Jury Instruction Recommendations

Penalty Phase

December 7, 2004

JUDGE: And what we are going to try to do this afternoon is settle, what we are going to try to do is settle these instructions. Okay. I provided counsel with the proposed jury instructions. When we get into the specifics, Mr. Geragos has submitted some proposed jury instructions that I have had a chance to review. I'd like to just briefly go through what I have submitted to counsel. And some of these I had to sort of try to predict what was going to be in the way of testimony. And some of these are inapplicable. I'd like to start with just the beginning, 84 as modified, by adding deciding whether death or life. You may not consider for any reason whatsoever the deterrent effect of either penalty. And the death penalty means exactly what it says. And that the life without the possibility of parole means what it says. He will be imprisoned in the state prison for the rest of his life. These are the Court's modifications. And then 8.84.1. 1.01.

GERAGOS: 1.01 has got a spelling error in the first sentence.

JUDGE: If any rule direction, should be, okay, I'll change that. Let me mark that one. Should be direction. Thank you. 2.11.

GERAGOS: I don't think this is appropriate. I don't feel this is appropriate. I don't think that this is appropriate.

JUDGE: Okay. The only reason why I put it in there is that the jury may speculate why didn't they call this person, why didn't they call that person, why didn't they call this guy, why didn't they call that guy. That's the only reason why. I just wanted to obviate the necessity.

GERAGOS: If you want to do it for that purpose,

JUDGE: I don't want them to speculate why they didn't call so and so, why didn't they call, I said why didn't they call his priest or something, you know. 2.60. Constitutional right not to be compelled to testify. Do you have any problem with that?

GERAGOS: No.

JUDGE: Notetaking. Believability of witnesses. And I don't believe the last one, statement previously made by witness consistent or inconsistent with his or her testimony. Nobody was impeached. Do you know of anybody?

D. HARRIS: I anticipate that there is potentially some.

JUDGE: That may happen?

D. HARRIS: Yes.

JUDGE: We'll leave it the way it is until we're all done with taking evidence.

GERAGOS: I don't know that you can do. I would object to that. I don't think you can impeach by argument.

JUDGE: No, but assuming testimony already, supposing somebody testified in the guilt phase and says something, and says something different in the penalty phase, is impeached with their guilt phase testimony. That's okay.

GERAGOS: I would object to it.

JUDGE: Well, it's overruled. We'll see what happens. Statement made by the attorneys during a trial are not evidence. That's important. Jurors forbidden to make any independent investigation, 1.03. 2.09 I don't believe is necessary. Do you guys both agree?

D. HARRIS: Yes.

JUDGE: Do you agree, Mr. Geragos?

GERAGOS: Well, depends. Are you going to give my proposed instruction as an addition, and 8.85?

JUDGE: I was going to get to that.

GERAGOS: Well, before we decide 2.09, I want to see what you are going to do with the other.

JUDGE: Okay. I'll leave the paper clip. 2.27, sufficiency of the testimony of one witness. Usually,

GERAGOS: You say 2.27?

JUDGE: Yeah. Sometimes only one witness testifies to identity, or something.

GERAGOS: I have got 2.21.1.

JUDGE: I have that, I put in 2.27. Remember I told you the day before yesterday, or something, I was going to add 2.27, and I stuck it in before 2.21.1.

GERAGOS: I don't have it in mine. What is 2.27?

JUDGE: Testimony of one witness is sufficient.

GERAGOS: That's fine.

JUDGE: Okay. Because, although there has been a lot of witnesses in the penalty phase, if they believe this one witness is enough to convince them that, you know, that an LWOP would be the appropriate penalty.

D. HARRIS: Your Honor, that's fine.

JUDGE: Discrepancies in a witness's testimony. I haven't heard anything about that yet, so I'm going to mark that with a paper clip that may be pulled out. Witness willfully false.

GERAGOS: I'd ask that that not be given.

JUDGE: Not be given. Do you have any problem not giving 2.21.2?

D. HARRIS: Well, I think again we're not completely done with the witnesses. I think the Court should give that one, because we have already had inconsistencies.

JUDGE: Well, where is the inconsistent statements?

