility with the jury and on intangible chemistry, whether the jury is beginning to identify with detective Brochinni and the police as the story unfolds as they attempt to solve the murders of Laci Peterson and her child.

 

[7-7-04]

Das Boot

 

Following two days of gory testimony by witnesses who discovered the floating bodies (or parts thereof) of Laci and her baby in the Berkeley Marina, not far from the location where Scott went “fishing” the day of his wife’s disappearance, the jury was treated to a clever forensic demonstration.  Using a woman prosecutor whose stage of pregnancy, height and weight closely matched Laci’s, the prosecution showed that the toolbox in Scott’s pickup truck and a similar compartment in the boat would have been a perfect fit for Laci.  The boat’s recent purchase, its apparent concealment from Laci, and its perfect utility as a coffin for a murder victim are all facts that the jury is entitled to consider in assessing Scott’s involvement.  The case may come down to how one looks at one of those Escher drawings -- where sometimes the staircase looks like it’s going away form the observer, and sometimes it’s the opposite.  As the evidence accumulates, it may be increasingly difficult to see the picture as the defense paints it.

 

Geragos will be treading very carefully here.  If he repeats his extra-judicial statements about some hypothetical killers having chosen to frame Scott by dumping the body or bodies near the boat the argument may backfire: (a) he will have impliedly admitted that the circumstances are damning; (2) he will have raised an affirmative defense without being able to back it up with proof; (3) the jury will begin to wonder: if we reject the notion of a frame-up, aren’t we then entitled to decide the evidence is strong enough to convict?

 

Postscript 7-8-04

 

As the evidence mounts, the jury will expect to hear the clincher, that piece of evidence that removes all doubt.  Will the presence of a single hair in the proposed death boat do it? Coupled with blood tied to the victim, such a finding could cinch the case for the prosecution.  In the absence of that or other evidence of mayhem tied to Scott, their decision will be a more difficult one….

 

[7-16-04]

Ghosts of Blood & Anchors

 

In the post-disappearance investigation, detectives combed the Peterson’s house and truck for clues. Detective Rudy Skultlty noted suspicious, blood-like stains on the comforter in the Peterson’s bed. Detective Hendee found suspected blood stains from the steering wheel, driver’s side door and toolbox of Scott Peterson’s truck.

 

It remains to be seen whether the stains described by either detective can be identified as blood or tied to Laci.  In possible anticipation of this evidence, Peterson told police he had cut his hand.

 

When inspected by the police, Peterson’s boat had only one anchor – insufficient, we are told - to anchor the boat in the Bay waters.  Where were the other anchors? 

 

Hendee described cement debris in Scott’s trailer and truck bed consistent with the theory that Scott Peterson was making anchors.  In a search of Peterson’s warehouse, police found ring patterns on the floor suggesting that five anchors had been made there.  DA Distaso has promised to produce an expert witness who will discuss possible matches between the anchor cement and the debris. 

 

Hendee told the jury that a single strand of hair was recovered from the bottom of Peterson’s boat, caught in a pair of needle nosed pliers.  This is the “boat hair” that is expected to be linked to Laci.

 

On cross examination, Geragos was able to demonstrate that a plastic container police had theorized was used to fabricate the anchors was too small for the purpose. 

 

On balance, this was not a good week for the defense.  The potential damage depends in part on whether any of the putative blood stains or samples can be linked to Laci, and whether the hair is definitively linked to her via DNA of merely via a hair structure analysis.

 

[7-16-04]

The Sawyer Interview [Pending]

For obvious reasons – his client lied in public – Geragos has made a full court press effort to keep this jury from seeing Scott Peterson’s interview broadcast on national television.  The effort has failed.  The defense argument that the entire interview, including outtakes, must be shown is merited….to a point. Exclusion of parts of the interview that supply needed qualifications and context would be an error; but Judge Delucchi won’t fall into that trap.  So the tape will be shown, probably just before Amber Frey’s testimony.

 

[7-16-04]

The Duct Tape Flap

The defense has moved for a mistrial and in the alternative for a dismissal with prejudice.  Both will be denied in all likelihood because the showing is insufficient. 

 

The gravamen of the defense position is that detective Brocchini’s account of Scott’s “how I would dispose of a body” statement went too far because the source (recall this is all hearsay – see “Damage Control”, above) might have said “tape” but not duct tape.  Recall, too, that the detective said that he hadn’t included the statement because he didn’t find it credible.

 

This is alleged to be part of a deliberate pattern of misconduct because Brocchini blurted out truthful but excluded evidence in an earlier case against another defendant. While the case was not reversed, the detective was reprimanded. The rule here is that a prosecutor who deliberately commits misconduct with the specific purpose of forcing the defense to make a mistrial (that the defendant otherwise would not have agreed to) must suffer the sanction of a permanent dismissal. 

 

This extreme remedy is sometimes warranted because the declaration of an unwarranted mistrial without the defendant’s consent requires that the rule against double jeopardy be employed to bar re-prosecution.  When the defendant’s motion for mistrial is precipitated by misconduct designed to cause the mistrial, the motion for mistrial is deemed as though without the defendant’s consent. 

 

There are several problems with this: (1) the evidence is not sufficient to show the prosecution’s intent; (2) the impact of the misconduct was minor, especially given the defense cross examination; (3) the defense has already asked for a mistrial on other grounds in this case. The motions come up July 29.

 

[7-24-04]

GHOST SEX OFFENDERS AND THE HAIR EXPERT

 

Among the developments this week:

 

  • A tiny concrete piece and a blade of grass were found in Scott’s home. 

 

  • The day before his wife disappeared, Scott opened a private mailbox where police later discovered a letter from his mistress, Amber. 

 

  • After Scott told Diane Sawyer he couldn’t go into the nursery, he stored office furniture there.

 

  • Following the disappearance, Scott moved his wedding pictures into a wastebasket in a storage unit.

 

  • The police canvass of Scott’s neighborhood for the whereabouts of registered sex offenders was attacked on cross examination by Geragos.

 

  • Expert testimony was heard tying the hair found in a set of long nosed pliers in the bottom of Scott’s boat to Laci.

 

The defense made other points on cross examination, all part of his strategy to try Modesto police officers for performing an inept investigation, rather than his client.

 

The problem with any circumstantial case, especially one not bolstered by a confession, is that its constituent elements are like an unassembled jigsaw puzzle on a table.  It is not always possible to see at any given moment in their assembly just how they fit into the emerging picture.  Much of this case will come together for the prosecution during final argument.

 

The sex offender canvass cuts two ways.  Clearly, Geragos will always be able to find a potential offender for whom there was no alibi.  The problem with this approach (recalling that this is all done via cross examination and by eliciting hearsay) is that the jury may then expect more real evidence from the defense than it can deliver. 

 

Given the very large number of sex offenders (really, do they all move to Modesto?) what are the odds that any one of them would commit a homicide of a very visible pregnant woman? And what sex offender would then take the body by boat into the Bay for disposal?  This is one of the sleeper issues that I expect the prosecution will eventually cover. The location of the bodies is not consistent with having been dumped from the shore. Did any of the suspect pool that Geragos wants the jury to consider have access to a boat?

 

The concrete fragment was probably introduced to support the prosecution theory that Scott, not someone else, made the anchors. The blade of grass must relate to another scene investigated by police. We will see soon enough.

 

The hair is very significant evidence because of its location and the fact it was wrapped in pliers. [What innocent explanation is there for that?] This is highly probative of foul play if we assume that Laci was never in the boat while alive. Scott’s apparent evasiveness and deceit about owning the boat tend to support the theory that Laci was never in the boat. So the hair was found in a highly incriminating location, providing that it is Laci’s hair.

 

A positive DNA match normally requires the recovery of testable amounts of the complete DNA sequences that are found in cell nuclei, i.e., in blood or semen.  Hair contains a much more limited DNA trace (unless the root of the hair is available), so DNA analysis just can’t be as conclusive as with blood samples, given the current technology. 

 

But there are structural differences between hairs (visible by microscope) that approach but don’t quite equal the ID characteristics of one’s thumbprint.  So current forensic analysis of hair can rule out Scott as the owner of the hair, probably rule out Amber, and affirm that the found hair is “consistent with” or similar to Laci’s.

 

The DA can easily get a conviction in this case based on physical evidence and Scott’s evasiveness alone if there is a single identifiable drop of Laci’s blood in an incriminating place. 

 

Absent that, the puzzle must be assembled very carefully indeed.

 

[7-29-04]

The Boat Inspection & The Defense Motions

 

The jury has now seen the 14 foot fishing boat that prosecutors contend was used to carry Laci Peterson’s body on December 24.  A manufacturer’s representative confirmed in testimony that the model was designed to float with the load attributed to it in the prosecution’s theory of the case, and to withstand the expected tipping if it was used to dispose of an anchored body the size and weight of Laci Peterson’s.  The defense cross examination was limited to showing that the particular boat as equipped was not tested under the particular conditions of the San Francisco Bay.   

 

Today, the defense motions for mistrial were denied (as predicted in the 7-16th posting), and the way was cleared for the jury to view Scott’s telecast interviews.

 

The DA’s case is not yet in - those pundits who are already predicting an acquittal are premature. 

 

In the absence of any new physical evidence tying Scott to the crime, the case will turn on how the jury assesses the defendant’s conduct: Individual juror votes for conviction or acquittal will be strongly affected by the details of what Scott told his mistress, Amber, before and after the killing, on verbal slips like his use of the past tense when talking about Laci with Diane Sawyer, and on his attempt to flee the jurisdiction, having gathered escape cash and changed his appearance.

 

Reasonable doubt is actually an elastic standard. Jurors who see the same case often disagree about what is or is not unreasonable. 

 

This is one of those trials that will be strongly affected by the intangibles, the things that only close observers tend to pick up.  Though Scott Peterson will probably not testify, his very presence in the courtroom, his demeanor, the nuances of his behavior that the attorneys themselves often fail to see, can become in themselves a form of testimony.  Jurors tend to watch murder defendants very closely. They think-- “Could he really have done this?” Once the answer to that question becomes yes, the reasonable doubt standard tends to harden a bit.  More is expected from the defense.

 

And jurors tend to watch the trial attorneys. Much depends on whether either side has gained or lost credibility with the jury.  In my experience, few jurors are willing to punish the prosecution for ordinary mistakes, but few will forgive being deceived. 

 

The risks are even higher for the defense. It may be naïve, but most jurors most of the time actually hope and expect that the defense is conscientiously pursuing the truth.  Geragos has floated a number of possible defense theories via suggestion during cross examination. Many jurors will now expect to hear more substance when the defense case begins. 

 

It is ironic, from one point of view, that by attempting to actually prove a defense, the psychological terms of the reasonable doubt test tend to subtly shift in favor of the prosecution. The jury begins to weigh the two cases against each other, rather than focus exclusively on defects in the prosecution’s case.

 

And when inconsistent defense theories are advanced, defense promises are not kept, or defense expectations once raised are dashed, jurors tend to think, “I get it, this is just a game.” When and if Scott doesn’t testify, Geragos can only hope he has presented enough defense evidence to plausibly argue that he had already demonstrated his client’s innocence.

 

This case is still far too close to call.

 

[8-3-04]

The Financial Motive

 

The prosecution has now established that Scott Peterson was in a financial distress when his wife vanished from his life, a distress that, as a widower with a new mistress, would have vanished like the dew on a Mohave cactus in August.

 

Here are the elements so far: On his wife’s death, Scott would receive a substantial life insurance recovery and his wife’s fresh inheritance, the latter, according to auditor witness Gary Nienhuis, would be about $260,000.Inexplicably, Geragos’ cross examination was designed to promote the theory that Laci’s inheritance provided a motive to stay married. You would think that a celebrity lawyer from Southern California might know better.

 

Had the murder not occurred, Scott was headed toward ugly divorce proceedings.  He would have probably been compelled to pay lifetime alimony, child support for at least 18 years, pay a large share of the debts.  More crucially, Laci’s inheritance, under California community property laws, would have remained her separate property.  She’d probably not have to share a penny with her philandering Ex.

 

The defense has stumbled from thin ice into deep water.

 

[8-4-04]

Judicial Storm & Calm Waters

 

Once again, the prosecution has lost ground by testing the patience of Judge Delucchi, a seasoned trial judge.  There are limits to the ongoing pattern of discovery rules non-compliance – the “sorry, we didn’t give the defense that piece of evidence… or did we?”  This time the court escalated the response, finally letting the jury in on the reprimand.  This is not a case in which the prosecution can afford to lose any credibility with the jury. Distaso and his supervisor might be having a little talk about now.

 

Otherwise, the web of circumstances surrounding Scott Peterson tightened slightly with the revelation that --two weeks before Laci’s disappearance -- Scott was surfing the web for boats, places to launch and bodies of water.  Notably missing: Where were the best fishing places?

 

[8-5-04]

Scott Weeps

 

The prosecution’s forensic web surfing witness was interrupted Wednesday to accommodate Scott’s best friend, Greg Reed.  Mr. Reed was called by the prosecution to describe two contacts in which Scott expressed concern about what had happened to his (now “missing”) wife.  Significantly, in the second of these calls – at 5:30 P.M. on December 24th – Scott left Mr. Reed a message “Have you or Kristen (Reed’s wife) seen or talked to Laci today or yesterday?” 

That message raises the inference that Laci was known by Scott to be “missing” even before December 24th. 

In Scott’s earlier call, at 2:30 P.M. several hours before Scott called the police, Scott talked to his friend (who, unlike Scott, was a regular fisherman) but somehow failed to tell Greg Reed about his putative Christmas eve fishing trip (or was it golfing?).

 

This testimony tends to sharply undercut the credibility of any ghost sightings of Laci walking her dog or otherwise being sighted in or near the neighborhood after 2:20 PM on 12-24, and it introduces the notion that Laci might have actually been killed the prior day.

 

It is common practice in death penalty cases for the defense to be conducted by two attorneys, the second of whom (here Pat Harris) only occasionally appears in the guilt phase.  Significantly, the cross examination was conducted by Scott’s co-counsel Harris.  Mr. Harris elicited some sympathetic moments. When Reed described a moment when he and Scott were looking at a hunting catalogue that included pictures of children’s hunting clothing, the defendant wept.  By all accounts, Scott’s sudden grief was authentic.  Should he be convicted and this jury faced the death penalty decision, you can be sure the jury will be reminded of Scott’s grief, transformed via the magic of defense alchemy into authentic remorse.  For now, though, it will be used to undercut the emerging portrayal of Scott as a calculating wife killer.

 

On the latter score, the timing of Scott’s web surfing for boats, launching areas and appropriate water will prove to be incriminating.  This jury will hear testimony that Scott started secretly dating Amber in late November, having lied to her about his “single” status, but a furious Amber called him on December 6, exposing the deception. The same day, Scott called her back, sobbing, with the story that he had “lost” his wife.  It was on December 8 that Scot began web surfing for boats, moorings and suitable water, and December 9 that he bought the boat.

 

Significantly, on December 15th Peterson unsuccessfully tried to sell his wife’s inherited diamond decorated watch on EBay.  This sharply undercuts the significance of the suggestion earlier made by Geragos in cross examination that someone other that Scott pawned a similar watch about a week after Laci’s disappearance. [See my June 25th posting.]

 

Also: The prosecution’s forensic computer expert also uncovered EBay correspondence between Scott and someone trying to sell a high capacity magazine for a semi-automatic weapon.

 

[August 15]

An Amber Guide

 

At this writing, the jury has heard less than half the Amber Frey related testimony, the most interesting of which will prove to be her tape recorded, police-monitored conversations with Scott. 

 

Here is the emerging context of Amber’s testimony:

 

Ultimately this jury will be presented with two competing pictures:

 

(1) that of a Scott Peterson miraculously saved from a messy divorce by the intervention of a killer or killers unknown -- just as he chose to take his newly purchased fishing boat into the very same waters where, weeks later, body parts belonging to murdered wife and baby floated to the surface; (2) that of a Scott Peterson so callous that he calmly planned and carried out what he hoped to be the “perfect crime”. 

 

Which of these versions will the jury find persuasive? That will depend on whether option (1) is understood by the jury as “reasonable” or “unreasonable”.  I’ve already indicated that reasonableness is an elastic standard strongly affected by the jury’s view of the perceived character of the defendant. On that point, Amber’s portrait of Scott is devastating.

 

For these and many other reasons, Geragos will probably treat the DA’s star witness as a radioactive isotope, to be handled with extreme sensitivity and care and removed from the room as soon as possible.  Whatever the contents of his cross examination, you can be sure it will be fairly brief.

 

The jury will be looking for several things while listening to Amber’s testimony (or the tapes of her phone conversations with Scott). The jury has already learned that Scott was capable of lying and manipulation. Now Jurors will be asking themselves: Did he slip while trying to keep his mistress from leaving him by saying something that indicated foreknowledge of his wife’s impending death? Did he imply that he had special knowledge that his wife wasn’t going to be around as a complicating factor in his new relationship? Most important: Was this man also capable of murder? If any juror answers that question, “Yes, I think Scott was capable of killing Laci”, the dynamic of the trial will have changed. 

 

So far this jury has heard compelling evidence of Scott’s motive to kill his wife and reasonably convincing evidence of the method by which he would have disposed of her body.  There is virtually no evidence at present on the question of where the murder took place and by what specific means.  However, Scott is tied to the murder by his use of the boat in an area where his wife’s body was dumped and his pattern of deception about the boat and the discovery of that hair in the pliers. 

