'Lingering doubt' may save Peterson
Penalty phase could be difficult for both defense, prosecution

Bob Egelko, Chronicle Staff Writer

Saturday, November 13, 2004

Mark Geragos' task now is to save the life of his client, a convicted double murderer facing a possible death sentence. His problem is that the usual defense approach to the penalty phase of a capital case -- stressing the defendant's remorse and looking for sympathy -- doesn't fit this time around.

When a San Mateo County jury reconvenes Nov. 22 to decide whether Scott Peterson should be sentenced to death or life without parole for the murders of his wife, Laci, and their unborn son, Geragos is expected to maintain his position that his client is innocent.

Legally, the argument is known as "lingering doubt" or "residual doubt" - - an appeal to any remaining qualms in the minds of jurors who have already found Peterson guilty beyond a reasonable doubt. One way to put it is: Are you so absolutely sure of this man's guilt that you're willing to condemn him to death?

"I think you can expect to see lingering doubt (argued) at the penalty phase,'' said Dennis Riordan, a longtime San Francisco defense lawyer. "I would be surprised if he weren't going to continue to maintain his innocence .. . unlike some cases where guilt is a foregone conclusion.''

The approach isn't far-fetched in this case but has potential pitfalls, said Rory Little, a law professor at UC's Hastings College of the Law in San Francisco and a former federal prosecutor.

"In the penalty phase, you're asking for mercy,'' he said. "When you're going to go for residual doubt, you can't admit (guilt). If (jurors are) not doubtful, they really resent the failure to admit it and show remorse.

"It's one of the problems with the death-penalty procedure in general. If you actually are innocent, or you don't think you should have been convicted, but you have to argue for mercy while your appeal is not yet filed, let alone decided, it can put you in a very difficult position.''

Legal analysts have pointed to numerous potential grounds for appeal of Peterson's convictions, starting with the effect of pretrial publicity, which continued relentlessly even after the case was transferred from Modesto to Redwood City. Geragos also challenged Superior Court Judge Alfred Delucchi's refusal to let him demonstrate to jurors that a boat carrying Laci Peterson's body would have capsized if she had been weighed with anchors and thrown overboard, as the prosecution theorized.

Another issue could arise from Delucchi's removal of two jurors in two days, followed quickly by the verdict. The judge has prohibited both former jurors from speaking publicly while the trial continues, but Little said Geragos was undoubtedly eager to talk to them to learn what evidence might sway their fellow jurors.

In Geragos' place, "I would probably (tell) the judge, 'I need to interview those jurors in order to prepare for the penalty phase,' " Little said.

If Peterson is sentenced to death, his appeal would go directly to the state Supreme Court. Convictions that lead to a life sentence are appealed to the state Court of Appeal in San Francisco.

The penalty phase poses difficulties for the prosecution as well as the defense, Little and Riordan agreed.

"I think this is a hard case for the government to get the death penalty, '' Little said. "He has no prior record. ... We don't know the mode of death.''

Still, he said, "It wouldn't surprise me if the emotional content of the crime were enough to lead the jury to impose death.''

Riordan, stressing that he was merely "reading tea leaves,'' said it didn't seem like a strong case for a death sentence. He said jurors might have signaled a willingness to compromise by convicting Peterson of first-degree murder for his wife's death but of non-premeditated, second-degree murder for the fetal killing.

"Generally, you have an escalating level of badness and violence in (a defendant's) life, and they don't have that here,'' Riordan said. "As death defendants go, he looks good. He obviously has a very loyal family.''

Riordan said he was virtually certain of one thing: Peterson, who didn't testify at the guilt phase, won't take the stand at the penalty phase and risk being cross-examined about his lies to his wife and his girlfriend.

"If he got up on the stand, there's only one thing to say: 'Don't kill me because I'm innocent,' " Riordan said. If Peterson wasn't prepared to say that during the now-concluded guilt phase, Riordan said, there's no reason to do it now.

E-mail Bob Egelko at begelko@sfchronicle.com.

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