The Brief

[LACurry]

There are lists in Appendix A and Appendix B at the end of the brief after p. 427. Do you understand the significance of the lists?

Appendix A
Question 95 on the juror questionnaire asked prospective jurors if they had formed
any “opinions about the guilt or innocence of the defendant, Scott Peterson.” As of the
date of the second venue change motion, more than 400 jurors admitted to having formed
an opinion in the case.1 Of the jurors who had formed an opinion on guilt or innocence, only 1% believed Mr. Peterson was innocent while 99% (all but 5 prospective jurors)
believed he was guilty.2 Of the hundreds of prospective jurors who concluded Mr.
Peterson was guilty, 364 answered question 98, which asked whether they could set aside
the views they had already formed. Less than half of the jurors said they were willing to set aside their view that Mr. Peterson was guilty.3 More than half -- 51% -- refused to set aside their views.4

Appendix B
Question 95 on the juror questionnaire asked prospective jurors if they had formed
any “opinions about the guilt or innocence of the defendant, Scott Peterson.” After the
date of the second venue change motion, 259 jurors admitted to having formed an opinion
in the case.1 Of the jurors who had formed an opinion on guilt or innocence, only 1% believed Mr. Peterson was innocent while 99% (all but two prospective jurors) believed he was guilty.2 Of the 257 prospective jurors who concluded Mr. Peterson was guilty,
229 answered question 98, which asked whether they could set aside the views they had
already formed. Less than half of the jurors said they were willing to set aside their view that Mr. Peterson was guilty.3 More than half -- 50.2% -- refused to set aside their views.4

Yes, I believe I do. However, this could also fall into an explanation of why the judge did what he did as far as excusing the ones he felt were not able to be fair, based on their answers to the questionnaire alone. When msking the decision to exclude or not, the Judge does not have to rely on questions pertaining only to the DP, but could rely on any and all of them in making his determination. For example, if he were to find a juor that stated he opposed the death penalty, and also answered that he was very liberal in his political beliefs, I believe that would have been enough for Delucchi to exclude him...but I am not certain of that.

Another issue I question is if it would harm Scott by Geragos not using all of his challenges to particular jurors. I know they explained that in the brief but, in fact, voire dire did take place and most likely with all those not excluded by the questionnaire, at least until the jury was seated. Because Geragos did not use all his challenges, I am wondering if they can now say Scott was prejudiced. More research needed. I might be here reaching the appeal longer than anticipated...I am only on the juror issues...there are a lot more issues I need to learn about.

In reading many of these cases, I am getting a different feeling than I previously had....however this does not mean anything other than, in my personal opinion, I am beginning to wonder if this is as strong an issue as I previously had. Also, I feel that Delucchi's departure from years of Trial habit is alarming...and quite possibly telling. Although that is not something the opinion will be based on...In fact, I am 99.9% sure that fact will not even be thought of.

[LACurry]

I feel like a ping pong ball...lol. In reading the NC guidelines, it makes me feel a tad better.....but, I want you all to know that waiting until 2015 for a reply is going to make me very anxious

[marlene]

I don't understand the claim that because challenges were left unused, that therefore the defendant has no legitimate complaint about how the jury turned out. I think it's like someone saying that a boss could never fire someone simply because s/he approved of that person at the hiring. Attorneys are not mind readers, and some people are quite good at conveying the wrong impression -- and voir dire for each juror didn't last that long. And the same could be said for Falconer and Jackson -- the State approved them, so the State has to live with them. So no juror could ever be dismissed and there wouldn't be such a thing as juror misconduct because, after all, they went through voir dire and were "hired."

What it all really boils down to is the great amount of deference given to the trial -- appeals courts HATE to overturn. It's a total myth that appeals courts are looking for every least little technicality to overturn.

[LACurry]

I don't understand the claim that because challenges were left unused, that therefore the defendant has no legitimate complaint about how the jury turned out. I think it's like someone saying that a boss could never fire someone simply because s/he approved of that person at the hiring. Attorneys are not mind readers, and some people are quite good at conveying the wrong impression -- and voir dire for each juror didn't last that long. And the same could be said for Falconer and Jackson -- the State approved them, so the State has to live with them. So no juror could ever be dismissed and there wouldn't be such a thing as juror misconduct because, after all, they went through voir dire and were "hired."

What it all really boils down to is the great amount of deference given to the trial -- appeals courts HATE to overturn. It's a total myth that appeals courts are looking for every least little technicality to overturn.

I agree in principle, on most parts, Marlene. I just don't know if the courts will see it that way. Misconduct is another thing in and of itself, I would think.