 

All of this may amount to a setup for prosecution’s dramatic finish. Before Distaso says those fateful words, “The prosecution rests, your honor,” he will want to leave the jury with one final compelling image, something that erases all doubt that it was Scott Peterson who killed Laci, not some anonymous stranger.  At this stage, we can reasonably anticipate that the DA’s case will end in two to four more weeks.  My best guess as to that last compelling image? The picture of a disguised Scott Peterson arrested with “flight cash” while he is trying to flee the jurisdiction.  Detective stories and movies tend to end with the bad guy’s capture in just these circumstances.  In earlier times, men have been convicted on similar evidence.

 

But we live in a different era.

 

The ultimate power of that image to persuade twelve people that Scott Peterson is in fact guilty of murder will turn on how well the defense does in elevating its suggestions and intimations into reasonable doubt.

 

This case may well turn on that hair in the boat.  Does the DA have more?

 

[August 23]

Geragos inTrouble?

 

Lead defense counsel Geragos did cross examination today (the court was only in session in the afternoon). His approach seemed scattershot, with a thrust in the direction of a problematic theme --“first she pursued me then she got those darn police on my case”.  This kind of defense emphasis would have sold better in front of a 70’s Berkeley jury than to this 21st Silicon Valley panel. To my ears, today’s defense approach with Ms. Frey sounded more like penalty phase mitigation evidence than guilt phase exoneration. 

 

Worse, Frey got to repeat the observation that when Scott had claimed on December 9th that he’d “lost” his wife (some will read – was planning to “lose” his wife), Amber became suspicious.  Jurors will strongly sympathize with Amber’s suspicions at this point.

 

Like most successful trial lawyers, Geragos does not come equipped with a fragile ego.  I suspect he decided to skate out on that thin ice. 

 

As of today, the defense looks a little damp.

 

 

[8-26-04]

The Web of the Lie

 

Amber’s Testimony:

 

On December 9, Scott came to her house, began crying and admitted he’d lied earlier when he clamed he’s never been married.  He admitted that in fact he had been married but he claimed he had “lost his wife.”  A recent loss? She asked. This Christmas was to be the first holiday Scott would spend without his wife, he said.

 

Some jurors were undoubtedly thinking, “recent loss, hell, he’s talking about a prospective loss.” Many of the jurors surely noted that, for once, Scott was telling the truth. Laci was not to be in the picture after December 23rd. 

 

This intimation of foreknowledge will be impossible for Geragos to adequately explain to the jury without his client’s testimony.  But, for all the reasons we’ve discussed, Scott will probably not dare expose himself to cross examination.

 

The jury also learned that, after a December 13th-14th Christmas party and sleepover with Scott, Amber had only phone contact with the defendant. The jury was then treated to a bizarre series of phone calls, during which Scott avoided calling on the day when Laci became “missing, then pretended to be traveling to Paris. 

 

After Scott resumed calling Amber, he eventually admitted that his wife was “missing.’ 

 

Then the jury was treated to the series of cat-mouse, police taped calls during which Scott was pressed by Amber about their relationship, about his wife’s status, and Scott’s role in his wife’s disappearance.  Unsurprisingly, Scott continued to deny any culpability for his wife’s disappearance while blatantly lying about what was actually occurring at the time.

 

Other Testimony:

 

Later, when Scott called his mother during the search for Laci, he told her he was near home, but his cell call was located near the body search at the Berkeley Marina.

 

When a spurious report surfaced that Laci had been spotted in Longview, Washington (of course the killer would know otherwise) Scott lied to friends that he had already been in contact with the Longview authorities. He only contacted Longview belatedly the day after his mother pressed him on the issue.

 

The cumulative effect on the jury of these and Scott’s many other lies is to give weight to the prosecution’s portrait of Scott as someone who is only pretending to search for a now ex-wife whom he already knows to be dead.

 

That Ghost Conspiracy Again

 

When Mark Geragos cross examined the officer in charge of getting authorization for the wiretaps of Scott’s calls, Steven Jacobson, he seized on the officer’s application: “You believed there were co conspirators in this case?” … “Because you believed the abduction of Laci Peterson could not have been undertaken by one person?”

 

This was right out of the beginner’s defense playbook.  The problem presented for Scott’s defense team here is twofold: (a) if Scott simply killed his wife and stuffed her in the boat, there was no abduction and the original police theory early in their investigation has no current evidentiary value; (b) but if Scott somehow had uncharged helpers, then is still guilty as sin.

 

As I mentioned in an earlier posting, the most serious problems with the “Scott was framed” defense theory (should the defense be brazen enough to mention to the jury what was earlier floated to the gossip-hungry media) is also twofold: (a) It implicitly agrees with the plausibility of the DA’s circumstantial case, as in “sure this is very convincing, but…”. (b) There is no plausible reason for someone, having committed a random, motiveless killing of a harmless pregnant woman, to go to the extraordinary effort to pin it on the husband.

 

Increasingly, this defense looks like an effort to blow as much smoke at the jury as possible and hope for a break in the case.

 

[8-29-04]

Waiting for the Dogs

 

As Thursday’s testimony drew to a close, Detective Jacobson added one more bit of evidence to deflate the “someone abducted Laci while she was walking the dog” theory. Recalling that the Peterson dog was seen wandering in the neighborhood, leash dragging, at 10:18 A.M. on 12-24, Jacobson described a cell call made from Scott’s phone, located at or near the house, at 10:08.  While cell call location techniques are subject to question, the prosecution’s case is cumulative.  The timing puts Scott much too close to the action at just the wrong moment.  

 

If dogs could talk…..

 

The court recessed early Thursday when the jury seemed bored with computer expert testimony about when Scott had begun his online search to prepare for “fishing”.  It was Geragoscross examination that was boring. I think this jury has figured things out.  The defense team is getting the unmistakable signal that mere suggestion and innuendo won’t overcome the DA’s case.  This jury wants to hear from Scott, himself.

 

In the next session, or soon thereafter, the jury will be treated to canine evidence of another type.  Laci’s scent was “in all the wrong places” it seems…

 

 

[9-1-04]

One Paw Forward

 

If only Trimble, the sniff-trained Labrador could talk. On Tuesday, her handler, Eloise Anderson, told the jury how her dog was given Laci’s scent from a pair of sunglasses, then faithfully traced the homicide victim’s trail at the Marina where Scott launched his Christmas eve “fishing” excursion.  The smell trail, followed by Trimble a few days after the disappearance, led from parking lot to the edge of the water, then stopped. 

 

On cross examination by Pat Harris, Geragos’ second chair counsel, Ms. Anderson was asked how she could be sure Trimble was tracking Laci’s scent and not Scott’s.  The answer didn’t help the defense case very much: Anderson would have expected that Scott’s trail would have led back out again because he returned home from “fishing” the same day. Laci’s did not come home.

 

Another trainer explained that dog scent evidence is based on the fact that we humans are constantly shedding skin cells whose distinctive odors are readily recognizable by dogs’ highly developed olfactory senses.  Typical forensic dog training is not in the art of smell identification -- which comes naturally -- but in communiicating the results to the human handlers.  And dogs are trained to follow the primary scent, so Laci’s glasses would in all likelihood have been dominated by Laci’s scent, not Scott’s.

 

Geragos, no doubt seeing the damage, picked up the cross examination today.  He focused on the fact that all forensic smell dogs are routinely tested for accuracy and got Ms. Anderson to describe a couple of Trimble’s “failures” when the human being tracked had been transported in a vehicle.  I suspect that these were failures in dog-human communication, but Mr. Geragos sought to create the impression they were identification failures.

 

The key to this whole line of evidence is captured in the phrase “in all likelihood”.  Under the circumstances, just how convincing is Trimble’s evidence?  No one maintains that dog evidence has the weight of fingerprint or DNA comparison analysis.  But if the jury now thinks that, in all likelihood, Trimble has traced Laci’s last journey, Scott is in big trouble, especially if they are convinced that Scott hid knowledge of his new boat from Laci.

 

But the problem with any day to day commentary about an unfolding trial, especially of a circumstantial evidence puzzle assembly like this one, is that the evidence needs to be seen in its final context. 

 

By now, the defense team must be feeling the pressure to come up solid evidence when it becomes their turn.  Small doubts raised or suggested by cross examination are transient as smoke.  They tend to disappear whenever the dominant picture the prosecution has been painting starts becoming clear and vivid.

 

If the defense fails to produce its own dog smell expert who can destroy or seriously undermine the Kimble evidence, many jurors will arrive at that “in all likelihood” assessment.

 

 

[9-8-04]

Cat & Mouse Games, Mitochondrial DNA, and Walking The Dogs

 

This week the jury heard about the post-disappearance surveillance of Scott Peterson. Clearly, Scott’s behavior was not consistent with that of a grieving husband rooting for the police who were trying to rescue Lacy. No, he was certainly not the typical victim of a family killing, still holding out hope for the return of his beloved pregnant wife.  But his behavior was generally consistent with two conflicting pictures: (1) Scott the philanderer, on some level concerned with his missing wife, on another not so concerned. (2) Scott the oh-so clever killer, engaged in a thinly concealed hostile game with the police who were trying to dog his every step. 

 

Again, the significance of this evidence to the jury will depend on how the evidence shapes up in its totality.  It was, as we lawyers sometimes say, makeweight evidence, the additional bits and pieces used to justify a view taken for other reasons.

 

The jury also heard about the police efforts to check out some of the many tips and putative Laci sightings, including one traced to a “flop house for drug addicts” near the Altamont Raceway that ultimately did not result in a full scale search.  Will this failure to search every nook and cranny, among other loose ends, give credence to Geragos’ “ghost van” sightings? 

 

Again, viability of this defense theory depends on the quality of its evidentiary support in the defense case.  Not only does the jury have to buy into the amazing coincidence of a random “van killer crew” rescuing Scott from a marriage he obviously expected to escape, but must buy into the further – truly remarkable - coincidence that this same mysterious crew would seek to frame a husband based on media reports by dropping the body in the very area that police were searching.  In my experience, criminals simply don’t act that way.  On the other hand, sociopathic husbands sometimes do…

 

Testimony returned to a more sophisticated forensic DNA analysis of the hair found caught in rusty pliers in the bottom of Scott’s boat.  The jury learned that the probability that the hair in question once was once on the head of victim Laci Peterson is fairly high, though no conclusive identification can be made because the technology can’t do that with a bloodless strand of hair.  But this jury can be sure that the hair wasn’t Scott’s. 

 

Identification to a virtual certainty is beyond the reach of this technology because mitochondrial DNA, unlike nuclear cell DNA (think blood samples here), lacks certain genetic information.  The general theory of DNA identification or elimination in nuclear cell cases rests on a growing data base that reduces the possibility of an accidental perfect match between two different people to more than one in a million.  The mitochondrial tests produce much lower numbers (think one in a few hundred at most) because the data base is smaller and the distinguishing information is sketchier.  But the net has closed a bit because, as in the dog sniff evidence, all of the prosecution’s major puzzle pieces are still fitting together.  The DA is counting on the jury seeing that the whole is greater than the sum of any of its parts. 

 

The defense made suggestions (again through cross examination) that the hair might have drifted into the boat when Laci (presumably still alive) was nearby or that it was transferred somehow via Scott’s clothing. This probably went nowhere.  This jury is still waiting for a persuasive innocent explanation: How did the hair got caught in those pliers?

 

Finally, the jury heard about four pregnant women who might have been mistaken for Laci on 12-24 because they tended to walk their respective dogs in the same neighborhood around the same time frame. And the jury heard from one man who called Detective Brocchini in a possible post-disappearance Laci-with-dog sighting, only to conclude (after he saw Laci’s picture) that it definitely was not her.  As expected, Geragos’ cross examination focused on the description dissimilarities, pointing out, for example, that one of the dogs being walked (a chocolate lab) was unlikely to be mistaken for the Peterson’s golden retriever.  The points made on cross examination will go nowhere unless and until the defense produces actual evidence, i.e., one or more live witnesses, to substantiate the dog walking and the mystery van ghosts sightings.

 

Note: All death penalty cases have a subtext that runs through the defense guilt phase strategy.  In effect, the defense is always asking: How will this play if we lose in the guilt phase? Here, I suspect the defense is thinking that some of the ghost sightings, coupled with Geragos’ theme of a sloppy police investigation, might be useful in penalty phase, if the case goes that far. 

 

If this jury convicts and finds special circumstances to be true, the same jury will then convene to hear mitigating and aggravating evidence in order to decide penalty. 

 

If there is a conviction, the Peterson defense will undoubtedly argue “lingering doubt”, in effect, that the jury may have rejected the defense theories as not raising a reasonable doubt, but aren’t their lingering doubts?  Do they really feel uncomfortable ordering the death penalty unless all doubt has been eliminated?

 

Update [9-9-04]

About That Boat

 

Scott’s father, Lee Peterson, was the last witness of the week.  His testimony established that Scott had fished with his father only once during the year.  More to the point, though Scott did talk to his father on 12-24, he did not mention: (a) that he’d recently bought a fishing boat, nor (b) that he was going fishing in it that very day.

 

On Cross examination, second chair counsel, Pat Harris (who I believe will have a more prominent role if the case gets to a penalty phase), brought out that Scott had loved fishing as a little boy and became more interested in salt water fishing as he got older, and that Scott had made a number of purchases in the past, including a truck, without telling his father first.  [Note the emphasis.  Of course Scott disclosed the purchases afterwards.]

 

Two things are going on here.  The defense is seizing the opportunity to attempt to humanize Scott and trying to suggest that there was nothing unusual in Scott failing to disclose on Christmas Eve day that he had bought a boat. But this was a boat purchased some time earlier, a boat Scott had apparently told no one about. 

 

A side note:  In an attempt to explain Scott’s evident lack of empathy and emotion during the trial, Geragos implied early on that this was a product of his strict upbringing by a militaristic father. Now the jury has actually seen dad, opening his testimony with the statement, “I’m proud to say Scott’s my son.” 

 

 

[9-13-04]

The Ghost Buster

 

After some corroborative testimony validating the technology by which authorities were able to track Scott’s suspicious movements via his cell calls, something really amazing happened.

 

The prosecution “busted a ghost” right in front of the jury.  Recall that the defense has implicated a man named Matthew Laolagi, the Samoan ex-boyfriend of a Peterson neighbor, Kim McGregor in Laci’s disappearance. Evidently, Kim was arrested for a suspected burglary of the Peterson house and Geragos has attempted to tie Matthew, who was living at the time with two other Samoans, to the ghost abduction theory.  This defense theory was founded on a tip involving three suspicious men of similar description seen in a van in the area.  It is worth noting that the defense has never proposed that any tipster has actually witnessed a kidnap.

 

Mr. Laolagi, it now appears, has a solid alibi.  He showed the jury an employer’s letter accounting for his whereabouts on the 24th of December.  What is the sound of a ghost popping?  In thirty years, I have never seen a prosecutor go to such extraordinary lengths to knock down a defense theory before it was formally presented.  This has created an interesting problem for the defense.  Do they abandon the van theory?  Do they rely on the tip alone? Or do they have some real evidence?

[9-14-04]

The Bloodless Kill

 

Criminalist Pin Koyo has just testified that – aside from tiny blood spots in the bedroom later identified as Scott’s – forensic testing has revealed no blood on Laci’s washed up clothing (no surprise there), nor any blood on Scott’s pickup toolbox, his boat cover, or some recovered shoes. And no suspicious evidence was found in Peterson’s vacuum cleaner. 

 

Geragos, on cross examination, tried to make much of these negative findings, leading some courtroom observers to speculate the he is setting the jury up for presenting no defense evidence, making the classic reasonable doubt – they haven’t proved it argument.  When and if Geragos makes the decision not to present defense evidence, he runs a serious risk.  This jury is more likely to conclude that the defense was deterred by the thorough prosecution preemption of its ghost theories, as in the latest example I described in yesterday’s posting.

 

What has emerged from the evidence so far is that:

(a)    Laci was murdered;

(b)   Scott appears to be the only person in the picture who had a motive;

(c)    Scott engaged in a pattern of highly suspicious behavior before and after the killing, including his attempts to conceal his boat purchase from his wife;

(d)   A woman’s hair (very probably Laci’s hair) was found in Scotts’ boat wrapped in some long nose pliers;

(e)    Laci’s scent very likely led to but not from the pier;

(f)     it was very likely a bloodless killing.

 

The jury will hear more, of course, including the account of Scott’s attempt to escape justice.  One observation about the lack of blood evidence is in order: 

 

One of my very first murder trials was a wife killing by a man who (according to the prosecution’s theory of the case) was trapped in a bad marriage and couldn’t contemplate divorce.  It was a bloodless killing.  She was strangled to death near the family Christmas tree.  Strangling takes about five minutes. 

 

Will the defense really choose to rest without calling witnesses?

 

[9-18-04]

Hitting Bottom

 

After Thursday’s session, I wondered whether the defense strategy has just taken a fatal blow, or just another setback in this see-saw litigation.  The problem with a scattershot defense strategy based on lurid theories that are first floated in the media, then hinted at during opening statements and introduced via insinuation during cross examination, is that they unreasonably raise juror expectations.  When these expectations are violated, the jury’s disenchantment tends to lead to an epiphany: “I get it, not all doubts are reasonable.”

 

Yesterday, this defense strategy hit bottom when yet another ghost theory was punctured. The horrid photos of the remaining parts of the bodies of Scott’s wife and child vividly corroborated the conclusions of pathologist Dr. Brian Peterson (no relation) that: (a) the Peterson baby (due in February) was neither born naturally nor by c-section, but emerged post mortem through the upper uterus while the mother’s body was submerged at the bottom of the bay; (b) there was no evidence that the separate body parts had been mutilated by ghost Satanists – they were broken off by the currents and eaten by the fish.  One of Laci’s legs was covered with barnacles -- indicating that the body had been held under water for some time, until it came apart. 

