Welcome: Scott Peterson case and death penalty issues

[mschulter]

Welcome to this forum or subforum on the death penalty issues in Scott
Peterson's case, with a special focus on issues raised in his brief for the
direct appeal to the California Supreme Court, or which might have been
raised and are of special relevance to the facts of his case. My warmest
thanks to Marlene and others who have made this site possible!

There are lots of things to discuss. For example, we have the jury selection
issues related to death qualification, as well as the penalty phase, the
jury's death verdict, and also Judge Alfred Delucchi's denial of the motion
to modify it to life without parole (LWOP).

Death penalty law tends to get a bit arcane: aggravating and mitigating
factors, proportionality review, and other terms which have become a part
and parcel of "modern death penalty jurisprudence" as it has evolved over
the last 40 years or so. What do these concepts mean, how do they get
applied in the courtroom in real life, and more specifically how did they
get applied to Scott Peterson?

The brief for Scott Peterson illustrates some typical features of capital
appeal briefs: for example, a mixture of clearly meritorous arguments, as
judged under the present state of the law, with more ambitious ones seeking
to stretch the scope of that law, or even challenge clearly established
state or federal law. And one special feature of briefing a capital case is
the obligation to cover as many plausible or "colorable" arguments as
possible, because no one knows exactly what the state of the law may be some
number of years down the road, but actually having raised an issue that
later proves to be meritorous can make a difference of life or death.

All of these topics and others are fair game. I should add that it was
originally the death penalty issues that made me especially interested in
Scott Peterson's case, although now I'm getting more educated on the
innocence issues as well. Thanks to all who participate and share in this
dialogue.

[mschulter]

While the death penalty portions of Scott Peterson's brief raise some
adventurous issues, here's one I might have included: "The evidence, even if
deemed sufficient to sustain a conviction, simply leaves too much room for
credible doubts to sustain a death sentence."

This claim indeed plows new legal ground, but not necessarily more so than
some claims actually in the brief, for example the assertion that errors in
excluding jurors for general opposition to the death penalty require
reversal not only of the penalty but of the conviction (pp. 108-116). While
the tendency of death qualification -- the weeding out of jurors opposed to
the death penalty, or more narrowly since 1968 those unwilling to consider
its imposition -- to produce more conviction-prone jurors has been a topic
of debate for at least 50 years, this issue carries special force because
the cause against Scott raises so many possible doubts where juror attitudes
could make a real difference.

But let's focus on what I'll call the "credible doubt" issue. The idea that
a higher standard of proof might be needed to execute someone than to
imprison them goes back some 240 years in Anglo-American jurisprudence.
Here's what William Eden said in his book _Principles of Penal Law_ (1771)
published five years before our Declaration of Independence:

"Reason and the rights of humanity demand, that the strength and
strictness of proof be increased in proportion to the enormity
of the crime in question." Id., p. 297.

Eden's view, although developed over the decades and centuries by writers
reporting miscarriages of justice in capital cases, has not been a favorite
of prosecutors in capital cases where the evidence seems less than airtight.
Consider the trial of Lucretia Chapman, accused in 1831 of taking part in
the murder of her husband William Chapman by arsenic poisoning in Andalusia,
Pennsylvania, and tried the following year. Like Scott, she was confronted
with evidence suggesting that she had been conducting an extramarital affair
before her spouse's death, in this case with the mysterious stranger Lino
Espos y Mina, who claimed to be the son of the "Governor of California" in
Mexico, but turned out to be an "imposter" -- or, in current terms, a con
man. What was indisputable was that less than two weeks after her husband's
death, Lucretia married Mina, who was known to have purchased arsenic just
before the symptoms of the victim's last illness began.

After arguing that adultery was a sin close to murder, and that the evidence
for her illicit conduct with Mina in the weeks leading up to the poisoning
was overwhelming, the prosecutor admonished the jury as follows:

"Remember, that it requires no stronger evidence to convict of an
offence, which is capitally punished, than it does where the penalty of
the crime is merely an imprisonment for a term of years -- You must be
equally satisfied in the one case as in the other."
William E. Du Bois, ed., _Trial of Lucretia Chapman, Otherwise Called
Lucretia Espos y Mina_ (1832).

She was acquitted, after Judge John Fox helpfully offered a hint to the jury
that they might consider a point which her attorneys may have found it
"prudent" not to raise: that, even if guilty of adultery with Mina, she may
not have been involved in the poisoning. The jury may have been eager to
take this hint and spare her life, despite her alleged scandalous conduct
with Mina while her first husband lived and their too-hasty marriage after
his sudden death.

By the mid-20th century, the doctrine of an especially high standard of
proof in capital cases was gaining more favor. In 1953, the Royal Commission
on Capital Punishment in the United Kingdom noted that one powerful reason
for granting executive clemency was a "scintilla of doubt" as to guilt. One
case where this caution evidently wasn't observed zealously eough was that
of Timothy Evans, suspected of killing his wife Beryl and infant daughter
Geraldine, and convicted and hanged for the murder of Geraldine in 1950.
Three years later, serial killer John Christie was hanged for the death of
Evans' wife -- leading eventually to a posthumous pardon for Evans, and the
widespread conclusion that he was totally innocent of the death of either
his wife or his daughter.

