Hi everyone. My poor husband arrived home last night, barely able to keep his eyes open, but he kindly allowed me to read to him the basic issues addressed in the appeal and gave me his input on those issues. In order to post his remarks, I copied Janes basic outline of the errors from the other thread (thank you, Jane, this made this task much easier!
). I will post his comments under each issue...in either italics or a different color if I am able. Bless his heart...he was so kind to do this but, he also did it for himself as he has been very curious all these years as to what errors would be addressed. His overall impression is that they were able to raise many VERY good issues that, if correct and accurate (he was so tired he only had me read the error and the basic summary of each error without all the detail of each one although on the Cheng issue and the dog issues, he did have me read most of the backgrounds and info because he found those two very interesting), should reverse this conviction and require a new trial.
Just an added note, my husband is able to read for himself
but he had a very difficult and stressful weekend and when he arrived at home, we had some company that was in dire need of his opinion in a legal matter and by the time they were gone, he literally could not keep his eyes open. But, I did tell him that there were a few people that were curious as to what he thought about the appeal and issues raised. So, to get the info out of him, I read to him.
ERRORS OCCURRING DURING VOIR DIRE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
I. THE TRIAL COURT IMPROPERLY DISCHARGED THIRTEEN
PROSPECTIVE JURORS OVER DEFENSE OBJECTION BASED SOLELY
ON JURY QUESTIONNAIRE ANSWERS SHOWING THAT ALTHOUGH
THEY OPPOSED THE DEATH PENALTY, THEY COULD
NEVERTHELESS CONSIDER DEATH AS AN OPTION. . . . . . . . . . . . . . . . . 72
II. THE TRIAL COURT’S IMPROPER DISCHARGE OF THIRTEEN
PROSPECTIVE JURORS BASED ON THEIR OPPOSITION TO THE
DEATH PENALTY ALSO VIOLATED MR. PETERSON’S EIGHTH
AMENDMENT RIGHT TO RELIABLE GUILT PHASE PROCEDURES,
AND REQUIRES REVERSAL OF THE CONVICTIONS AS WELL . . . . . . 108
III. THE TRIAL COURT IMPROPERLY EXCUSED AN ADDITIONAL 17
PROSPECTIVE JURORS BASED SOLELY ON JURY QUESTIONNAIRE
ANSWERS WHICH DID NOT SHOW THESE JURORS WOULD BE
UNABLE TO SET ASIDE THEIR OPPOSITION TO THE DEATH
PENALTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
IV. BECAUSE THE TRIAL COURT ERRONEOUSLY EXCUSED FIVE
PROSPECTIVE JURORS WHO WERE EQUIVOCAL ABOUT WHETHER
THEIR ATTITUDES ABOUT THE DEATH PENALTY WOULD AFFECT
THEIR PENALTY PHASE DELIBERATIONS, REVERSAL OF THE
DEATH SENTENCE IS REQUIRED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
At first, my husband was quite disappointed to have read that these issues were raised first. He said that in his briefs, he would always put the most important issues first. He was thinking that they were only asking for a re-sentence on these issues and honestly questioned their position in the brief. Most of that is my fault because in trying to answer his question as to what remedy they were seeking, I did not read him the one that listed reversal and only expressed to him the remedy in (1) of re-sentencing, which to him was not, according to him, a remedy option that should have been raised as number 1. But, after learning that some of those issues demaded reversal he can understand how they would have put those there but still does not believe that is one of the strongest points for some reason.
