The Brief

[marlene]

And then there's the underlying assumption that if I have to be able to render the death penalty, I must be expected to render it.

I was a bit surprised that the brief didn't make an issue of the 2nd degree murder for Conner and 1st degree for Laci -- how can you premeditate your pregnant wife's murder for weeks and not know it will kill the baby?

[mschulter]

First, Marlene has made a very good point: the fact that a juror
would be _able_ to return the death penalty, if the law called
for it (actually a very subjective decision under California
law) doesn't necessarily mean that they would be _expected_ to
return it! The majority of California cases where a defendant is
convicted of first-degree murder with one or more special
circumstances actually end in decisions for life without the
possibility of parole (LWOP).

But to get a sense of how Judge Alfred Delucchi has handled
capital jury selection in other cases, I looked at _People v.
Wash_ (1993), 6 Cal. 4th 215, 254-256. There he handles things
the usual way, with jurors being individually questioned to
explore their attitudes on capital punishment and willingness to
follow the law. And the rulings of the California Supreme Court
on five jurors excluded for cause in _Wash_ (finding all five
were correctly dismissed for cause) give a fair sampling of
situations where _Wainwright v. Witt_ (1985) will permit such
exclusion although _Witherspoon v. Illinois_ (1968) as
originally decided and applied often would have barred it.

For example, juror Wiliams said she could only impose the death
penalty on a defendant with a "long history of prior violence."
Jurors Rhoy and Rosu said "I don't know" when asked if they
could actually vote for death in a case where they found it
appropriate under the law. Under the original _Witherspoon_,
Williams might have been difficult to challenge for cause,
because she was willing to consider death in _some_ murder
cases. And Rhoy and Rosu couldn't have been excluded for cause,
because they were unsure of what they might do, as opposed to
_unmistakeably_ committed to vote against death no matter what
the trial might show.

What puzzles me is why Judge Delucchi, quite experienced with
the _Witherspoon_-_Witt_ process, didn't follow the same routine
in the Scott Peterson trial.

[marlene]

http://www.starneslaw.com/pdf/iadc-article.pdf

The California Supreme Court held “a
prospective juror in a capital case may be
discharged for cause based solely on his or
her answers to the written questionnaire if it
is clear from the answers that he or she is
unwilling to temporarily set aside his or her
own beliefs and follow the law.”40 In
People v. Avila, the court held the jury
questionnaire answer alone was sufficient to
dismiss a juror for cause where juror had
indicated that she could not set aside her
personal feelings about the death penalty,
could not follow the law, and would
automatically vote against the death penalty
in every case.41 The court pointed out that
the answer was “sufficiently unambiguous
to allow the court to identify disqualifying
biases on the basis of their written responses
alone.”42 However, in People v. Stewart,
the Supreme Court of California held the
“cold record” of five prospective jurors’
answers to jury questionnaires was
insufficient to support an assessment of
whether the jurors’ views would
substantially impair the performance of
their duties as jurors; thus, dismissal of the
jurors for cause based on their answers to
the jury questionnaire alone was error.43

40 People v. Avila, 133 P.3d 1076, 1105 (Cal. 2006)
(citing Lockhart v. McCree, 476 U.S. 162, 176
(1986)).
41 Avila, 133 P.3d at 1105-06.
42 Id.; see also People v. McDermott, 51 P.3d 874
(Cal. 2002) (upholding dismissal of jurors for cause
in capital case where jurors made statements in
juror questionnaires that would disqualify them
from serving as jurors because views would
“substantially impair the performance of their
duties as jurors”).
43 93 P.3d 271, 290 (Cal. 2004).

[Kyle]

Regarding the jurors dismissed who stated they were opposed to the DP - IIRC, Delucchi (sp? been so long to remember!) handled numerous DP cases during his career. I wonder if this same argument was brought up by others during their appeal process, and if Delucchis' rulings were upheld?

The way Mr. Gardner has it all spelled out is very convincing (to me, anyway).

Found this article ... Let's just say Delucchi's record is pretty good

http://www.sfgate.com/news/article/THE-PETERSON-TRIAL-Profile-Trial-judge-no-2826196.php#page-2

In addition to his personal attributes, Delucchi has shown a remarkable skill for getting it right on the law. Of the seven published appeals-court decisions involving Delucchi's cases, none reverses his rulings.

"He takes some pride in not having been reversed much, and he has been known to mention that," Cole says with a chuckle.

Well, he's overdue, isn't he.

