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Could Scott Peterson Have Avoided The Death Penalty?
Why Mark Geragos Should Have Put Peterson on the Witness Stand

Tuesday, Dec. 21, 2004

The decision whether a criminal defendant will testify is one of the most important - if not the most important - strategic decisions the defendant and his attorney will make together. In the Scott Peterson double-murder trial, I will argue, the defense made a colossal mistake in deciding not to have Scott testify. Whether this was bad advice by Mark Geragos, or whether Peterson overruled Geragos's recommendation that he testify, no one will ever know.

What we now understand from juror comments, however, is that as week after week of the six-month trial passed, Peterson's silence grew louder and louder. Ultimately, the jury not only convicted Peterson, but also recommended that the judge sentence him to death.

In hindsight, the decision that Peterson not testify seems to have greatly alienated jurors. As juror Greg Beratlis remarked, "Anything -- a plea for his life, or just his opinion on everything that went on in the last two years. ... I would have liked to have heard his voice on that."

Indeed, I will argue that, if Peterson had testified during the trial as to his guilt or innocence, he might have been spared a guilty verdict. Typically, a defendant with no criminal record - and Peterson had none - will, and ought to, testify. It was a boon to prosecutors that Peterson opted not to. As I argued in a prior column, I believe the prosecutors made a weak case. Their win, therefore, may have been due mostly to luck - in that the key decision whether Peterson would testify was out of their hands.

I will also argue that even if Peterson had still been found guilty, despite taking the stand - indeed, even if he made a terrible witness - he might well have avoided the death penalty based, in part, on his trial testimony.

Whether Peterson should have testified once again at the penalty phase, as I will explain, is a more difficult question.

Scott Peterson Should Have Testified at the "Guilt Phase" of His Trial

Under the Constitution, a defendant has a Fifth Amendment right not to testify, on the ground that he may incriminate himself. But if a defendant avails himself of that right, jurors may well, in practice, judge him for doing so.

By law, prosecutors cannot comment disparagingly on the defendant's exercise of his Fifth Amendment right. But no one can stop jurors from thinking disparaging thoughts and silently noting - during the defense's case and later during deliberations - the fact that the defendant opted not to tell his own story.

Granted, a defendant's choosing to remain silent doesn't always lead to a guilty verdict. For instance, in the O.J. Simpson case, the defense's successful bid to put the LAPD on trial for racism worked to sufficiently distract the jury, leaving them with enough questions about the LAPD that they felt there was reasonable doubt about Simpson's guilt. These questions probably included: Did the famously racially insensitive LAPD know of Detective Mark Fuhrman's use of the "n-word" and look the other way? Was Fuhrman racist enough to try to frame an African-American defendant?

In the Peterson case, however, no such police missteps occurred during the investigation. Any remaining questions in jurors' minds were probably directed to Peterson, and might well have been answered had he testified. Jurors might, for instance, have wanted to ask him questions such as: Why was Laci's hair on the pliers in your boat? What happened to those concrete anchors in your warehouse locker? When - if ever - were you going to tell Laci about Amber, or Amber about Laci? Why have you appeared so unemotional through this whole trial?

With no answers, the jury doubtless assumed the worst. After all, the only story of the case echoing in their minds was the prosecution's - for jurors never got to hear Scott Peterson's story of what happened that Christmas Eve and Day.

No wonder, then, that Juror Stephen Cardosi remarked, "Collaboratively, when you add it all up, there doesn't seem to be any other possibility [than Peterson's guilt]." The prosecution told a story of guilt; Peterson did not respond with a narrative of innocence. Geragos tried to suggest he was innocent, but a lawyer's claims are no substitute for a defendant's sworn testimony. After all, lawyer's arguments aren't evidence, and testimony is.

No wonder, too, that Juror Beratlis - who had begun the case believing Peterson was innocent - began to find that his belief was undermined by the facts. The facts he heard came mostly from the mouths of prosecution witnesses, and never from Peterson himself - who had the most access and knowledge about his own whereabouts and activities during the relevant time period, as well as why he dyed his hair and then, it appears, fled.

Had He Testified, Peterson Could Have Explained His Decision to Flee

Peterson's apparent decision to flee was another reason he should have testified. Most people assume flight is evidence of guilt. But that's simply not true; it can also be evidence of fear of wrongful conviction.

If Peterson had testified about the specifics of the media pressure he was under, and that he feared a wrongful conviction, jurors might have felt that his flight, in particular, showed fear, and not necessarily guilt. After all, the media had portrayed him as unspeakably evil. No wonder he wanted to dye his hair and stop showing his face.

Had He Testified, Peterson Could Have Shown the Jury His Humanity

Thus, testifying would have allowed Peterson to tell his own story of events, and explain his apparent flight. In addition, it would also have humanized him to the jury - in a way that would have helped him in both phases of the trial. It is harder to convict a person than to convict a "monster." And it is much, much harder to put a person, as opposed to a "monster," to death.

