Final Argument for the Defendant

Penalty Phase:  By Pat Harris

December 9, 2004

PAT HARRIS: Thank you, judge.

I started actually talking public speaking when I was ten years old and I always just always enjoyed it. It was something that came very natural. I think now they say you're a precocious child, when you do it back then you were considered obnoxious if you talked all the time or if you wanted to be in front of a group. And that's the way I was. And I would never understand when my friends or people around me would say, scared to death to talk, scared to get in front of a group. I have butterflies. I'm nervous about it. Never have been. And so for 30 years I've talked in public and done speeches and been in courtrooms and that's just -- it's never happened.

It happened this morning for the first time I sort of understood what people feel when they have to talk in front of a crowd and in front of a group because I guess because of the enormity sort of hit home; we're talking about a life and death situation.

I'm just going to start by apologizing if I'm a little low or my voice cracks or shakes. I have to tell you the enormity of it is really incredible so I apologize for that in advance.

I haven't had a chance to talk to you at all in this kind of format and I did want to start off just, you know, just the standard always for lawyers to come up and thank the jury and thank the participants. But I wanted to go up, if I could just go up, maybe a step further, if you grant me a couple minutes. Because this has been an extraordinary trial. It's been an extraordinary nine months.

We all know what's been going on outside the courtroom. Everyone when you came in was aware of what this was like it would be like as far as the surface atmosphere surrounding it and what was going on outside. And it was interesting because there were a lot of commentators and a lot of people who thought that we would talk about this trial and actually thought that this trial could very well break the judicial system. I heard that more than once from different commentators and different lawyers.

And it didn't happen. We've managed to get through. We've managed to get to this point. And I think that's a credit to a lot of people. A lot of people. I think it's a credit to the judge. He set the right tone from day one. He's always been willing to deal with the different tasks, the few situations as they arose, and a lot of situations have arisen. And I think he set the tone for it and helped keep it to a level that's been very civil.

I thank the prosecution team. A lot of lawyers when they do trials end up in a very adversarial position. It's very tough because you're screaming and yelling, you're fighting for your clients. They believe in their case. They clearly believe in their case. But they kept it to the confines of the courtroom and in chambers where it was appropriate. And when the argument was finished and the anger was over they were always cordial and always willing to go out. I can't tell you about my defense part because it's hard for me to talk about. When we first took the case, when he first came to me, he said he was thinking about taking the case. I said you realize you're about to become the most hated man in America. He sat me down and he talked about what it was, our profession, and what it was to be a defense attorney and how noble that is and that everyone has the right. And he's shown courage I'll always respect. He's also come in here and kept this cordial as well. He's developed a good relationship with the prosecutors. He's helped this trial to go as smoothly as it has.

The families. I can't imagine. I can't in my wildest imagination think what they go through. I can't put myself in their place. I don't know the Rocha's. I do know this about them, they certainly had the opportunity to really turn this thing upside down, go outside, scream, holler, do things that would have really turned this into a major circus. They choose not to. They took the high road and they've allowed the court process to continue, as it should.

The Peterson's, I, again, I can't even talk about that. They're an amazing family. You've heard, for a week you heard people talk about the family and what an amazing family they are. And that only touches the tip of the iceberg. Again, they've allowed this process to proceed and I think in the end that's a big reason it's worked.

There have been a lot of other people involved, there's certainly the bailiffs have been terrific, the court reporters. Marilyn has put up with things that no clerk should have to put up with in terms of disorganization with both sides. She's always done it with a smile.

Lastly, I come to you. I told you in the beginning the very first time I got up and closed in opening, actually, we disagree. And I can't change that. But what I do know is you've shown a remarkable professionalism that, well, for example, when we go back in chambers -- when we first started talking about how many alternates to bring to the table, we talked about six. Everyone was sort of thinking that's not enough because we all, everyone at the table here has been through lengthy trials before. They've been through high pressure and intense cases, and it's just, you just lose jurors constantly: Childcare issues, sickness, a number of times, you know, you start court 30 minutes late or 45 minutes late because a juror's not present. In this case it's just, we talked about it in chambers numerous times, it's just amazing the way you guys have, you've shown up on time. If anything, it's usually one of us late. Or if a sickness has occurred it's been one of the lawyers or someone that is sick. I thank you very much for your professionalism. Because, again, it's kept this, this entire trial in the circus its gone outside, its kept it from coming in here and I think that's very important.

We're here to talk about mitigation. You heard Dave Harris talk about it from the standpoint of putting Scott to death. And that's the ultimate decision we're here to talk about. It's a very gut-wrenching process. The entire crime itself, the entire situation occurred is tragic. No matter which viewpoint you look at it from it's tragic it's gut wrenching and it's emotional.

