The Brief

[marlene]

LACurry, you and I have the same problem -- being able to differentiate what goes into a direct appeals brief and what goes into a habeas appeal brief. Most of the things I've focused on, such as the information about the Conner Recovery site that was not presented at trial, will go in the habeas brief. Although I do hope Cheng gets thrown out by the direct appeal, simply because no professional should even venture into areas outside his expertise. He should have simply said, I don't have the expertise to predict the movement of bodies in water. Instead he gave them that high probability area and who knows how many thousands of dollars they spent on those searches of that area.

[LACurry]

LACurry, you and I have the same problem -- being able to differentiate what goes into a direct appeals brief and what goes into a habeas appeal brief. Most of the things I've focused on, such as the information about the Conner Recovery site that was not presented at trial, will go in the habeas brief. Although I do hope Cheng gets thrown out by the direct appeal, simply because no professional should even venture into areas outside his expertise. He should have simply said, I don't have the expertise to predict the movement of bodies in water. Instead he gave them that high probability area and who knows how many thousands of dollars they spent on those searches of that area.

Not only that Marlene, but during the actual proceedings, the minute he stated he had never studied the movement of bodies in the water, and the minute he stated on the record that he had no expertise in the movement of bodies in the water, Delucchi should have halted the proceedings and did something about the objections raised during his testimony, in my opinion. If he were an expert in reliable and scientific methods used to track bodies, it makes no sense why he could not offer up some valid and reasonable answer as to why he could not form a trajectory for Laci, even if there were "variables". I would think a scientific and reliable method would have some built in adjustment for any such "variables". JUNK science is an understatement.

As far as all the things I have been discussing with my husband over the years, I still feel they were ALL important. A shoddy investigation to me is just as important as an error at trial. It might not have any legal remedy but still....in my husband's eyes, only those matters that had legal remedy were worth talking about. I liked to talk about it all. In all honesty, I had to vent many times because I could just see how one sided this whole thing was from the get-go.

[jane]

LACurry, many thanks to you and your husband for taking the time to go through the points in the brief! After reading what he had to say, I'm feeling very optimistic, except for the part about the judges not reading all the brief. I think they had better read this one word by word, because the next step is the Supreme Court.

[marlene]

mschulter - do you have access to the appeals on Delucchi's cases? Are they available online?

[LACurry]

Not sure this has been posted elsewhere on the forum, but it is an interesting article on Delucchi. Particularly interesting is the colored text paragraph I have highlighted....I wonder what he is referring to? I am out to search for that one reversal too....I want to read the entire brief on that one and find the facts.



Alfred Delucchi ’60

Deceased

In more than three decades on the bench, Judge Alfred Delucchi ’60 has suffered only one reversal. His enviable record, he says, is linked to the insights he gained by being both a prosecutor and a defense attorney. He appreciates the role of lawyers. "I don’t like to be the centerpiece of the trial," he says. "I like to let the lawyers try their case." That demeanor, along with his willingness to pull the plug when lawyers go too far, didn’t escape notice when it came time to appoint a judge for the lurid murder trial of Scott Peterson. One prosecutor reacted emphatically when he learned of the appointment.

"I said, ‘The Peterson case has a real judge,’" said Tom Burke ’73, J.D. ’83, an Alameda County deputy district attorney who has interacted with Delucchi at the courthouse in Hayward. "Judge Delucchi is what you would hope to have if you walked into a trial as a juror or a spectator and wanted to see how the process works. He talks, acts, and reasons like a judge. He makes decisions that, whether a lawyer agrees with him or not, allow the trial to move forward."

Or as prominent defense attorney Michael Cardoza told Santa Clara Law, "He has a great judicial temperament." This is a telling observation from a lawyer whose TV commentary was silenced by a Delucchi gag order (because Cardoza helped prep Scott Peterson for cross examination). "He treats lawyers with respect," Cardoza said, but also, "He’s not afraid to take care of a problem …swiftly and with power."

That Delucchi would preside at the Peterson trial was never a foregone conclusion. He was tapped only after disqualification of Judge Richard Arnason. Officially retired in 1998, Delucchi was in the mix because he sits on assignment to superior court in Alameda County. By the time he walked into the Peterson trial, he had 22 capital cases under his belt, experience that helped him ride herd on the trial’s tumultuous twists.