But, if a peremptory challenge is not used, they know full well the juror is in. I would think they would need to use those challenges to preserve their right on appeal. The jurors that were dismissed were just that, and they did not serve on the jury. I just dont know how the courts will read that. Was Scott harmed by the exclusion of the potential jurors ... Or was he harmed by the jurors that were chosen in the end, whether challenged or not? The judge, when dismissing the first round of potential jurors, stated he was following the law in CALIFORNIA, which, when you read it, does not sound like he was incorrect:

California Code Section 223

In a criminal case, the court shall conduct an initial
examination of prospective jurors. The court may submit to the
prospective jurors additional questions requested by the parties as
it deems proper. Upon completion of the court's initial examination,
counsel for each party shall have the right to examine, by oral and
direct questioning, any or all of the prospective jurors. The court
may, in the exercise of its discretion, limit the oral and direct
questioning of prospective jurors by counsel. The court may specify
the maximum amount of time that counsel for each party may question
an individual juror, or may specify an aggregate amount of time for
each party, which can then be allocated among the prospective jurors
by counsel. Voir dire of any prospective jurors shall, where
practicable, occur in the presence of the other jurors in all
criminal cases, including death penalty cases. Examination of
prospective jurors shall be conducted only in aid of the exercise of
challenges for cause.
The trial court's exercise of its discretion in the manner in
which voir dire is conducted, including any limitation on the time
which will be allowed for direct questioning of prospective jurors by
counsel and any determination that a question is not in aid of the
exercise of challenges for cause, shall not cause any conviction to
be reversed unless the exercise of that discretion has resulted in a
miscarriage of justice, as specified in Section 13 of Article VI of
the California Constitution.

[marlene]

but the way I see it (and I again admit, I don't think like a judge) the defense would choose the acceptable jurors, and identify non-acceptable jurors. It may well be that they didn't see enough unacceptable jurors to use up all their exemptions, OR the other ones they would have dismissed simply didn't come up soon enough in the process.

See, IIRC, the process was a lottery-type -- numbers were chosen at random, and they appeared as chosen. Once they seated 12 jurors and 6 alternates, they stopped the process. It could be that some of the jurors, had they been selected by the lottery to appear first, would have used up all of their challenges. Llet me phrase it with an example. There are 150 jurors. I plan to use all of my peremptory challenges, but enough of the jurors that both I and the other side approve of appeared first that I didn't have to use all of my challenges. And IIRC, neither did the State. I wonder if there is any record preserved by Geragos and/or his juror consultant to indicate that he had indeed marked for challenge enough of the jury pool to have used up all of his challenges. And I wonder how often it is in capital cases that each side uses up all of its challenges? I would think it wise for a defense counsel to carefully weigh all of the potential jurors so they are not left with running out of challenges and having to accept someone they had more objection to than another juror who appeared earlier in the lottery process.

[LACurry]

but the way I see it (and I again admit, I don't think like a judge) the defense would choose the acceptable jurors, and identify non-acceptable jurors. It may well be that they didn't see enough unacceptable jurors to use up all their exemptions, OR the other ones they would have dismissed simply didn't come up soon enough in the process.

See, IIRC, the process was a lottery-type -- numbers were chosen at random, and they appeared as chosen. Once they seated 12 jurors and 6 alternates, they stopped the process. It could be that some of the jurors, had they been selected by the lottery to appear first, would have used up all of their challenges. Llet me phrase it with an example. There are 150 jurors. I plan to use all of my peremptory challenges, but enough of the jurors that both I and the other side approve of appeared first that I didn't have to use all of my challenges. And IIRC, neither did the State. I wonder if there is any record preserved by Geragos and/or his juror consultant to indicate that he had indeed marked for challenge enough of the jury pool to have used up all of his challenges. And I wonder how often it is in capital cases that each side uses up all of its challenges? I would think it wise for a defense counsel to carefully weigh all of the potential jurors so they are not left with running out of challenges and having to accept someone they had more objection to than another juror who appeared earlier in the lottery process.

As my husband just stated to me, it doesn't matter, in his opinion, because the judge got rid of all the fair jurors by an unfair means without case law to back it up. He says that would require reversal....period. But, then I read him the state code 223 and he said....oh, then Scott is done. I asked him why and he said because he is convinced that California code is codiciled to federal code. But, I think he might be wrong in that....I am going to look it up now...I may never finish researching the brief at this rate...lol

[jane]

Isn't the problem that only death qualified jurors were subjected to voir dire?

[LACurry]

Not good.....
28USC chapter 121
The chief judge of the district court, or such other district court judge as the plan may provide, on his initiative or upon recommendation of the clerk or jury commission, or the clerk under supervision of the court if the court’s jury selection plan so authorizes, shall determine solely on the basis of information provided on the juror qualification form and other competent evidence whether a person is unqualified for, or exempt, or to be excused from jury service. The clerk shall enter such determination in the space provided on the juror qualification form and in any alphabetical list of names drawn from the master jury wheel. If a person did not appear in response to a summons, such fact shall be noted on said list.

But, case law takes precedence and because each state has their own laws regarding the death penalty, I still believe case law is going to take precedent over any state code or US code....but who knows, I don't think like a judge either....and around and around I go. I think I am going to put faith in what Gardner wrote and hope for the best and stop looking for reasons to back my fears in this case.

[LACurry]

Isn't the problem that only death qualified jurors were subjected to voir dire?

I think the problem is that he excused from service 30 some jurors that he did not believe we're death qualified. I really don't know if he kept any that he didn't think were qualified. His interpretation of qualified, however, differs greatly from abundant case law and even by his actions in all the other death penalty cases that went to appeal.

[LACurry]

Let me state on the record that while I find the law fascinating, I am very glad I went into accounting where the day to day work is never this Ambiguous....and the research is less involved in an audit.