But mitigation is not about emotion. Mitigation is about looking at a man's life and looking at the factors that the state of California tells you you have to look at.

We don't have a system in this country that tells you it's an eye for an eye. We don't have that system. Otherwise, every single murder committed would have the death penalty. Every single person convicted of murder would be put to death.

We've chosen in the state of California, we've chosen in this country not to do that. Instead, we've set up a system. We have a method. We have the law. The law tells us how to make this decision. It's one thing to sit here as you guys had to for four to five months and talk about guilt or innocence and to have to deal with that. That's a concept all of us understand. It's a concept that you see not only in movies and television and those kind of things, it's a concept some of you who have served on juries already know about. It's a concept that's just basic. There is no, there is no basic concept on how to determine life or death. It's not something we're ingrained in. It's not something we sit around and think about. It's unique. And I told you in the opening you were going to be faced with a task very few people have to deal with. A very unique situation.

So we set up the law. We set up the factors. Murder is a horrible crime. It doesn't matter where it's committed. It doesn't matter if it's committed in Modesto, it doesn't matter if it's committed in Redwood City, it doesn't matter if it's committed in New York. It's always, it's always, when you convict someone of murder it's always a horrible crime. And it creates ripples. Every single murder it creates ripples. It doesn't matter if you're dealing with a six-year-old child in Palo Alto, a major executive in New York City, it always creates ripples. When somebody dies, there are going to be ripples.

But what we do is we don't decide by the mere fact of there being a murder of there being a crime. That's not how we decide. We don't look just at the emotion and say this is a horrific crime.

What we do is we've set up a system. That system was actually talked to you during voir dire. Each one of you were questioned, each one of you were talked to and asked questions. You were asked ahead of time how you would feel if you return a guilty verdict. How do you feel about imposing the death penalty.

I mentioned it in opening, I'll show it just again briefly. Judge Delucchi asked you, each and every one of you, and without hearing any mitigating factors, nothing about him, what kind of person is he, is there anything that makes that crime all by itself so inflammatory to you or so repugnant to you, that in your mind, if that's what he did, you have already eliminated life without parole and you would always pick the death penalty. Every single one of you said no. And you said no that that wasn't enough. But that's what you just heard for an hour, how horrible it was, how inflammatory it was, how repugnant it is. And that's what they're asking you to put in the death penalty. And that's what every single one of you said no. You all said you'd want to know more. You'd want to know about a person, about a human being. You would want to know about Scott Peterson. And we tried to show you that. We've tried in the last week to put on people from all of walks of life, all types of people who knew Scott, people from every angle from his young life to the current day. We've tried to show you who we believe Scott Peterson is in an effort to let you make that decision.

I can tell you that when Mr. Harris stood up and said he's manipulative, all these years, 40 people he's manipulated. When he was in high school, junior high with Britton Scheibe, he was manipulating Britton. He was manipulative. He was getting all these people -- all of them had him wrong. All of them had him wrong. An amazing thing, 39 people, and that's just the people who came to testify, 39 people sat here on the stand and told what you they knew about Scott Peterson. Intelligent people, well rounded people saw to the earth people and they told what you he was like and Scott Peterson, he tells you they were all manipulative.

So let me ask you a question, he was manipulating, how did he manipulate Paul and Connie Fritz? Elderly couple, Aaron Fritz' parents, do you remember them? How did he manipulate them by coming down when he'd stop down on his trips just to come by and see how they are? I asked her directly, I said did he get anything out of this? Absolutely not. Absolutely not. Nothing.

Aaron himself, Aaron testified. This is a guy who befriended him when it wouldn't be the popular thing to do. Gave him a ride home when it was out of his way. And he got nothing out of it. Nothing. He sat there and told you that he would volunteer and wouldn't even tell anybody. Aaron would have to find out from other people or other ways. You've heard over and over and over.

Bob Thompson, the professor from San Luis Obispo telling you this is a guy who would invite me over after I was a professor. Get anything out of it? I asked him the same question: Scott get anything out of it? No. Did he? Yes. The professor did. He made him feel special. He made him feel special. Shelly Reiman testified yesterday. She was in the kitchen cooking and she looks over, Scott and her little girl were playing and reading and he was down on his knees talking to her. What was he getting from the two-year-old girl? Who was he manipulating? Mike Archer talked about, I think probably my favorite phrase of the entire, of the entire trial is this phrase that he used about that you couldn't say that Scott did some huge thing, it was just a daily thing, a thousand little things that he was always doing for people. Always.

