Amicus idea: _Halliwell_ and _Godfrey_ cases

[mschulter]

One theme for an amicus brief focusing more closely on death penalty issues
raised by the specific facts of Scott Peterson's case -- or rather the
not-so-specific hypotheses of the prosecutor's case -- is some persuasive
precedents against focusing on the state of the bodies of murder victims
when found, or the defendant's conduct in concealing these bodies, as an
acceptable basis for a death sentence.

(1) _Halliwell v. State_ (Florida 1975)

A classic case is _Halliwell v. State_, 323 So.2d 557 (Fla. 1975). Thomas A.
Halliwell, a "highly decorated Green Beret in Special Forces in the Vietnam
war," had killed Arnold Tresch, the husband of Halliwell's paramour Sandra
Tresch, after the victim bragged of beating her. As the Florida Supreme
Court summed up the facts: "[T]he crime arose from a love triangle in which
the Appellant flew into a violent rage after the husband of the woman he
loved had beaten her." Id., 323 So.2d at 561.

Halliwell, a muscular diver, had in his rage "grabbed a 19-inch breaker bar"
and quickly struck the fatal blows to the victim's head, "and then continued
beating, brusing, and cutting the husband's body" in his uncontrollable
fury. The Court noted that while this conduct met Florida's standard for
premeditated murder, "we see nothing more shocking in the actual killing
than in a majority of murder cases reviewed by this Court." Id. at 561.

A quick aside: some of us may ask whether a killing, however intentional,
arising from a "violent rage" and carried out with uncontrollable passion
rather than cool calculation really meets the full sense of "premeditation"
as it should best be understood. To me, it feels more like what a typical
second-degree murder should be: an intentional or wanton killing where any
provocation present is insufficient to reduce the crime to manslaughter, but
there isn't preplanning. Classic illustrations of the "first-degree" concept
at the time of its invention were murders by poisoning or lying in wait
(Pennsylvania 1794), with Virginia in 1802 adding murder by "starving,"
something difficult to accomplish in a quick fit of passion.

Whatever we think of Florida's rather broad concept of "premeditation,"
however, the issue here is Halliwell's death penalty, imposed by agreement
of the jury and trial judge. The Florida Supreme Court offers a likely
explanation:

"The attainment of a new depth in what one man can do to another, even
in death, occurred several hours after the killing when Appellant used
a saw, machete, and fishing knife to dismember the body of his former
friend and placed it in Cypress Creek. It is our opinion that when
Arnold Tresch died, the crime of murder was completed and that the
mutilation of the body many hours later was not primarily the kind of
misconduct contemplated by the Legislature in providing for the
consideration of aggravating circumstances. If mutilation had occurred
prior to death or instantly thereafter it would have been more
relevant in fixing the death penalty." Id. at 561.

Having put aside this spurious "aggravation" relating not to the killing but
to Halliwell's later treatment his victim's body, the Court concluded:

"As required by statute, we have weighed both the aggravating and the
mitigating circumstances as shown in the record, and we conclude that
the death penalty is not warranted." Id. at 561.

This is one of the relatively rare cases where a state appellate court has
reduced a death sentence to life imprisonment after reviewing the balance of
aggravation and mitigation, despite the judgment of the trial judge as well
as the jury.

Given the graphic exhibits presented to Halliwell's jury, including
"gruesome pictures of the victim's body," the Court found it not so
surprising that jurors took "only thirty-five minutes to recommend the death
penalty." The admission of the photographs as evidence was quite
justifiable: "Those who create crimes of violence must often face the record
their deeds in court." But the death penalty was reduced to a more
proportionate sentence of life imprisonment without parole eligibility for
the first 25 years. Id. at 560-561.

Similarly, under the prosecution's theory of the crime in the case of Scott
Peterson, "the crime of murder was completed" once Laci Peterson and Conner
Peterson were dead. The disposal of their bodies in the Bay, without the
grisly mutilation present in _Halliwell_, thus should not properly be
considered among the "circumstances of the crime," California Penal Code
Section 190.3 (a), which might justify the unique penalty of death.

