Welcome: Scott Peterson case and death penalty issues

[mschulter]

LACurry, all of the jury instructions and transcripts
related to juror activities are indexed
athttp://pwc-sii.com/CourtDocs/TranscriptIndex.htm -- Just go to
J.

Thanks, Marlene, for a great resource, where I got a great overview and all
the material for the penalty phase!

mschulter -- excellent. I was especially taken aback that Scott
being raised by a loving family, being a hard worker, being a contributing
member of society, no previous record of any kind (I'm paraphrasing) was not
in any way a mitigating factor to Delucchi. If ever a person's life
mitigated against the DP, it was Scott's.

True. It's a sign, when mitigation doesn't even get weighed, that a death
sentence may be influenced by what Georgia law has called, if I'm correct,
"passion, prejudice, or any other arbitrary factor."

Did you notice that one of the areas of the brief addresses Geragos
wanting to call an expert witness to explain to the jury some of the other
crimes for which people have gotten DP and LWOP? Delucchi wouldn't allow
it.

Yes! That's the matter of what's often called "proportionality review," or
more precisely "comparative proportionality review," where we see how a
death sentence for a given crime and defendant would compare with other
cases where either death or LWOP has been imposed. While California's
statute doesn't require this to be done by our state Supreme Court, the
Court could do it in all cases, or simply invite capital defendants to raise
the issue on direct appeal in cases where it seems an attractive argument
and have the two sides cite cases they find relevant for comparison.

On appeal, it's good sense, especially in cases where it's clear that lots
of people committing comparably serious crimes, often with worse criminal
records (Scott had none at all!), are getting LWOP, or even less (e.g.
domestic killings charged as simple first-degree murder with a penalty of
25-years-to-life).

The matter of presenting testimony to a _jury_ on other capital cases seems
more questionable to me, although talking about such cases should be
permissible on argument, where various themes of history and human
experience are common.

A decision on this issue might point to earlier California precedents
holding that it's not proper for a penalty trial to become a general debate
or "mini-legislative hearing" on whether capital punishment deters better
than life imprisonment. Similarly, back when capital murder carried a
penalty of either death or life _with_ parole, the Court wanted to
discourage debates about which murderers get paroled after how long, and how
trustworthy the Adult Authority (as it was then called) was in freeing these
killers who just might prey on society again.

For a jury, an approach that avoids these problems is simply to permit
counsel to discuss arguably similar -- or dramatically contrasting -- cases
as a part of argument. It can be a good "reality test" for jurors, who have
a duty to weigh aggravation and mitigation, but can hardly do so in a total
vacuum. The relevant universe isn't the behavior of law-abiding citizens
(like Scott for almost of his life -- or all of it if he's innocent!), but
the behavior of capital murderers who commit first-degree murder with
special circumstances!

There's a fine balance here. The idea of the penalty trial is to focus not
only on the crime for which a defendant like Scott has been convicted, but
what kind of person he or she is and has been through life. Focusing mostly
on the facts of other crimes would be distracting; but having no idea of the
universe of capital crimes that sets a context for the "weighing" of
aggravation and mitigation may actually be worse. Generous room for some
argument along these lines might be a happy medium.

And even extended testimony about other cases might be less distracting and
injurious to justice that the strategy of the prosecution in this case,
raising irrelevant "circumstances of the crime" actually involving events
_after_ the deaths of Laci and Conner, with the obvious intent of inflaming
the passions of jurors and getting them to short-circuit a fair weighing of
aggravation and mitigation. That's not just distracting the jury, but
stampeding it toward an unconstitutional deliberation process and verdict!
Too bad Tom Marino didn't hold out more resolutely.

What I mean very specifically is that "circumstances of the crime" could
include the details of the killings (here unknown!), how much the victims
may have suffered physically or mentally (e.g. prolonged anticipation of
death), and in some cases, also who initiated the use of deadly force. It's
a special circumstances murder whether the defendant killed a police officer
because he was out on an assassination spree; or the police officer quite
lawfully fired the first shot at the defendant who intended to rob, but not
to kill, and reacted in a split second out of "self-preservation," although
absolutely not "self-defense"!!! The special circumstance of killing a
police officer, in itself, could apply to either case, but the second case
seems less aggravated (this example is courtesy of Professor Robert Blecker
of New York Law School, a notable DP supporter who finds the second case
inappropriate for an execution).

And what the "circumstances of the crime" should _not_ include _in a death
penalty context_ are the defendant's alleged tastes or failings, not as a
murderer, but an undertaker; and the family and community tragedy which any
murder causes. I promised a discussion in this post, but since this is long
enough already, I'll save it for the next.

mschulter, do you know, once the State has responded, is Scott now
restricted by only what was included in the original brief? Or can some
other things from the record be added to support, like when re-direct
examination brings up things not covered in direct but which are
permissible?