 

While some jurors and family members wept, Scott stared at the table. 

 

In other testimony, an expert debunked the defense suggestion that the spare cement the prosecution believes Scott used for making the anchors to weigh down his wife’s corpse were used up in the Peterson driveway.  The driveway cement didn’t match.  The spare cement, now missing, must have been used elsewhere, i.e., to fabricate the missing anchors.  This is one of the 101 reasons the defense team doesn’t dare expose their client to cross examination.  That decision having been made, the defense must now consider whether a lame parade of witnesses who, when all is said and done, fail to meet juror expectations, would not be counterproductive.  Hence the speculation that the defense will not put anything on when it becomes its turn.  My own take: Geragos will not be able to resist the temptation to present defense evidence. He will try to explain its weakness by blaming the “inept” police investigation.

 

In this connection, note that the defense always has the option of calling its own experts.  A second pathologist, for example, can examine the autopsy notes and photographs and render a dissenting opinion. A defense materials expert can retest and reexamine cement.  But I doubt this jury will hear from either when it becomes the defense turn to produce evidence.  And I’m betting that the defense team now wishes they had more carefully examined all of the discovery materials before committing to some of the defense ghost theories. 

 

Whether the defense preparation and posture could have been much different had Mr. Geragos not been entangled in the Michael Jackson defense just before reentering the Peterson case is beside the point.  The defense works with what it has.  If Scott didn’t do it, someone else did.  The impulse to exploit any suggestion of third party involvement is irresistible, even when the failure to fully develop the suggestions can damage defense credibility.

 

The prosecution has positioned itself fairly well (with some missteps along the way, notably via its apparent discovery lapses) as doggedly supplying the jury with all the relevant evidence, good, bad and ugly with a minimum of game playing. But the prosecution, too, works only with what it has.  In the absence of a single drop of Laci’s blood in the boat, a single Scott fingerprint in the wrong place, or a single eye witness to the crime, the prosecution team is left to the assembly of incriminating elements, individually subject to some doubt, but collectively designed to overpower all reasonable doubt.  Has it succeeded?  We’ll have to wait and see….

 

[9-21-04]

What the Defense Sowed & Detective Grogan Reaped

 

Detective Craig Grogan, on the stand for the second day, gave this jury an outline of the DA’s closing argument.  This was extraordinary because police witnesses are normally confined to describing observed facts.  How did this police detective get to provide the jury with a detailed list of 41 reasons that justified his theory that Scott had murdered Lacy and dumped her body in the Bay? The detective was able to state and defend his opinion because Geragos opened the door. By adopting a defense strategy that challenged the integrity of the police investigation which the defense then attempted to prove via cross examination be eliciting otherwise inadmissible hearsay and opinion, Geragos invited a response.  Today, he got it.

 

The response by the prosecution was Grogan’s defense of the entire investigation, made doubly cogent because it was detective Grogan who predicted the body would be found in the Bay.  In effect, Scott’s defense has been sowing hearsay and innuendo, and today that strategy backfired.  The prosecution reaped a tightly constructed, cogent closing argument given under oath by the lead detective on the case.

 

Among the 41 points that detective Grogan was able to make: Scott left a cement mess in the warehouse inconsistent with the single anchor he claimed to have made; the defendant made several trips to the Marina after he reported Laci missing; Scott admitted being at the Marina on 12-24; Scott bought the boat with cash and failed to register the purchase; Scott’s fishing tackle was freshwater, not saltwater; Scott bought a two day fishing license on 12-20 (for 12-23 and 12-24); Scott initially gave a golfing, not a fishing alibi; Scott packed large umbrellas in his pickup on 12-24, providing an explanation should anyone have seen him loading something; and on and on and on it went.  The jury was engrossed. 

 

The jury also heard Scott’s tearful denial of responsibility to Grogan at the same time they heard his fabrications to Diane Sawyer and in other interviews.

 

At the end of today’s session, some courtroom observers reported sensing a distinct chill towards the defense.  I’ve been in that situation. As of now, the effective burden of persuasion has shifted to the defense. 

 

But does the defense have persuasive evidence?  Does Geragos still have credibility?

 

[9-22-04]

The Baby Testifies

 

Dr. Greggory DeVore, an expert in fetal medicine, reviewed Laci’s medical record’s, her unborn son’s ultrasounds and the measurements of the baby’s thigh bone, recovered intact post mortem.  Granted, the calculation of the age of a baby at time of death from this record can’t be an exact science but Dr. DeVore is a recognized ultrasound expert with a specialization in fetal medicine and he had no stake in the outcome of the case.  He was the classic neutral witness.  I’m certain that the jury was impressed with his conclusion that baby Peterson probably died on 12-23. 

 

Mr. Geragos gamely attempted to make inroads during cross examination, by hypothesizing a different conception date (difficult at best without his client’s testimony) but Dr. DeVore knocked that down.  The defense will need another expert when its turn arrives or the jury will likely conclude that Dr. DeVore has nailed the time of death within a day.

 

Increasingly the defense is encountering an overriding difficulty:  The disparate pieces of the prosecution’s case do hang together and do mutually reinforce the main theory of the case, to wit: that mother and baby were murdered on 12-23 or 12-24 and dumped in the bay using Scott’s boat.  We might be tempted to wonder whether Scott would have done better had he stuck to the golfing alibi.  But, on reflection, that couldn’t have worked because there are no solo golfers, no ghost sightings of Scott Peterson on the links that fateful day when someone disposed of his dead wife….

 

[9-23-04]

The Foiled “Escape” to Mexico

 

In testimony that may be augmented next week, the jury has now heard what every news junkie in the Bay Area read about or saw on television at the time:

 

In April, 2003, as the investigation closed in on the bodies in the Bay, Scott bleached his hair; added a goatee and bought a Mercedes. When the bodies were found, Scott stuffed $15,000 in the car and in his pockets, loaded camping gear and extra clothing, and was located driving within a short distance of the Mexican border. Authorities finally arrested him for murder following a four hour episode during which Scott attempted to shake the following undercover officers, at one point giving them the single digit salute. 

 

Geragos will argue to the jury – probably without benefit of his client’s testimony – that Scott probably thought he was being followed by those annoying reporters.

 

On the ride back with Craig Grogan, the detective described how, when Scott learned that the bodies were recovered, he shed a tear or two. 

 

There is no confession in the case but this jury will be instructed that a known suspect’s attempt to flee may be taken as consciousness of guilt, as in effect, an admission of wrongdoing by conduct if not words. Most crime movies end at this moment, the apprehension of the fleeing killer, leaving the audience secure in the knowledge that justice will prevail. 

 

Whether to adopt this view of the driving incident is up to the jury.  My take is that the jury will conclude this was an attempt to flee, and give it some weight in their overall evaluation of Scott’s culpability. 

But the defense will have its turn to offer evidence and to attempt to persuade this jury that the case against Scott hasn’t been proved.  However that plays out, it is now clear – even before next week’s evidence - that the case against Scott Peterson is sufficient to sustain a conviction on all counts, should this jury be persuaded that the doubts raised by the defense are not reasonable ones.

 

I had expected the case to end here, at the expected strong point.  Court observers are saying that the prosecution will probably rest at the end of next week. I doubt that the DA would let his case end on an anticlimax.  So we can all wonder: What is in store for Scott next week?

 

[9-28-04]

Chipping Away

 

We are told that there are only three more prosecution witnesses to go after detective Craig Grogan who resumed the stand for a lengthy, methodical cross examination by Mark Geragos. As of the noon recess, the defense had elicited the following points:

 

Laci learned of Scott’s prior infidelities with two women; each was given the false impression that Scott wasn’t married.

 

Scott confided to his half sister, Anne, about his affair with Amber Frey, claiming that he had told Laci about this latest infidelity.  According to Anne (recall that this is all hearsay), Laci was very angry with Scott but chose not to break up the marriage, but to focus on the birth of their child. Over a hearsay objection by prosecutor Birgit Fladager, Grogan was also allowed to relate what Anne said to Grogan about what Scott said to her (layered hearsay here) to the effect that Laci wanted to keep the affair from her mother and stepfather. At this late stage in the trial, so much hearsay has already been admitted during defense cross examination, I suppose this prosecution objection might have seemed a little tardy. In any event, Judge Delucchi let the hearsay in as probative of the “reasonableness” of the police investigation, not for the “truth” of the matter.

 

Scott Peterson told detective Grogan that Laci had been at the warehouse where the boat was stored and that she knew about the boat purchase.

 

On the first night that police talked to Scott, he claimed that Laci had planned to walk the dog that morning.  Scott’s mother apparently also told Grogan the same thing but we don’t know whether she is simply repeating Scott’s story.  If she doesn’t conform that she independently knew about Laci’s dog-walking plans, the whole assertion remains Scott-generated hearsay. [Think about it. Would Laci tell her mother-in-law that she planned to walk the dog on the morning of 12-24?]

 

Grogan also confirmed the report that a woman witness surfaced about a year after Laci’s disappearance who related that Laci visited the warehouse on the Friday before her disappearance and had asked to use the bathroom.

 

This was a professional and pointed defense cross examination raising all the logical points that might tend to undermine the prosecution’s theory.  But when carefully examined, nearly every point originates in a claim or statement made by Scott at the time.  If Scott doesn’t testify, his out-of-court claims will have no evidentiary value.  The detective has no first hand knowledge of any of the marital history of the Petersons, whether Laci knew or didn’t know about the boat, about her husband’s philandering, and so on.

 

It is critically important to the defense theory of the case that Scott’s boat purchase is made to seem as innocent and guileless as possible.  Thus, the defense hopes to undercut the inference that Laci was kept in the dark about the boat. But to date there is no witness who can say that Laci was told about the boat or shown it.  The fact that a witness may exist who saw Laci at the warehouse and that she asked to use the bathroom there proves nothing, unless the boat was obviously in a place such that Laci would have noticed it and associated it with Scott.

 

As to Scott’s earlier affairs:  Jurors will probably not be impressed with this because it is equally plausible (really much more plausible) that this affair escalated to last straw status. Reasonable people looking at the conduct of Scott Peterson will conclude that this marriage was headed for a catastrophic rupture.  The picture of Laci as a passive mother and wife enduring yet one more episode of infidelity, assured by promises of “never again” will not wash because, as the jurors have already heard, Scott did not break it off with Amber. The prosecution can be counted on to the remind this jury that well before 12-24, Scott told his mistress that he had already lost his wife.

 

In other cross examination, Geragos chipped away at the prosecution case, but the central problem remains: This jury will want to hear evidence.

 

[9-29-04]

Behind Closed Doors

 

Let me skip the details of the extended and by now somewhat meandering cross examination of detective Grogan this week to get to a very interesting development:

 

As my readers will recall, this is a trial I have found unusual because of the relaxed attitude regarding the admission of hearsay evidence elicited during cross examination of key investigators for the prosecution.  In small doses, a jury can be expected to follow the typically stated hearsay jury caution, e.g., “You are hearing this report of what someone outside this courtroom said, not for the ‘truth’ of the contents of the statement, but for some other reason such as to explain why someone acted as he or she did on a particular occasion”.  Hence the jury hears that a detective “learned” something from witness “A” about the case in order to assess whether the police were conducting a reasonably unbiased investigation, but the jury is not to consider that statement by witness “A” as evidence of the “truth” of its contents. 

 

So how do we explain the following scenario? Geragos had elicited a hearsay account via a detective to the effect that a van was parked near were the Peterson’s lived, presumably as part of the ongoing exploration of the integrity of the overall investigation. This morning, he asked the court to admit the account as actual evidence of the “truth”, that a van was really parked there, i.e., taking the hearsay as evidence without having to call an eyewitness subject to cross examination.  Behind the closed door of the judge’s chambers, arguments were heard. And the ruling?  The hearsay was ruled to be evidence that the jury could consider as to whether a van was really parked where the statement indicated it was.

 

What happened and why?

 

This ruling may give us an insight into some of the earlier delays in the case and the problems raised by the defense regarding “discovery” that probably caused those delays. The prosecution has a dual responsibility: to secure the conviction of the accused, if possible, but to ensure that justice is accomplished. When the defense has been denied the opportunity to introduce possibly exculpatory evidence because tardy disclosure by the prosecution has rendered the information stale, the court is obligated to fashion a remedy.  Dismissal would be far too extreme. This ruling feels like a small bone to the defense to mitigate the impact of the prosecution’s discovery failures.  Was it?  Were there other sanctions? We may not know until the trial is over.

 

[9-30-04]

A Nice Redirect for the People by Ms. Fladager

 

Geragos’ cross examination of detective Grogan was undone to a degree as the prosecution (per Birgit Fladager) skillfully reintroduced the jury to central problem of the defense case: Scott’s ongoing deceptive behavior. At one point, Ms. Fladager was able to undercut the entire line of defense cross examination about Scott’s earlier affairs with a single riposte: Did he tell them he’d lost his wife?  When Scott wrote an email to his mother requesting return of a lamp in case his wife and child were returned to him, Fladager countered with the fact that Scott had already discussed listing the house for sale, furnishings included. The prosecution also confirmed that the report from Laci’s mother that her daughter was planning to walk the dog on the morning of 12-24 really originated with Scott.  And the prosecution managed undercut the effect the reported ghost sightings of a pregnant woman on 12-24 by pointing out timing and description inconsistencies.

 

Barring a surprise, the prosecution is expected to wrap up today with testimony from an expert who will discuss the Bay tides and how they would have affected the movement of Laci’s submerged body.

 

[10-5-04- AM]

Of Tides and More

 

Today, a US Geological Service expert (Ralph Cheng) has testified that, based on his knowledge of Bay currents, Laci’s body was most probably dumped near Brooks Island.  This is the general location where Scott Peterson claimed to have been fishing on 12-24.  The defense cross examination pointed out the obvious, i.e., that Cheng was testifying to a probability, not a certainty, and that he had no particular experience in tracking the passage of dead bodies at the bottom of the Bay.

 

A REVIEW OF THE EVIDENCE

 

As testimony continues and the prosecution’s case winds down (predicted to finish this week), this is the appropriate point in the proceedings to review the overall case against Scott Peterson.

 

In a typical circumstantial murder case, the prosecution lacks an eye witness to the crime, a confession by the accused, and occasionally even the body itself. Proof is by inference from the known facts, which are used to draw a series of intersecting circles of probability. Outside of each circle are the innocent, but inside of these circles someone is guilty.  The object of the exercise is to configure the circles such that everyone but the accused is effectively on the outside of some circle, and only the accused in enclosed by all of them.  In the classic drawing room mystery, for example, the butler, the maid, and the jilted lover are together in the circle of suspicion. One of them did in the victim, but which? Eliminate two and the remaining one is guilty. He/she promptly confesses and the story ends with the arrival of Scotland Yard and a quick trial in the Old Bailey.

 

But real life is messier and criminals sometimes escape justice.

 

The Peterson prosecution must have established five things to the satisfaction of this jury just in order to make the threshold case:

That Laci was murdered.

That as the last person to have seen her alive, Scott was a logical and legitimate suspect.

That as an unfaithful husband in some financial distress, Scott had a motive to take Laci out of the picture.

That there is no other plausible explanation for the murder, taking all the circumstances into account, other than “the husband did it.”

That Scott’s overall behavior before and after the killing was consistent with that of the killer.

 

It seems obvious that the prosecution has succeeded in making this threshold case. But this means only that most of the jurors will seriously entertain voting “guilty as charged”, provided of course that the defense has no blockbuster evidence to offer when its turn comes next week. 

 

The more important question is whether the prosecution has made a strongly convincing case, one that will survive additional defense evidence and final argument and persuade all twelve jurors to convict. 

 

For most jurors, the core burden of proof (in a circumstantial case like this one) is satisfied when the prosecution has shown them evidence that strongly links the accused to at least one of the key series of criminal acts required to accomplish the murder. For this reason if this jury is persuaded that Scott was involved in disposal of the body, the defense boat sinks.