Indeed the surreptitious burial in the Bay, in contrast to Halliwell's
disposal of his victim's remains in Cypress Creek, involved no further act
of "violence," in the sense of disfigurement or mutilation, even to the
lifeless bodies. The essence of the act, however inexpertly performed, would
be similar to that of a whole-body burial at sea.

In _Halliwell_, although the gruesome photographs of the victim's
dismembered body were necessary to document the crime, the Court correctly
concluded that they had the not unpredictable effect of suggesting to the
jury a torturous crime when in fact the victim had already died, and thus
was incapable of suffering further physical harm. Whether or not this was
the intention of the prosecution, seeing the effects of Halliwell's saw on
human flesh may have causes jurors to imagine the same instrument applied to
a living and feeling victim. To correct the arbitrariness thus introduced
into the penalty phase, the Florida Court reduced the death sentence to life
imprisonment.


(2) _Godrey v. Georgia_ (United States Supreme Court, 1980)

The case of _Godfrey v. Georgia_, 446 U.S. 420 (1980), like _Halliwell_,
involved a gruesome crime scene. The defendant Robert Franklin Godfrey,
after 28 years of marriage, had had an altercation with his wife Mildred
Godfrey after drinking seven cans of beer in which he threatened her with a
knife and used this weapon to cut some clothes off her body. She left to
live with relatives, pressed charges for aggravated assault in connection
with the knife incident, and also filed for divorce. The defendant asked her
to return, unsuccessfully. In what proved to be a fateful telephone call,
she made it clear that "reconciliation was out of the question," and also
persisted in asking for "all the proceeds from the sale of their house," a
position which she mentioned was supported by her mother, Chessie Wilkerson,
with whom she was now staying. See 446 U.S. at 425 (plurality opinion of
Stewart, J.), and id. at 444 (White, J., dissenting).

The plurality opinion then describes what happens as follows:

"At this juncture, the petitioner got out his shotgun and walked
with it down the hill from his home to the trailer where his
mother-in-law lived. Peering through a window, he observed his
wife, his mother-in-law, and his 11-year-old daughter playing a card
game. He pointed the shotgun at his wife through the window and pulled
the trigger. The charge from the shotgun struck his wife in the
forehead and killed her instantly. He proceeded into the trailer,
striking and injuring his fleeing daughter with the barrel of the
gun. He then fired the gun at his mother-in-law, striking her in
the head and killing her instantly." Id. at 425.

The assailant, having killed his wife and mother-in-law and injured his
daughter, who escaped, then called the local sheriff and surrendered. In a
later statement to a police officer, Godfrey make it clear that his crime
was neither unpremeditated nor, at the time he spoke, a matter for remorse:

"`I've done a hideous crime..., but I have been thinking about it
for eight years.... I'd do it again." Id. at 425-426.

In _Godfrey_, the constitutional question was whether this double murder
satisfied an interpretation of the only aggravating circumstance making the
defendant eligible for the death penalty under Georgia law: "that the
offense of murder was outrageously or wantonly vile, horrible and inhuman in
that it involved torture, depravity of mind, or an aggravated battery to the
victim." Georgia Code 27-2534.1 (b) (7) (1978), _quoted_ id. at 422.

During the penalty trial, the prosecutor thrice stated in his argument that
the case involved the allegations of "torture" or of an "aggravated
battery." Id. at 426.

Under Georgia's death penalty scheme, unlike California's, the jury's
penalty verdict of death was not subject to review and reduction to life by
the trial judge. However, a Georgia trial judge in a capital case is
required to prepare a report, by completing a questionnaire form, on the
circumstances of the case for use in appellate review. Godfrey's judge
responded to an item on the form asking whether or not the victim had been
"physically harmed or tortured" by answering "No, as to both victims,
excluding the actual murdering of the two victims." Id. at 426.