Julie Galloway talked about that he always thought about himself first before others. And she's another case. They didn't have a dating relationship. He wasn't looking for anything from her other than a friendship. And she talked about the things he would do, the kindness he showed her when she would mention something little, a candle or something, it be there the next day. And he'd get nothing back from it.

Jim Gray, another one of the people I think was very interesting. Sold him the business, and after he sold him the business came by to help. Ended up paying bills. Ended up actually working the shop and helping him. Ended up doing things for him. Again, didn't even get paid. Nothing. He was not a manipulative person.

I could go on and on and on. I'm not going to go through the list of witnesses. You saw them. It's hard. I know it's hard. And I understand it's hard to accept in your minds and in the minds of the prosecution this is a man who has been convicted of murder and it's hard to reconcile it. I understand that.

It's been very difficult. This whole penalty phase is very difficult. Because we're standing here, you just convicted him of a double murder and then we turn around in two weeks and present 40 people and tell you what a great person he is. It's a strange system and I understand that. That's sort of hard to deal with. It's certainly been hard for us to reconcile in a lot of ways and try and walk kind of a thin line here.

I do want to address a couple of things. I'm not going to go into huge detail about some of the things Mr. Harris said in his argument. But a couple things I thought specifically needed to be addressed. We put on people for Scott Peterson's life. And I told you from the beginning we were going to give you an honest picture of him from what we saw, the positives, the good things about him. And we were going to give you an honest picture. Okay.

Scott didn't grow up in horrible surroundings. He didn't grow up in a bad situation. He grew up in a great family. He grew up in a family that was financially doing well. We don't hide that fact. I know it's easy to criticize and say, oh, my gosh, you know, playing golf, he's playing golf, hey, he's above it all. Look at that.

It's a great way to make you hate somebody. Use that kind of class warfare. Look at that. He's an elites. He's a golfer. He comes from privileged. Because we knew all knew, all of us growing up knew the kid that had the money and shoved it basically in everybody's face; was snobby, was difficult to deal with, had trouble with teachers, we all knew the person. But the problem we got with that when we're trying to throw it up to you is that doesn't match him and you've heard it. Every single person that came through here talked about far from being arrogant about it, far from be throwing it in somebody's face. He was the exact opposite. Exactly opposite to that.

He made a comment that the testimony wasn't he enjoyed spending his parents money. That is absolutely false. What you heard was a young man at 19 years old age, and I want you to think about how many 19-year-olds who would do this, who could have gone to college, who could have spent the entire time they were in college having a great time on mom and dad's payroll; out every night, partying, just having a great time enjoying, the phrase he used was enjoying spending his parents' money. This kid at 19 walked into his parents and says you've done so much for me, I don't want it anymore. I'll do it. I'll go out on my own. I don't want to be a burden anymore. Does that sound like somebody who's enjoying spending his parents' money or does that sound like somebody who has a lot of good in them. Has a lot of good in them.

He told you about giving back the check. That was another move designed to pull something off. He get to the golf tournament, he won the golf tournament, he turned over the check and active, what seems to be charity but, hey, he was just trying to manipulate the farmers there. The farmers' golf tournament, he was just trying to manipulate it.

One problem with that, he didn't sell to farmers. Those weren't his customers. Those weren't the people he dealt with. Okay. He had to go two levels up. Those weren't the people at the golf tournament. He did it as an act of charity. Because there is good in him.

I'm not going to go through every witness. As I said, you can make that decision. You see for yourself. You got -- you got to see them. We had talked to them usually a night or two before and we got to know them a little bit, the stories and things that they wanted to tell about Scott.

But it's hard, it's hard when you sit there and you listen to them talk about this young man and every single person says a lot of the same things over and over and over. From the very young age you heard it constantly, hard working, respectful, generous. You're going to have to make the decision. Was it phony, was it made up, did he manage to fool all these people all those years as an eight-year old, as a twelve-year-old, as a fourteen-year-old. He was fooling all these people. Or are these character traits that he does in fact have.

I believe, I know you were told if he's in a jail cell he'll get to see pictures, he'll get to do things that if he was dead he wouldn't. There's something else I think that needs to be talked about, and I brought it up with several of the witnesses however. Jail from what you see in the movies and what you see on television when you read about, it's not a picnic by any stretch. But there are people in jail who are there who need help, who can use help. Jail is one of the things that's not talked about a lot. There are a lot of eighteen, twenty-year-olds who get in trouble using drug deals, using some kind of burglary, robbery, something like that.