In 1962, the American Law Institute decided to include in its Model Penal
Code an optional Section 210.6 on the death penalty, which the ALI neither
endorsed nor opposed; the idea was to give guidance to those States which
weren't ready to abolish it. One of the provisions defined circumstances in
which the trial judge should exclude the death penalty from the jury's
consideration, and included the following item:

"210.6 (1) (f) althoug the evidence suffices to sustain the verdict,
it does not foreclose all doubt respecting the defendant's guilt."

Ironically, in 2009 the ALI decided to withdraw Section 210.6 from the Code,
since it had concluded that even "minimally" fair administration of the
death penalty had proved impractical, and was concerned that the continued
presence of this section might suggest otherwise.

However, for any State retaining the death penalty for however long, the
provisions of Section 210.6 (1) (f) seem indispensable, with Scott Peterson
as a leading exhibit for this proposition.

D. Michael Risinger has suggested a good phrase to convey this reality: a
verdict "unsafe for execution," even if arguably adequate to authorize a
prisoner's continued imprisonment (unless/until stronger evidence of
innocence is discovered).

The conviction of Scott Peterson could be described as "unsafe at any
speed." The State of Maryland, in 2009, enacted a compromise statute which
retained the death penalty, but limited it to crimes where there was
concrete evidence of guilt, most familiarly from DNA analysis.

Recognizing that "death is different" in the quantum of evidence required
to sustain the ultimate penalty would sometimes place appellate courts in
the difficult position of having to decide if a "credible doubt" remains,
even if it falls short of the level which could justify overturning a jury's
verdict of guilt. The alternative, however, may be an intolerable risk to
the lives of the innocent.

This argument is a tough one to win, but an important one to consider.

[marlene]

This was Delucchi's argument for sustaining the death penalty. I was in Court that day and was quite taken aback by the severity and harshness of Delucchi's tone as he gave his reasons:

In conducting a hearing as to Penal Code Section 190.4(e), the court must review the evidence, consider, take into account and be guided by the mitigating and aggravating circumstances referred to in Section 190.3 of the Penal Code and make a determination as to whether the jury's findings that the aggravating circumstances are so substantial, when compared to the mitigating circumstances, are contrary to the law or to the evidence presented. The court has specifically not considered the probation report in ruling on the application for modification pursuant to 190.4 of the Penal Code and 1181.7 of the Penal Code. The court is only considering the evidence presented to the jury in this trial. It is the law of this state that the trial judge is required to make an independent determination whether imposition of the death penalty upon a defendant is appropriate in light of the relevant evidence and any applicable law.

The trial judge has the duty to review the evidence to determine whether, in his independent judgment, the weight of the evidence supports the jury verdict. If he decides it does not, the court has the power to reduce the penalty to life in prison without the possibility of parole. In determining whether, in his independent judgment, the weight of the evidence supports the verdict, the judge is required to assess the credibility of the witnesses, determine the probative force of the testimony, and to weigh the evidence. Further, the court shall set forth its reasons for its ruling on the application and direct that they be entered into the court's minutes.

In this case the court has reviewed the presence and absence of each aggravating and mitigating factor listed in Penal Code Section 190.3 and specifically agrees that the jury's finding that the circumstances in aggravation are so substantial, when compared to the circumstances in mitigation, that it's supported by the weight of the evidence; it is not contrary to the law. Further, the court finds that the evidence supporting the truth of the special circumstance that the defendant committed more than one murder in the first or second degree has been overwhelmingly, overwhelming and proven beyond a reasonable doubt and that the jury's assessment that the evidence in aggravation is so substantial, when compared to the evidence in mitigation, so as to support the selection of the death penalty as the appropriate penalty is supported by the weight of the evidence.

In terms of credibility, this court agrees with the jury that the witnesses for the People were credible and believable. Penal Code Section 190.4 directs the judge to state on the record its reasons for its findings and its reasons for its ruling on this application and direct that they be entered into the court's minutes. The court has examined and reviewed all the evidence that was presented to the jury both in the guilt phase and in the penalty phase and, in making its determination as to the appropriate penalty, the court has examined the exhibits admitted into evidence, considered and taken into account the daily transcript of the proceedings, both in the guilty and in the penalty phase, the special circumstance issue, and the question of aggravating and mitigation circumstances concerning the selection of the appropriate penalty. The court has also reviewed its own personal notes relating to the evidence received as to both the guilt and penalty phase of the trial.

From the evidence submitted at the guilt phase of the trial, the court is satisfied beyond a reasonable doubt that the defendant, Scott Lee Peterson, is guilty of murder of the first degree as alleged in Count 1 of the Information, and the court is satisfied that the defendant is guilty of murder of the second degree as found by the jury in Count 2 of the Information, and that the special circumstance alleged therein is true beyond a reasonable doubt. The court has reviewed and independently taken into account and is guided by the following factors in aggravation and mitigation: The court has reviewed the circumstances of the crimes for which the defendant has been convicted and the existence of the special circumstance found to have been true by the jury, and the court independently finds and agrees with the jury that the circumstances surrounding the first degree murder of Dennis, of Laci Denise Peterson and Baby Conner Peterson were cruel, uncaring, heartless and callous. The court also finds that this murder, and the killing of Baby Conner Peterson, betrayed a trust between the defendant and the defendant's wife, Laci, who was bearing the defendant's son, Conner. The young boy Conner wasn't even permitted to take a breath of air on this earth.