In reviewing the Georgia Supreme Court's decision sustaining the death
sentence, the United States Supreme Court held that application of the
statutory (b) (7) aggravating circumstance to Godfrey violated the Eighth
Amendment prohibition against "cruel and unusual punishments":

"In the case before us, the Georgia Supreme Court has affirmed a
sentence of death based on no more than a finding that the offense
was `outrageously or wantonly vile, horrible, and inhuman." There
is nothing in these few words, standing alone, that implies any
inherent restraint on the arbitrary and capricious infliction of
the death sentence. A person of ordinary sensibility could fairly
characterize almost every murder as `outrageously or wantonly vile,
horrible and inhuman. Such a view may, in fact, have been one to which
the members of the jury in this case subscribed.... In fact, the
jury's interpretation of (b) (7) can only be a matter of sheer
speculation." _Godfrey_, id. at 428-429.

In his dissent, Justice White argued that the crime might actually satisfy a
reasonable interpretation of (b) (7) constitutionally adequate to justify
capital punishment for Godfrey:

"Who is to say that the murders of Mrs. Godfrey and Mrs. Wilkerson
were not `vile,' or `inhuman,' or `horrible.'? In performing his
murderous chore, petitioner employed a weapon known for its
disfiguring effects on targets, human or other, and he succeeded
in creating a scene so macabre and revolting that, if anything,
`vile,' `horrible,' and `inhuman' are descriptively inadequate."
Id. at 450.

Justice White emphasized not only the gruesomeness of the crime scene but
the horrors of Mrs. Wilkerson's last moments on Earth, asking if they could
not fairly be described as "torture":

"Her daughter, an instant ago a living being sitting across the table
from Mrs. Wilkerson, lay prone on the floor, a bloodied and mutilated
corpse. The seconds ticked by; enough time for her son-in-law to
reload his gun, to enter the home, and to take a gratuitous swipe
at his daughter. What terror must have run through her veins as she
first witnessed her daughter's hideous demise and then came to terms
with the imminence of her own. Was this not torture? And if this was
not torture, can it honestly be said that the petitioner did not
exhibit a `depravity of mind' in carrying out this cruel drama to
its mischievous and murderous conclusion?" Id. at 450-451.

Additionally, Justice White suggested, the Georgia Supreme Court could
reasonably have found that the scene awaiting the investigating peace
officers met the criterion for "an aggravated battery to the victim[s]"
under the (b) (7) aggravating circumstance, id. at 451.

As both the plurality and Justice White agreed, defendant Godfrey had
committed two physically and temporally independent acts of murder, first
shooting his wife, then reloading, and shooting his mother-in-law.
Further, his serious although not fatal assault on his 11-year-old daughter
by bludgeoning her with the murder weapon was also what California law would
term one of "the circumstances of the crime," Penal Code Section 190.3 (a);
while his previous assault on his wife with a knife which he used not only
to threaten her but to cut clothes off her body would certainly be relevant
under Section 190.3 (b) addressing "criminal activity by the defendant which
involved the use or attempted use of force or violence or the express or
implied threat to use force or violence."

Further, both plurality and Justice White in his dissenting opinion agreed
that in the ordinary usage of the English language, Godfrey's crime might
well meet the definition of "outrageously or wantonly vile, horrible and
inhuman." See, _Godfrey_, supra, 446 U.S. 420, 428-429 (plurality); and
450-451 (White, J., dissenting).

The Court's holding, however, focused on the reality that both victims were
killed instantly by single shots to the head, and thus suffered no
"aggravated battery" except that which might be deemed present in almost any
murder. One might argue, additionally, that the evidence supported a
conclusion that the momentary ordeal of Mrs. Wilkerson in witnessing the
shooting of her daughter and anticipating her fate, so chillingly evoked by
Justice White, resulted from the inherent mechanics of the shotgun rather
than any intention on defendant's part to psychologically "torture" her
through a prolonged anticipation of death.

Given that a high proportion of deliberate murders, if not almost all, are
likely to be perceived as "vile, horrible and inhuman," the _Godfrey_ case
poses the question of which distinctions should make a difference in the
choice between life imprisonment and death. And that question is equally
relevant to the case of Scott Peterson.

It may be helpful to explore some implications of _Godfrey_ by focusing
initially on the facts of that case and posing some hypotheticals.