D. HARRIS: Inconsistent within one witness's guilt phase testimony and another witness's penalty phase testimony.

JUDGE: You mean forthcoming, it's already,

D. HARRIS: That we have already had.

JUDGE: Going to be included in your argument?

D. HARRIS: Again, I don't know until one witness testifies tomorrow.

JUDGE: We'll reserve ruling on that one. What about 2.13, prior consistent or inconsistent statements?

GERAGOS: I believe that would be the same situation. I do not believe that either 2.21.1, 2.21.2, or 2.133 should be given.

JUDGE: Okay. Well, I'll,

GERAGOS: However, if he wants to make the argument again after all the witnesses have testified, I think I don't have,

JUDGE: I'll reserve ruling until everybody has testified.

GERAGOS: I'll just paper clip those three.

JUDGE: Paper clip all three of them together. Okay. 2.81. We had a lot of lay witnesses giving opinions. I think that's appropriate. We haven't had any expert testimony. We haven't qualified any expert in the penalty phase, I don't think. Do you agree, Mr. Geragos?

GERAGOS: Yes, your Honor.

JUDGE: I'm going to pull that, unless you are going to come in with some expert tomorrow.

GERAGOS: No.

JUDGE: I'm going to pull 2.80, 2.81. 2.82 goes with it. 2.82 goes with it.

GERAGOS: Yes.

JUDGE: Then I have included out of CalJIC, 8.85, penalty trial factors for consideration. And Mr. Geragos has submitted a modified version. We'll get to that in just a minute.

GERAGOS: Okay.

JUDGE: As I pointed out earlier, I'm going to give the lingering doubt instruction in this case. Under the law there is no duty sua sponte for the Court to give a lingering doubt instruction. I believe under the facts and circumstances of this case the Court should give a lingering doubt instruction, so I intend to do so. And then the next one is out of People versus Ochoa.

GERAGOS: Is that the sympathy for defendant's family?

JUDGE: Yes.

GERAGOS: There is one problem in this case, judge, with giving this. The sympathy for defendant's family is not a matter a capital jury can consider in mitigation.

JUDGE: That's true.

GERAGOS: This is straight out of Ochoa, except Ochoa was not a situation, as you have here, where Lee, Jackie, Jane, all of these people are directly related. It's their grandson as well. Conner is directly related to them. Laci is their daughter-in-law. The fact of the matter is, is that that, I believe, unduly impacts, no purpose in putting in victim impact evidence. They clearly can give victim impact evidence as well. So Ochoa is a different fact situation, and I think this would have to be recrafted; otherwise it misstates the factual situation that we have here.

JUDGE: I don't think so. Because if you go on and read the rest of it, says family members may offer testimony in the impact of an execution on them if, by so doing, they eliminate some positive quality of the defendant's background or character which is offered as a basis for a sentence less than death. I think that cleans it up.

GERAGOS: And I don't have a problem, obviously, with that sentence. I have a problem with the first sentence, because I think that is not a correct statement of the law, when you are talking about people who have a, who are just as much a victim here as the victims that have testified.

JUDGE: I think you will have to argue that to the jury, Mr. Geragos. That is a correct statement of the law. There is all kinds of cases that say that. Ochoa case even refined it further, and finally decided it was a standing rule for years that sympathy for a defendant's family is not a matter that a capital jury can consider in mitigation. And it went on, and finally Ochoa reduced it, so that the second paragraph is basically added. So I intend to give it as it is. You can argue that. Argue it to the jury.

GERAGOS: Well, I understand that. But the problem we have got is that I understand Ochoa is the state of the law. It's the state of the law for a set of facts that we don't have here. The set of facts that we have here is that all of his family are direct blood relations, the same as Laci's. There is no difference between Lee and Jackie Peterson and Sharon Rocha. They both are those three direct grandparents of Conner Peterson.

JUDGE: I know.