The court has further examined the evidence offered in the penalty phase by defendant and independently finds beyond a reasonable doubt there were no circumstances presented which extenuates the gravity of the crimes, whether or not it be a legal excuse. The court has reviewed and considered the testimony of the defendant's family members and other defense witnesses and has taken into consideration the fact that the defendant was a product of a loving, caring family and was well liked, was a hard worker, respected by his friends and relatives, has above average intelligence and is a productive member of society. The court is further aware that the defendant has no prior criminal record of any kind. However, the court does not independently find that these circumstances presented in mitigation extenuate the seriousness and gravity of the crimes.

The court further independently finds that the defendant's background is not a moral justification or an extenuating factor for his conduct. The court has also independently taken into consideration the age of the defendant at the time of the crimes and find that this is not a mitigating factor. The court has further taken into consideration any other circumstances which could extenuate the gravity of the crime, even though it not a legal excuse for the crime, and any sympathetic or other aspect of the defendant's character that the defendant has offered as a base for a sentence less than death whether or not related to the offense for which he is on trial, and finds that there are none which extenuates the gravity of the crime or mitigates the offenses accordingly and by independent review. The court further finds in evaluating the evidence in the penalty phase, in addition to the circumstances of the crimes for which the defendant was convicted, and considering the existence of the special circumstances found to be true and in consideration of the evidence offered by the defense in mitigation, that there are no factors in mitigation which will extenuate and mitigate the gravity of the crimes committed. Considering all of the evidence, and by independent review, the court's assessment is that the factors in aggravation are so substantial, when compared to the factors in mitigation, that death is warranted and not life without the possibility of protocol. Therefore, the automatic motion for said modification of the verdict of death is denied. The court further orders a transcript be made of the court's reason for denying the automatic motion for modification of the jury's verdict of death and the reasons thereafter be entered on the court's minutes.

[mschulter]

This was Delucchi's argument for sustaining the death
penalty. I was in Court that day and was quite taken aback by the severity
and harshness of Delucchi's tone as he gave his reasons:

(Margo)
Hi, Marlene, and welcome to this subforum!

Please forgive me if I inexpertly mess up the formatting here on the quotes,
since I'm using a fullscreen editor. This helps me keep track of my cursor,
but I apologize for any glitches! I'm putting in a few extra cues to
distinguish between you, me, and Judge Delucchi's decision on penalty as
a precaution this one time. Also, my apologies for length!

(Judge Delucchi's argument)

In conducting a hearing as to Penal Code Section 190.4(e), the court
must review the evidence, consider, take into account and be guided by the
mitigating and aggravating circumstances referred to in Section 190.3 of the
Penal Code and make a determination as to whether the jury's findings that
the aggravating circumstances are so substantial, when compared to the
mitigating circumstances, are contrary to the law or to the evidence
presented. The court has specifically not considered the probation report in
ruling on the application for modification pursuant to 190.4 of the Penal
Code and 1181.7 of the Penal Code. The court is only considering the
evidence presented to the jury in this trial. It is the law of this state
that the trial judge is required to make an independent determination
whether imposition of the death penalty upon a defendant is appropriate in
light of the relevant evidence and any applicable law.

(Margo)
Here there's a phrase that seems to be missing, and which I'll paraphrase
from the standard penalty phase jury instructions in California: "that the
aggravating circumstances are so substantial, when compared to the
mitigating circumstances, that they warrant death rather than life
imprisonment without the possibility of parole." Somehow that phrase got
truncated in the Web versions I've seen of his decision, including whichever
one you're quoting. Further on in his statement, the correct language does
show up, as I note below.

But the idea is very important. The 1978 statute says simply that if the
aggravating circumstances "outweigh" the mitigating ones, then the penalty
shall be death -- but the California Supreme Court has interpreted that to
stress that this isn't some mechanical "weighing" process, but a reasoned
moral judgment. That "so substantial" language is critical because it means
that death should _clearly_ be appropriate; the implication is that if a
juror finds the balance even a close one, then the proper decision is LWOP.
There's an old maxim of the common law that fits: _In favorem vitae_, or
"(Lean) in favor of life."

And that means looking at all aspects of Scott Peterson as a person, not
just the (alleged) crime on December 23-24, 2002, according to whichever
docudrama scenario of the prosecution a jury or judge is inclined to favor.

(Judge Delucchi)

The trial judge has the duty to review the evidence to determine
whether, in his independent judgment, the weight of the evidence supports
the jury verdict. If he decides it does not, the court has the power to
reduce the penalty to life in prison without the possibility of parole. In
determining whether, in his independent judgment, the weight of the evidence
supports the verdict, the judge is required to assess the credibility of the
witnesses, determine the probative force of the testimony, and to weigh the
evidence. Further, the court shall set forth its reasons for its ruling on
the application and direct that they be entered into the court's
minutes.