First, suppose that Godfrey had used not a shotgun but some type of firearm
that would inflict "cleaner" wounds likewise killing each of the two victims
instantly. Let us further agree that this is an automatic or semiautomatic
weapon which causes the victims to suffer their wounds within a split second
of each other, so that there is no time for the second victim to witness the
fatal injuries of the first or to anticipate her own death. Should the
choice of weapon, and the faster rate of fire, really make a difference
between life or death for the perpetrator?

Secondly, suppose that Godfrey had committed the shootings exactly as
described in the actual case, but happened to be a fastidious citizen as
well as an expert in mortuary science who obligingly then tidied up the
scene and respectfully made the bodies of the victims as presentable as
possible before calling the sheriff and turning himself in. Would this
diligence in addressing the inconveniences of a gruesome crime scene call
for a sentence of life where death would otherwise be appropriate?

Having considered these scenarios, we turn to the case of Scott Peterson,
where the precise circumstances surrounding the actual killings of Laci
Peterson and Conner Peterson remain a topic of almost pure speculation,
quite in contrast to the case of Mildred Godfrey and Chessie Wilkerson.

However, the prosecution in the Peterson case at no point alleged that the
means and circumstances of death for his two victims were especially
torturous or inhumane, or involved any prolonged anticipation of death.
Given the total lack of evidence on these points at the alleged scene of the
killings, the Peterson home, the only reasonable presumption is that, to
borrow the words of the report by Robert Godrey's trial judge, neither
Laci nor Connor had been "physically harmed or tortured," except for
"the actual murdering of the two victims." _Godfrey_, supra, 446 U.S. 420,
426 (plurality opinion of Stewart, J.).

Two significant distinctions between the Godfrey and Peterson cases remain.
First, in the course quickly killing his two murder victims, Godfrey also
bludgeoned his 11-year-old daughter on the head with his shotgun: in
addition to her own physical injuries, she experienced the psychological
trauma of witnessing the horrible events of that evening as well as the
tragic loss of her mother and grandmother.

Also, Robert Godfrey had previously abused his wife by threatening her with
a knife and using it to cut clothes off her body. In contrast, whatever his
moral virtues and flaws, Scott Peterson committed no known acts of criminal
violence either before or after the murders for which he was convicted, with
the second-degree murder of Conner evidently being a consequence resulting
from that of Laci rather than an independently premeditated act. In contrast,
Godfrey fired two shots: after first killing Mildred Godfrey, he
deliberately loaded, took aim, and killed Chessie Wilkerson.

Thus the same constitutional considerations which the _Godfrey_ Court found
to bar an overbroad interpretation of the Georgia death penalty statute
regarding Godfrey's murders as "outrageously or wantonly vile, horrible and
inhuman" should likewise militate against the treatment of the murders for
which Peterson was committed as aggravated beyond the norm of first-degree
murders.


(3) Discussion

The _Halliwell_ and _Godfrey_ cases both teach that in judging whether a
given deliberate murder is "aggravated" in its infliction of pain or
psychological suffering on the victims which makes the crime stand out from
others in a universe where almost all murders are likely to be both
outrageous and revolting, one must look to objective criteria, and focus on
the immediate acts leading up to or causing death rather than post mortem
crime scenes events which cannot cause these victims further suffering.

This by no means implies that the crime scene evidence, however graphic or
grisly, is irrelevant to the trial insofar as it documents the means and
method of the crime and the ordeal suffered by the victims. As the Florida
Court well observed in _Halliwell_, supra, 323 So.2d 557, 560: "Those who
create crimes of violence often must face the record of their deeds in
court."

However, this often gruesome evidence in capital cases must not be permitted
to distract a penalty jury from its proper focus on the crime and defendant,
as opposed to consequences of the crime, however gruesome, not relevant to
the suffering of the victims themselves.

In _Halliwell_, where victim Arnold Tresch evidently died quickly from the
defendant's first blows to his head, the especially gruesome evidence
resulted not so much from this enraged fatal assault as from Thomas
Halliwell's conduct, hours later, in dismembering the body with a saw and
disposing of the remains in a creek. The Florida Supreme Court, while
rightly taking notice of this post mortem mutilation as attaining a new low
in the dishonoring of a human being even in death, _Halliwell_, id. at 561,
wisely found that such conduct should govern the choice of life or death for
a capital defendant.