The reason he feels as he does concerning the placement and order of outlined errors in the brief is because he is convinced that the court does not always read through and thoroughly consider the entire brief and points raised. That was a disturbing comment and I asked him why he believes that. His answer is because he has written many appellate briefs and when the court would issue a reply, the reply contained no valid information for denial. In his opinion some of the issues he raised had no valid reason for denial, as outlined by the law. Because of this belief, he said he began to write briefs with the issues going from the most important first, and then going down the brief, even if that meant they were out of chronilogical error. That is still disturbing to me but I have no way of knowing if the belief my husband hold's is true or not. I have read a couple of the replies he had received while an attorney, and in those replies I have noted that there were times in the reply and answer given, it did not contain even one reference to the law or case citing whatsoever and they did not provide an answer as to why his law citings were inaccurate either. ERRORS RELATING TO THE GUILT PHASE . . . . . . . . . . . . . . . . . . . . . . . . . . 148
V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND
VIOLATED MR. PETERSON’S STATE AND FEDERAL
CONSTITUTIONAL RIGHTS BY FORCING HIM TO TRIAL IN A
COMMUNITY WHERE 96% OF THE JURY VENIRE HAD BEEN
EXPOSED TO MASSIVE PRETRIAL PUBLICITY ABOUT THE CASE
AND NEARLY HALF OF ALL PROSPECTIVE JURORS HAD ALREADY
CONCLUDED HE WAS GUILTY OF CAPITAL MURDER . . . . . . . . . . . . . 148
My husband believes this is a very strong point, especially considering they could have moved to LA county where the numbers were not so obviously bleak for Scott getting a fair trial. While he did not believe, years ago, that the Sheppard case is relied on as often these days, he seems to have since changed his opinion on that somewhat although I do not believe he feels this is one of the strongest points. VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, AND
VIOLATED MR. PETERSON’S FIFTH AND EIGHTH AMENDMENT
RIGHTS, BY ADMITTING DOG SCENT IDENTIFICATION EVIDENCE
THAT PROVIDED CRITICAL FACTUAL SUPPORT FOR THE STATE’S
THEORY OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
VII. THE TRIAL COURT CREATED AN UNCONSTITUTIONAL
PRESUMPTION, AND LIGHTENED THE STATE’S BURDEN OF PROOF
BEYOND A REASONABLE DOUBT, BY TELLING THE JURY IT
COULD INFER MR. PETERSON WAS GUILTY OF MURDER BASED
ON (1) THE DOG TRACKING EVIDENCE AND (2) ANY EVIDENCE
WHICH SUPPORTS THE ACCURACY IF THAT EVIDENCE . . . . . . . . . . . 239
This one is one of my husband's favorite points. He believes that if everything stated is true and accurate as presented in the brief, the court MUST reverse on this error. He referred to it as a "no brainer" and "an extremely damaging error" VIII. THE ERROR IN INSTRUCTING THE JURY WITH CALJIC NUMBER
2.16, PERMITTING THE JURY TO CONVICT IF IT FOUND THAT THE
DOG TRACKING EVIDENCE WAS CORROBORATED BY OTHER
EVIDENCE, WAS COMPOUNDED BY THE COURT’S FAILURE TO
INFORM THE JURY THAT IT COULD RELY ON THE DOG TRACKING
EVIDENCE TO ACQUIT, AS WELL AS TO CONVICT . . . . .
According to my husband, another "no brainer" although I didn't get the impression that he felt it was as strong of a point as the previous one.IX. THE TRIAL COURT VIOLATED BOTH STATE AND FEDERAL LAW
BY ADMITTING EXPERT “SCIENTIFIC” EVIDENCE, BASED ON
WHERE CONNER’S BODY WAS FOUND, TO INFER THAT CONNER
WAS PLACED IN THE WATER WHERE MR. PETERSON HAD BEEN
FISHING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
Now this was interesting. My husband had me read almost this entire section. To be honest, I think he feels this is one of the most convincing points. To him, the gist of it is that if Cheng could not duplicate his "science" to display a trajectory for Laci, as he did in Conner, then it is not reliable at all. Reliable and scientific methods can always be duplicated, even if one would have to change them slightly to adjust for the "variables" mentioned.X. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, AND
VIOLATED MR. PETERSON’S FIFTH AND SIXTH AMENDMENT
RIGHTS, IN (1) EXCLUDING CRITICAL DEFENSE EVIDENCE
UNDERCUTTING THE STATE’S THEORY OF THE CASE, (2)
REFUSING TO ALLOW DEFENDANT TO EXAMINE EVIDENCE
ABSENT THE PRESENCE OF STATE PROSECUTORS AND (3)
REFUSING TO GRANT A MISTRIAL AFTER THE JURY ITSELF
PERFORMED AN EXPERIMENT DURING DELIBERATIONS . . . . . . . . . 297
This is the other section that he needed to review almost every word in the brief. He is iffy, at best on point one. He does wonder why Geragos chose who he did to conduct the experiment with. Why? I guess I don't fully understand the explaination he gave for those feelings so I cannot and do not want to put words into his mouth. Maybe I can get him to explain it further at a later time.
