by MAURA DOLAN
Jun 02, 2020
(Los Angeles Times) - A lawyer for Scott Peterson, convicted in 2004 of murdering his wife, Laci, and their unborn son, told the California Supreme Court on Tuesday that he was denied a fair trial because of massive publicity and a slew of legal errors made at trial.
During a hearing on his appeal, Cliff Gardner, Peterson’s lawyer, started his argument by noting that 12 prospective jurors were discharged after stating on written questionnaires that they opposed the death penalty but would be willing to impose it.
The prosecution has conceded that if the state high court finds that any one of those potential jurors was improperly excused, the court would have to overturn Peterson’s 2005 death sentence. Since his sentence, Peterson has been incarcerated at San Quentin prison’s death row.
Laci Peterson, 27, four weeks shy of giving birth, disappeared on Christmas Eve in 2002. Scott Peterson told police he had left their Modesto home at 9:30 a.m. that day and driven to a marina in Berkeley. He said he went fishing in his new boat, returned home late that afternoon and called his mother-in-law, telling her that his wife was missing.
Nearly four months later, Laci’s remains and the body of her unborn son, with its umbilical cord still attached, washed up on a rocky shore on San Francisco Bay. A passerby walking a dog found them a few miles from where Scott Peterson said he gone fishing.
Gardner argued during Tuesday’s hearing that the trial court also improperly allowed two jurors to climb into the 14-foot aluminum boat that police said Peterson used to dispose of his wife’s body in San Francisco Bay. The two jurors rocked it as it sat in a trailer to test its stability.
The trial judge erred again, Gardner said, when he insisted the prosecution be present if the defense were to take the boat out into San Francisco Bay to determine whether it would have capsized if Peterson had thrown over his wife’s anchored body overboard.
“The right to effective assistance of counsel includes the right to investigate your case in confidence,” argued Gardner, who has successfully represented other death row inmates.
After the judge insisted on the prosecution’s presence for the experiment, Peterson’s defense dropped the request.
Peterson’s trial was moved from Modesto, where he and Laci lived, to San Mateo County after a judge determined he could not get a fair trial in Modesto. After seeing the juror questionnaires in San Mateo County, Peterson’s defense filed another motion to move the trial to a different county. That motion was denied.
Gardner argued it should have been granted because the written questionnaires of 1,000 potential jurors showed that almost half had already decided what the verdict should be, and of those, more than 98% of them believed Peterson was guilty.
He said pretrial media coverage was massive and included information on evidence that was deemed inadmissible. A San Francisco radio station bought a billboard in San Mateo County, showing Peterson in a jail suit, and asking people to vote on whether he was “man” or a “monster.”
“In light of that extensive publicity,” Justice Goodwin Liu asked, “where should this case have been tried?”
Gardner conceded prospective jurors in all counties would have heard about the case but said surveys showed that fewer prospective jurors in the state’s larger counties, including Los Angeles, had made up their minds about Peterson’s guilt.
Liu was one of four justices who asked Gardner questions. None of the seven justices asked a lawyer representing the prosecution a single question, and none indicated how the court was likely to rule. Gardner asked the court to overturn both Peterson’s conviction and death sentence.
Deputy Atty. Gen. Donna M. Provenzano, representing the prosecution, countered that the law required the court to overturn only the death sentence if a prospective juror had been improperly dismissed.
“The prosecution marshaled and presented a mountain of evidence that pointed the finger of guilt squarely at Scott Peterson for the murder of his wife and their child,” she told the court.
She argued there was “no credible claim” that the any of the 12 jurors who decided Peterson’s fate were unfair or partial.
The judge’s requirement that the prosecution attend any demonstration involving Peterson’s boat was warranted because if the vessel had capsized, “a critical piece of evidence” would have been lost, she said.
She also defended the judge’s decision to allow two jurors into the boat while it sat on a trailer. The judge admonished the jurors, she said, to keep in mind that the stability of the boat would have been much different out in open water.
After Laci disappeared, a massive search was mounted to find her. Family and friends set up a command center at a downtown hotel and passed out 25,000 fliers to scores of volunteers. They appeared on shop windows and utility poles as far away as Los Angeles, Salt Lake City and Mexico.
Eventually, Amber Frey, a massage therapist who lived in Fresno, contacted the police. She and Peterson were dating. He had told her his wife had died, she said. She secretly recorded calls with him for the police.
Police arrested Peterson in San Diego County. He had bleached his hair and goatee and had $15,000 in cash and camping gear at the time.
Prosecutors told the jury that Peterson strangled or smothered his wife either on the night of Dec. 23, 2002, the following morning. He wrapped her corpse in a blue tarp and put her the back of his truck, got his boat, drove to Berkeley and dumped the body, weighted by anchors, in the bay, they said.
Mark Geragos, who defended Peterson at trial, countered that Laci was probably kidnapped by strangers, who dumped her in the bay to frame her husband.
The state Supreme Court will decide the appeal within a few months. The court will get another chance to examine the case when it decides a separate habeas corpus challenge, which is based on evidence that was not presented at trial. If Peterson loses that challenge, he can bring his case to federal court.
[ed. - click to view the appeal (5.8mb .pdf)]