In _Godfrey_, it was primarily the gory scene created by the acts of murder
themselves which may have unduly tilted the scales toward a death verdict:
Robert Godfrey's two shotgun rounds killed their designated victims
instantly, but very untidily, to put it most delicately. The crime scene
created by these two lethal rounds might evoke for jurors as well as other
horrified communities images of unspeakable pain, torture, and agonizing
disfigurement -- things, however, experienced by those gazing at the effects
of those shots on human bodies, rather than by the victims themselves. True,
as Justice White reminds us, in unforgettable prose worthy of a latter-day
Edgar Allen Poe, that Chessie Wilkerson did for some seconds herself
experience the terrors both of seeing the horrible wounds inflicted on her
duaghter, and of anticipating her own death by the same means. The holding
of the Court suggests, however, that this ordeal inflicted on her during the
reloading process, however it may move us to compassion for this victim,
does not justify regarding the defendant's crimes as so apart from the norm
as to merit the unique penalty of death.

In the Peterson case, the only act of violence demonstrated if one accepts
the State's case is the actual killing of Laci Peterson, resulting
inevitably in the killing of the unborn Conner Peterson as well. The
putative scene of the crime itself, the Peterson house, presented no gory
evidence of enraged assaults or shotgun rounds inflicting a murderous
carnage. This scene was marked rather by the total absence of any marks or
traces of violence. The prosecution's theory called for no terrible
disfigurement of the victims' bodies, either by the unknown acts causing
death or by later deeds of post morten mutilation such as those performed by
Halliwell.

Rather, the prosecution deliberately sought to direct the attention of the
penalty phase jurors to a scene distinct from that of the crime itself: the
defendant's disposal of the bodies of Laci and Conner by a water burial in
San Francisco Bay. The incidents of this post mortem event were much like
those of the whole-body burials at sea still performed by the United States
Navy and other organizations, and avidly sought by some citizens for the
disposal of their own earthly remains.

Having no evidence of the acts involved in the murder of Laci and Conner
Peterson, no gory crime scene to inflame the passions of the jurors,
prosecutor David Harris sought instead to have the jury focus on the facts
not of the crimes themselves but of the later placement of the bodies in the
Bay, and of the natural processes of decomposition and dispersal which these
bodies then underwent, much as would occur in almost any burial on land or
water:

"Today is the two-year anniversary of Scott's monstrous plan to take
his wife, murder her, and dump her body in the bay. Today is the
two-year anniversary of that. The plan was for his wife's body to be
dumped in the bay and a watery grave and never to be found. Never to
be laid at rest.

"The ripples from that water have spread far and wide, and they have
spread to us, and that's why we're hear today." (Final Argument for
the People, Penalty Phase, December 9, 2004; _____ at ____.)

Certainly the prosecutor was reasonable in pointing to the inherent cruelty
of this or almost any premeditated murder, and to point to the disposal of
the victims' bodies in the Bay as one aspect of the defendant's homicidal
plan. However, the statement that Scott Peterson intended for the victims
"[n]ever to be laid at rest" suggests that they somehow suffered further
because of his performance, flawed as it proved to be if we accept the
State's version of the crime, as their undertaker.

Going yet further from the teachings of _Halliwell_ and _Godfrey_,
prosecutor Harris urged the jury to make their penalty decision of life or
death based on the words of victim Laci Peterson's mother, Sharon Rocha:

"Sharon's words will ring out and haunt us. Laci didn't have
arms to hold her baby." (Final Argument for the People, Penalty
Phase, ___ at ___.)

These words might prompt us to imagine the hideous spectacle of Scott
Peterson cutting off the arms of a living Laci, and then forcing her to
watch as he prepares to inflict a fatal blow on her beloved Conner. In fact,
they refer to the state of her body well over three months after her death
(to adopt the chronology of the prosecution), brought about not by some new
act of human-inflicted violence, but by the impartial economy of nature.