One of the things that's not talked a lot about is, generally people tend, they go back and forth out of prison, three or four different charges different times in their lives, but by the time they reach 29, 30, 32, 33, the thing I think that's very interesting is you find most of them the light goes on. They sort of catch on, look, you know, maybe this isn't the life I want to spend going in and out of prison. Some of them maybe they had a kid and they start missing, maybe some of them had a wife they missed, maybe some of them had a job they liked. For some reason the light goes on they start realizing this isn't the way they want to do. There are people in jail who can use help who don't have counselors.

I believe that what you've heard from these people, and I asked several of them is that Scott Peterson has the ability to affect their lives the way he affected those people's. He has -- it's not -- I'm not asking you to say put him in a jail cell and let's see what happens. Let's hope his personality changes around, maybe he'll find religion and maybe he'll end up helping people that way.

I'm not asking you to do that. I'm asking you to look to what people testified to. People who sat there who know him. That this is a person who's continually done this kind of thing. He's continually helped people. This is an opportunity and it's a chance to make something out of a life that is essentially not going anywhere. It's a chance to see that others benefit from the positive part of Scott Peterson. It's a chance for him to do some good for the rest of his life. And you've seen, you have seen, heard, that he's the type of person that's willing to do that.

I know that it's difficult for me to talk to you about a positive coming out of this. If there's any way positive because it's so tragic and so horrible that it seems impossible. I also know that we are, we're living in a time period where things have changed where we don't necessarily surround ourselves, the body doesn't surround itself by trying to look at the positive in people. Hate has become, hate sells. We've seen it. You see it in a political campaign; negative advertizing is what works. You see it in the media. If you get out and say horrible, nasty things about somebody or get on television because that's what the ratings get. You see it in sports, trash talking and the different things. It's what sells and I understand that. We're living in a little bit of a different time. It's a little harder these days to try and dig down and look for the good that can come out of something. But I'm asking you to do that. I'm asking you to think about the possibilities here that there is a possible good that can still come from it. And I believe this man will do that.

The judge is going to give you an instruction. Mr. Harris referred to it briefly about lingering doubt. And I do want to address that. He said that witnesses got up here and basically threw it in your face and said we think he's innocent. Make you feel guilty, make you feel bad about your verdict. You know better than that. They didn't get up here to make you feel guilty. That's his friends. That's his family. They believe him. There's nothing wrong with that. They're not trying to make anybody people feel bad or feel guilty, they believe in him.

But there is going to be an instruction about lingering doubt. Lingering doubt is simply this: When we went through the penalty, excuse me, the guilt phase you dealt with the whole issue of guilt or innocence and the standard that goes beyond a reasonable doubt. It's a high standard. You had to believe beyond a reasonable doubt that he was guilty. And that indeed is what you found him guilty of beyond a reasonable doubt. For the death phase, for what you're about to go through now, the bar goes higher. And now we might have a lingering doubt as to his guilt. A lingering doubt. I don't need to define that. You know what a lingering doubt is.

I believe that it's safe to say that in a circumstantial case, and we've all conceded it is a circumstantial case, there is no -- this isn't a case as you see in some death penalty cases where there's a photograph of somebody videotaping somebody being shot that you know or that there's DNA in one in 240 million so you know that person is there and present. Those are things you can know, you know beyond any lingering doubt that person did it.

In a circumstantial case lingering doubt becomes a huge issue. Because you can't know. That's what circumstantial cases are. We don't know. Prosecution has conceded we don't know the when, we don't know the where, we don't know the how and we don't know the why. That is lingering doubt. And that's a standard that you'll now be held to when you do your deliberations.

I am going to speak to you for just a couple minutes more and then at some point, I don't know how we're going to schedule it, but I believe at some point we're going to take an early lunch and come back earlier than usual and then Mark is going to address you and talk to you about the other issues that are involved in this case.

So I'm just going to end by, by essentially, I wish in conclusion I had something to conclude. I wish I had something, I wish there was a phrase that I can give you that would turn this around and make you believe that there is good and there is real, real good in this person. He is not a monster. I don't have that phrase. I don't have the ability to do it. That's up to you to decide. That will be your decision.

You've had a lot to look at. You obviously spent four to five months and you've seen a Scott Peterson that was not pretty. You heard phone tapes. They repeat them again. Most of what Mr. Harris has done is ask you essentially to relive the guilt phase again. Let's go back and do it again because it's so horrific. Let's show you again. That's not what this is about. It's not about reliving it. It's about taking a look at a man's life.

And I told you, I told you at the opening, it's a life worth saving. You've heard almost 40 people stand up and tell you that in fact it is. They believe it's a life worth saving. They believe that there is good. A lot of good. So I'm going to ask you, I don't think I'm going to ask you, I think I'm going to beg you, I'm going to beg you when you go back there to please spare his life.