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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.