(Margo)
This is actually one form of the best procedure for States wishing to retain
the death penalty suggested by the American Law Institute (ALI) in its Model
Penal Code of 1962, former Section 210.6. The jury returns a penalty phase
verdict for life or death, but the judge retains a power to review a death
verdict and, if appropriate, reduce it to life. Actually California already
had this feature of law when Section 210.6 was proposed; in _People v.
Moore_ (1960), 53 Cal.2d 451, the California Supreme Court affirmed that the
trial judge had the power to modify a jury's death sentence to life (then
with possibility of parole in first-degree murder cases). The 1977 and 1978
death penalty statutes legislatively confirmed and mandated this procedure.

(Judge Delucchi)

In this case the court has reviewed the presence and absence of each
aggravating and mitigating factor listed in Penal Code Section 190.3 and
specifically agrees that the jury's finding that the circumstances in
aggravation are so substantial, when compared to the circumstances in
mitigation, that it's supported by the weight of the evidence; it is not
contrary to the law. Further, the court finds that the evidence supporting
the truth of the special circumstance that the defendant committed more than
one murder in the first or second degree has been overwhelmingly,
overwhelming and proven beyond a reasonable doubt and that the jury's
assessment that the evidence in aggravation is so substantial, when compared
to the evidence in mitigation, so as to support the selection of the death
penalty as the appropriate penalty is supported by the weight of the
evidence.

(Margo)
Well, here's the language I was looking for above: that "the evidence in
aggravation is so substantial, when compared to the evidence in mitigation,
so as to support the selection of the death penalty...."

Moving from legal formulas to realities, the evidence is indeed
"overwhelming" that two people, Laci Peterson and Conner Peterson, died
under circumstances that might suggest some type of criminal homicide --
although I can't absolutely rule out some accident that someone wanted to
conceal by disposing of the bodies of the victims. But the verdict of first
degree murder for Laci and second degree for Conner raises questions in my
mind as to how "overwhelming" the evidence for premeditation is as to
either; hardly an original point, of course!

As to the balance of aggravation and mitigation, while this is subjective
and the jury instructions for the penalty phase honestly acknowledge it
(basically telling the jurors that _they_ decide how important each
statutory or open-ended factor or facet of the crime and the person they're
judging is in deciding life or death), it's easier to answer questions like:
"Did Scott present _any_ substantial mitigation?" And a juror or judge who
doesn't see it, or has on blinders that prevent seeing it, is acting not
only unjustly but unconstitutionally!

(Judge Delucchi)

In terms of credibility, this court agrees with the jury that the
witnesses for the People were credible and believable. Penal Code Section
190.4 directs the judge to state on the record its reasons for its findings
and its reasons for its ruling on this application and direct that they be
entered into the court's minutes. The court has examined and reviewed all
the evidence that was presented to the jury both in the guilt phase and in
the penalty phase and, in making its determination as to the appropriate
penalty, the court has examined the exhibits admitted into evidence,
considered and taken into account the daily transcript of the proceedings,
both in the guilty and in the penalty phase, the special circumstance issue,
and the question of aggravating and mitigation circumstances concerning the
selection of the appropriate penalty. The court has also reviewed its own
personal notes relating to the evidence received as to both the guilt and
penalty phase of the trial.

(Margo)
This may be trivial and quibbling, but I wonder if the "guilty... phase"
(line 10 of last quote) is the phase where a jury organized to return a
verdict of guilty obligingly does so? Testimony about the motion of bodies
in water by someone who has avowed nonexpertise on that topic is hardly
"credible and believable," unless one cares to suspend disbelief! Why not at
least a few words about this as a "close case" requiring various inferences
which it was permissible, but not exactly inevitable, for the jury to draw?
As for some of the scientific evidence as to scent trails, etc., it's
tempting to borrow an adage: "That dog won't hunt -- or track!"

(Judge Delucchi)

From the evidence submitted at the guilt phase of the trial, the court is
satisfied beyond a reasonable doubt that the defendant, Scott Lee Peterson,
is guilty of murder of the first degree as alleged in Count 1 of the
Information, and the court is satisfied that the defendant is guilty of
murder of the second degree as found by the jury in Count 2 of the
Information, and that the special circumstance alleged therein is true
beyond a reasonable doubt.

(Margo)
Maybe Judge Delucchi feels "satisfied," by I'd express my own doubts this
way. The original idea of the standard "beyond a reasonable doubt and to a
moral certainty" was that in order to convict -- especially of a capital
crime -- you should reach a level of "moral certainty," which means to be as
certain as you can about anything that isn't strictly demonstrable by the
rules of logic, like "2 + 2 = 4" or "the sum of the angles of a triangle in
Euclidean plane geometry is 180 degrees."

For example: "President Washington served from 1789 to 1797" or "On November
24, 1963, Jack Ruby shot and killed Lee Harvey Oswald." We take these as
definite facts, although there are no eyewitnesses still in this world as to
the first, and even those of us who saw and heard the shooting of Oswald on
television could have theoretical doubts about whether the whole thing was
very expertly staged. So it's not absolute certainty, but a "moral
certainty" -- a "practical certainly" may be a good modern phrase to get the
same idea across in jury instructions.