As far as I know, yes, as far as the claims presented: the opening brief
defines the scope within which the two sides argue the direct appeal from
there on. I do recall some language that reply briefs can develop issues
fairly included within the claims of the opening brief. I'd suspect that
anything relevant in the trial record might be cited in either an opening or
reply brief: it's the claims that would be limited.

But I'm open to correction from any more knowledgeable or experienced
attorney or layperson!

[marlene]

Thank you both for the excellent information. And Marlene, I have been reading the site for years and simply missed the jury instructions! I cannot believe I did that! Please accept my apology, I should have known it was there.

I look forward to more discussion when time permits.

No, problem -- I forget what's there, too, or sometimes remember something being there that obviously isn't!!!!

[mschulter]

I hadn't thought that amicus briefs could be filed during
the direct appeal.

Thanks for an incentive to check this out: the Appellate Rules relating to
the California Supreme Court and Courts of Appeal include Rule 8.520(f) on
amicus briefs generally; and Rule 8.630(e) relating to amicus briefs in
the direct appeal of a death sentence to the California Supreme Court, which
informs us that Rule 8.520(f) is applicable to these appeals.

It's good to confirm that the option is open.

[mschulter]

It's ironic, to me, being I'm opposed to abortion in all
but a few cases, that the murder of Conner is seen as so horrific. Conner
would not have suffered more than a few seconds, would not have known what
happened -- and would not have, as Sharon Rocha wanted to fantasize, been
asking why his daddy was hurting his mommy. So that was very much an
exaggerated claim, IMO.

Marlene, I feel much the same, and thank you for a great post which very
clearly and concisely sums up what I was going to write. Mostly I'll add a
few cases and analogies. And as I often say, none of this is to minimize the
seriousness of any killing (whoever did it), but only to put the death
penalty issues in proper perspective.

Another example is a statement focusing on the idea that Laci's body, when
found, didn't even have arms to hold Conner. And I wonder: if somehow the
bodies had been mummified or otherwise preserved intact, would that have
made the murders any more or less heinous?

> As for Laci's death - the common belief is she didn't know what hit her --
> that she didn't suspect anything, consequently didn't suffer anxiety of
> anticipating something bad, and that suffocation was used, which was
> fairly quick. There was no torture of any kind. She was definitely dead,
> according to the state's argument, when she was put in the Bay. So there
> was no unusual suffering put on Laci by Scott, according to the state's
> case. Now, the condition of the body was used to indicate horrific
> suffering, but she was dead when she lost those body parts -- she didn't
> suffer because of them.

In fact, if I'm right, the State emphasized that the conditions of the
bodies and the separation of their parts was a result of natural
decomposition and related activities of what I might call scavenging
organisms of different kinds, not of any torture before death or even
mutilation after it. It is the usual fate of our physical bodies in the
economy of nature.

Suppose that Scott had committed the crimes according to what you describe
as "the common belief" -- the very opposite of an "especially heinous,
atrocious, or cruel" murder as properly understood. Then, he decided to
"make it look like a home invasion" by leaving Laci's body in place and
vandalizing the house a bit to suggest a robbery, which the police figure
out within a day or two didn't really happen, and arrest him for the murder
of Laci and Conner. How likely is it that the DA would have sought the death
penalty?

To borrow your words, using the condition of the body when found "to
indicate horrific torture" is the kind of sleight of hand that the law
shouldn't permit, especially in a capital case.

That Scott didn't quickly tell people where she was -- to use that as
an example of adding suffering - - that's a very customary practice for
murderers to try to get away with the murder, so using that as a factor
against Scott seemed pretty ridiculous to me when it's common,
to-be-expected behavior. And besides, he told the where he went fishing --
he gave them the site where they should expect to find the body if they
thought he did it -- and they did months of searching before the bodies were
found. So, I just didn't understand that as a factor against Scott. I
don't recall that Geragos made that argument, that if they really thought
Scott did it, they knew exactly where he was -- they spent a lot of time
looking elsewhere in the Bay - that's their fault, not his.

Here's a good case for comparison: Dorothea Puente, who died not too long
ago while serving a sentence of LWOP for killing several seniors and people
with disabilities staying at her care home, by means of drug overdoses, in
order to continue receiving their Social Security or other checks. As with
Laci and Conner, these were disappearances where any family members or
friends were left in suspense as to what had happened. And as with the Scott
Peterson of the prosecution scenario, she wasn't a very good undertaker. She
buried the bodies of the victims in her yard, and eventually people noticed
an odor which she explained as a "sewer" problem. When an investigation was
finally made, the bodies of seven victims were found. She was actually
convicted of "only" three murders, and sentenced to LWOP.

She committed multiple acts of killing, and her motive was greed, or
"financial gain" in the language of Section 190.2 (a) (1), another special
circumstance carrying death or LWOP. She preyed on the elderly and people
with disabilities who came to her boarding home for care, and her murderous
betrayal of trust victimized some of the most vulnerable. This was clearly a
premeditated (in the stronger sense of "preplanned") scheme of homicidal
conduct and its prolonged concealment.