All three cases -- Halliwell, Godfrey, and Peterson -- illustrate the
horrors of deliberate murder as the ultimate crime of violence against the
person. To borrow the words of prosecutor David Harris, murder sends
"ripples" of pain and trauma outward which afflict not only the immediate
families and friends of the victims, but the community as a whole.

This is true whether the crime is committed in a sudden fit of rage, as
Halliwell's may have been; or develops out of a scheme launched into
operation two weeks before the fatal act itself, as was the State's scenario
in the Peterson case; or take shape over a period of eight years, as Godfrey
himself stated to police regarding his homicidal rampage.

However, given that all three cases involve heinous and detestable murders,
the question remains why Thomas Halliwell and Robert Godfrey should live
while Scott Peterson should die. The Eighth Amendment demands that this
question be asked, and the _Halliwell_ and _Godfrey_ decisions point to the
answer that Scott Peterson's sentence must be reduced to life without
parole.

[marlene]

In addition to the point you made about the emphasis on the condition of the body when found, it was quite obvious to me that much of what was considered horrible in this crime is the pain and suffering inflicted on Laci's family and friends when they went for days and days not knowing her whereabouts or her safety.

Also, if the State's case is true, then it can be argued that Scott did everything he could to protect Laci's body after death -- he wrapped the body in plastic.

The other factor is the act of the husband killing the wife and his own unborn child -- making this a particularly heinous crime. Is there any DP case in which this was upheld as an aggravating factor justifying the DP?

[mschulter]

In addition to the point you made about the emphasis on the
condition of the body when found, it was quite obvious to me that much of
what was considered horrible in this crime is the pain and suffering
inflicted on Laci's family and friends when they went for days and days not
knowing her whereabouts or her safety.

Certainly that pain and suffering was agonizing. But should we consider it
part of "the circumstances of the crime" for the purposes of the death
penalty? That's one of the big issues here. If we do consider it, what about
LWOP for Dorothea Puente, where the evidence is very strong that at least
seven families ("only" three if we count the actual murder convictions, but
seven if we count the bodies recovered on her property) lived with the same
uncertainties, and for much longer than 116 days with a number of these
victims, I would guess (she buried them in her yard).

I'd have no trouble with a juror thinking, or a sentencing judge publicly
declaring at the sentencing (accepting the State's scenario for a moment):

"Your subsequent attempt to have the bodies of your wife and child
remain undiscovered, and unaccounted for, caused agony to their
families for days that grew into weeks and torturous months. While
that is not the wrongdoing for which I am now sentencing you, I hope
that you will take the ample opportunity that I and the law am giving
you to reflect on that pain and agony as you spend each day and night
for the rest of your life in prison, until you die in prison. And
still, in a real sense which Sharon Rocha has spoken about better
than anyone else can, you'll suffer less in the whole course of your
punishment that she did on any of those 116 days."

A prosecutor has lots of discretion, and I can imagine a DA who might
prosecute this (assuming Scott guilty for another moment) as simple first
degree murder if he turned himself in, or even tried to escape but got
caught quickly; but a multiple murder with LWOP after the 116 days. But
turning it into a reason for the death penalty seems to me to be going too
far.

Also, if the State's case is true, then it can be argued that Scott
did everything he could to protect Laci's body after death -- he wrapped the
body in plastic.

It seems to me like an amateur attempt at a water burial, nothing especially
bizarre or demeaning to the victims or their bodies. Compare this with the
case of Danny Rolling, for example, a serial killer who sexually assaulted,
killed, and mutilated his victims and left the bodies in various shocking or
provocative poses. I'm unhappy he was executed, because I'm opposed to the
death penalty in all cases -- but a radically different case than that of
Laci and Conner.

The other factor is the act of the husband killing the wife and his
own unborn child -- making this a particularly heinous crime. Is there any
DP case in which this was upheld as an aggravating factor justifying the
DP?

A good question, the answer to which I'm not sure. But what I can easily
come up with are more heinous cases, domestic or otherwise, where the
penalty was life imprisonment.

The second-degree verdict on Conner implies that his killing was more or
less incidental to that of Laci; but for her being pregnant, it would have
been simple first-degree murder (25 years to life). Giving him LWOP
recognizes the added heinousness of killing Conner as well, even if it
wasn't a distinct act or deliberate intention. (If he really killed to
be free of fatherhood, why the second-degree verdict?)