Sadly, in the mid-1990's, that "to a moral certainty" simply got dropped
from California's reasonable doubt instruction, rather than modernized to
something like "practical certainty" which might be more accessible to
jurors unfamiliar with the philosophical background of the old language.
So it has become simply "abiding conviction" -- a dumbed-down version of
something not only abiding but "rock solid" in its virtual certainty.

In a typical death penalty case, the evidence leaves us with this sense of
"practical certainly": it's like a documentary about George Washington or
the aftermath of the assassination of President Kennedy. At least, we know
to a practical certainty who killed whom, when, and how. Sometimes
guilt-phase issues involving mental state or other moral judgments are
"fuzzier": for example, self-defense; murder or manslaughter in extreme heat
of passion; or even insanity. But the hard facts are indeed pretty solid.

Here it's a docudrama: _Scott Peterson: The Real Story_, where "real" means
"whatever you'd like to invent and consider most believable." And if a juror
or judge gets too passionate in inventing such a story and considering it
hard fact ("beyond a reasonable doubt"), that can affect the objectivity of
the penalty phase as well!

(Judge Delucchi)

The court has reviewed and independently taken into
account and is guided by the following factors in aggravation and
mitigation: The court has reviewed the circumstances of the crimes for which
the defendant has been convicted and the existence of the special
circumstance found to have been true by the jury, and the court
independently finds and agrees with the jury that the circumstances
surrounding the first degree murder of Dennis, of Laci Denise Peterson and
Baby Conner Peterson were cruel, uncaring, heartless and callous. The court
also finds that this murder, and the killing of Baby Conner Peterson,
betrayed a trust between the defendant and the defendant's wife, Laci, who
was bearing the defendant's son, Conner. The young boy Conner wasn't even
permitted to take a breath of air on this earth.

(Margo) With the deepest sadness and seriousness, and a strong caution that
I do not wish for one moment to trivialize the horrendous nature of murder
in any form, I might say that most murders are "cruel, uncaring, heartless
and callous." That's the essence of murder _in the first degree_: what
Justice William Bradford of the Pennsylvania Supreme Court in 1793 termed a
"deliberate assassination," and urged should carry a uniquely awesome
penalty, which he suggested after a few years of experience might be reduced
from death to "perpetual imprisonment" at hard labor or the like (close to
modern LWOP). But then or now, few first-degree murders are likely to be
kind, caring, tenderhearted and sensitive to the feelings and needs of
others.

Of course there's a "betrayal" if/when one spouse kills another, and more so
when an unborn child is killed in the process. And for killing two people,
California law has a special penalty even for the offender who otherwise
presents strong mitigating circumstances: LWOP.

The second-degree verdict for Conner suggests a view that Scott didn't
specifically intent his death, but knew or should have known that his death
would inevitably result from that of Laci (assuming he is in fact guilty!).
A typical multiple murder case involves a premeditated intent to kill both
or all of the victims, or else to use a weapon (e.g. a terrorist bomb or
assault rifle) with the intent of killing or seriously wounding two or more
people, known or unknown to the perpetrator.

This isn't in any way to minimize the horrible tragedy of two deaths: that
of a mother and also (although less intentionally) her unborn child. But in
a death penalty decision, we need to place the crime within the universe of
first-degree murders, where everything is "unspeakably bad," but some things
are worst. A serial killer who sexually assaults or (otherwise) tortures and
then murders victims is especially horrible; so might be a contract killer.

There is an argument that the usual "domestic discount" viewing the murder
of a spouse or other domestic partner as generally less worthy of the death
penalty than premeditated stranger killings (e.g. in the course of another
felony) is arbitrary and questionable. But California law doesn't make it an
aggravating factor that "the victim was the defendant's spouse." Making up
new aggravating factors as you go along -- like inventing the most appealing
"facts" to create an "overwhelming" verdict of guilt -- is a dangerous way
to protect a citizen's life and liberty.

(Judge Delucchi)

The court has further examined the evidence offered in the penalty
phase by defendant and independently finds beyond a reasonable doubt there
were no circumstances presented which extenuates the gravity of the crimes,
whether or not it be a legal excuse. The court has reviewed and considered
the testimony of the defendant's family members and other defense witnesses
and has taken into consideration the fact that the defendant was a product
of a loving, caring family and was well liked, was a hard worker, respected
by his friends and relatives, has above average intelligence and is a
productive member of society. The court is further aware that the defendant
has no prior criminal record of any kind. However, the court does not
independently find that these circumstances presented in mitigation
extenuate the seriousness and gravity of the crimes.

(Margo)
This is really error both under California law and the Eighth Amendment,
although a kind of error all too often tolerated by state and federal
courts. The question is not only whether the mitigating factors "extenuate
the seriousness and gravity of the crimes," but whether they provide any
reason for showing some mercy to the _defendant_, even though the crime
itself remains just as horrible and inexcusable as before.