The media attention was more than Delucchi ever imagined back when he applied to Santa Clara’s law school from a ship at sea while in the Navy. Serving out his ROTC commitment after graduating from U.C. Berkeley in business and economics, he took an interest in law thanks to some law school-bound Naval buddies. "Being a judge was not my career goal," he says. "I just wanted to get out and practice law and do the best I could." He was in private practice in 1971 when a chance encounter with a local power broker launched him to appointment to the bench by then Gov. Ronald Reagan.

Delucchi is known to attorneys as approachable and affable. "Some judges will cut you off. Others will give you a fair hearing. He bent over backwards to give both sides an opportunity to be heard," and to allow Peterson a fair trial for the murder of his pregnant wife and unborn son, said Jim Hammer, a former San Francisco prosecutor. Hammer observed the Peterson trial as a TV analyst and remembered Delucchi as "one of the greats" back when Hammer was a greenhorn in the Alameda County district attorney’s office. He said the chilling moment when Delucchi sentenced Peterson to death was revealing. "You could sense the weight of the moment on him and he showed it. You could feel the humanity and hear it in his voice that this was a very awesome moment. He didn’t do it cavalierly.

Devoted to his wife of 39 years, Gloria, and their two adult children, Delucchi is known for his low-key humor. His friend, Judge Julie Conger, recalls when a covey of defendants shuffled into his arraignment court, one of them mummy-like in bandages and bruises. Delucchi surveyed the group and deadpanned, "Let me guess…which one of you is accused of assaulting a police officer?" Delucchi refuses press interviews but he made an exception for Santa Clara Law, with the stipulation that he could not discuss the Peterson case, which is on appeal.

Q. Growing up in Oakland, what did your family anticipate for you?

A. My mother came from Italy. All my grandparents came from Italy. My father was a partner in the Oakland Scavenger Company…collecting garbage. I can remember my grandparents telling me how lucky I was to be born in this country, and I should take advantage of the opportunities afforded to me. I was the first one in my family who went to college.

Q. Is it true you had to be talked into taking the Peterson case?

A. Let’s say I was reluctant to take it.

Q. Why?

A. I’m retired. I was here in Hayward doing arraignment calendar. I was comfortable with that. I thought I had done my share of capital cases.…Then there were a few phone calls from the presiding judge asking me if I would be interested if there was a change in venue, and in the words of Samuel Goldwyn I said, "You can include me out."

When they challenged Arnason, I got sort of that sinking feeling. I got a call that the [California] chief justice wanted me to try this case, so I said fine.

Q. How do celebrity lawyers change the courtroom dynamic for you as a judge?

A. I try to treat larger-than-life lawyers the same as I treat any other lawyers. A lot of these celebrity lawyers are very good lawyers…. I try to be polite to the lawyers. I try to be considerate of juries. I try to be decisive. I try not to be arbitrary. I try to be dignified, and to listen to what they have to say and rule accordingly to keep the trial moving.

Q. Your voice caught when you were sentencing Peterson to death—

A. I know what you’re driving at and I can tell you I’ve sentenced seven people to die and every time I do it I get a lump in my throat. It’s not easy. If you’re not affected, you’re not a human being. You’re sitting there condemning somebody to die. That’s an awesome amount of power that you have. It’s a decision that the jury made but still it comes right down to you then. Usually in a capital case you spent months with the defendant. You see him or her every day. You know it’s going to affect their families, their parents. You also know how the victim’s death has affected that person’s family. It’s not something I look forward to.

Q. Is there empathy for the defendant?

A. Well, you certainly know a lot about the defendant because you heard everything in the case, and in the penalty phase you hear all about the good characteristics that he has. And then you always have the aggravating factors, the nature and circumstance of the crime. Some of these are very vicious crimes. It’s just the fact that you’re looking someone in the face and saying, "I’m sentencing you to die in San Quentin." It’s an emotional, draining experience.