Indeed. I also seem to remember something about a "petri" dish. The old guy knew what he was doing here. JMO

[mschulter]

Thank you, Marlene, for an article giving a fine summary of some of
the recent cases, e.g. _People v. McDermott_ (2002) 28 Cal.4th 946;
_People v. Stewart_ (2004) 33 Cal.4th 425; and _People v. Avila_
(2006) 38 Cal.4th 491. These cases indicate to me that while jurors
might sometimes be subject to disqualification for cause based on
questionnaire replies alone, Judge Delucchi went way overboard in
Scott Peterson's case by the standards of these decisions.

Comparing _Stewart_ and _Avila_ confirms this good news for Scott
Peterson. In _Stewart_, the questionnaire item was written more
narrowly than the one mainly at issue in the Peterson case: it asked
if jurors had beliefs or scruples against the death penalty which
would make it, at the least, "very difficult" for them to follow the
law. The California Supreme Court ruled that "very difficult" wasn't
enough: the judge had to find out if the juror could temporarily set
aside his or her beliefs, as "difficult" as it might be, and only
then rule on whether the juror was "substantially impaired." See
33 Cal.4th 425, 440-455 (2004).

In _Avila_, challenges were sustained because the questionnaire
replies clearly got into territory where a juror would be subject to
challenge for cause if he or she made the same reply on voir dire.
These replies are pretty hard core stuff, most of them even under the
original _Witherspoon_ standard: statements that one would vote
"automatically" for life in the penalty phase, or would always return
a guilt-phase verdict ruling out the death penalty. I must add that
they are very much like what I would answer on such a questionnaire.
And I would be excluded out of hand under any of these standards.

What Judge Delucchi did was to exclude a number of jurors based
simply on a questionnaire reply that they were "opposed" to the death
penalty. Under _Stewart_, even an additional statement that they were
not only "opposed" but would find it "very difficult" to set their
views aside in the penalty phase wouldn't alone have justified such an
exclusion. And _Avila_, the later decision which permitted those
disqualifications based solely on the questionnaire in those hard core
cases (my phrase, not the Court's!), makes it very clear that Judge
Delucchi erred in Peterson, see 38 Cal.4th 491, 529 (2006):

"But neither _Witherspoon_ nor _Witt_ requires that
a prospective juror automatically be excused if he or
she expresses a personal opposition to the death penalty.
Those who firmly oppose the death penalty may nevertheless
serve as jurors in a capital case as long as they state
clearly that they are willing to temporarily set aside
their own beliefs and follow the law. _Lockhart v. McCree_
(1986) 476 U.S. 162, 176; accord, _People v. Rodrigues_
(1994) 8 Cal.4th 1060, 1146."

Quickly, I should add that the _McDermott_ case (2002) had involved a
challenge for cause by the prosecution of two jurors based on
questionnaire replies which, "[a]s defendant recognizes," would
"disqualify them from serving as jurors in this case," 28 Cal.2d 946,
984. There's no discussion of what the questions or answers were, but
evidently both sides agreed that, if accurate, they were a legitimate
ground for disqualification. The Court simply ruled that the trial
judge could rely on them even if these jurors gave different answers
on voir dire, since resolving such "conflicts and contradictions" was
the judge's task, id. at 984.

Thank you, Marlene, for educating me on these cases, which do clarify
the issue without making it any less favorable for Scott Peterson, at
least as to the jurors who said on the questionnaire that they
"opposed" the death penalty but would be able to follow the law. It
would be error to exclude them based only on such replies in voir
dire, and it is equally error to exclude them based solely on the
same replies on a written questionnaire.

[jane]

From "We the Jury:" (Chapter 13)

I wonder how Tom Marino answered his juror questionnaire?