In the early years of California's 1977 and 1978 death penalty statutes, an
issue confronted by the California Supreme Court and ultimately the federal
courts also responsible for enforcing the Cruel and Unusual Punishments
Clause of the Eighth Amendment, was that the letter of law addressed only
types of mitigation, beyond the specific factors identified in the statute,
which "extenuate" the crime itself. _People v. Easley_ (1983), 34 Cal.3d
858, 875-881 and n. 10, raised this point and noted that the Eighth
Amendment requires considering any "aspect of [the] defendant's character
and record" presented as a reason for a sentence of less than death. See
also _Lockett v. Ohio_ (1978) 438 U.S. 586, 604-605, for the classic
statement of the rule that any mitigating evidence relating to the character
or record of the offender must be admitted and considered in the penalty
phase of a capital case.

The lack of a prior criminal record is actually a _statutory_ mitigating
factor, see California Penal Code Sections 190.3 (b) and (c), which means
not only does it need to be considered under _Lockett_, but the voters when
they approved Proposition 7 (1978) pointed it out in the law as deserving
special attention. No way this is anything but mitigating! The fact it
wouldn't make the murders of Laci and Conner any less horrible doesn't give
a juror permission to give it no weight or simply ignore it, and yet less so
for a trial judge who is expected to be dispassionate and fairly weigh all
of the factors, statutorily specified or otherwise, in favor of sparing a
defendant's life!

Ignoring the fact that Scott had no previous convictions for violent acts,
or for felonies of any kind, is tilting the scale toward death! A case which
really brings this home is _Skipper v. South Carolina_ (1986), 476 U.S. 1.
The issue was whether a defendant who had been incarcerated for 7-1/2 months
between arrest and trial for capital murder could introduce his good
behavior in custody as mitigating evidence. The answer was yes: it's part of
his character and record as a human being.

However, if we follow Judge Delucchi's opinion, _Skipper_ should have been
or might as well have been decided the other way, since obviously nothing
that Skipper did _after_ the murder could "extenuate the gravity" of the
crime itself! And if Ronald Skipper's good behavior in jail for 7-1/2 months
was relevant to the life or death decision, so is a lifetime of law-abiding
behavior by Scott Peterson. To give it no weight is to show that you are
doing what the voir dire and penalty phase instructions should have warned
the jurors against: failing fairly to consider all the evidence and to
follow the law.

(Judge Delucchi)

The court further independently finds that the defendant's background
is not a moral justification or an extenuating factor for his conduct. The
court has also independently taken into consideration the age of the
defendant at the time of the crimes and find that this is not a mitigating
factor. The court has further taken into consideration any other
circumstances which could extenuate the gravity of the crime, even though it
not a legal excuse for the crime, and any sympathetic or other aspect of the
defendant's character that the defendant has offered as a base for a
sentence less than death whether or not related to the offense for which he
is on trial, and finds that there are none which extenuates the gravity of
the crime or mitigates the offenses accordingly and by independent
review.

(Margo)

Okay, let's look at this language more closely. Actually, it would be a
rather rare case where "the defendant's background" would actually be "a
moral justification" for capital murder -- or, more accurately, the basis
for what the defendant "reasonably believed to be a moral justification or
extenuation for his conduct," Penal Code Section 190.3 (f).

The short of it is that 190.3 (f) is very unlikely to apply to a capital
murder case, and where it might apply in a hypothetical (e.g. assisted
suicide, or possibly a Holocaust survivor who turns vigilante and murders a
couple of war criminals still at large rather than reporting them to the
appropriate authorities), a district attorney is unlikely to go for
first-degree murder _plus_ a special circumstance, much less to carry things
to an actual penalty phase.

What does apply is that although all Peterson's good conduct and
contributions to society in the world wouldn't provide a "moral
justification" for killing Laci and Conner, they would provide reasons for
valuing Scott's life despite the horror of the crime. As it's often said,
Scott would still be more than his worst act. Giving him LWOP because of
"character and record" evidence, and the kind of human being it shows him
generally to have been, isn't making the murders themselves one whit less
horrible or morally unjustifiable!

The language "mitigates the offenses" is also, in this context, suggestive
of a misunderstanding of the law. Indeed there _are_ in some cases
mitigating factors of the kind which directly mitigate the "offense" itself,
such as extreme mental or emotional disturbance, or brain damage, which
really reduces the degree of culpability even though there are still the
elements of first-degree murder and one or more special circumstances making
the defendant eligible for death or LWOP.

In a case like that of Scott, the kind of mitigation presented in the
penalty phase instead _mitigates the sentence_ by forcing us to look at the
total human being, not just the crime he (allegedly) committed in an
otherwise nonviolent and law-abiding life.

Note also that adultery or dishonesty between lovers is _not_ a violent or
felonious criminal act in California, however immoral or disreputable it may
be.

(Judge Delucchi)

The court further finds in evaluating the evidence in the penalty
phase, in addition to the circumstances of the crimes for which the
defendant was convicted, and considering the existence of the special
circumstances found to be true and in consideration of the evidence offered
by the defense in mitigation, that there are no factors in mitigation which
will extenuate and mitigate the gravity of the crimes committed. Considering
all of the evidence, and by independent review, the court's assessment is
that the factors in aggravation are so substantial, when compared to the
factors in mitigation, that death is warranted and not life without the
possibility of protocol. Therefore, the automatic motion for said
modification of the verdict of death is denied. The court further orders a
transcript be made of the court's reason for denying the automatic motion
for modification of the jury's verdict of death and the reasons thereafter
be entered on the court's minutes.