A clue to what is really going on here is that, if this was an especially
aggravated crime, why didn't the prosecution dwell on the actual killings as
much as possible, what the victims may have gone through? That happens in
lots of these cases. Instead, we hear about Amber Frey. As someone, maybe
you, pointed out, if usual scenarios with Scott as the killer were right,
then this would be one of the less cruel murders in terms of the suffering
endured by Laci and Conner (physical or psychological).

In effect -- assuming for the sake of the argument he was guilty -- he got
25-to-life for killing Laci in a love triangle situation or whatever; LWOP
for killing Conner, although without premeditation, by that same act; and
death for being untrue to Amber Frey as well as Most Unpopular Media Figure
of the Year. And that's no way to run a justice system.

[marlene]

The other factor that would warrant the DP, IMO, is if the killer taunted the victim's families and the public -- such as the Zodiak and BTK, or whose killing spree brings terror to a community or communities, such as the Beltway killers.

[marlene]

I guess what we need to do is find an attorney in CA that will submit the brief for us under his/her own name.

I know there is one attorney who always maintained Scott's innocence, gosh, I can't get her name off the tip of my tongue -- BRB.

edited to add - Joanna Spilbor. I believe she is in San Diego. She wrote a couple of columns on the rush to judgment in Scott's case.

[marlene]

Here is one of Spilbor's articles -- I certainly don't agree with her assessment of the Amber tapes, but nonetheless, her point is valid, I think, that they significantly contributed to the DP verdict.

http://writ.news.findlaw.com/commentary/20041116_spilbor.html

[mschulter]

The other factor that would warrant the DP, IMO, is if the
killer taunted the victim's families and the public -- such as the Zodiak
and BTK, or whose killing spree brings terror to a community or communities,
such as the Beltway killers.

Absolutely agreed, if we tack on my customary "if the death penalty is to be
retained at all." In passing, I might add that the BTK murderer got 10
consecutive life sentences and an earliest possible release date of 2081,
for all practical purposes LWOP, because Kansas didn't have the death
penalty (or LWOP, I'd assume) at the time of the crimes.

[mschulter]

I guess what we need to do is find an attorney in CA that
will submit the brief for us under his/her own name.

Or it might be a criminal defense or civil liberties group, or a group of
jurists (often retired) or legal scholars.

For a brief focusing mainly on penalty phase issues, actually, how the
sponsors view Scott's innocence or guilt might not be too important. What
I've found is that often I just focus on the death penalty issues, but with
any reasonable or conceivable doubt about guilt certainly one factor.

There's also the question of motivation. Some sponsors might be motivated
primarily by justice for Scott Peterson, other by concerns of what impact an
affirmed death sentence for him might have on other Death Row prisoners or
prospective capital defendants (innocent or guilty).

And I realize now that there's one issue that sort of ties all of this
together, and might be worth a brief in itself. (I don't know about the
California Supreme Court, but the U.S. Supreme Court often gets lots of
these amicus briefs in important capital or other cases.)

Ethically, there is this distinction. Scott Peterson's attorneys have every
obligation zealously to do whatever serves his best interests, choosing and
emphasizing whatever issues seem likeliest to win, or are most important to
preserve for future review (especially in the federal courts), on either
guilt or penalty.

An amicus may strongly support the defense, but generally from a somewhat
different view, looking more at the system as a whole, or the death penalty
aspects of it, and often focusing on one or a few issues more closely. What
I tend to write a lot in arguments for these briefs is historical or
constitutional background that sets the issues in better perspective.

I know there is one attorney who always maintained Scott's innocence,
gosh, I can't get her name off the tip of my tongue -- BRB.

edited to add - Joanna Spilbor. I believe she is in San Diego. She wrote a
couple of columns on the rush to judgment in Scott's case.