GERAGOS: So the fact, to make the blanket statement, sympathy for a defendant's family casts them in a different position. That's, there is nothing, Ochoa, I searched the rest of the cases. There is nothing in the caselaw that I can find that addresses this particular situation. So if that's the case, to give a blanket statement of the law that is misleading without giving some basis upon which to the argue it or some instruction,

JUDGE: It should be apparent, it should be apparent, Mr. Geragos, that we're talking about the Peterson family here. It's the Rocha family is not in here asking for sympathy. It's the Peterson family, and that covers it. He's the defendant. It's his family, sympathy for his family.

GERAGOS: Except, judge,

JUDGE: I know what you are saying.

GERAGOS: I'm telling you the problem we have got here is, we have allowed in victim impact evidence. The victim impact evidence is the sole aggravating circumstance purportedly offered by the people. To somehow now distinguish, is there a superior victim impact evidence as opposed to an inferior victim impact evidence? Jackie Peterson is just as much a victim as Sharon Rocha. And for the Court to be, to instruct that sympathy for a defendant's family is not a matter that they can consider.

JUDGE: That's the law. He's the defendant. They are the defendant's family. And I'm going to give it. I don't want to keep beating it to death. That's the state of the law in California.

GERAGOS: For a different factual situation.

JUDGE: Well, you can call it any way you want. That's the way it's going to come out. 17.40.

D. HARRIS: Does the Court want to do the proposed defense instructions?

JUDGE: I'm going to get to those in just a second. Go through the ones that I intend on giving now. 17.40, 17.41, 17.45, 17.47, 17.53, 17.30, 17.43. Use of multiple verdict forms. Only two verdict forms in this case. And I'm, Mike, would you go on my desk? There will two verdict forms. There is a manila folder right on the front of my desk. There is some verdict forms. Bring those in. Then 8.88. In 8.88, during the jury voir dire, I already attuned the jurors to this particular instruction. The verdict forms, the Court's prepared two forms of verdict. People of the State of California versus Scott Peterson. Penalty murder. We the jury in the above entitled cause fix the penalty at life in prison without the possibility of parole. Date. Signature, Foreperson. The other form fixes the penalty at death. So those are two verdict forms. Okay?

GERAGOS: I submitted a proposed verdict form.

JUDGE: I'm going to get to that, Mr. Geragos. First of all, Mr. Geragos has proposed a verdict form requesting certain findings as to aggravating six, mitigating six.

D. HARRIS: We're opposed to it.

JUDGE: And there is about nine, thirteen. And he wants to know the number of jurors and yes or no. And you want to put your argument on the record, Mr. Geragos?

GERAGOS: Yes, your Honor. I have submitted in a proposed verdict form that would, that I believe has been approved for use in Federal Court. That lists out aggravating circumstances, asks to determine whether or not the circumstances of the crime present an aggravating circumstance, to then list out specifically the mitigating circumstances. And as the Court indicated, there is 13 that have been listed, which would force the jury, by number of vote, to deal with what is defined by the court and by the evidence as mitigation versus aggravation. When you are talking about a capital case, you are talking about the admission of victim impact evidence. Even in Payne versus Tennessee, which allowed, that overruled only that portion of the Booth versus Maryland, specifically the court said, even if you have got the charge requirements, you still have to have a rational basis upon which you are going to do the weighing process for those states that still employ a weighing method of imposing the death penalty. This specifically allows for that, forces the jury to deal with that. So that one can have a rational basis upon which to surmise whether or not you, in fact, impose a penalty of either death or life without, based upon a weighing of aggravating and mitigating circumstances, or whether or not some other factor is at work. I don't see where it's unduly oppressive. It certainly is shorter than the average verdict form that you have in an automobile accident case in the civil arena where you are fighting over money. I certainly feel that when you are fighting over someone's life, the least that one could expect is that the jury be forced to go through the aggravating and mitigating circumstances and make determinations. I don't think that when you are talking about, especially this case, which this court has already said apparently has inherently presented problems without solution, it's too much to ask for a proposed verdict form that tracks exactly with what you would get in a car collision case in a court of limited jurisdiction.

D. HARRIS: In response to that special verdict form, there is no authorization in criminal law for special verdicts. This is also specifically invading the jury's process of deliberation, because asking to go through fact‑by‑fact, and put down which jurors, or the number of jurors that are agreeing on a particular point. That is not authorized either. The verdict forms the Court has are sufficient. And this is very argumentative. For all of those reasons it should be rejected.