 

Consider the following:

 

  1. Laci’s body was disposed of at a place in the Bay that could only be reached by a boat. This was a location fully consistent with the very area Scott claimed to have been fishing. By itself, even allowing for variations in the tides, this evidence fully undercut all of the “Scott was framed” theories.  Who among the various ghost suspects suggested by the defense would have even enjoyed access to a suitable boat for use in the Bay on December 24th, the very day Scott himself was on the water? Might Scott – or someone else -- have seen them? Why would any random killer go to this much trouble to dispose of the body in a stranger killing?  It is usually the obvious suspect who goes to the most trouble to dispose of the body.
  2. Scott’s boat was ideally situated for the disposal of the body of his wife. Coupled with his manifestly deceptive behavior about the boat, the inference that he was the one using the boat for that sinister purpose is very strong, even without corroborating physical evidence.
  3. But there was corroborating physical evidence.  It will be obvious to most jurors (a) that Scott was using cement to fabricate something, rather than repair his driveway at home, (b) that one would normally expect a fisherman to carry more than a single anchor, (c) that the missing anchors suggested by the rings on the warehouse floor would have been very useful in weighting down the body of his pregnant wife. It will also be apparent to those jurors who tend to common sense thinking that when coincidences accumulate something more than coincidence is going on. What is the simplest explanation: A trained, forensic “smell dog” primed on Laci’s scent trailed to the end of the pier from which Scott launched the boat coupled with a finding that the hair in the bottom of the boat had the same mitochondrial DNA markers as Laci’s?  The jurors will wonder which is more likely-- that both dog and forensic DNA expert made the same identification mistake or that they are mutually corroborative?
  4. For all we can tell, Scott went “fishing” with his new boat one time, and one time only, December 24. He certainly never told the police about any other occasion.  Nor did he attempt to claim that his wife had ever been inside the boat. Which is more likely: that this was a real fishing boat or a pretend fishing boat with a more sinister purpose?
  5. When it’s all said and done, the jury (and the defense) will have to wrestle with the obvious problems presented by Scott’s own behavior: When Scott knew he was the prime suspect, after he’d been seen frequenting the very Marina where the killer would know the body was likely to turn up, he took off in a new car loaded with provisions and cash and having altered his appearance.  Which is more likely: that this was a lark by a grief stricken widower, victim of a senseless murder, of classic flight by a suspect? Recall that flight may, at the jury’s discretion, can be deemed consciousness of guilt

 

So the moment of truth is quickly arriving.  A reasonable defense strategy would be to put on a couple of expert witnesses to undercut the hair and tides evidence, then to call a series of other witnesses to flesh out the ghost sightings, the watch pawning incident, and all of the other things that have so far been only suggested through cross examination. Without actual witnesses (or help from the court) these defense suggestions are all subject to rejection as hearsay.  A risk: The attempt to present such a defense would open up the possibility of prosecution rebuttal witnesses. There is always the real prospect that a failed defense could lead to a conviction by a disillusioned jury. 

 

An equally reasonable (and equally risky) defense strategy would be to rest without calling any witnesses, relying on the state of the prosecution’s case and arguing (a) reasonable doubt (b) that the defense was prevented from presenting more because the witness trail had gone stale as a result of various police investigation inadequacies. 

 

The most risky strategy of all would be to put the defendant on the stand at this point, exposing him to a grueling and effective cross examination.  It won’t happen unless he insists on it, and in that event no one can prevent it.  It’s a truism in defense circles that no defense case is so good that the accused is incapable of snatching defeat from the very jaws of victory.  Scott will not testify unless (a) the defense team has completely lost its wits (not this team) or (b) Scott is overcome by the impulse to “rescue” his own case.

 

Of course, there is the outside chance of a “Perry Mason moment” the decisive “Case solved” witness who blows the prosecution out of the water.  We know that isn’t likely to happen because, under the mutual discovery rules, the defense and prosecution have to telegraph their respective positions to a degree, by revealing witness lists and sharing statements.  Given the diligence of this prosecution in knocking down defense theories even before the defense starts its case, we’d surely have heard about a blockbuster defense witness by now.

 

[10-16-04]

The “Secret” Gag Order: What You Won’t Hear

 

It has been apparent since the opening statements (see my February 24th and June 4th  postings) that the defense team has no intention of calling Scott Peterson as a witness in this case. Although the decision to testify or not to testify belongs exclusively to Scott, himself, no one now expects Mr. Peterson to reject his attorneys’ advice, and expose himself to a potentially devastating cross examination.  Scott’s prior statements are a “target rich environment” for any reasonably skilled prosecutor.  Every explanation he comes up with – short of a confession – will open up contradictions that may lead the jury to convict more easily than had he simply kept quiet.  Should Scott simply fail to explain or deny in his testimony obvious matters that call for an explanation or denial the trial court could give California Jury Instruction 2.62 that allows the jury to draw an inference against him.  No such instruction can be given if Scott does not testify, no matter what he has failed to explain or deny.  So silence, in his case, is golden.

 

But should it be so easy for the accused in a murder case? My British and Canadian friends are astounded to learn that any defendant in this country who elects not to testify in his or her own defense in a criminal trial is entitled to what amounts to a gag order that forbids the prosecution and the trial judge from exploiting the fact the defendant has not testified. The prosecution is barred from using the defendant’s silence against him/her in any way: The DA may not call undue attention to the defendant’s silence, and certainly may not invite (nor may the court even allow) the jury to draw the obvious, common sense implications from the defendant’s decision not to take the witness stand, to wit, that there is something the defendant doesn’t want us to know.

 

More accurately, the “gag order” was issued by the United States Supreme Court in 1965 when it decided the Griffin case (see my June 4, 2004 posting, “The Ghost of Griffin”) against a California prosecutor who, till then, was simply following long practice by commenting in final argument about the silence of the accused. One can read and reread the Fifth and Fourteenth Amendments to the US Constitution till hell freezes over before finding a proscription against prosecutorial or judicial comment. But the high court does not feel constrained by the plain wording of the constitution.  The “Griffin gag” will remain in effect unless and until a different Supreme Court reverses this 1965 decision, or Griffin is overruled by an act of congress and the ratification of the legislatures of 75% of the states. 

 

Consider that the jury has been treated to hours of Scott Peterson’s non-testimonial statements in the form of audio recordings and television interviews, all done without the cross examination by the prosecution.  It might well make the difference between acquittal and conviction if the jury were told that it is allowed to take the defendant’s silence into account in deciding some of the essential issues of fact, especially as they relate to what Scott was doing on 12-23 and 12-24 when no one else (other than Laci) was around….

 

 

[10-20-04 AM]

Monday-The Defense Begins With A Whimper Not A Bang.

Then Michael Cardoza Leaks Scott’s Cross-Examination Prep.

WHYDO IT?

WHY TATTLE?

 

Normally we would expect the defense to follow the basic order of trial advocacy – to lead and conclude with its strongest points. 

 

On Monday, the defense led off with an expert who testified that Scott may well have used the same cement source to make the one recovered anchor and his driveway.  By itself, this evidence fails to undercut the other cement evidence – the markers in Peterson’s warehouse that suggest that additional anchors were made there, nor does it undermine the testimony that a single anchor would have been insufficient for Scott’s boat. 

 

If jurors have already bought into the notion that the boat had additional anchors, now missing, this evidence raises a sliver of doubt, only.  It was hardly a blockbuster opening salvo.  Then the jury heard from a financial expert who testified that Scott would have been better off financially if his wife were still alive.  Sure.  Scott and Amber would have had a delightful time together while Scott struggled with alimony and child support.  The $250,000 life insurance, alone, would have been a substantial incentive under the circumstances, if the jury believes that the marriage was heading for a catastrophic breakup.  After all, it’s all about what was in Scott’s mind, is it not?

 

It’s much too early to predict whether the defense has that blockbuster witness we’ve all been waiting for.  But based on the first day, it seems more reasonable that the defense evidence will resemble Geragos’ cross examination, raising a small doubt here and a small doubt there.

 

The real news here is the startling revelation by Mike Cardoza. [I know Michael: he’s a highly skilled trial lawyer and former prosecutor.] Cardoza conducted a mock cross examination of the defendant over the weekend for the defense.   I’m not surprised at all that something like this was done in the case, but I am stunned that it was publicly revealed, apparently with the acquiescence of the defense team.

 

Some background: In the OJ case, two defense lawyers from the Bay Area secretly flew to LA to “work over” the defendant, taking the role of an aggressive prosecutor in a mock cross-examination, ostensibly to prepare OJ to testify, but really to show him in advance what damage it could do.  I suspected at the time that the real purpose was to discourage OJ from taking the stand in the case.  It obviously worked.

 

Mike Cardoza, who has indicated that he was not paid for this weekend exercise, had earlier been quoted as one of those experts who thought that the best defense strategy would be to rest at the conclusion of the prosecution’s case and argue reasonable doubt.  Why, then, would Geragos and team seek him out to “prep” their all too talkative client? I suspect it was for the same purpose. 

 

We may have a strong willed, egocentric defendant here, one who is convinced that he can persuade the jury in spite of all.

 

So far, all that makes perfect sense.  But why disclose the preparation effort? 

 

There are only two conclusions I can draw:

(1)    Mike Cardoza somehow went off the rails and talked too much. [I very much doubt this.]

(2)    The defense somehow agreed to the leak. 

 

Which raises the question: Why would the defense want us to know that Scott was being put through his paces? 

 

Here are the two main possibilities as I see them:

 

(a)    Michael Cardoza is being used to set up a motion for a mistrial when – or if – this gets to the jury’s attention.  In this scenario, the defense team will throw Cardoza to the wolves, denying that he ever was given permission to reveal his pro bono weekend services.

(b)   The defense has decided that the leak will somehow work to Scott’s advantage.  If Scott testifies, the revelation is harmless, because it would probably come out in cross examination.  If Scott does not testify (the more likely scenario) the leak is potentially beneficial because it will allow Geragos to imply that Scott would have testified, indeed was eager to do so, but the lawyers decided to keep him off the stand.

 

The bottom line: This is a bizarre revelation.  As an intentional leak it would be a huge mistake by the defense team. 

 

That said, the Cardoza story does clearly telegraph to us that Scott Peterson has not yet decided against taking the witness stand.

 

 

 

[10-21-04]

 

Connor’s Time of Death

 

Thursday:

By all observer accounts, the defense attempt to extend the time of death of Laci’s unborn son, Connor, beyond 12-23 or 24 hit a snag during the cross examination of  Dr. Charles March, the LA based fertility expert who testified today.  Having told the jury that the fetus could not have died before 12-29 (if true this would eviscerate the DA’s theory), Dr. March was forced to retreat under a withering cross-examination by prosecutor David Harris not to be confused with

Pat Harris, the defense co-counsel). Dr. March’s opinion was apparently founded on a report that Laci had told a friend on June 9th that she was pregnant, while the medical records themselves could only support a pregnancy sometime before June 11th.   The cross ended with an admission by the defense expert that he was only qualified in the field of fertility, not forensic anthropology and pathology, and a pathetic plea to “cut me some slack”. Not having been present at the trial, I can only assume that the courtroom observers who described the prosecution cross as devastating were probably seeing this as the jury did.

 

In another tidbit, a judge who lived near the Peterson home described having seen a pair of women’s sandals on Laci’s lawn Christmas Eve day.  The judge also saw a “suspicious” male in the neighborhood on the 23rd.

 

By themselves neither witness had the potential impact of the “bridge” theory that was introduced yesterday, assuming it will be supported by further evidence.  Fetal age is very difficult to establish with any precision, and lawns tend to harbor a number of things that people leave behind.  I wonder if anyone will stop to consider that a pregnant woman would likely not walk her dog wearing just her slippers.  On the other hand, if she had been murdered in the bedroom while wearing them, and the body was carried across the lawn in the night…..

 

Over the Bridge and Through the Case…

 

Wednesday:

In yesterday’s testimony, the jury heard a new defense theory: that that body may have been dumped from a bridge over a canal that drains into the Bay. Arguably the current flow might have eventually carried the bodies to the place where they surfaced.  At this point, the status of this new theory, like many floated by the defense during cross examination, is just that, a suggestion raised from a witness who was not qualified to render an opinion on the matter.  But the theory is potentially a very important one.  If substantiated by an expert on tidal flows and bolstered by another witness who – for example saw suspicious activity on the bridge at a critical time, it could derail the prosecution’s case. Scott’s culpability depends so crucially on the high improbability that Laci’s body could have been sunk in the Bay by any means other than from a boat.  The boat vs. bridge issue trumps the other defense suggestion yesterday, as well: the notion that a smelly tarp apparently tangled on some rocks about a thousand feet from the recovered bodies might have been used in the disposal of Laci’s remains. Recall the earlier delay in the case because of “developments”? It was to allow the defense to conduct forensic tests of the tarp.  The results were negative.

 

Here is Geragos’ essential problem with this promising theory: It exposes the fragile thread on which the entire defense rests at this point – that a boat or its equivalent was needed to dispose of the body.  Geragos has already suggested a “frame up” by the “real” killers.  He must now explain the body disposal to this jury without positing that his shadowy “ghost” miscreants obtained a boat for the purpose, because, frankly, it is so wildly implausible.  For that matter, the very notion of a frame up is not going to sell to this jury, in my opinion. 

 

But the body-over-the-bridge theory is better for the defense precisely because it does not depend on the Scott-was-framed theory.  But the stakes are now very high because, if this theory is nuked by the prosecution in cross examination or via rebuttal evidence, the defense will probably crumble with it.

 

[10-25-04]

Picking Away at the Edges

 

Monday’s testimony can be summarized in a single line: The defense attempted with limited success to soften the impact of accounts of Scott’s behavior, such when he told Laci’s mother that Laci was “missing” only an hour after he had come home to find the dog in the back with his leash still on.  What is the importance of Monday’s defense revelations? E.G.: that Laci’s mother only reported the use of the word, “missing”, after she had learned of Scott’s affair? E.G.: that while trying to evade plainclothes officers on the day of his arrest (recall his changed appearance, camping gear and stash of cash) Scott told his brother he wasn’t going to make a golf game because he was being followed by “reporters” (not police)?

 

With only three working days left in the defense case (if Judge Delucchi’s estimate for the arguments holds), an entire day was apparently spent moving the needle a quarter inch. This has every appearance of a defense team marking time.  Will the defense case end with a whimper, not a bang?

 

[10-26-04]

THE BALOON POPS – DEFENSE RESTS WITHOUT MEETING EXPECTATIONS

 

Today’s development: In addition to the testimony from Scott’s parents, Geragos asked Modesto Police Officer Michael Hicks about the interview of a suspect arrested for the burglary of a Peterson neighbor.  The suspect had told Hicks that he was willing to talk about the burglary but that he had nothing to do with the missing woman with the baby.  According to the suspect’s first version, the burglary took place on 12-27, then the man indicated the burglary took place on the 26th.

 

As I wrote on October 5th:

So the moment of truth is quickly arriving.  A reasonable defense strategy would be to put on a couple of expert witnesses to undercut the hair and tides evidence, then to call a series of other witnesses to flesh out the ghost sightings, the watch pawning incident, and all of the other things that have so far been only suggested through cross examination. Without actual witnesses (or help from the court) these defense suggestions are all subject to rejection as hearsay.  A risk: The attempt to present such a defense would open up the possibility of prosecution rebuttal witnesses. There is always the real prospect that a failed defense could lead to a conviction by a disillusioned jury. 

 

An equally reasonable (and equally risky) defense strategy would be to rest without calling any witnesses, relying on the state of the prosecution’s case and arguing (a) reasonable doubt (b) that the defense was prevented from presenting more because the witness trail had gone stale as a result of various police investigation inadequacies. 

 

The most risky strategy of all would be to put the defendant on the stand at this point, exposing him to a grueling and effective cross examination.  It won’t happen unless he insists on it, and in that event no one can prevent it.  It’s a truism in defense circles that no defense case is so good that the accused is incapable of snatching defeat from the very jaws of victory.  Scott will not testify unless (a) the defense team has completely lost its wits (not this team) or (b) Scott is overcome by the impulse to “rescue” his own case.

 

Of course, there is the outside chance of a “Perry Mason moment” the decisive “Case solved” witness who blows the prosecution out of the water.  We know that isn’t likely to happen because, under the mutual discovery rules, the defense and prosecution have to telegraph their respective positions to a degree, by revealing witness lists and sharing statements.  Given the diligence of this prosecution in knocking down defense theories even before the defense starts its case, we’d surely have heard about a blockbuster defense witness by now.

 

Today the defense rested without calling any new expert witnesses, persons who had seen the ghost van, or the defendant himself. 

 

Geragos has fallen into the trap of raising juror expectations, then leaving the impression he was just leading them on.  Reportedly, the prosecution has a number of rebuttal witnesses for tomorrow.  The defense has the option for sur-rebuttal.  If such witnesses existed, the jury should have already heard them.

 

Credibility is essential as the two sides approach the final argument stage.  Scott has blown his.  Has Geragos followed in his client’s footsteps?

 

 

[10-28-04]

PROOF FATIGUE OR TACTICAL STANDOFF?

 

Unless the jury is reconvened, post-conviction, for a penalty phase, all the evidence in the Scott Peterson is in.  Having hinted at rebuttal evidence, the prosecution elected to rest yesterday.  Why?  There are two possibilities: that these tireless, dogged advocates just got tired or that the narrowness of the defense evidence precluded any meaningful rebuttal.  I vote for the latter explanation because it explains why Geragos, having promised so much at the beginning, delivered so little at the end. If, as I suspect, the arrows left in his quiver would have opened up the possibility of a devastating rebuttal, it was tactically smart to have done exactly what the defense did: present a narrow target and preclude the prosecution from having the last word.

 

But the prosecution will have the last word.  The time honored order of final argument gives the advantage to the party bearing the burden of proof: it is (1) DA, (2) Defense, and (3) DA.

 

My guess is that a majority of jurors have virtually decided this case, which turns less on whether the evidence is believed, but on how it is evaluated.  In my next posting, I’ll provide a brief guide to the final arguments.

 

[10-30-04]

Closing the Sale?

 

Judge Delucchi has properly ruled that the jury can decide between first and second degree murder in this case, as well as between guilty and not guilty.  In this, he was simply following the law, Geragos’ protestations notwithstanding.  Second degree murder is the lesser included offense, the default position if you will, when the jury can’t reach a verdict on the elements of premeditation that are in this instance the path to a first degree conviction.

 

Geragos must now retreat from the promised affirmative defense – that defense was an illusion, only, shadows presented through suggestion and hearsay. Somehow, he needs to change the discussion to a reasonable doubt defense based solely on gaps in the prosecution’s evidence.

 

At the very least, this jury is likely to be disappointed in his performance, and at the worst jurors will feel betrayed. After all, Geragos promised but did not deliver.  His credibility is impaired.