That one issue which might "tie things together" from a point of view of
reversing the _convictions_ is found in Scott's brief at pp. 108-116.
But an amicus might try to define this argument very narrowly, so that it
has a better chance of winning in the face of 44 years of state and federal
precedent. An early case is _Bumper v. North Carolina_ (1968) 391 U.S. 543,
a companion to _Witherspoon_, letting a conviction and life sentence stand
although a death sentence would have been overturned because the jury had
been improperly death qualified under the new rule in _Witherspoon_.

Of course, the _Bumper_ trial court had no way of knowing that _Witherspoon_
would be handed down and make new rules. But subsequent cases have agreed
that mistakenly excluding jurors for cause because of general opposition to
the death penalty when they could reasonably be expected to follow the law
is a ground for reversing only the penalty, not the conviction. Scott's
brief honestly acknowledges this, and cites some California cases also (see
pp. 108-110). While I agree with the brief that the time for change has
come, the problem is that overturning this kind of established law in one
fell swoop can be a daunting task, especially with a California Supreme
Court that tends to be not so adventurous on DP matters.

There is, however, an argument that can address misconduct of the kind that
happened in the jury selection in this case, without upsetting precedent in
the vast majority of capital cases where there's at least some semblance of
a good faith effort to follow the law. It's like the difference in
basketball between getting a personal foul now and then because you're
playing a hard but fair game and touch an opponent by accident, and landing
a deliberate punch.

The argument is that blatantly death-qualifying jurors in violation of
_Witherspoon_ and _Witt_, as a more or less deliberate and systematic
practice when the trial judge (and prosecutor!) either knew or should have
known better, should be a ground for reversing the verdict on guilt.

The "deliberate and systematic" element is critical: not a close call or two
which the judge got wrong, or a good-faith attempt to follow the law where
the judge erred (e.g. a questionnaire not quite carefully enough worded, as
in _People v. Stewart_ in 2004); but those 13 jurors in this case where
there's either a deliberate decision to disregard the law or indifference to
the well-known law after defense counsel points out the error and seeks to
correct it, as Geragos did.

Right now a prosecutor (or judge who is sadly willing to do this despite
defense counsel's objections) has very little reason to avoid such tactics,
especially if it's a case where the death penalty seems unlikely to be
imposed or to stand up on appeal. If doing something really blatant, and
here stated right on the record, put the conviction itself at risk as well
as any death sentence, those prosecutors and judges might think twice.

This issue has the advantage that people, including legal scholars, outraged
for a variety of reasons can team up and write an amicus brief hard to
ignore. Some attorneys or law professors or jurists might join because
they're interested in the broader issue of how death qualification skews the
trial on guilt. Others might join in because of a specific interest in
Scott, or on how such tactics can make capital trials with pretrial
publicity and bias problems yet worse, promoting wrongful convictions.
And still others might simply be outraged that these tactics could be used
in a case of life or death.

For people with a DP defense focus, it could be a chance to "get a foot in
the door" on the whole issue of how death-qualified juries are
conviction-prone. Present a narrow and compelling case, then seek to have it
developed a bit and lead to a reconsideration of some precedents decided at
least 20 years ago or more. That might be one big draw for such a brief.

[marlene]

the whole issue of the DP may become a moot point in November, if CA strikes it down, which I think it will.

I don't have issues with the DP on principle, but if CA does keep the DP, then it must insure that there is better evidence in capital cases -- that's my emphasis -- the standard of evidence has to be higher. It has to be higher in all cases, but especially in DP cases. So, I'd like to see an amicus brief that also emphasizes the lack of quality evidence.

[mschulter]

the whole issue of the DP may become a moot point in
November, if CA strikes it down, which I think it will.

From my perspective, I very much hope you're right.

I don't have issues with the DP on principle, but if CA does keep the
DP, then it must insure that there is better evidence in capital cases --
that's my emphasis -- the standard of evidence has to be higher. It has to
be higher in all cases, but especially in DP cases. So, I'd like to see an
amicus brief that also emphasizes the lack of quality evidence.

After November 6, we'll know more about which issues are still relevant or
now moot, and in which ways. It's curious for me to hope that maybe about
90% of what I've written here may prove irrelevant, at least for Scott!

"Which issues are still relevant or moot, and in which ways?" under different
scenarios is an interesting discussion to have.