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The Laci Peterson Murder: “Reading the Defense”
Ongoing
Reflections by the
This
narrative began
JBG
DEATH ROW FINALLY ARRIVES
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
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
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
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
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 [
The defense team in the Laci Peterson murder trial cannot be happy that, given the
available
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
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
[
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 [
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
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:
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
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?” [
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” [
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
PART TWO:
[
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
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
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….
[
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:
THE EVIDENCE
[
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.
[
The Ghost of
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
The
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:
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:
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
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
The defense has
stumbled from thin ice into deep water.
[
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?
[
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
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
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
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.
[
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
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
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.
[
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
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 Geragos’
cross 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…
[
One Paw Forward
If only Trimble,
the sniff-trained
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:
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.
[
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 [
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.”
[
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?
[
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?
[
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….
[
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?
[
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….
[
The
Foiled “Escape” to
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?
[
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
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.
[
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:
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….
[
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
[
THE
SCOTT PETERSON PENALTY TRIAL GUIDE
Background of
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
The
Supreme Court had given the states a roadmap.
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
Since
1986, all
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.
[
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?
[
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.
[
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?
[
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”?
[
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:
The defense is trying – without
much success – to accomplish two inconsistent objectives:
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.
[
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?
[
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,
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
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
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
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
Here are
the latest pre-sentence installments
[
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:
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:
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:
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:
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
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.
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
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