(Margo)
If this were a Governor's statement denying clemency in a capital case, it
would probably be unchallengable under law, because clemency is an act of
grace rather than a legal right. And under some recent California Governors,
a favorite reason for letting an execution proceed is that even the most
forceful mitigating factors (like near-insanity at the time of the crime)
don't "mitigate" the tragedy of the crime itself for the victims. By this
logic, everyone convicted of first-degree murder with one or more special
circumstances should be sentenced to death and executed, since nothing can
change the facts of the offense!

Judge Delucchi, like the jurors, was taking part in a judicial process with
different rules: any fact weighing in favor of life (and death!) in prison
without parole rather than execution _must_ be considered, even if the
person whose life is at stake might not be an ideal candidate for our next
Lieutenant Governor.

Looking into the crimes and previous records of some of the 3700 and more
California prisoners serving LWOP might provide a bit of perspective. Their
crimes, often multiple, violent, and even torturous, happened to be less
publicized than those of which Scott was convicted; and their records
included things like burglary, robbery, kidnapping, or sexual assault
(sometimes of children) rather than adultery with consenting adults and
false statements to such illicit partners.

Of course, I should fairly disclose my own biases: I'm against the death
penalty for any of these people, but in favor of LWOP. People who support
the current law, however, should want it to be applied fairly, and that
means really weighing and giving effect to mitigating factors even if the
defendant's name happens to be Scott Peterson, and especially when the
evidence of guilt is considerably less than airtight.

[LACurry]

All very interesting and complex discussion on the sentence of death. I wish to thank both of you for the information.

My questions....do we have access to the jury instructions given in either, or both, the guilt phase or penalty phase in this case? And, do we have any information as to how often a judge in a death penalty case has actually reduced a death penalty in favor of LWOP?

My personal opinion is that a verdict of guilt and subsequent penalty of death in any case would be difficult for any Trial Judge to correct or amend. It would seem to me that if a trial judge were to do so after a jury returned a guilty verdict and penalty of death, it would put both the guilt phase decision and penalty decision into question. However, I fully acknowledge that a closer look at actual law would most likely reveal something entirely different from my personal opinion.

[marlene]

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.

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.

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.

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?

[mschulter]

All very interesting and complex discussion on the sentence
of death. I wish to thank both of you for the information.

Thank you for your very good questions below! Judge Delucchi's sentencing
order really got me going, maybe at more than enough length. It raises lots
of questions about the process.

My questions....do we have access to the jury instructions given in
either, or both, the guilt phase or penalty phase in this case? And, do we
have any information as to how often a judge in a death penalty case has
actually reduced a death penalty in favor of LWOP?

The post after yours gives very handy links to the whole trial, and I found
it useful for access to the whole penalty phase. One thing I've learned is
that reading the transcripts makes me a much better advocate. If someone
wants to define a bid for "jury nullification" in the worst sense, I'd say
that the opening prosecution statement in the penalty phase qualifies. I'll
explain in another post, and really wonder if it might be a good topic for
an amicus brief.

As to the frequency with which a judge in California has modified a jury's
death verdict to life, my impression is that it happens very rarely. I'm
aware of three cases, one under the older pre-1972 statute which I mentioned
im my long reply to Judge DeLucchi's order; all three are below.

My personal opinion is that a verdict of guilt and subsequent penalty
of death in any case would be difficult for any Trial Judge to correct or
amend. It would seem to me that if a trial judge were to do so after a jury
returned a guilty verdict and penalty of death, it would put both the guilt
phase decision and penalty decision into question. However, I fully
acknowledge that a closer look at actual law would most likely reveal
something entirely different from my personal opinion.

Actually, my impression based on 35 years of doing legal research and
writing to assist capital appellate defense (from time to time, not
continously!) is in States where the judge can reduce death to life, it's
generally a power used very sparingly. The idea is sort of like the
provision in the Constitution that in order to declare war, the House and
Senate have to agree. Back in 1787, the House was conceived as a more
popular body, but the Senate as a bit more aristocratic and
statespersonlike, so that it could curb any rash popular passion for what
might be an unnecessary war.

In a way, that's the role of the trial judge in this kind of penalty phase
approach also. As the Florida Supreme Court noted in _State v. Dixon_ (1973)
283 So.2d 1, 8, a layperson might find any murder no less than "heinous,"
but a trial judge with lots of experience in homicide cases could correct an
unduly harsh jury penalty verdict and see things more in perspective. Since
a lot of the wording and provisions of the 1978 California statute
(Proposition 7) were borrowed from the Florida law and the _Dixon_ decision,
that decision could be relevant in understanding our system.