 

If somebody asked me for advice at this late stage in the case (I haven’t & won’t be) I would recommend that Geragos’ co-counsel take over the final argument. 

 

That’s not likely to happen.

 

To understand how a circumstantial case like this should be argued, let’s contrast a simple, eyewitness robbery-murder where the suspect is arrested a few days later based on a description and is found with part of the loot.  The Achilles heel of the DA’s case is the eyewitness.  If that evidence fails, the loot can be explained and the defendant gets off with receiving stolen property.  So the entire thrust of the defense evidence, cross examination, and final argument is focused on a single task – cast as much doubt as possible on the eye witness.  The defense may not even challenge the evidence that shows the defendant was found because that can simply be explained.

 

But in a fully circumstantial evidence case, to raise doubts as to any single circumstance is like mopping a wet floor with a paper towel.  The floor is still wet.  A large scale circumstantial case like this one can be countered only by a single, coherent alternative explanation, one that is both allowed by the prosecution’s evidence and reasonable enough to stand on its own.  Did that happen here? No, it did not.

 

There is one overriding defense difficulty. Maybe I missed something, but I cannot find a single significant element in the prosecution’s web of circumstances in which the defense has succeeded in actually turning the point around.  The test is a simple one: As to the hair in the boat for example-- the DA has proved that the hair most likely came from the head of murder victim Laci Peterson. Did the Geragos manage to reverse this? Of course not.

 

This calculus holds true for every other critical element in the web. The defense managed in some instances to weaken the probability but never reverse it.

 

Few circumstantial cases are airtight.  What would an airtight case look like? Imagine a scenario where two people go into a sealed room.  After a time, one emerges and flees the scene.  The second one is found dead on the floor inside, having been strangled to death.  Witnesses eliminate the possibility that anyone else entered the room before or doing the crime.  That’s airtight.  I’ve never seen a circumstantial case that airtight.

 

So the reality is this: There is always a hole in a circumstantial case, a place through which a willing and motivated juror can find refuge in “I just don’t know; I’m not convinced.” 

 

The real issue in the final arguments is the simple, but elusive difference between possible doubt and reasonable doubt.  And --as I’ve mentioned in previous postings-- reasonable doubt is an elastic standard, one left to the sound discretion of the jury.  In this task, the jury is always strongly affected by an assessment of the defendant himself.  I believe Scott’s jury has have been pondering the following question: Is Scott the kind of man who was capable of murdering his wife?  If the jury has answered that question in the affirmative, they will convict.  From this distance, without the ability to watch jurors’ faces, we can only guess.  But there have been signs that most of this jury is ready to find Scott guilty.

 

I suspect that Geragos will make the final argument -- in part because his ego won’t allow him to yield the spot to his co counsel.  But it was Geragos who tried to make the sale in the first place, that Scott was a cad and not a killer. He knows that to abandon his client now, on this lynchpin issue, would not do. So he will argue.  He will try to close the sale.  And the really important part of his argument will be the attempt to return to that theme – How can you be certain that Scott was even capable of this horrible crime?  Having lost credibility with the jury, it will be a hard sell.

 

Unless….

 

Several of my correspondents have raised a question: Does Geragos know something about members of this jury that we don’t?  Of course he does.  The defense hired a jury selection expert whose job was to provide just the sort of information and analysis that is not obvious from the questionnaires and from the answers given in open court. Recall from one of my earlier postings that I thought it was significant that Geragos passed during jury selection when he was ahead of the DA on peremptory challenges. I speculated that the defense had seated one or more pro-defense jurors and wanted to fake out the prosecution, luring them into passing, thus leaving these “sleeper” jurors in the box.  The strategy in that instance would have been an attempt to get a hung jury.

 

A lot of water has run through the canal since that moment, but we can all wonder….

 

 

The Final Arguments [Guilt Phase]

11-3-04

 

As the facts of the case have been extensively been covered, I will be brief and to the point. The purpose of final argument is to spin the facts.

 

Mr. Distaso’s opening summation was a stern appeal to common sense reality and it covered all the obvious ground. Who else could have done the crime?  All the evidence and common sense indicated that the obvious answer was also the correct one: It was a classic wife killing.

 

As expected, Mr. Geragos defended his client’s “character”, using the argument from exaggeration technique (“Do you hate my client?”, urging them to set aside such feelings), then made the point that, prior to Scott’s illicit affair and lies, and before the murder accusation, the accused wife killer wasn’t considered to be such a bad chap by those who knew him.  We should note what the jury was not told: The defense had the option of introducing favorable evidence on Scott’s character, but chose not to do so probably because it would have opened the door to possibly damaging counter evidence.  [Defense attorneys are routinely warned not to open that door, unless they are absolutely certain that no skeletons would emerge.  For example, the hearsay from a school friend about Scott’s discussion regarding how he could dispose of a body (tape, anchor and drop in the ocean) would have come in for real, had the defendant’s character been placed in issue by the defense.]

 

In a narrow evidentiary argument, Geragos focused attention on evidence taken from the Peterson computer that on the morning of the 24th someone – presumably Laci – was surfing the web for women’s clothing.  If the time frame of this internet excursion could be definitively placed after Scott’s departure for the putative fishing trip to the Berkeley Marina, it would cast reasonable doubt on the DA’s theory that Scott left the home that morning with Laci’s body.  But the internet activity was at 8:40 AM., leaving plenty of time for the killing, placing the body in the truck, and the drive to the Marina.

 

In his final argument, Geragos apparently staked everything on the time of death.  If Laci was alive when Scott left the house to go to the Berkeley Marina, he could not have been the killer.  The main problem with this line of argument is that it still leaves plenty of time for Scott to have done everything.

 

The DA’s rebuttal argument was brief and the jury was given the case the same day.

 

The case is now in the hands of a sequestered jury one of whom faces surgery on November 15.  I would be surprised if this group of sequestered jurors reaches any decision in less than 8 days.  Longer deliberations will indicate emerging disagreement.  There will be further delays if an alternate juror must be seated.  During the deliberation period, the tea reading phase, observers will opine about the significance of the inevitable series of questions and requests from the jury foreperson.  You can be sure that most of the guesses you will hear (and they all will be just guesses) will be wrong.

 

How will this case come out?  I will be very surprised at an acquittal in this case, less so at a conviction, and even less so at an eventual hung jury, the single most likely outcome. The experienced observers on scene who have had an opportunity to watch the jurors and the defendant close up on a day to day basis will probably have a better take on how the case has been received, but no one can safely predict what happens once the jury takes over behind closed doors.

 

THE DELIBERATIONS:  What were they thinking?

[11-7-04]

 

What were they thinking? The selection of a lawyer with a medical degree to sit on a criminal trial is tantamount to trying the case to a judge. Under normal circumstances, any juror with that profile is so strongly influential that the lawyers can reasonably expect: (a) he/she will be the foreperson and (b) will be able to drive any holdout jurors into a unanimous verdict. 

 

There is an exception.  Typically, the jurors poll themselves informally early on in the deliberations in order to discover which jurors are leaning toward conviction, acquittal, or remain undecided.  When it turns out that the foreperson is leaning toward the minority position, the jury tends to hang up. 

 

Going into the case I suspect that the defense was willing to roll the dice with this juror because he might be sympathetic to the defense medical expert on the time of death issue, particularly if the DA’s cross examination was unreasonably harsh.  The prosecution might have been sandbagged during jury selection, passing its challenge in the expectation that the defense was going to kick a different juror, allowing the DA to get ahead on challenges.  When the defense passed, the jury composition was settled with the Dr./lawyer seated.  It’s equally possible that the prosecution felt its circumstantial case was sufficiently sound that a lawyer would be able more easily to see through the anticipated Geragos hearsay and innuendo smoke screen.

 

A “HANGING” OR A HUNG JURY?

11-7-04 & developing

 

I suspect that the court will not want to give the so called “dynamite” instruction to this jury, which puts undue pressure on dissident jurors to cave, in order to achieve a unanimous verdict.  It’s a bit too early to tell, but it’s beginning to smell like a hung jury is in the making.  If the holdouts are one or two jurors at this point, a unanimous decision is still likely.  If a compromise is in the making, you will probably hear a request for clarification about the elements of first and second degree murder.  The requests to date – to view the boat for example – go directly to the guilt issue, so there is no hint of a compromise.

 

FIRST ALTERNATE IS SEATED: WHAT HAPPENED?

11-9-04 (updated 11-11)

 

Until someone violates the gag order, we are left to speculate why a Foster City woman has been replaced by a younger woman, a seemingly passionate mother of four, who had wept during the showing of the remains of Laci and child. Based on reports that the jury was admonished not to do experiments with the boat (reportedly jurors rocked it during the authorized view) and Judge Delucchi’s more recent admonition that the jury is to consider only the evidence that has been presented in court, I suspect that we have a “detective” contingent on this jury. It is not uncommon that one or more jurors in a criminal case are moved to go outside the constraints of the evidence presented.  This can be as innocent as an attempt to learn more about currents in the bay or to check some outside source about the stability of a boat like Scott’s. If the information is confined to the offending juror, the remedy is to remove and replace. If, for example, the Foster City juror’s curiosity has led her astray, she would be removed as soon as the matter was brought to the attention of the court.  When the information is such that it could affect the verdict and was communicated to other jurors, the remedy is a mistrial.  Were that the nature of the problem, the tip off would be a series of individual interviews of jurors by the court.  Obviously, that hasn’t happened.  Will the new juror be better for the defense?

 

THE SECOND ALTERNATE REPLACES THE FOREMAN: Defense Jury Strategy Exposed?

11-10-04

 

It’s now reasonably apparent that Greg Jackson, the Lawyer/physician juror/foreman, whose removal today resulted in his replacement with a retired man, was one of the jurors on whom the defense was counting to derail the prosecution.  The removal, done for undisclosed reasons, was over strong defense objections and a motion for a mistrial that was denied.  You may recall that the very first defense motions for mistrial immediately followed the removal of a juror (Justin Falconer, who was caught out chatting with Laci’s brother about the case) three weeks into the trial. [See my posting on 6-25-04, “The Booted Juror”.]  The fact that the defense is willing to move for a mistrial at this late stage in the case most likely telegraphs their expectation that a mistrial (whether from a hung jury or otherwise) is preferred to rolling the dice, given the state of the evidence and the current composition of the jury.  A number of questions remain: If this juror was removed for misconduct (most likely the introduction of matters outside the evidence – an almost irresistible temptation for a physician when two medical experts have testified): Who tattled? [There have apparently been several juror notes to the trial judge recently.] Were other jurors tainted? How will be the new foreperson lean? [It’s juror #6, a 30 something, male, firefighter/paramedic.]

 

 

WHY THE CIRCUS OUTSIDE DOESN’T MATTER

11-11-04

 

We Americans have invented a new form of reality TV: the high publicity murder trial.  If anyone doubts the wisdom of Judge Delucchi’s order sequestering this jury, you only need to look outside at the nearby boat, an apparent duplicate of the Scott “body boat” apparently brought to a location nearby the trial by a pro-defense group (prompting concerns whether Geragos himself was involved), then co-opted as a shrine by the justice-for-Laci group, then removed altogether by court order. Fortunately 99.95% of American murder crimes don’t get this treatment. Equally fortunate: The circus outside has been kept from the real decision makers who will continue their work in private this Friday. 

 

A side note: No one seems to have noticed that this sudden focus on the boat, if we are to believe that is also the focus inside the deliberations, is very bad for the defense. If jurors are fixed on the plausibility of the boat’s capacity and suitability for the disposal of Laci’s 153 pound corpse and the anchors needed to sink it, we can infer several things about where their deliberations have brought them. At least several jurors have provisionally decided that: (a) the body was disposed by boat; (b) the evidence of Laci’s hair in the boat is persuasive; (c) the ghost sightings of putative killers in the neighborhood are not under serious consideration. 

 

This doesn’t necessarily mean that a conviction is in the making because, as I’ve already pointed out, the difference between reasonable and merely possible doubt in a circumstantial case is very subjective and twelve people often disagree about what is or is not “reasonable”.

 

 

THE VERDICT

11-12-04 at 1:00 PM Pacific

 

Guilty of murder ONE and two.

 

Congratulations are due Mr. Distaso and law enforcement team who rose to the challenge of presenting a difficult, but ultimately compelling circumstantial case.  In spite of the white heat of publicity and an aggressive, if somewhat over-the-top defense, twelve jurors have unanimously agreed that Scott Peterson killed his pregnant wife. It will probably develop that Judge Delucchi’s decision discharging the foreman changed the jury dynamic to obviate the hung jury scenario.

 

Because the jury did find a first degree murder on the Laci count (but not the Connor count), Scott Peterson will NOT escape the death penalty (or the alternative, life without parole).  This outcome represents no compromise as to Scott’s guilt as “the real killer” nor as to whether he premeditated it.  The finding of second degree as to Scott’s unborn son simple represents a view that Laci’s murder was intended and premeditated, but that could not be said beyond a reasonable doubt that Scott contemplated the death of his to-be-born son when he killed Laci.  The difference between second and first degree on that count is immaterial because the death penalty or life without parole applies notwithstanding.

 

This jury now will reconvene to hear a penalty trial on November 22, in which they may receive additional evidence about Scott himself. [One juror, you may recall, had surgery scheduled for next seek, but may well be able to return by then.] A further trial is a prospect we can be sure none of them wanted but were willing to undergo out of civic duty.  The prosecution may or not produce additional evidence to bolster so called factors “in aggravation” in order to justify a death verdict; in this situation, the circumstances of the crime may be sufficient.  It then falls to the defense team, now discredited, to introduce evidence that would mitigate the offense or otherwise warrant mercy.  From the beginning of this case, I’ve identified moments when I thought the defense was attempting to do this in the guilt phase, but it would be foolhardy for them to fail to present much more, now that their client’s life is at stake.  I will have more to say about the penalty phase in a later posting.

 

[11-17-04]

GERAGOS’ “SOUR GRAPES” MOTIONS

 

Predictably, Geragos is still complaining about the juror discharge issue, and coupling it with his “I wanted a different the venue” issue. But this time the complaints occur in the form of motions requesting a new jury for the penalty phase to be tried in a different place (Berkeley?).  The motions will be denied because they are untimely.  The proper time to raise these issues would be after the penalty phase is concluded, in the form of a motion for a new trial, normally heard (and typically denied) just before the sentence is imposed. 

 

There are two possible reasons for this unprecedented timing: (1) Geragos wants to justify an immediate interview of the last two discharged jurors in order to lay the foundation for the inevitable appeal; (2) he might entertain the hope (caveat: my suspicion only) to generate publicity that will reach the attention of the remaining jurors (recall they have been sent home until November 22) and possibly support yet another motion for a mistrial.  I raise the suspicion because it is consistent with a publicity-seeking trial strategy.  I must note that the “death boat simulacrum” was parked near Geragos’ temporary office.  If it is ever proved that this stunt was designed by the defense to influence the jurors, very severe sanctions would be in order.  That’s not going to happen unless a witness surfaces, a very unlikely scenario.

 

I would expect Judge Delucchi to deny the motions quickly and that the penalty phase will begin on Monday the 22nd or very soon thereafter.

 

In Thursday’s posting, I will provide a brief primer on the California death penalty phase trial.

[11-18-04]

THE SCOTT PETERSON PENALTY TRIAL GUIDE

 

Background of California’s Death Penalty Scheme

 

In the late sixties and early seventies, the 50 states were all over the map on the death penalty.  Most jurisdictions have always employed the ultimate penalty for the crime of murder, but the criteria for its imposition have varied, as have the matters that can and cannot be considered in making the life vs. death sentencing decision. By the early 1970’s a split had emerged among the states, some of which made the death penalty mandatory for certain murders and some of which allowed juries and judges unlimited discretion in deciding which murderers would live and which would be executed.

 

Then in 1976, the US Supreme Court issued several decisions designed to settle these questions. Fuhrman vs. Georgia overturned the death penalty laws for several states including California by striking down procedures that gave unlimited penalty discretion to judges and juries. The same year, the Court invalidated mandatory death statutes in Woodson vs. N. Carolina and Roberts vs. Louisiana. If you couldn’t execute automatically and you couldn’t do it without guidelines, that left one legal path. “Guided discretion” statutes were upheld in Gregg vs. Georgia and Proffitt vs. Florida.

 

The Supreme Court had given the states a roadmap. California voters moved quickly to enact a qualifying death penalty statute by a lopsided majority. You would think that death penalties would resume in California at the previous pace starting soon after 1976. Right?

 

Wrong. Rose Bird was appointed Chief Justice in 1977. From that year until her removal in 1986 by the voters (along with Justices Reynoso and Grodin), all executions in California were blocked by the state Supreme Court essentially because Chief Justice Bird hated the death penalty.  The Bird court reversed 61 death cases in all. Chief Justice Rose Bird and the two allied justices had created a de facto death penalty moratorium that effectively delayed the resumption of executions in California until 1992.  [There were no California executions from 1967 through 1991. During that period, the murder rate increased substantially.]

 

California, the Slow

 

Since 1986, all California death penalty cases have been processed under California’s “guided discretion law”.  Because California’s judicial system still makes it very difficult to allow executions to proceed, only eleven death sentences have been carried out to date out since 1986. More than 600 murder convicts are waiting on death row.

 

If Scott Peterson is given the death sentence by this jury, he will have to take a number and wait about a decade for final justice unless and until California learns how to speed up the appeal process.