(As Jonna Spilbor discussed in a previous column for this site, evidence in a two-phase trial is not always confined to that stage alone. The same jury that sat for the guilt phase, also sat for the penalty phase. And as Spilbor points out, the defense had multiple audiences for every statement it made and piece of evidence it introduced: the trial judge, appellate judges, and of course, the jurors.)

As it was, the silent Peterson may well have seemed to jurors like the "monster" the prosecution claimed he was. Jurors later said they were appalled by his demeanor. Some even thought they overheard him giggling.

If Peterson did giggle, he absolutely should have taken the stand to explain his behavior. In general, evidence as to any antidepressant or other drugs Peterson was taking - and odds are, he was taking them, innocent or guilty - would have given insight into his demeanor.

More generally, Peterson's testimony might have raised enough doubt in the jury's mind to either convince them to acquit him or - more likely - convince at least one juror to hang the jury.

The sad truth is that Peterson is not the only man in the world to have strayed while his wife was pregnant. Suppose he had, for instance, suggested in testimony that Laci's pregnancy brought a diminished sexual desire between them, and that despite his better judgment, he was tempted, and to his surprise, fell in love with Amber?

Or, suppose he'd testified that he was hoping that when Laci finally gave birth, he would fall in love with the baby, and the romance in his marriage would be reborn, making him all the more committed to staying with his family - and when the birth never came, and his wife disappeared instead, he drifted, still obsessed with Amber?

These explanations would have answered a question that must have haunted the jury: If he wasn't a psychopath, then what else could have explained all of Scott's lies?

The prosecution had an easy answer for Scott's lies: They covered up a murder plot. Scott might have offered a messier, more human answer: That he got himself into a predicament when he cheated, and couldn't see a way out except by lying.

Should Peterson Have Testified at the Penalty Phase? It's Unclear.

If Peterson had testified at the guilt phase, should he also have testified at the penalty phase?

I believe it was easy to foresee, during trial, how Peterson's guilt phase testimony would have been an asset to his defense. But it was not easy to foresee whether, assuming he had testified in the guilt phase, his additional penalty phase testimony would have helped or hurt him.

In hindsight, it seems that some jurors wanted to hear from Peterson at least once, and others not at all. Juror Greg Beratlis, as noted above, said he would have welcomed the chance to listen to anything Peterson said - including, but not limited to, a plea for his life. But Juror Richelle Nice seems to have heard all she wanted to in the tape recordings of Peterson talking to Amber Frey - suggesting that in those alone, "I heard enough from him."

Nice probably would have voted to convict, and voted for death, no matter what. But Berlantis was on the fence, and one holdout would have been enough to ensure either a hung jury, or a life sentence. How could Peterson have convinced Berlantis and any other like-minded jurors?

Probably simply by telling his own story at the guilt phase. As Spilbor explains in her column, if Scott Peterson's guilt phase testimony had at least raised a "lingering doubt" - that is, a doubt that is less than "reasonable doubt," and which jurors could have considered and still found Peterson guilty enough to convict - that testimony would also have helped him in the penalty phase. That's because "lingering doubt," under California law, can cut against the imposition of the death penalty and in favor of a life sentence.

Then again, penalty phase testimony by Peterson might have struck the jurors as disingenuous or even disgusting. In convicting Peterson at the end of the guilt phase, the jury would already have effectively deemed him a liar beyond a reasonable doubt. Would its members really want to hear from a liar once again - asking for mercy for the very crimes he just denied committing? Probably not.

The Belief that the Innocent Speak for Themselves Is Hard to Dispel

In the end, legal rules cannot contradict human nature. Jurors may have naturally thought, "If you're not guilty, then what the heck happened?" Appellate judges naturally will have the same thought - as will the trial judge, Judge Delucchi, as he considers whether to accept or reject the jury's death sentence recommendation.

The Peterson trial offers further proof for the enduring truth of famed D.C. attorney Edward Bennett Williams's remark that a defendant must testify "unless he has a record as long as Long Island." Most people believe that the innocent proclaim their innocence to anyone who will listen. Most people also believe that husbands whose pregnant wives are missing will virtually move into the police station, doing everything possible to find their wives.

These beliefs may be wrong - the innocent who are indicted nevertheless may sit by in mute horror, and husbands who lose their families in one fell swoop may be frozen in depression as a result. Indeed, there are notorious cases where the very "loved ones" who lead rescue efforts turn out to be the ones guilty of the crime. But wrong or not, these beliefs about proclaiming your innocence and never resting until your missing loved ones are found are widespread.

So after having failed to search as avidly as expected, Peterson at least should have proclaimed his innocence at trial. Instead, throughout both the investigation and the trial, he failed to act as juries expect innocent people to act. I believe that - along with the failure to explain his actions to the jury -- sufficed to ensure his conviction.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes MP3 and text downloads of the novel's first chapter.

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