Q. Do you ever feel after so many years on the bench that you’ve heard it all?

A. You learn something new every day when you’re a judge..

Q. How has the view from the bench changed during your career?

A. Cases now are a little more complicated. You have more sophisticated methods of law enforcement and you have more pre-trial motions now. You have advances in technology, like DNA, that didn’t exist before. Attorneys are obliged to pursue all these issues.

Q. What’s the strangest or wackiest thing you’ve seen in a trial?

A. I’d have to refer to the Scott Peterson case and I can’t do that. But I’ve had some strange cases: A guy scalped his girlfriend. You don’t get too many scalping cases that come down the line. And another case I tried that was bizarre was the woman who murdered her sister and cut her up in three pieces and stored her in the freezer. I’ve had my share of grisly cases.

Q. What is the role of humor in the courtroom?

A. The judge should not be clowning around in the courtroom. Neither should the attorneys. But if you’re in a trial that’s going to take six or seven months, you cannot keep humor out of it because some witness is going to say something funny and something might go haywire with an exhibit and things happen. I remember when I was voir diring one juror in a case, explaining to her that this trial was going to take five or six months, and she said, "My husband was hoping I would get selected to serve on this jury because then he would have some peace and quiet."

Q. Is there benefit to the intense media surrounding some trials?

A. The public has a right to know what’s going on in their courts. I am not an anti-First Amendment person….but you have this tension between the public’s right to know and the defendant’s right to a fair trial and that’s the judge’s responsibility—to see that the defendant gets a dignified and restrained trial and that he gets a fair trial.

Q. You’re retired but you still sit on superior court assignment. Why?

A. Because I still have a lot of energy. And as long as I still have my marbles and if I can still be useful, the experience that retired judges offer is important.

[LACurry]

LACurry, many thanks to you and your husband for taking the time to go through the points in the brief! After reading what he had to say, I'm feeling very optimistic, except for the part about the judges not reading all the brief. I think they had better read this one word by word, because the next step is the Supreme Court.

You are welcome.

I agree about the not reading the entire appellate brief...that is frightening to say the least.

I too am optimistic after talking to my husband. The main reason why I am more optiistic now is because he usually takes a very fatalistic approach to these kinds of things. I don't know if that is the former attorney in him or exactly what it is but it takes a lot for him to admit there is even a chance in a case. He has to be absolutely certain or he will express a negative opinion on such things. His approach could be the way good lawyers have to think to win their case possibly I don't really know but I know he has seen a lot and has experienced a lot that contributes to this attitude and approach. I find that both frightening and sad at the same time... but our system is what it is and I know (and think we all know) it is not without problems but I also believe that many people are not really aware of how wrong and how crooked the system can be, at times. My husband would probably say "ALL the time."

[marlene]

I hope you find it, LACurry -- if you find any of his appeals, I'd like to read any of them.

[jane]

The conclusion to the brief is so short that I missed it. It should have been included in the Outline, p. 427. Here it is:

CONCLUSION
For all these reasons, Mr. Peterson respectfully request that a new trial be granted
as to both guilt and penalty.

*********

Is there any way that he could ask them to throw out the conviction completely and let him go free? Or would the judges do this on their own if they agreed that the case is so flawed that it is beyond redemption? What would that be called? A reversal with prejudice, perhaps.

[LACurry]

I hope you find it, LACurry -- if you find any of his appeals, I'd like to read any of them.

Not finding it yet and have been looking this entire time....I am wondering now if the case that was reversed might contain an "unpublished" opinion? And, while I am on that subject, does anyone know the rules for an appellate court in determining an opion as to published or unpublished?

[mschulter]

mschulter - do you have access to the appeals on Delucchi's cases? Are they available online?

Good question! The method I used was to Google "Delucchi 190.2" (without the quotes), which turned up _People v. Wash_ (1993). The trick is that 190.2 refers to California Penal Code Section 190.2, which defines the "special circumstances" or categories of first-degree murder subject to a penalty of death or life without parole (LWOP). Almost every decision of a death penalty case on direct appeal in the California Supreme Court is likely to cite Section 190.2 in stating the special circumstance(s) of which the defendant was convicted.

Also, findlaw.com is a good source for California appellate decisions; but there could be better online search strategies, and I'm speaking only as a layperson.