 

The Penalty Factors to be Weighed by the Peterson Jury

 

California Penal Code Section190.30 outlines the eleven factors in aggravation or mitigation that a jury can consider in deciding life or death. The jury’s “guided discretion” must take place within the scope of these factors whose status as favoring aggravation or mitigation is left entirely to the jury. 

 

When Scott Peterson’s penalty trial resumes next week, the prosecution will be allowed to present additional evidence relevant to one or more of the eleven factors, then it will be the defense’s turn to do the same. Final arguments will follow and the jury will be instructed and retire to decide Scott’s fate. 

 

The penalty trial could be as short as a few days, as long as a couple of weeks.  I expect this one to be short.

 

The eleven penalty factors that Peterson’s jury will be told to consider are:

 

(a) the circumstances of the crime and existence of special circumstances;

(b) any violent criminal activity by defendant;

(c) any felony priors by defendant;

(d) any extreme mental or emotional disturbance of defendant;

(e) whether there was victim participation in the murder;

(f) whether there was a reasonable belief in moral justification or extenuation by defendant;

(g) whether Scott was under extreme duress or the domination of another;

(h) any intoxication, lack of capacity  mental defect or disease of the defendant;

(i) the age of the defendant;

(j) whether the defendant’s role was that of a minor participant or accomplice; and

(k) “Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”

 

When the case is given to them, the jury will be told the following:

The jury “shall impose a sentence of death” if the “aggravating circumstances outweigh the mitigating circumstances”.

                          

How The Factors Apply to Scott

 

That first factor is a killer. 

 

The Peterson jury will find the circumstances of the crime and the facts of their special circumstance finding to be particularly damning. A double murder, especially when one murder victim was the murderer’s almost-born son sets the stage for a presumptive death sentence.  Scott’s situation is much worse because the transaction (as presented to the jury) included a child killing and was preceded by weeks and weeks of deception, lying and cold-hearted planning.  Had the jury found that the death of Connor was a first degree murder, indicating that the jury believed that Scott actually planned the death of his son (as opposed to a sort of collateral damage that he didn’t fully take into account), I would predict a fairly quick death penalty decision on that factor alone.  But the failure to find a first degree as to Connor’s murder should provide little comfort for the defense. Consider: the very attempt by Geragos to show that Scott was happy with his wife’s pregnancy magnifies the monstrousness of the ultimate killing. 

 

Whenever a jury is able to ask, “How could anyone do that?” the likelihood of a death penalty is very high.

 

If the jury limits its death penalty evaluation to the first 10 factors (the 11th, factor (k), is the catchall and I’ll discuss that separately below), the factors in aggravation will be found to outweigh mitigation. In fact, the first factor, the circumstances of the crime, is so strong by itself that the DA may elect to present little more than some victim impact testimony from Laci’s family to “gild the lily”. 

 

The next factor (b) is a wash at best. There will be no other violent criminal activity by the defendant, but the murder itself. However, the disposal of the body may be considered by this jury to fall under (b). 

 

Factors (c) and (i) are essentially neutral because Scott’s lack of felony priors (c) and his age (i) are merely the absence of an aggravating factor in the first instance and the absence of the mitigation of extreme youth in the second.

 

This leaves six factors. Unfortunately for the defense, they will only serve to highlight the fact that Scott Peterson has very little real evidence to present in mitigation of this double murder:

 

(d) Extreme mental or emotional disturbance?  On the contrary, Scott presents as a cold, calculating, self-centered planner.

(e) Victim participation? This was cold blooded murder, not euthanasia.

(f) Reasonable belief in moral justification? Hardly.

(g) Extreme duress or the domination by another? In the evidence, it was Scott not someone else who wanted Laci dead, planned the killing and carried it out.

(h) Intoxication, mental incapacity or defect? Scott was more bad than deranged, less “mentally defective” than too clever by half.

(j) A minor participant?  Not this defendant.

 

Absent testimony from a surprise mental health expert, this means that the entire defense case in mitigation has to be shoehorned into (k) the final, catchall factor, to wit: “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”

 

The Lingering Doubt Argument

 

And therein lies the defense problem. I am not among the “legal experts” who think that the notion of “lingering doubt” is the defense’s best argument in this case.  But the argument is appropriate in any circumstantial evidence case and must be made.  “Lingering doubt” is the general notion that the “beyond a reasonable doubt” standard is quite enough to convict and jail someone, but that it is not quite enough to execute. After all, the death penalty is irrevocable, and one would not like to see exonerating evidence turn up after the defendant’s burial. So the notion of “lingering doubt”, loosely defined as the remote possibility of innocence that lingers after some convictions in some cases, has emerged in death penalty litigation as a sort of mitigating factor.  Of course, the fact that there is no confession and no eye witness (other than Scott, himself --assuming as most of us do, that the jury got it right in this case) does nothing to “extenuate the gravity of the crime.” The “gravity of this crime”, if you will, was well established by Laci’s pregnancy, the method of the disposal of her body, the attendant homicidal “pre-need” planning, and the fact that her baby died with her.

 

So Judge Delucchi will allow Geragos to argue whatever he likes, including lingering doubt, then the jury will hear the eleven factors I’ve just outlined.  But they will not hear that lingering doubt overcomes factors in aggravation.

 

Geragos’ problems are compounded by the stark reality that he has blown his personal credibility with this jury by promising more than he was able to deliver.  The best remedy would be to turn the entire penalty phase defense over to co-counsel Harris.  I very much doubt that Mr. Geragos can bring himself to do this, even if he suspects that such a strategy could help save his client’s neck.  After all, as Geragos will undoubtedly remind himself, it was his skill and his reputation that the family bargained for when he was hired.

 

Scott Has Made His Own Bed

 

In the end, the fate of Scott Peterson was sealed by Scott Peterson.  This is a client who should have been taken under control of seasoned counsel at the very beginning.  He should have been silenced. The necessary time and effort should have been expended to get him to be fully candid with his lawyers.  Think of what might have happened.  Suppose, early in the game, the defense had been able to present an entirely different picture of the crime to the DA, one where Scott was confronted with his affair, a horrible fight ensued, followed by an impulsive killing and a hasty cover up. A single count of first degree or even two second degree murders, as a plea bargain would look pretty good by now.  But intelligent foresight has never been one of the dominant attributes of the criminal mind.

 

I suspect that Mr. Peterson would do better, even in this late stage in the case, by discharging his defense team, and with the help of fresh counsel, by presenting a scenario like the hypothetical I just outlined in the last paragraph.  It would be a difficult sale to make, but not nearly as difficult to do as the pending “how dare you convict the wrong killer!” defense.

 

I sense that we are about to be treated to the duel of the weeping parents and some in-court hand wringing.  Who knows? The jury might yet be swayed to grant to Scott the mercy Scott failed to grant his wife and unborn son. Don’t’ count on it.  I have a feeling this jury has already figured out what it wants to do next. If so, no amount of weeping and gnashing of teeth will change that. 

 

Does either side have any surprises in store for us?

 

Stay tuned.

 

 

 

[11-22-04]

THE PENALTY PHASE DELAYED UNTIL NOVEMBER 30, 04

 

Surprise?  I think not.  The defense, having botched the guilt phase, now admits to being unprepared for a penalty phase defense. [The admission was cloaked in defense bombast, but apparent by reading between the lines.] That tacit admission backed judge Delucchi into a corner, confronting the court with the real possibility that the case would be reversed (in the event of a death sentence) for ineffective assistance of counsel if additional preparation time weren’t provided.  [The defense is also pursuing the challenge to Judge Delucchi’s decisions to dismiss three jurors, but this effort is a sideshow, in my opinion.]

 

So Geragos and team will work the Thanksgiving holiday trying to put together a penalty phase defense that, frankly, any competent defense team should have been working on flat out for the last eighteen months.  Will the delay help?

 

[11-23-04]

THE CIRCUS INVADES?

 

Mr. Jackson, the deposed foreman, the last removed juror, now apparently claims (I say apparently because (a) he seems to have separately communicated to Geragos and team and (b) is otherwise abiding by the gag order) that his removal occurred because of his own agonized request, following disputes with his fellow jurors and Jackson’s own concerns that the intense public attention was warping his independent judgment.

 

Meantime the defense is busy seeking a writ from the Court of Appeal to compel Judge Delucchi to give Geragos a better jury, a better town, etc., etc.  This writ application will undoubtedly be denied (as 99.99% of such applications are), leaving Geragos with his two primary problems (a) he’s losing the publicity battle; (b) he seems to be losing sight of his main task at the moment: to prepare and present a persuasive case for this jury to spare his client’s life. 

 

As to Mr. Jackson’s current claims: Judge Delucchi’s mother didn’t raise a slow child. This trial judge is very experienced and knowledgeable, especially in death penalty litigation. Mr. Geragos is experienced in celebrity criminal defense work, but this is his first death penalty trial as lead counsel. [Geragos apparently sat as second chair on a death case tried by his father years ago;  I doubt he’ll ever agree to do another.] You can bet that each of Judge Delucchi’s decisions to remove each the three jurors to date was well supported by facts in the record and that all three decisions fell well within a trial judge’s permitted discretion under the law.

 

Mr. Geragos is like the arsonist who complains that the fire department hasn’t done its job.  He has done nothing from the day of his first involvement with Scott Peterson’s case to tamp down the storm of publicity surrounding this case.  Instead he has chosen to bask in the bright light of press attention at every opportunity.  As you sow, so you reap.

 

 

[11-30-04]

THE BEGINNING OF THE END

 

No surprises.  Neither the Court of Appeal nor the Supreme court were willing to interrupt Al Delucchi’s murder trial.  After interviewing a bartender behind closed doors, presumably someone produced by Mr. Geragos to resurrect the issue of juror bias, the penalty phase began with an opening statement by DA Harris, who outlined the rippling damage effects inflicted by Scott’s homicidal acts, then called Laci’s bereaved, but justifiably angry mother, who vented at the stone faced defendant.

 

I must confess to a sense of clinical distance at this point. It is hard to imagine anyone but the most avid opponents of the death penalty holding a candle outside the site of Scott’s execution, should that be eventually approved.  I certainly would not be among them.  And while I have much sympathy for the many hard working public defenders and defense attorneys who labor long and hard for their clients’ lives, I find it hard to feel much empathy for this particular defense team. I will happy to see this case end, and sincerely hope it does end soon with a unanimous verdict. 

 

Either way would suit me.

 

But I am curious.  Will the defense find a way to restore Geragos’ lost credibility? Can a credible reason for mercy be teased out of this mess? Are there any surprises left?

 

 

[12-1-04]

CAN PAT HARRIS RESCUE THE DEFENSE CASE?

 

Readers of this running account might recall that in my August 15 posting, I identified Pat Harris as the likely lead attorney for the penalty phase. As I wrote then:

 

It is common practice in death penalty cases for the defense to be conducted by two attorneys, the second of whom (here Mr. Harris) only occasionally appears in the guilt phase.  Significantly, the cross examination was conducted by Scott’s co-counsel Harris.  Pat Harris elicited some sympathetic moments. When Reed described a moment when he and Scott were looking at a hunting catalogue that included pictures of children’s hunting clothing, the defendant wept.  By all accounts, Scott’s sudden grief was authentic.  Should he be convicted and this jury faced the death penalty decision, you can be sure the jury will be reminded of Scott’s grief, transformed via the magic of defense alchemy into authentic remorse.  For now, though, it will be used to undercut the emerging portrayal of Scott as a calculating wife killer.

 

Mr. Harris has now given the defense penalty phase opening statement and will probably also give a closing argument.  He acknowledged the guilty verdict (“we respect what you came up with and its time to move forward”) then outlined a portrait of Scott as a decent enough man, aside from his four month long “lapse” that led him somehow to murder his wife, his unborn son, and to engage in the subsequent cat and mouse game with girlfriend, family, press and police. 

 

Seen for the first time by a jury, this benign picture will probably seem inadequate when placed against the backdrop of the killings themselves, unless the jury also hears evidence that makes the episode seem less cold hearted and calculating.  [Not likely since the defense is trapped by the defendant’s denial.]  I suppose if Scott’s background were seen by hardened urban law enforcement men and women, the contrast with the different backgrounds they routinely encounter -- violent felons, parolees with prior rapes, robberies and assaults -- might seem to support Pat Harris’s argument, that “this is a life worth saving.” 

 

The problem with the defense approach is inherent in the situation not the audience, which, after all, is that of normal people, representative of the normal human condition.  To them, Scott Peterson was not disadvantaged in any material way; he was not prevented from circumstance from acquiring a fundamental grasp of human morality; and his false displays of post-killing empathy will only serve to reinforce the jury’s view of him as some kind of moral monster.  To break this spell, the defense needs to explain, if indeed this ghastly behavior was a momentary break with Scott’s basically decent mindset, how such a break could have occurred at all.  Because if the defense fails in this critical task, the jury may well conclude that Scott Peterson was always capable of murder. And if they reach that place, they surely will vote for death.

 

Recall factor (k): “Any other circumstance which extenuates the gravity of the crime.”  Does Scott’s presumed “good” background extenuate the gravity of the crime or does it make the offense seem even worse? Frankly, I smell a death verdict in the making.  Can the defense save Scott Peterson from “the Green Room”?

 

[12-3-04]

IRRELEVANT AND BORING?

 

Jurors continue to hear from Scott Peterson’s childhood friends as if the evidence could mitigate a double murder committed as a mature adult.  The defense seems trapped in an earlier era when juries needed only the flimsiest of excuses to spare a killer.  I am reminded of the press accounts when a mass murderer-in-hiding is finally arrested and the neighbors are interviewed. “He seemed like such a nice man.” Of course, the neighbors were wrong. 

 

The jurors in this case, reportedly bored and impatient with this biographical testimony, are probably thinking several things:

  • “But Amber liked him, too, at first;” or
  • “My how people change;” or
  • “With all those advantages, Scott turned out a spoiled self centered narcissist; so this is now a defense?” or
  • “Appearances certainly can be deceiving.”

 

The defense is trying – without much success – to accomplish two inconsistent objectives:

  1. To paint a sympathetic portrait of Scott-the-killer and
  2. To create an equally plausible portrait of the Scott “the cad” who just might not have done it. 

 

This line of evidence, no doubt to be accompanied by grieving family members who will miss Scott when he is gone, will apparently occupy the first part of next week.  The DA will be given the chance for a rebuttal – an unlikely step, given the nature of the defense evidence.  Then the order of argument will be the same as it was in the guilt phase: The DA opens; the defense has its turn; and the DA closes.

 

Increasingly, this is looking like a jury that has already figured out the appropriate penalty decision.

 

As in the guilt phase, the prosecution’s best argument was made during the evidence by a single witness who summed up the matter, this time not by a detective but by an aggrieved mother/grandmother to be.  In final argument, the prosecution would be well advised to admonish the jury to note carefully what the law requires of it when the aggravating circumstances (noting the statutory factors) outweigh the mitigating ones. In this situation, the jury “shall” impose death.  Although mercy is always possible (no court can tell a jury how to vote), this legal argument will help persuade the one juror who asked his Roman Catholic priest whether he could sit on a death penalty jury and was advised in effect that, as a juror, he could follow the law of the land without committing a sin.

 

It is never safe to predict a jury’s ultimate decision when life or death is at issue because many “death qualified” jurors can find themselves suddenly reluctant.  But when it turns out, as I think it will, that only one or two jurors are reluctant to impose the death penalty, these jurors will probably fold in short order.  Had they been firmly in the anti-execution camp, they would not have qualified to sit.  Had they entertained significant doubts of Scott’s guilt, they would not have voted him guilty.  And there is no evidence in this case of a jury penalty compromise, the sort of thing that sometimes happens in a close guilt case where the reluctant guilt votes are traded for a life-instead-of-death punishment vote.  Here, it seems that all but one or two the jurors were ready to convict early on, because the guilt phase was over as soon as the foreman was replaced.

 

Much is made of the “lingering doubt argument” (especially at the academic level), but jurors who have reached the conclusion that the “real killer” is sitting before them tend to become more certain of their decision over time, not less. This process of growing certitude was actually helped by Geragos who left the strong impression that he failed raise any reasonable doubt as to his client’s innocence because the whole effort was misbegotten at the outset, even deliberately misleading.

 

The jury has experienced its moment of truth in this trial. Mr. Peterson will soon arrive at the moment of accountability. Judge Delucchi can be counted on to respect any unanimous decision by this jury and impose sentence accordingly.

 

[12-6-04]

CHALLENGING THE JURY

 

Among the parade of friends and family describing Scott’s good qualities when he was younger, describing the hardships endured by his parents (in an effort to forestall the infliction of yet one more hardship via the execution of their son, Scott), a family friend and two uncles today directly challenged the jury’s guilty verdict and a cousin indirectly did the same thing by asserting that Scott was without “a violent bone in his body.” The defense might have warned this cousin not to mention bones in this case.

 

Again, the defense wallows in a trap of its own making.  Any character witness has damaged credibility when he or she doesn’t take into account the bad behavior of the person vouched for.  It is as if the character testimony were made before the killings took place, inviting the devastating rejoinder (not asked – or needed - in this case), “Now that we now know that Scott deliberately murdered Laci and Conner, what do you think about his gentle, caring, loving nature?” Contrast what I have occasionally heard from a mitigation witness, someone who says, in effect, “I know he did these terrible things, but it must have been some kind of craziness that came over him; in spite of it all, he’s still a caring person with good qualities,” and so on.  The power of the mitigation flows from the fact that the witness is in touch with the same reality that the jury has seen.  Not so here.

 

I have little doubt that the defense encouraged or even coached these witnesses to openly express their disagreement with the jury’s verdict, because if it were otherwise these witnesses could easily have been made to stay clear of the topic. 