As far as point number 2, he stated that it is his opinion that defense could have examined the evidence (Scott's boat) in an effort to get measurements, weight, vitals and other comparable information to aid them in providing the court with a proven comparison with the experiment boat, whether the prosecution was present or not. He said in doing that, instead of just using "the same model" as the comparison marker, he could have assured the court that indeed the boats were virtually the same. The prosecution would not have needed to be present to conduct the experiment with the "other" boat because they would have had the proof, even if gained in the presence of the prosecution, that these boats were virtually identical, if they actually were. Thus, his conclusion was that this was not as strong a point as others.
As far as the jurors conduction of the experiment, by being allowed to get inside the boat, we have here another "no brainer, in my husband's opinion. He was amazed to learn that all those people were present and yet the jurors were allowed to get inside that boat. I believe he tried to express that when a juror conducts any kind of experiment with evidence, they place themselves as being more of a witness which renders them inable to complete their duties as a "juror". Point 3 was another very strong point for him. The bottom line, jurors are not and should not ever be allowed to conduct an experiment of any kind. XI. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT
AND VIOLATED DUE PROCESS BY URGING THE JURY TO REJECT
THE DEFENSE THEORY AND CONVICT MR. PETERSON OF FIRST
DEGREE MURDER BECAUSE DEFENSE COUNSEL DID NOT
PRESENT DEMONSTRATIVE EVIDENCE SHOWING THE
INSTABILITY OF MR. PETERSON’S BOAT WHEN, IN FACT, THE
TRIAL COURT HAD EXCLUDED THIS VERY EVIDENCE AT THE
PROSECUTOR’S OWN REQUEST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
My husband also liked this one and believed it to be VERY strong, if it went down exactly as explained in the brief.XII. THE TRIAL COURT ERRED IN DISCHARGING JUROR 5 FOR
DISCUSSING THE CASE IN VIOLATION OF THE COURT’S
ADMONITION BUT THEN REFUSING TO DISMISS OTHER JURORS
AND ALTERNATES WHO ADMITTED THEY TOO HAD DISCUSSED
THE CASE IN VIOLATION OF THE IDENTICAL ADMONITION . . . . . . . 351
Another VERY strong point in this issue. As far as my believing that the Dr./Lawyer should not have been allowed to leave his jury duty, my husband said the words used in the note written to the judge in an effort to explain the reason he felt he could not longer complete his duties made it obvious he had to go and if they would have kept him, a reversal would have been required. XIII. THE TRIAL COURT’S FAILURE TO CONDUCT AN ADEQUATE
HEARING IN DETERMINING WHETHER JUROR 8 DISCUSSED THE
CASE WITH A NONJUROR REQUIRES REMAND . . . . . . . . . . . . . . . . . . . 386
My husband didn't have me go into the details on this issue or the errors relating to the penalty phase because these errors would not receive the remedy of reversal and he feels would only take the death penalty off the table. His main concern were the errors that would require a new trial. He did say these errors had to be listed because, at worst, if there is not relief granted on the other errors, they can then go to these and at least save Scott's life.ERRORS RELATING TO THE PENALTY PHASE . . . . . . . . . . . . . . . . . . . . . . .
398
XIV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR, AND
VIOLATED MR. PETERSON’S RIGHTS UNDER THE FIFTH, SIXTH,
EIGHTH AND FOURTEENTH AMENDMENTS, WHEN IT REFUSED TO
SEAT A NEW PENALTY PHASE JURY AFTER THE JURORS WHO
CONVICTED MR. PETERSON OF MURDER WERE APPLAUDED BY
WILDLY CHEERING MOBS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
XV. THE TRIAL COURT ERRED IN PRECLUDING MR. PETERSON FROM
PRESENTING RELEVANT MITIGATING EVIDENCE WHICH COULD
HAVE SERVED AS A BASIS FOR A SENTENCE LESS THAN DEATH . . 410
XVI. BECAUSE THE CALIFORNIA CAPITAL SENTENCING SCHEME IS
UNCONSTITUTIONAL IN NUMEROUS RESPECTS, MR. PETERSON’S
DEATH SENTENCE MUST BE REVERSED . . . . . . . . . . . . . . . . . . . . . . . . . 424
jane Posts: 26Joined: Fri Oct 10, 2008 5:07 pm