JUDGE: The Court is going to rule on that. There is two cases in California, People versus Davenport, 1995 case 11 Cal.4th 1171, and People versus Medina, 1995 case, 11 Cal.4th 694, despite they happen to be in the same volume, cases say the jury need not file written findings as to which aggravating factors were relied upon in imposing the death penalty. Concomitantly, they don't have to file written findings with respect to the mitigating circumstances not required in California. There is caselaw to the contrary. And this may be the Federal rule, but we're not following Federal rules.

GERAGOS: As the Court's well aware, the U.S. Supreme Court has changed significantly the capital caselaw in the last ten years, evincing a prime example throughout of involving the states. I believe it just says it's not required. Does not mean that the Court can't,

JUDGE: It's not required, I'm not going to give it. I'm not going to make it more onerous for the jury than it is already, Mr. Geragos. I have reviewed the cases, and this is not appropriate. So I'm going rule, this will be denied. And you have got your record. Next one is, file that. That is a court exhibit next in order. Rejected Instruction Marked as Court Exhibit 48. The next one is 8.88, concluding instruction, which is basically a pinpoint instruction. And you are asking me to read this to the jury, right?

GERAGOS: Yes I am.

JUDGE: Okay. Aren't you asking me to comment on the evidence?

GERAGOS: If you believe that it is commenting on the evidence, then I would ask to retool it so that it fits more into a pinpoint. I'm entitled to a pinpoint, and I believe that these are the specific areas for an amorphous definition of the law that specifically in California the defense is entitled to. If the court wants me to recast it, I'd be happy to do so.

JUDGE: No, I'm not, because I'm not going to give this instruction. I'm going to give, there is some caselaw on that. People versus Musselwhite, 1998 case, 17 Cal.4th 1216. It says the aggravating or mitigating nature of various factors should be self‑evident to any reasonable person within the context of each particular case. Thus the trial court in that case does not, does not err in refusing to instruct the jury that particular factors can only be considered in mitigation. There is nothing to stop you, Mr. Geragos, from arguing every one of these factors as a factor in mitigation. You can certainly argue those to the jury. But I'm not going to give an instruction like this. So I'm going to use the one that's in CalJIC. This one is also refused.

GERAGOS: You are refusing a pinpoint instruction as to any mitigating factors even if I were to recast it?

JUDGE: Correct.

GERAGOS: These are mitigating factors. You will refuse that as well.

JUDGE: Yes. I'm not going to tell them they are mitigating factors, or, that should be obvious to any juror. Mitigating factors, you are not going to be precluded from arguing mitigating doubt in jury, what the mitigating factors are. You can point those out until you are blue in the face. I'm not going to tell them what they are. It's not my responsibility.

GERAGOS: For the record, could I indicate that I would be fully prepared within minutes to submit to you specific pinpoint instructions as to every single item that's listed in here as a mitigating factor. And I am anticipating the Court does not want me to do that, because the Court already ruled you will not give it?

JUDGE: I just said that, right. Okay. That's all refused. You submitted one two, three, four, five, six additional proposed jury instruction, and they all refer to 88.88, removal or modification of 8.88.

GERAGOS: With the exception the last one, which refers to 8.85.

JUDGE: 8.85.

GERAGOS: The first one is the use of the term totality, which is contained in 8.88. And specifically on page 28, line 2 and 3. And citing to People versus Hayes, 52 Cal.3d 577 at page 642. I believe this instruction is misleading, because one mitigating factor, as the court has already instructed the jury during voir dire, is sufficient to outweigh all others.

JUDGE: That's correct.

GERAGOS: The way that the CalJIC is phrased, says in considering the totality of the aggravating circumstances with the totality of the mitigating circumstances, which leads one to believe, that one mitigating factor could not outweigh all the others. And I believe that the Court, the better part of valor under the law is to strike the term by considering, or just put the totality, and just make it considering the aggravating circumstances with the mitigating circumstances. Mr. Harris, Do you want to be heard on that?