 

This ploy was a high stakes gamble by the defense because this sort of challenge, when it comes from a mitigation witness, does two things, neither of them helpful to the defense: (1) by stressing that these witnesses profess to believe in Scott’s innocence, it subtly reinforces the subtext view that these two killings are so far beyond the pale that they can’t be mitigated except by innocence; (2) by telling the jury that they have convicted an innocent man after his hired, celebrity attorney promised, but failed to produce a substantive defense, the plea will certainly alienate most, maybe even all twelve jurors.

 

The defense hopes to create a chemistry in which sympathy for Scott’s family and friends tends to reinforce any lingering doubts about his guilt.  I imagine the strategy looked good on paper.  But it assumes that there are, in the minds of these twelve, some lingering doubts. This, as we say in the trade, assumes facts not in evidence.

 

Actually I think that the contrary is happening: Sympathies for Laci’s friends and family are reinforcing doubts about the credibility of the mitigation witnesses. To date, not one of the defense penalty witnesses has taken the (now proven) fact of Scott’s culpability for these killings into account, much less explained his participation in a way that might mitigate his conduct. 

 

Still, the defense must work with what it has, not some imagined case that can never be proved.  Mr. Harris is now presenting the real defense case (the one that can be proved), following Mr. Geragos’ presentation of the imaginary one (the one that could not).

 

We have only one or two more days of this.  Can the defense team turn this jury around?

 

 

[12-9-04]

BATTLE OF THE MOTHERS

 

By all accounts, the impassioned plea of Scott Peterson’s mother had some visceral impact yesterday when she begged the jury to spare her son.  No less could be expected from any mother. Now the case will be argued to the jury.  The defense has been hurt by its inconsistent posture, credibility loss, and the court’s announced instruction that sympathy for the killer’s family cannot mitigate the offense, but the defense will be helped by the court’s other proposed instruction that jurors may consider the lingering doubt issue (not one of the eleven factors set out by law) as a potential factor in mitigation.  On the last point, Judge Delucchi was prudent to specifically allow the jury to entertain lingering doubt because the failure to do so would have raised a potentially difficult issue on appeal (especially in the very liberal federal Ninth Circuit Court of Appeal).

 

The primary function of final argument in this phase is to reinforce the jurors who may already be leaning toward death or life.  The penalty decision is not rocket science.  That aside, it is an emotionally difficult one.  If, as I suspect, there is a critical mass of jurors who favor death for Scott Peterson it will be very difficult for a small number of jurors to hold out for life.  Thus, we can expect the defense to attempt to give them bullet proof arguments to hang tough.  This will come down, I suspect, to the lingering doubt argument based less on the evidence than on the “how could this nice boy have done this terrible thing” line of argument.  For the reasons I have already explained, I doubt this will persuade more than two jurors, if that.  But having tried a death penalty case in which my client (convicted of wrecking far more homicidal havoc than Mr. Peterson) was ultimately spare by a single vote, I would never gainsay the hopes of the defense in any case.

 

I strongly suspect that, by the time I am able to comment about the final arguments, we will have a jury decision.  For those of you who have detected the threads of my policy concerns in this year long narrative, I invite you to check in post verdict.  I will outline the policy implications raised by the Peterson case, some of which will play out over a long appellate review. 

 

In the meantime, I trust you all will find time to enjoy the holiday season which, after all is said, is not about some sordid criminal case, but the blessings of family life and the simple joys of the world.

 

 

 

[12-10-04]

THE LAST WEEKEND BEGINS

 

DA Harris, Defense attorney Harris and Mark Geragos have each addressed the jury, and the formal life-death deliberations that started late yesterday have arrived at the weekend break. 

 

As to the arguments: This is not a case where closing arguments, no matter how eloquent, are likely to change any minds. Observers gave the DA high marks for a powerful closing argument, although I heard of no mention in that summation of the need to weigh specific factors. As I’ve already indicated, dissident jurors could probably be brought to concede that aggravation outweighs mitigation. This would put them in an impossibly weak position to resist voting for death.  The prosecution may have missed the opportunity; in an emotionally charged case, logic is often the deciding element.

 

The defense’s Harris went over all the appropriate points and stressed the need for jurors to hold their ground, especially on the lingering doubt issue. [Again, there should be no surprise at this stand-your-ground approach. Scott’s defense team has obviously concluded that most jurors favor death and that the best to be hoped for at this stage is a hung jury on penalty.]

 

Then Geragos took a small part of the defense closing to make the point that Peterson would outlive his parents in prison, getting notice of their deaths via a rap on his cell by a guard.  The somewhat questionable inference is that Scott would be very upset by that prospect.  I recall that he seemed willing to flee the jurisdiction entirely to avoid being arrested in then first place presumably getting notice of his parent’s death by mail to a secret address in South America. Geragos was obliquely trying to argue the contrasting scenario, where the parents are still around to hear about their son’s execution. Stating it indirectly is less likely to invite the obvious rejoinder, “What about Laci’s family?” and “You can’t consider the impact on Scott’s family.” Given the mean time to execution at San Quentin (pushing two decades), even the grieving parents of the executed killer scenario is doubtful.

 

No one should attach too much significance to the fact this jury broke a few minutes early for a weekend in sequestration.  There are probably two holdout jurors (typically, one juror can’t hold out for long).  Because of the emotional intensity of the life-death issue, the majority jurors probably declined to push the reluctant ones too hard, wisely leaving the passage of time to do its work.  After all, this is ultimately a value based decision. How much meaningful back and forth discussion can there be? I can imagine the foreman asking reluctant jurors, “Do you have any questions? Is there anything we can tell you?” and getting something like “No thanks. We just need some time…”

 

But I just can’t see this case going yet another weekend.  This jury will reach a decision or hang up very soon after it reconvenes on Monday.

 

[12-13-04]

DEATH FOR A KILLER

 

The Death recommendation by this jury for Scott Peterson should be no surprise for anyone who has watched this case.  This outcome leaves the final sentencing issue up to the court.  Judge Delucchi can be expected to show no leniency in imposing penalty, having not reduced the recommended death penalty in any of his prior cases. So, in due course, after the inevitable defense motion for a new trial based on various grounds, including the court’s decision to excuse three jurors (a motion that almost certainly will be denied), Scott Peterson will be formally sentenced to death in February of next year. 

 

No one should be surprised or upset that the defendant will appeal his conviction to the California Supreme Court.  In this endeavor, a free shot for everyone convicted of a felony in California and mandatory in the event of a death sentence, many are called, but few indeed are chosen for reversal in front of California’s highest court these days.

 

A different prospect awaits Scott Peterson when, as is inevitable, his case gets federal review, given the anti-death penalty predisposition of some Northern California Federal District court judges and the well known anti-death penalty bias of most of the 9th Circuit Court of Appeal justices.  But at least at the first stop, the likely outcome is “conviction and penalty affirmed” by the California Supreme Court, particularly taking into account Judge Al Delucchi’s excellent track record.

 

Mr. Geragos should not be surprised if some appellate attorney attempts to malign his performance in this case, seeking a reversal of the conviction and sentence based on alleged “ineffective assistance of counsel.”  That claim should be denied.  The problem with Scott Peterson’s case was “ineffective assistance of client.”

 

In tomorrow’s posting, I’ll talk briefly about Geragos’ probable motions and the long appellate process ahead. In a later posting I’ll float some policy recommendations.   

 

 

(1) Geragos  Career:  RIP?

 

Mr. Geragos’ career probably will not turn on a single failure like the Peterson case, unless unforeseen ethical investigations follow. And I doubt anything like that will take place.

 

So Geragos lost a case.  The defense, after all, plays the hand it was dealt.  It is inevitable that the defense team will be attacked at the next level by appellate attorneys whose weapon of last resort in a death case is to claim that the client received “ineffective assistance of counsel” at trial.

 

We are at the front end of a protracted, partly state subsidized, legal battle over Mr. Peterson’s ultimate fate. The struggle is driven largely by the true believers who feel that every human being who receives a death sentence is either innocent or guilty but misunderstood, wrongfully convicted or made a scapegoat, and in any event cannot be executed without risking a profound miscarriage of justice.  At the base of this is a passionate opposition to the death penalty.  So Scott Peterson will join six hundred other pawn in a legal struggle propelled my misplaced conscience (in most instances) and restrained only by money and the patience of a court system prepared to endure the trial of Job in order not to offend those who are squeamish about the imposition of society’s ultimate sanction for deliberate murder. 

 

So Mark Geragos’ performance will be assailed by this group, not because it was so bad as to have deprived Mr. Peterson of the defense that the constitution says was his due, but because -- unfortunately for Mr. Peterson in light of the outcome -- the defendant had a fair trial and the spurious claim that his lawyers blew it is the last, best card to play to escape execution. 

 

One hopes that Mr. Geragos’ ego – so evident in his bluster before and during the trial – will not desert him at this late hour.  Lesser attorneys have been known to fall on their swords, confessing incompetence – not because they actually screwed up – but because they think somehow they are called to say or do anything that might save a murderer’s life.  As I’ve trained trial lawyers over the years, “No client is worth your Bar card,” and “We defend people and cases, not causes.” 

 

Of course, Mr. Geragos was hardly above criticism, as we will soon see. But Mr. Peterson got what he bargained for when he hired a prominent celebrity lawyer. The defense delivered a high flying, high profile case that fed Scott Peterson’s fantasies, increased his notoriety and fan mail, but ultimately failed because the defense so closely tracked what Scott wanted instead of what Scott needed. 

 

This was not a case of ineffective assistance of counsel; it was a case of ineffective assistance of client.  The defense team made some decisions during the case that were not the ones I would have made, but they were within the range of choices that a reasonably competent trial lawyer could have made and – more to the point – they were the choices Mr. Peterson clearly wanted. 

 

Too late for Scott to urge a more reasonable – and frankly a more intellectually honest – defense.

 

It is a rarely discussed fact of courtroom life that intellectual honesty is very often degraded on the defense side of the case by one overriding consideration: An attorney’s duty of loyalty to the client (which means for an adult client loyalty to what the client wants, rather than what he or she should want). This duty of loyalty tends to trump all but the brightest line ethical rules.  When coupled with very strong economic incentives (think organized crime here, not Mr. Peterson) it sometimes overcomes even the bright lines as well.

 

So the defense standard for intellectual honesty consists of “I don’t have to believe what I’m saying as long as it sounds reasonable and isn’t actually lying.” That’s fairly low bar. So I’d not be too hard on Mr. Geragos and team for making arguments that barely met this low standard; after all intellectual dishonesty is trespassed every time a lawyer makes inconsistent arguments in the hope that something will stick.  What makes these positions “consistent” is a client who is saying, “I expect you to win the case not a gold medal for purity.”

 

The criticism that does apply – at least from my remote viewing platform- is that Peterson’s lawyers suffered from an inability to effectively confront an unreasonable client with the facts of life, and this seems to have gotten in the way of trial strategy. As a rule, murder clients lack good sense (except for contract killers, who merely lack morality); they tend to suffer from foolishness and poor judgment. The duty of loyalty hardly extends to joining in the client’s foolishness and poor judgment, but some lawyers suffer from the tendency to blur the client attorney boundary.  Geragos may have succumbed to this all too common failing among celebrity lawyers.  But I’m just a remote observer….

 

Scott Peterson: RIP?

 

Scott Peterson will now join more than six hundred sixty other convicted murderers who are queued up for execution. Will he and hundreds of others eventually be wheeled on the death gurney into the Green Room for the administration of society’s ultimate justice?   It does make you think.

 

Why have the death penalty? And why care about how quickly it’s administered?

 

Since I left the public defense business and began to speak out on criminal justice issues of concern, I’ve endured the sharp criticism of some of my former colleagues for my position on the death penalty. I believe in a vigorous defense but also that we need the ultimate penalty because it is an essential weapon in civilization’s arsenal.  Experience has persuaded me that the death penalty helps deter calculated murders.  The interminable delays in its administration, (the product of inadequate “adult supervision” in my opinion) do weaken the deterrent effect, but the delays don’t eliminate deterrence for a couple of reasons, among them: For some criminal minds, the risk of eventually getting the death penalty is so vivid that it causes hesitation when that first killing is contemplated. Second and third killings are harder to deter. 

 

Hence the importance of deterring the first one.

 

Some loosely wrapped miscreants are so impulse driven that they are only deterred by the close proximity of a police car.  Others are so enamored of their ability to escape justice (or so stupid) that thought of the consequences after being caught figures naught in the “shall I pull this trigger” calculus. [“Catch me? Not a chance, Man.”] 

 

Now that Scott Peterson has been convicted by the jury, we can safely put him in a special subclass, the narcissistic planner so enamored of his deceptive charm that the notion of ultimate penalty is not in the picture.  Still, had California been willing to execute more than a dozen killers in the last fifteen years (Scott’s entire adult life), and to have included two or three notorious wife assassins among them, even someone like Mr. Peterson might have chosen the divorce option over the grislier alternative.

 

At the end of the day, the issue is almost never a question of who was not deterred, but of the many who were. We’d like to think that, God forbid, if you or I are ever locked in the trunk of a car by an armed carjacker, we’ll be spared.  Some are. Many criminals actually do reconsider pulling the trigger– at least for their first killing.

 

The reason that homicides continue to be deterred in California in spite of its slow execution rate is that there are three penalties for special circumstances murder: (1) death, (2) life without parole, and (3) incarceration under threat of death.  Death row inmates just have no fun at all.  It is in fact so bad on death row (the extreme social isolation, the restricted exercise, the nearly 95% cell time, the omnipresent date with an executioner) that many seek to get it over with early.  So the “third penalty” is a real deterrent (much more than a simple return to prison, a familiar environment for all parolees).  But death row would not be effective as a deterrent without the death component, an ongoing threat of death made credible by a steady drumbeat of executions.  The mean time on death row before execution or the case is reduced by some court to life imprisonment is 13 years and growing.

 

On some level, it would actually be far more humane to convicted killers if we could restructure things so that the mean time on death row is kept very short, say on the order of two or three years.  And it would be better for the victims as well.

 

Is reducing the California backlog possible? I’ve dealt with this difficult issue below.  Suffice it so say, that reform would require determined leadership of the kind we have yet to see on this issue at the state or federal level.

 

How long would it take to clear death row’s 660 or so inmates if nearly all were executed? At 20 per month, it would take about six years, given the intake.  The side effect of the acceleration would probably be a sharp drop in California’s homicide rate.  I suspect that death penalty opponents are afraid of this scenario precisely because they suspect I am right. Deep in that part of the mind of a death penalty opponent where common sense resides, there hides secret knowledge: that the death penalty is potentially such a powerful deterrent that, if the word ever gets out, society will never be rid of it.

 

But wouldn’t it be nice to have fewer murders?  Even at the price of a few more executions?  Or am I being unreasonably practical?

 

How about Scott’s fate?  Based on the current lay of the legal landscape, his ultimate status won’t be resolved for at least a decade, possibly two.  But – as I’ve pointed out – death row is no fun at all.

 

JBG

 

 

Earlier Postings

 

Sentencing delayed until March 16.

 

The defense has, as predicted, pursued an extensive motion with the trial court ostensibly to convince the judge to set aside the conviction and order a new trial.  One early leak suggested that the defense is now alleging that the prosecution withheld exculpatory evidence, to wit: evidence of jailhouse conversations among criminals who may have discussed a break-in at Scott’s residence. Granted that the DA has an ongoing duty to divulge any evidence that might tend to exonerate the accused, a teaser describing one or more conversations among crooks would not normally rise to the level that warrants serious consideration of another trial without much more than we have heard. 

 

So my estimate still stands: I believe that the defense motions will be denied, and Mr. Peterson will be sentenced to death. 

 

Could there be warning signs that more may be afoot? Look for:

·        a prosecution motion for a continuance or

·        a list of defense live witnesses or

·        an indication that Scott himself will testify. 

 

Absent these signs, this still looks like defense smoke signals to me.

 

Stay tuned.

 

JBG

 

This has been an ongoing analysis of the unfolding defense strategy in People vs. Scott Peterson that resulted in a conviction and a recommended death sentence. The trial court will entertain (and undoubtedly order) a death sentence when the court reconvenes for that purpose. The defense will try to postpone that day and, by various procedural maneuvers, attempt to prevent it altogether. The smart money is on the death penalty at the trial court level.  Given the problematic nature of death penalty review in California, however, Mr. Peterson has pretty good odds of dying of natural causes before he’s wheeled on a gurney into the “green room” to receive ultimate justice.  As you will see from my observations below (and more to come in the next three weeks) it doesn’t have to be that way.

 

Here are the latest pre-sentence installments

 

[February 1, 2005]  The Sentencing Delay

 

Scott Peterson’s sentencing day will be delayed until March 11 at the request of the defense.  What is going on?  Geragos and team, having lost the case and expecting the worst, are preparing to set up the best possible record for the inevitable appeal. 

 

In order to present information not already in the trial record (e.g., think of interviews about possible juror misconduct, not yet part of the trial record), any additional factual material must now be presented in the form of declarations, affidavits or live testimony in support of a motion for a new trial.  If matters are not first presented to Judge Delucchi for consideration, it is difficult to get an appellate court to consider them, hence the use of pre-sentencing proceedings for this purpose.

 

While there is almost no prospect that Delucchi could be persuaded to overturn the jury’s penalty decision, there is one stratagem that would have a strong impact on the trial court and any later appellate court reviewing the record:

 

What if now, at the last possible moment, Scott Peterson claims that he did the killing impulsively, under the duress of extreme marital discord?