Why should she get LWOP but Scott get death, even if indeed guilty of the
State's version of the crime? I see one main distinction: Laci and Conner
quite properly caught the attention of their community, while Puente's
victims were sadly often less valued. And deciding life or death by the
social status of the victim, or the level of media attention attracted by
the crime, is hardly "equal justice" in any meaningful sense.

[marlene]

The case LACurry linked, http://scocal.stanford.edu/opinion/peop%20...%20ames-33857, brings up an interesting question in my mind. A couple of the prospetive jurors indicated they would not find the defendant guilty, no matter what the evidence, in order to avoid giving the death penalty.

That shows how capital cases really do affect the jury selection --

If the option was instead, LWPP and LWOP -- that would make a lot more jurors available for jury pools, which would give defendants a better chance of getting a fair review of the evidence.

We'll see what CA does this fall -- whether it will remove the DP again. But since it's on the ballot because of the appellate costs of the DP - I highly doubt that CA would see LWOP become the new DP. Appeals would definitely not be automatic under LWOP.

[mschulter]

The case LACurry linked,
http://scocal.stanford.edu/opinion/peop%20...%20ames-33857,
brings up an interesting question in my mind. A couple of the prospetive
jurors indicated they would not find the defendant guilty, no matter what
the evidence, in order to avoid giving the death penalty.

That shows how capital cases really do affect the jury selection --

One effect, of course, is to make the whole process more expensive for the
taxpayers. Not that finding a fair jury for Scott Peterson would have been
easy!

If the option was instead, LWPP and LWOP -- that would make a lot
more jurors available for jury pools, which would give defendants a better
chance of getting a fair review of the evidence.

Yes, there is a certain tradeoff. For some prisoners, the death penalty may
mean that the case is, if not more carefully reviewed by the appellate
courts on their own, sometimes looked at more carefully or intensely by
journalists or law students who have exonerated lots of Death Row prisoners
in Illinois, for example (leading up to the moratorium on executions in 2000
and ultimately official abolition in 2011).

With LWOP, or LWPP/LWOP (which California does have for a few cases of older
juveniles tried as adults or people guilty of the second-degree murder of a
police officer), you have lots less protections on appeal, but also maybe a
better chance of a jury for whose members "reasonable doubt" has some
meaning. And I should add that a lot of the special protections in death
cases relate more to the penalty, so that often the prisoner ends up with
LWOP or possibly LWPP, which could have happened a lot more cheaply in the
first place without the DP in place.

We'll see what CA does this fall -- whether it will remove the DP
again. But since it's on the ballot because of the appellate costs of the
DP - I highly doubt that CA would see LWOP become the new DP. Appeals would
definitely not be automatic under LWOP.

One way or the other, better safeguards for the wrongfully imprisoned are
going to be a continuing concern, and Scott's case might promote that.

[marlene]

I don't know that any person opposed enough to the DP that they could not choose DP over LWOP no matter what the circumstances of the case could ever find a person guilty knowing that a different death-qualified jury could still sentence to death, so I don't think having 2 juries is the solution to this problem.

I think sequestering the jury for the duration of the trial is the best solution. Interestingly, and I can't put my finger on it now, but one of the reasons San Mateo county was touted as the "best" place for the trial is the % of its population that is educated and wealth enough to withstand the economic hardships of sitting on a jury for the expected period of time -- I believe it was in some of the promotions San Mateo county did. In reality -- the seated jury had no resemblance whatsoever to this claim.

[mschulter]

I don't know that any person opposed enough to the DP that
they could not choose DP over LWOP no matter what the circumstances of the
case could ever find a person guilty knowing that a different
death-qualified jury could still sentence to death, so I don't think having
2 juries is the solution to this problem.

Certainly I'm an example of someone who couldn't and wouldn't find a verdict
of guilty with special circumstances knowing that the person might be
executed in a process I had helped move along. But it does seem that there
are a good number of jurors who do draw the line that way, somehow being
able to detach themselves from the possible consequences of their actions.
Some studies have shown that the category does exist, and that these
"guilt-qualified" jurors do tend to be less prosecution-prone, especially
in cases like Scott's where the evidence is a bit thin.

I think sequestering the jury for the duration of the trial is the
best solution. Interestingly, and I can't put my finger on it now, but one
of the reasons San Mateo county was touted as the "best" place for the trial
is the % of its population that is educated and wealth enough to withstand
the economic hardships of sitting on a jury for the expected period of time
-- I believe it was in some of the promotions San Mateo county did. In
reality -- the seated jury had no resemblance whatsoever to this
claim.

Yes, in the Peterson case sequestering would have been common sense.
Another thing that might help would be going back to something more like
the original _Witherspoon_ rather than _Witt_, but that's another
discussion.

[marlene]

See the latest blog article for a very important decision . . .

http://pwc-consulting.blogspot.com/