D. HARRIS: Those are the ones just provided to us. I haven't had a chance to look at the Hayes case. Because, consider it's a 1990 case. These are modified updated and approved CalJICs. I'm much more inclined to go with the approved CalJICs instead of tinkering with the language.

JUDGE: That's my inclination too. These have withstood scrutiny by the Supreme Court, and these are the ones that have been approved under CalJIC. These are the ones I have been giving, and,

GERAGOS: Wouldn't the Court concede that when you instructed the jury during the Hovey voir dire, at least on its face, it's at odds with the language here?

JUDGE: I don't agree to that.

GERAGOS: Well, wouldn't the Court agree that it told the jury during Hovey voir dire, that one mitigating circumstance can outweigh aggravating circumstances?

JUDGE: Yes.

GERAGOS: How can you possibly reconcile that with saying that which penalty is justified and appropriate by considering the totality of aggravating circumstances with the totality of mitigating circumstances? So in my mind, there is no way to reconcile those two positions.

JUDGE: Well, they can, because 8.88 says you are free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider. In weighing the various circumstances, you determine under the relevant evidence which penalty is justified and appropriate. By considering the totality of aggravating circumstances with the totality of the mitigating circumstances, there could be just one mitigating circumstance. But I don't think that this jury instruction tells them that if you have more aggravating factors, you have to impose the death penalty. That's not what it says.

GERAGOS: Except don't you see what you have instructed them in the Hovey voir dire, which is the correct statement of the law, is that one mitigating factor is sufficient to outweigh all others.

JUDGE: You can argue that to the jury.

GERAGOS: I can keep arguing until I am blue in the face, if I don't have a jury instructions backing me,

JUDGE: This covers it. This covers it.

GERAGOS:  I can go pound sand.

JUDGE: This is the approved jury instructions. I'm not, you know, the quickest way for the court to get in trouble is to stray away from CalJIC. I think you probably know that already. And I know maybe you want me to tinker with these and fine tune these CalJIC instructions, but I do that at my own peril, Mr Geragos I'm not going to do that. Because these have been approved. And I can see somebody saying, look what the judge did. He took these words out and changed the gravamen of this particular jury instruction. And I don't like to do that. I like to stick with CalJIC. And you are safe as you stick with the CalJIC, because that's the ones that have been approved, the ones that have been reviewed. You say this is the law. And that goes for the rest of these here, as far as I'm concerned. You know, I don't care if you stand up and tell this jury what is a true statement of the law too. If they find that the aggravating factors outweigh the mitigating factors, they still can return a verdict with of life without possibility of parole. You are certainly free to tell the jury that that's correct. That's true.

GERAGOS: I understand that. Judge Geragos: You are never compelled to have to return a death verdict in this case. You can argue to this jury, if they find that the aggravating circumstances outweigh the mitigating circumstances, they still can return a verdict of life without the possibility of parole. They are ever compelled to return a death verdict under any circumstances. That's the only time they can return it, but even then they don't have to return it. And you are certainly at liberty to argue that to this jury.

GERAGOS: I understand that. What I'm asking for is law to back that up.

JUDGE: You got out 8.88. That's the one that's been approved by the California Supreme Court in CalJIC.

GERAGOS: California Supreme Court in People versus Samayoa, 15 Cal.4th 795 at 852.

JUDGE: They say take the word "totality" out?

GERAGOS: No. But they said, the second one is, at the commencement of your deliberations let me make it clear the law of the State of California expresses no preference. It is for you to determine. People versus Sanders.

JUDGE: I'll give that one. I don't have any problem with that, because that's a true statement of the law.

GERAGOS: Okay.

JUDGE: I'll be glad to give that one.

D. HARRIS: As to the rest of these, we oppose that. We believe that's a comment on the evidence. And also it's somewhat, I don't want to say it's argument, but in a sense it is.

GERAGOS: I believe I could be mistaken, but I believe this was approved as given in that case.

JUDGE: Yes, it has been.