 

If you’ve been following the supermarket tabloids, you might have seen one headline suggesting just that.  Would it be credible?  How could it be presented? Would it even matter?

 

Nothing short of dramatic testimony from the convicted killer himself, subject to extensive (and potentially devastating) cross examination would be sufficient.  If done correctly, the evidence of Scott’s apparent planning activities could be blunted, and a plausible scenario might emerge suggesting something more mundane and less evil than the jury’s original take. 

 

But would it matter?  Probably the sentencing outcome at the trial court level would not change.  But, over time, Scott’s prospects for favorable appellate review of the sentencing decision might be improved.  At the same time, all of the issues on appeal that relate to the guilt determination would suddenly tilt decisively against Scott. 

 

Would the gamble be worth taking?  Not for Geragos and company who, after all, will face later claims of ineffective assistance of counsel. 

 

Is Scott likely to be heard from at all?  He will have been contacted for the pre-sentencing report. He is not required to say anything at that point. Will he actually take the witness stand and expose himself to cross examination at this late hour? I’d not bet on it. But what great theater that would make! 

 

Are there any surprises in store on March 11?

 

Stay tuned.

 

 

 

ISSUES PENDING>>>

 

Following any death sentence, there is an automatic appeal to the California Supreme Court.

 

We can expect the Peterson defense team to raise several issues in a motion for a new trial, before the sentence is imposed.  Among them, we can expect:

  • A challenge to the trial court’s dismissal of three jurors;
  • Various objections to the admission of prosecution’s evidence (think dog sniffing as an example);
  • The venue issue;
  • The failure to admit the defense’s attempted forensic boat demonstration;
  • The alleged juror misconduct that took place when jurors, who were on an approved viewing excursion, rocked the Peterson death boat’
  • Anything else the defense can think of.

 

On appeal, we can expect new counsel to raise a number of additional issues, including a challenge based on Mr. Peterson’s trial counsel’s inadequate performance.

 

It is reasonably safe to predict two things:

 

  1. These challenges will all fail.
  2. The whole process will take forever and a day.

 

 

A Broken System?

Here Are Some of the Policy Issues that the Scott Peterson Case will soon Raise:

 

Based on the correspondence I’ve gotten about this case and the general concerns expressed around the country, Mr. Peterson’s case has exposed several issues about which all thinking people can legitimately be concerned. These include the interminable jury selection process, the various antics of defense counsel, the impact of the publicity storm on the whole process, and the huge time gap between sentence and the final, final appeal, among others.

 

For those with a naïve trust in the workings of the American legal system (if any are left on Planet USA), the process of closely following the Peterson case is like accompanying your favorite diva into the OR where she has her appendix removed.  Even if everything comes out all right, somehow the magic is gone. Some of these issues warrant more detailed discussion and before Scott has been sentenced I will have more to say.

 

As I have already indicated, the Peterson trial was a model example of how a good judge can manage a difficult situation whish will prompt some to say, “Why fix it?”  That would be very short sighted, especially since many of the problems involve inexcusably long delays.  I would not be pessimistic about the prospects of reform.  Major aspects of our malfunctioning criminal justice system can be fixed; of course some solutions are much harder to implement than others.  

 

In broad overview, here are the six key problem areas as I see them:

 

  1. Fifth Amendment Game Playing. The exploitation of the media coverage by the defense in a high publicity case where – for example – the accused gets to hold forth on television and in the print media, repeatedly declaring his innocence, yet all the while is spared the awkwardness of being under oath and never suffers any tough cross examination. This publicity blitz is typically followed by the silence of the accused at trial during which neither the DA nor the judge may even to call attention to the fact that the former blabbermouth defendant is now asserting his Fifth Amendment privilege.
  2. Jury Selection Games. High profile criminal case jury selection has deteriorated into a multi-week long card game in which each side’s goal is to get a biased jury and to trap the other.
  3. Hide the Ball Games. Discovery issues often surface in the middle of a long trial, giving the impression that one side may have been hiding information from the other.
  4. Celebrity Jurors. The prospect of fame is seductive. Jurors are allowed to become celebrities with the risk that the lure of fifteen minutes of fame and a book offer might distort the decision process.
  5. Penalty Choice Confusion. A penalty jury is sent to deliberate the life and death issue without having any real guidance about the meaning of “lingering doubt” beyond that it is something that it “may” consider in its penalty choice, and the jury is told next to nothing about the nature of legitimate moral and policy considerations that are proper to consider in making the ultimate sentencing choice.
  6. Death Penalty Appeal Delays. A California death penalty, once imposed by the court, causes every aspect of the trial, from the performance of the defense to a single juror’s off-the-record comment to be meticulously reviewed by another court at least three times (first the California Supreme Court, then a federal District Court judge, and penultimately a panel of the Ninth Circuit Court of Appeal -- followed by a typically futile attempt to interest the U.S. Supreme Court in granting certiorari). This process is dragged out over at least seven years, and is often extended by seven more years when a series of last minute clemency appeals and legal maneuvers are allowed to take place just before one of a series of postponed execution dates.  More on the delay issue below.

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Allowing for the inherent difficulties in the Peterson case, we have witnessed a model trial. This was due largely to the great skill and long experience of Superior Court Judge Al Delucchi. The problems that surfaced in the Peterson case were inherent in the laws, procedures, processes and rules that govern such things.  As I’ve said, some of these problems are far easier to repair than others.  But progress is possible provided the bright light of public attention is directed at the decision makers for long enough for that illumination to generate political heat. There is no doubt in my mind that the public would not tolerate any of the six abuses above if the prospect of a feasible fix were presented to them. 

 

Here are some solutions in ascending order of difficulty:

 

  1. Speeding up jury selection in high profile cases.  The reason that most courts now conduct separate, private questioning of individual jurors in these cases is two fold: In a high publicity case, it prevents one juror who has heard something specific about the case from contaminating the rest.  Also, in death penalty qualification cases, experience has demonstrated that individual jurors are more candid when interviewed separately.  When – as is the current practice – these individual sessions are conducted by the trial judge with defendant and all counsel present, it is almost impossible to conduct more than 7 or 8 interviews per day.  Given that the court needs at least 70 qualified jurors to start a long case – allowing for alternates and the prospect that a lot of jury challenges will be exercised- the jury selection process inevitably drags out for several weeks. Questionnaires speed up the process marginally but can’t replace the separate screening interviews.  First proposal: In all death penalty cases and selected high publicity cases the pool of prospective jurors now given a questionnaire (a questionnaire is current practice in most of California) are also given  screening interviews conducted by a court assigned commissioner, not the trial judge.  These screening proceedings are not public, but are transcribed for the benefit of the attorneys and trial judge.  The questions are designed to elicit obvious hardship issues, challenges for cause, and to cover the usual ground that counsel would be expected to ask about.  Second proposal—parallel processing. Several commissioners are used at a time so that the interview process can be completed at the rate of at least 30 prospects a day with the goal of identifying at least 100 eligible jurors (i.e., no obvious hardship and no clear disqualification for bias) in less than a week. Third proposal – the court sharply limits attorney’s time with jurors. As soon as the pool of prospective eligible jurors is developed, the court handles all hardship cases ex parte but on the record (i.e., although the lawyers are not present for the hardship decisions, a record is made for the attorneys to review). The court then requests agreement from the attorneys on the most obvious bias cases.  All the rest of the jurors (including any hardship decisions objected to by the attorneys) assemble in the trial court.  Supplemental questions are submitted to the court by the attorneys and the judge asks them. At the court’s discretion, the attorneys are allowed to ask a very few follow up questions. Obstacles to Reform. These reforms would require minor statutory changes and some rule changes by the courts.  The largest problems would be the staffing and training of commissioners and the changes in the legal culture. Given sufficient public disenchantment with the protracted jury selection process in death and high publicity cases, these changes could be readily pushed through.
  2. Curbing the game element in jury selection. The number of peremptory challenges allowed each side and the right of prosecution and defense to obtain the advice of jury selection experts would not be changed. First proposal – Information sharing. But all expert reports and observations by jury selection experts for each side and all other information about each prospective juror (such as criminal history information obtained by the prosecution, prior jury service and reports concerning that prior service) must be shared by each side and with the other and the court before any peremptory challenges are made.  Second proposal – peremptory ping pong eliminated. All peremptory challenges are to be submitted from each side at once and in writing.  The court then strikes the challenged jurors, and selects the first twelve by lot from the remainder, designating the alternates from the rest.  The jury is sworn as soon as that is done. Obstacles to reform. This can be accomplished via minor statutory and rule changes.  It’s a matter of political will.
  3. Controlling discovery problems. Again, the court relies on a commissioner assigned to monitor all discovery compliance from arraignment through the end of trial.  All law enforcement sources are identified at the beginning of the case and are ordered by the trial court to make all documents and reports and other evidence available to the commissioner.  All discovery requests and responses are first submitted to the commissioner who has plenary authority to disclose to the other side.  Monetary and other sanctions are imposed by the trial court for discovery for non compliance and evasion of discovery responsibilities.  Obstacles to Reform.  Most jurists don’t see this as a serious issue. To the extent that some of them do, it’s considered case specific.  Besides, the argument goes, there aren’t the resources to find and staff discovery commissioners for high profile criminal cases.  But whenever a case is delayed substantially (a minor problem under Judge Delucchi’s supervision) of – God forbid – a case is reversed on appeal, public pressure will produce results because the courts are, for the most part, well equipped to enact this reform without any changes in the law.
  4. Curbing publicity hungry jurors. Current law in most places prohibits a killer from profiting form his/her murder trial by giving the family of the victim a claim on the profits from any writing done by or on behalf of a defendant who is found guilty.  We should expand this rule to cover all trial jurors in high profile criminal trials, but -- in deference to the possible First Amendment based objections – put a reasonable time limit on publication, applying the victim-gets-the proceeds rule to all tell all juror books that reach print within three years of the conclusion of the trial in which the juror participated. Obstacles to reform.  Obstacles to Reform. Some media outlets will object because of their extreme sensitivity to any impairment of their “First Amendment” access to news sources, but with public pressure legislatures can be persuaded to enact the appropriate changes in the law.
  5. Accelerating appellate review. Using the California experience as the basis for the worst case examples (in which 13-18 years delay is typical), there are four categories of delay engendering obstacles: (1) delays in preparing the record for review; (2) delays in appointing counsel to handle the appellate review; (3) failure of the reviewing courts to give the case early attention; (4) delays caused by specific defense abuses such as a strategy that breaks a single appeal into multiple serial partial appeals, the “just one more issue judge” review by installment. The first three delay causes are the result of resource limitations and the lack of firm enforceable judicial performance standards. I’ll address this issue below. Curbing the fourth requires leadership at the federal level, a tough no, nonsense policy that punishes both counsel and client for game playing.  There is no reason other than a lack of public will for death penalty cases not to reach final resolution within three years of jury verdict.  I would put a single judicial officer in charge of supervising the progress of every death case from the moment that a jury votes for the death penalty, and empower that supervising judge to establish deadlines with teeth and to reallocate all the needed resources for those deadlines to be met.
  6. Giving penalty juries better guidance. When you think about it, the whole notion of mitigation or grounds for mercy turns on the answers to six questions: (1) Would the killer pose no risk to others (including fellow inmates and guards) while held in prison? (2) Would the ultimate penalty further no public interest in deterring other murders? (3) Does keeping the killer alive in prison offer any affirmative benefit to others? (4) Do any troubling doubts remain about the killer’s actual culpability for the murder or murder(s) such as should justify indefinitely staying execution in the realistic hope that exonerating evidence could  come to light? (5) Has the killer undergone a sufficient moral reformation since the killing (or was the killing such an aberration in the life and conduct of an otherwise moral person) that an execution would be highly inappropriate?  Do affirmative answers to the foregoing questions outweigh the gravity of the criminal acts of which the defendant has been convicted?  If there are no affirmative answers to the first five questions or the answer to question (6) is “No”, then the proper recommendation is for the death penalty. Obstacles to Reform. Fear of tinkering with the current scheme has resulted in virtual paralysis.  What is missing is anything resembling a consensus about what really warrants death instead of life.  As a result jurors are left to grope without meaningful guidance.  Prognosis for reform is poor without appellate guidance.
  7. Curbing Fifth Amendment Game playing. There is nothing in the self incrimination clause of the U.S. Constitution that forbids a prosecutor or judge to make a critical comment about a defendant’s exercise of the right to be a witness. That prohibition is a result of judge made law, the progeny of a line of US Supreme court decisions, notably Griffin vs. California which I cited in the posting “The Ghost of Griffin” (and cited the comments of my former colleague, Professor Gordon Van Kessel in the Notre Dame Law Review). But what the High Court can write it can unwrite.  The proposed change here is that Griffin should not be applied with the same force to celebrity defendants who succeed in floating hearsay exculpatory versions in the media and succeed directly or indirectly in getting them before the jury.  Obstacles to Reform. One does not change Supreme Court precedent except very gradually.  This is just one of several abuses of the Griffin doctrine (though it obviously didn’t phase the Peterson jury) that should begin to trigger a reexamination of the whole notion. Prognosis for reform is poor without a fundamental change in the philosophy of a majority of the US Supreme Court.

 

 

More About Those Death Penalty Appeal Delays.

 

How, in a presumably modern judicial system with judges and attorneys who have access to computers, does it take decades to handle the appeal of somebody on California’s death row? 

 

A California death penalty, once imposed by the court, causes every aspect of the trial, from the performance of the defense to a single juror’s off-the-record comment to be meticulously reviewed by another court at least three times (first by the California Supreme Court, then a federal District Court judge, and penultimately a panel of the Ninth Circuit Court of Appeal -- followed by a typically futile attempt to interest the U.S. Supreme Court in granting certiorari).

 

This process is always dragged out over at least seven years, and is often extended by seven to ten more years when a series of last minute clemency appeals and legal maneuvers are allowed to take place just before one of a series of postponed execution dates. 

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How Can We Accelerate Appellate Review?

 

Using the California experience as the basis for the worst case examples (in which 13 to 18 years delay on death row is typical), there are four categories of delay engendering obstacles: (1) delays in preparing the entire record for review; (2) delays in appointing counsel to handle the appeal; (3) delays caused by specific defense abuses such as well known defense strategy that breaks a single appeal into multiple serial partial appeals, the “just one more issue judge” review by installment (life by a thousand cuts) (4) delays specific to federal review process, particularly within the supervision of the Ninth Circuit Court of Appeal.

 

The first two delay causes are the result of resource limitations and/or the lack of firm enforceable judicial performance standards.

 

Allowing for the inherent difficulties in the Peterson case, we have witnessed a model trial. This was due largely to the great skill and long experience of Superior Court Judge Al Delucchi. The problems that surfaced in the Peterson case were inherent in the laws, procedures, processes and rules that govern such things.  In Judge Delucchi’s court, his staff are already busy preparing the record for the eventual appeal.

 

Moreover, the California Supreme Court now has a track record of reversing a very few death penalty cases.  This means that the delay problem is not related to any secret reluctance by these jurists in conscientiously applying the law to a death case or to unreasonable delays at the trial court level.

 

One delay problem can be solved at the state level and in short order:

 

 

Most California death row inmates are now waiting several years just to have an attorney appointed to handle the appeal to the California Supreme Court.  No lawyer, no appeal.  How is this outrage allowed to continue?

 

This delay is the result of a “secret” (and - to be fair - accidental) coalition of anti-death penalty liberals who are comfortable with long delays whose interests coincide with the actions of short sighted pro-death conservatives who have opposed giving the court system the necessary resources to speed up. This is the “Pay more money to those defense lawyers? Not on your life.” Group working in concert with the “Justice delayed is justice” group. As a result of this “perfect storm” of ideology and negligence, indigent death row inmates must wait several years for the appointment of counsel on appeal.  Don’t believe the reports that there aren’t enough “qualified” appellate lawyers for death cases.  This is a market driven shortage.  Qualified appellate lawyers tend to cost more than this work currently pays. 

 

Consider the size of the record.  When the Peterson case transcripts are prepared, they will fill a small truck.  An appellate counsel is obligated to read the entire record (we really don’t expect the justices to do that), then to identify the promising issues on appeal and prepare the legal briefs.  Moreover, when the appeal is orally argued, counsel must prepare and appear in person before the entire court.  Finally, if and when the appeal is denied, counsel is expected to assist the defendant (normally without compensation) in getting the matter in front of a federal judge.  [More on that process later.]  And the appellate attorney knows that his or her performance is probably the last thing between client and the execution chamber. This would be hard enough if you had no other cases, but most competent appellate lawyers juggle several cases at a time.  In the real world, taking on a death penalty appeal requires much higher compensation than is usually paid.  This is not rocket science.  Those of us who are interested in accelerating the process need to advocate raising the rate of compensation for appellate counsel until the pool of available appellate attorneys increases to an acceptable level.

 

Peterson’s case may actually proceed faster because he has private counsel provided that Geragos and company don’t drop him and his family continues to fund the defense. However, the appeal counsel will need to be able to raise possible issues relating to Mr. Peterson’s trial counsel’s performance. Therefore, we should expect Geragos and team to make a vigorous motion for a new trial on various grounds, then bow out when that is denied. Will the family decide to retain new appellate counsel?

Stay tuned.

 

 

 

End

 

 

 

Jay B. Gaskill

(Former Alameda County Public Defender)

 

Copyright © 2004 by Jay Gaskill.

All requests to publish or reprint should be addressed to Jay B. Gaskill, attorney at law, via email: response@jaygaskill.com