In my last I mentioned _People v. Moore_ (1960), 53 Cal.2d 451, where the
trial judge had interpreted California's 1957 version of the statute
providing death or life imprisonment for first-degree murder to permit
reducing a death verdict to life, which the judge did. This case affirms the
judge's power and the life sentence he imposed, but doesn't go into the
details of the crime or of the offender. This was a period when the
California Supreme Court occasionally affirmed a death sentence while
suggesting that the penalty really should have been life imprisonment, but
noting its lack of authority under the law at that time to change the
penalty as an appellate court. So they may have been happy to arrive at a
construction of the law that at least gave the trial judge an opportunity to
do so now and then. And I might add that when the Court wondered aloud what
the jury had been thinking when it imposed death, but lamented its inability
to change the sentence, it might have been dropping a broad hint that
executive clemency wouldn't be unwise. (A bit later, Governor Edmund G.
"Pat" Brown during his term of 1959-1967 granted clemency to 23 Death Row
prisoners, but also presided over the executions of 36.)

A rather well-noted case in the first years of the 1977 and 1978 statutes
was _People v. McDermand_, 162 Cal.App.3d 770 (1984), a case where Mark
McDermand murdered his mother Helen McDermand and brother Edwin McDermand.
Multiple murder and lying in wait were the special circumstances under the
1978 statute, and the jury returned a death verdict. The trial judge,
however, reduced the punishment to LWOP. Extreme mental or emotional
disturbance, and/or impaired capacity, were obvious mitigating factors;
McDermand had very serious mental illness, at least on the verge of
schizophrenia it would seem. Also, the judge in his modification order, as I
recall, noted that in a bizarre way McDermand sought to be humane by killing
the victims with single shots to the head while they were asleep or
otherwise unaware of what was happening.

It was a bit controversial, although maybe less so in Marin County then in
other places with more decided support for the death penalty at that time.

The other case of which I'm immediately aware is _People v. Crew_ (2003),
31 Cal.4th 822, quite a saga! The trial judge actually compared the crime
for which the jury had imposed death with other homicides over the years,
and decided that LWOP fit better. His mistake may have been speaking
candidly about his overall view of the issue, rather than analyzing the
aggravating and mitigating factors and making a few general comparisons, so
as to set a more politically neutral tone. The Court of Appeal actually
overturned his modification and sent the case back to him for a new
decision. As it happened, a different got the case, made new findings on
aggravation and mitigation, and reimposed the jury's decision for death,
which the California Supreme Court sustained.

Wanting to keep this focused on Scott Peterson, I'll say that I find _Crew_
disturbing in various ways, but mainly relevant to Scott only in that they
illustrate reducing a death verdict to LWOP can be very controversial, and
that a judge who does it on the basis of his or her experience with other
cases -- exactly what the _Dixon_ case in Florida says is proper -- could be
subject not only to lots of public opposition but to reversal. (More on the
comparative aspect in my next reply.)

Generally, I'd say that in a typical case reducing death to LWOP wouldn't
undermine confidence in the verdict of guilty: it's a question of the jury
saw the crime as more aggravated than it is for death penalty purposes when
viewed in perspective, or whether there were mitigating factors like Mark
McDermand's near-insanity which really call for LWOP even though there's no
question of guilt (also meaning little if any chance for an insanity
defense).

That possibly could be different in a case like Scott's where reducing death
to LWOP might well be influenced by the "close case" on guilt (to be very
kind to the prosecution). However, if the case on guilt is close at best,
people tend to notice this, I might guess, at least in a well-publicized
case, whether the penalty is death or LWOP.

What stands out to me in Peterson is not that the judge deferred to the
death verdict (business as usual), but that Judge Delucchi couldn't find any
mitigation worthy of consideration. A "legally correct" order would
recognize that Scott's background and character brought into play very
substantial mitigation, but focus on the aspect of "the circumstances of the
crime" that might reasonable inspire special horror, following the
prosecution's type of scenario: the cool and deliberate killing of a
pregnant woman soon to give birth, along with her unborn child. The argument
might be; "Just because Scott Peterson happens to be the husband of one
victim and the father of the other, does that make it less horrible or
heinous?" That's an "anti-domestic discount" argument of the kind a
prosecutor or judge might borrow from Elizabeth Rapaport, whose point isn't
to support the DP, but to question how murders get ranked for heinousness.

However, this kind of "I see no mitigation" approach is evidently quite
common, and in cases where it's even harder to avoid seeing it. For example,
see _People v. Alfaro_ (2007) 41 Cal.4th 1277, 1332-1334. This is the case
of Rosie Alfaro, convicted indeed of the brutal killing of a nine-year-old
girl Autumn Wallace. But we learn that Rosie was herself only 18 at the time
of the crime, the absolute minimum age for the death penalty, and had a
background of violent abuse within her family which led her to become a
heroin addict and prostitute in her early teens, as well as a mother. The
judge found no mitigation at all in any of these factors -- including her
age!!! -- and the California Supreme Court happily added its stamp of
approval.

Because trial judges normally show great deference to juries, and reducing
death to LWOP is likely to be especially controversial, the most notable
thing both here in Scott's case and in Alfaro isn't so much the judge's
decision as his claim that there's _no_ actual mitigation. I can cite some
nice language in U.S. Supreme Court decisions suggesting that should be an
intolerable way of ignoring the law, but winning in court on such a claim
can be very tough.

[marlene]

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.

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.

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.

[marlene]

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

[LACurry]

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.