The foreman called for another vote. It was now 11 to 1 for death.
The postman, Tom Marino, Juror No. 2, identified himself as the
hold out.
Marino now wanted each juror to say why he or she chose
death over life. He needed convincing; he also wanted to make sure
everyone was certain about the vote, just as he had done during the
verdict phase.
198
WE, THE JURY
Marino listened carefully. They asked if everybody was ready
for the final vote. Something strange seemed to come over Marino.
Before the final vote was taken, he pulled his chair away from the
table to the corner of the room near the window.
“I saw him pressing his two hands together in a prayer mode
mumbling something under his breath,” Guinasso said. “I reminded
him that his religious views could not be considered according to the
law, and that only aggravating and mitigating factors could determine
the verdict.”
Marino was ready. So were the others.
“This is the reality of it,” Belmessieri said. “Okay, what have
we heard, so far, that says this man has value? We went through the
whole thing. It is expected that a mother and father would beg for
his life, his sisters and brothers, too. We had to dismiss that and take
into consideration what he brought to society.”
The foreman tore off pieces of paper for the ballots.
“The room became very quiet,” Guinasso recalled. “It felt as
if you were in a vacuum. Juror No. 1, Greg Beratlis, was complaining
of chest pains. Other jurors were shaking as they surrendered the
torn pieces of paper to Cap with their decisions. Others started to cry
from the pressure that had mounted.”
Cardosi began reading the tally. Guinasso awaited Marino’s
vote for life.
“Cap,” he said, “counted off death, death, death, death, death,
death, death, death, death, death, death. And death! Mario had
changed his mind.”
It was a unanimous verdict, 12-0.
Marino, the last holdout for life, eventually found what he
heard on Amber Frey’s tapes to be one of the reasons that Peterson
should be recommended for the death penalty.
“The tapes showed that he seemed unconcerned about his
missing wife as if he knew what really happened to Laci and thought
199
WE, THE JURY
he could get away with it,” the postman said. “Why was he still interested
in Amber?”
The tapes showed something else during the penalty phase
because the instructions to the jury were to weigh the mitigating and
aggravating circumstances when considering the death penalty.
“The tapes showed Scott’s actions and attitude to be one that
shows a lack of respect and concern for all parties involved,”
Marino said.
“I think John (Guinasso) said it best when he said off the
cuff, ‘Tom, why are you going to get your religion involved in this
case?’” Belmessieri said. “‘You have a duty and an obligation.’ That’s
how I see it. It is a matter of duty and obligation, not a matter of
personal opinions and personal causes.”

[LACurry]

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

[marlene]

Thanks, LACurry, that's very insightful. I'm anxious to hear any more your husband has to say about the brief.

I do know there is a tension with appellate attorneys about the length of briefs -- they don't want them to be too long because it irritates the Justices. But I think there's some adjustment made for the size of the record -- and in this instance, the record is immense.

Hopefully, the Justices will read the entire brief.

I agree with your husband's point -- if it is accurate as presented, with one modification, if the Justices agree that the defense perspective is the most accurate, but they do give a lot of deference to the conviction, so it's an uphill battle.

Tell your husband a GREAT BIG THANKS!

[LACurry]

Thanks, LACurry, that's very insightful. I'm anxious to hear any more your husband has to say about the brief.

I do know there is a tension with appellate attorneys about the length of briefs -- they don't want them to be too long because it irritates the Justices. But I think there's some adjustment made for the size of the record -- and in this instance, the record is immense.

Hopefully, the Justices will read the entire brief.

I agree with your husband's point -- if it is accurate as presented, with one modification, if the Justices agree that the defense perspective is the most accurate, but they do give a lot of deference to the conviction, so it's an uphill battle.

Tell your husband a GREAT BIG THANKS!

For sure your modification was accurate, Marlene....I suppose I took for granted that it all hinges on what the court perceives as the most accurate. His comment was because he was so tired he did not really look into the entire verse on each point and therefore on many could not give an opinion on whether he agreed or not.

I have to admit, I very much dislike the possibility that the court might not consider all the points in an appeal. But, as I have said, I have kind of seen it with my own eyes when their reply does not quote the law or even cite one case that verifies their opinion that a ruling should stand in favor of the prosecution. That troubles me a whole bunch.

I will tell my hubby thank you and hopefully he will get uncovered from the mound of work he has lately and will be able to read the entire brief and comment further. He did enjoy throwing in how he has told me all these years that the issues I would mention in Scott not receiving a fair trial had nothing to do with what could be contained in the brief. In other words..."I told you so"...lol. I got a kick out of that. There is a huge difference in what a former attorney's mind perceives as error and all the things I would go on and on and on about. LOL!

[LACurry]

Oh gee, I forgot to mention that I informed my husband of the findings of Delucchi not being reversed on any of the DP appeals that have previously gone to court. He said that doesn't matter one bit....an error is an error and in his opinion, he really does think Delucchi erred....if he is correct and the court makes those same findings, they will have no option but to reverse.

What he DID find very interesting was that Delucchi did not handle the jury in the same manner as in other cases, as was mentioned in a post here....that was almost like an alarm going off in his head, if that is indeed factual information. I think an extensive search into Delucchi's prior cases is warranted. The law is the law and it really makes no sense why he would change the way in which he qualified the jury just for this case. I have to admit, that is really bizarre!