GERAGOS: So I don't know why is there somebody,

JUDGE: That's a true statement of the law, that this law in the State of California does not express any preference as to which punishment is appropriate. That's entirely within the jury's discretion. That is for you to determine. You cannot give this jury some sort of, some sort of clue or inkling that what they are doing is not final, or that they have the final say in what the penalty should be. And this is a correct statement of the law.

D. HARRIS: If the Court's inclined to give this, what I ask the Court to do is take out the phrase that says, "Let me make it clear." And then, "It's at the commencement of your deliberations."

JUDGE: The law of the state, let's see.

GERAGOS: The law,

D. HARRIS: Law of the state of California expresses no preference.

GERAGOS: This is exactly what was taken out of the case. Why are we going to tinker with that?

JUDGE: I'm going to, inclined to give it. I'll check with the case again. You cited the case in here. I think that's a correct statement of the law. My inclination is to give it, because it is a correct statement of the law. I'll check it.

GERAGOS: Could the Court check the next one, which is in weighing the aggravating and mitigating factors,

JUDGE: No, I'm not. Because 8.88 covers that. I covered it in my voir dire.

GERAGOS: That's why I wanted, I believe that when you did the voir dire that you correctly stated the law as articulated in Sanders, and ruled on in Ochoa. All I'm trying to do is to take the things that you said in voir dire and incorporate them basically directly out of the Supreme Court rules.

D. HARRIS: We're opposed to this one, because it's repetitive of what's already been being given.

JUDGE: I said 8.88 covers all rest of these. That's the one that's been approved, only one that's, Mr. Geragos, to make it easy for you, the only one I'm inclined to give is the one cited in People versus Ochoa. The rest of these I think are duplicative. These are just a rephrasing of 8.88. So it's my ruling not to give them. And you are free to argue, you know, what the law is. Free to argue the law. Like I say, even if they find the aggravating factors outweigh the mitigating factors, they can, they are never compelled to return a verdict of death. The only time they can return a verdict of death is if they find aggravating factors are so substantial compared to the mitigating factors that they, the jury feels that death is warranted in this case and not life without the possibility of parole. That's what it says in 8.88. That's what I told this jury when I did the voir dire.

GERAGOS: That means you are denying also the addition to 8.85?

JUDGE: I'll say it again, Mr. Geragos. The only one I'm inclined to give is your addition to 8.88, People versus Samayoa. And the rest I'm going to reject.

GERAGOS: Thank you, judge.

JUDGE: They are duplicative of 8.88 which has been approved. Okay? So I'll put that under rejected. Rejected Instructions Marked as Court Exhibit 49 & 50.

JUDGE: Okay, you can file these. Okay? I'll check out some points. Like I said, I'm inclined to give it if that's the way it's exactly phrased in Samayoa. I don't have a problem with that. That's a correct statement of the law.

D. HARRIS: I think if the Court doesn't give the proposed addition to 8.85, the defense takes us back to 2.09. I don't think there is any limited evidence of, so that can be stricken as well. That was on page,

JUDGE: I think we already agreed to that, didn't we?

D. HARRIS: We were talking about that before, and Mr. Geragos said wait until we finish that.

JUDGE: Oh, yeah. Yeah. We already, we don't need 2.09. 2.09 is really applicable in the guilt phase of this case. I'll take 2.09 out. Thank you for reminding me. All right. So that should be it. We'll be in recess then until tomorrow morning at 9:00 o'clock. And then how many witnesses, have you sorted down the witnesses now? How many we got, four or five?

Pat Harris: Four or five, maybe six.

JUDGE: Okay.

Pat Harris: We'll finish probably by noon or shortly thereafter. Then we can go back on the record with these, and we can even do that in the morning.

JUDGE: Okay. Just for the record, I intend to use the verdict forms that the Court had read into the record. Okay. Then we'll be in recess until 9:00 o'clock in the morning.

GERAGOS: I assume that the Court has, I didn't, I didn't number the ones.

JUDGE: I filed them and made them part of the record.

GERAGOS: You filed them.

JUDGE: I wrote "Denied", filed them as part of the record next in order, so that it is subject to review by a reviewing court.

GERAGOS: Thank you.

JUDGE: You are welcome. Okay, see you tomorrow morning at 9:00 o'clock.