Roy Black, defense attorney, and Dan Abrams discuss upcoming sentencing phase for Scott Peterson trial

Transcript from THE TODAY SHOW
Aired Tuesday, November 30, 2004

KATIE COURIC, co-host: It's expected to be a very emotional day in the Scott Peterson murder trial when the jury that convicted him begins hearing testimony on whether Peterson should live or, in fact, get the death penalty. Dan Abrams is NBC's chief legal correspondent and the host of "The Abrams Report" on MSNBC, and NBC News analyst Roy Black is a top defense attorney.
Good morning to both of you.
DAN ABRAMS: Good morning, Katie.
Mr. ROY BLACK (NBC News Legal Analyst): Good morning, Katie.
COURIC: Let me start with you, if I could, Dan. This is different than a victim impact statement, or just making a statement to the court--addressing the court in terms about--in terms of the loss and--and what it meant to the family.
ABRAMS: Right.
COURIC: This is part of the prosecution's case?
ABRAMS: That's right. I mean, sometimes you'll see victims' family members make what are called victim impact statements, and they'll be telling the judge what it means to them before the judge sentences a defendant. Here you're talking about witnesses testifying as part of the prosecution's case. The prosecution is seeking the death penalty here. The family of Laci Peterson will be testifying as part of that case. And so they are witnesses, not just making impact statements.
COURIC: So it will be Laci's family. And we're talking about four individuals, and that's it?
ABRAMS: We expect that'll be it. That's certainly subject to change. But we're certainly expecting to see Laci's parents testify, her brother, her sister, all talk about what Laci meant to them. Remember, this is going to be very emotional. They're not going to be talking about the facts of the crime. They're not going to be talking about what they think happened to Laci. They're going to be talking about what Laci meant to them and how much her loss has meant to them.
COURIC: And, Roy, I know that you believe in terms of--of raw emotion that the most powerful witness in this will be Sharon Rocha, Laci's mom, who we just saw in the videotape. And we have her from a press conference after Laci's body was found, which may give us some indication of what she'll say. Let's listen, and then we'll talk about it.
Ms. SHARON ROCHA: (From file footage) I love my daughter so much. I miss her every minute of everyday. My heart aches for her and Connor. Without them, there's a huge void in my life. I literally get sick to my stomach when I allow myself to think about what may have happened to them. No parent should ever have to think about the way their child was murdered.
COURIC: Roy, I guess it's clear why Sharon Rocha will be the most powerful witness for the prosecution, isn't it?
BLACK: Yeah, no question about that, Katie. This--this will be the most serious issue for me, if I was the defense lawyer, because there's really not much you can do against it. And--and it's just the raw emotion of a mother feeling the loss of her child. There's no facts involved, as Dan said, so there's no real cross-examination. It's just really her feelings. And I would think this is the part that's very hard to gauge. If--if the jury is really affected by this, this could swing the jury in favor of the death penalty.
COURIC: I know that--(coughs)--excuse me, Roy--the defense strategy during the--the initial guilt phase seemed to be Scott cheated on his wife, but he wasn't a murderer. He might have been a jerk. And now I guess in this phase they have to say, `Well, he may be a murderer, but he's not that bad a guy.' Is that right?
BLACK: They're going to have to say, `He's a real jerk, but nevertheless, we shouldn't sentence him to death.' Needless to say, that the strategy from the guilt phase is going to cause some trouble in the penalty phase because in the penalty phase you want to paint a very sympathetic picture of your client. During the trial part of the strategy was to tell the jury, `Look, OK, he's a cad. He's horrible. He cheated, he lied. But nevertheless, he's not a murderer.' Now the jury's found he's a murderer, and they've been told all these horrible things about him. So they have sort of an uphill climb here.
COURIC: Now I know that, Dan, often in death penalty cases the defense brings in a special death penalty attorney. But Scott Peterson's team has not done that.
ABRAMS: We don't expect that to happen here.
COURIC: Why is it done frequently?
ABRAMS: Well, sometimes they want someone who has dealt with death penalty cases, someone who can talk to the jury in death penalty terms. Remember, as you were just talking about, this is very different here. The way that Mark Geragos, the defense attorney, is going to have to talk to these jurors is going to be a very different tone than he did before. Remember, these are the same jurors. So he's going to have to go back to these same jurors, who he said, `Scott Peterson's not guilty.' They didn't believe him. So now he's going to have to come back and say, `OK, I accept the fact that you did not buy our argument,' in effect, `that you think he's guilty. But please, please spare his life.' You're going to have to see a huge dose of humility from the defense team here.
COURIC: Meanwhile, Roy, how--how are jurors instructed? I mean, this must be a terribly difficult decision for a jury to make, whether to execute an individual or not. What does the judge tell them when it comes to making this decision?
BLACK: Well, in California there are 11 aggravating and mitigating circumstances that the jury is told. But quite frankly, they don't mean much in this case because he doesn't have a prior record, there are many circumstances that just don't apply. The only two that really apply are the circumstances of the crime and the special circumstances of the double homicide. And on the other hand, any factor that could lessen the gravity of the crime. Those are really the only two factors that are going to come into play here. So you have the victim impact on the one hand, and on the other hand you're going to have Scott's friends and family, employers, sports coaches, whatever it may be, to try to paint a much nicer picture of him. So the law really isn't that important in this case.
COURIC: And, Dan, very quickly, knowing what you know about this jury, do you have any predictions, or is it impossible to say?
ABRAMS: Well, look, it is impossible to say for certain. But I would expect that it's--I think it's going to be tough to get 12 people unanimously to say that Scott Peterson should get the death penalty. A lot of people think that they will. I'd still be surprised if they come back with a unanimous death penalty verdict.
COURIC: And when should--when do you expect the verdict?
ABRAMS: Pretty quickly. These death penalty verdicts are generally a lot quicker than the guilt phase. So if they get the case Thursday or Friday, expect, I think, you know, I think a day or two of deliberations.
COURIC: All right. Dan Abrams, Roy Black.
Gentlemen, as always, thanks so much.
ABRAMS: All right, Katie.
BLACK: Thank you, Katie.