Did the Defense In The Scott Peterson Case Violate Ethics Rules

By Putting a Boat Display Two Blocks From the Courthouse?

By JULIE HILDEN


julhil@aol.com
----
Tuesday, Nov. 23, 2004

Scott Peterson's attorney, Mark Geragos, now has to contend with more than a guilty verdict for his client - and the penalty phase of the trial, now delayed for a week by the judge. Geragos is also facing a bar complaint related to the case.

In the complaint, Florida attorney John B. Thompson - who has no reported connection to the case - argues that Geragos violated a key ethic rules forbidding communication with jurors. According to Thompson, Geragos did so by putting a replica of Scott Peterson's boat two blocks from the courthouse. Geragos, who remains under a under a gag order preventing him from discussing the case with the media, has not been able to respond to the allegations.

Thompson says that Geragos's alleged boat display not only broke the California ethics rule barring juror communication, but also broke the California ethics rule against extrajudicial communications about a case. (As a recent column by Jonna Spilbor for this site noted, the penalty phase of this case - in which a death sentence could be imposed - has yet to occur.)

Reportedly, the boat contained homemade concrete anchors - such as those the prosecution alleged Scott used to weigh down Laci Peterson's body - and a dummy representing the body. The defense's theory was that Scott could not have thrown Laci's heavily pregnant body over the side of the tiny, anchor-filled boat without swamping the boat with water and tipping it over. The display was apparently intended to illustrate just how tippable and tiny the boat actually was.

During the trial, the judge had refused to allow the defense to mount a similar display for jurors - a display that was intended to prove that very theory. According to Thompson, however, Geragos circumvented that ruling by placing the boat near the courthouse. By doing so, Thompson argues in his complaint, Geragos intended "to engage in non-verbal communication" with jury members regarding "certain visual, dimensional aspects of the boat he was barred by the Court to convey." And, Thompson says, that violates the rule against communication - by parties or their attorneys - with jurors.

If Geragos did put the boat on display two blocks from the courthouse - as Thompson claims, and as news account suggest may have been the case - did Geragos indeed violate the bar ethics rules Thompson cites? And in answering that question, is it relevant that the judge's decision preventing the defense from showing the jurors the boat display was ill-founded?

Did the Gag Order on Geragos Encompass the Boat Display's "Speech"?

To begin, it's an interesting question whether the judge's gag order even encompasses putting the boat display by the courthouse. After all, the order gagged speech - not conduct. Which leads to an interesting question: Did the boat display constitute speech by Geragos (assuming he did put it there)?

Even Thompson, in his bar complaint against Geragos, deemed the boat display "non-verbal communication" - differentiating it from pure speech. And Supreme Court precedents equivocate over when conduct also counts as speech. Consider, for instance, the Court's opinion in Barnes v. Glen Theatre, which suggests that nude dancing only barely, and marginally, counts as First-Amendment protected speech.

Moreover, when the Court has found conduct to count as speech, that conduct has often conveyed a fairly clear message. For instance, flag-burning - upheld, in a 5-4 vote, as constitutionally protected speech in Texas v. Johnson -- conveys an anti-government message.

What exact message - if any - was being conveyed by the boat display?

Some viewers who saw the boat might have looked at it and said, "Yeah, that must have been just how Scott Peterson did it. I can see it in my mind now - I know that guy is guilty." Reportedly, the boat display, at some point, was turned into a shrine for Laci, and some jurors may have seen it that way even before the bouquets began to collect there.

Granted, other viewers might have said, upon seeing the boat, "How the heck did he get that body off that boat without tipping it? It's impossible." But they may not even have been in the majority of those who saw the display.

In sum, viewers were free to take their own messages - and, indeed, opposite messages -- from the display. And that means that it might not count as the kind of opionated or factual speech the gag order was trying to target. (Interestingly, no one seems to have alleged the display was in any way inaccurate or misleading.)

For these reasons, the display arguably fell outside of the gag order - especially if the gag order is narrowly construed, as it ought to be.

Did the Boat Display Send a Message to Jurors, and Thereby Violate Ethics Rules?

What about Thompson's claim that the boat display not only violated the gag order, but also violated the rule against juror communications?

First, it's quite possible none of the jurors saw the boat. They were sequestered. The boat was two blocks from the courthouse. They had been instructed that they weren't supposed to learn anything about the case outside the courtroom. Even if they saw it, they knew they were supposed to look away.

In short, not only was the display not a solid example of "speech," it seems even more dubious to call it "speech to jurors." After all, there was no evidence, in Thompson's bar complaint, that any juror ever saw it, or that Geragos ever thought they would.

The Judge's Ruling On the Boat Display: Wrong in the First Place

It may also be relevant, from the bar's perspective, that the judge made a grievous error in excluding the boat display. Bar officials have a great deal of discretion, and if they see the display as an attempt to correct a grossly wrong ruling, they may be more sympathetic to Geragos.

The boat display could have provided crucial support for the defense's claim that the prosecution's story about how Peterson disposed of the body was a physical impossibility. Indeed, in my view, the defense was entitled not only to a display of the boat, but to a re-enactment of what would have happened -- in a tank of water, or, better, in the Bay on a day when weather conditions were right.

If the re-enactment had showed the boat would indeed have been swamped, the prosecution's case would have been seriously hurt, and rightly so. That's precisely why, in my opinion, the defense was entitled to a re-enactment - or, at a minimum, to display the boat in court.

Will the Boat Display Ruling Cause the Appeals Court To Require a New Trial?

For all the reasons just given, I think the judge's evidence call on the boat display was clearly erroneous and ought to be reversed on appeal - and since it's an important call, Peterson should be granted a new trial. But don't count on it.

Appellate courts generally don't like to reverse trial courts' evidence calls. Such calls are quintessentially the job of trial judges, who see all the evidence, not of appellate judges, who don't. Even if they see a ruling as erroneous, they may still deem it to be "harmless error" - finding that the defendant would have been convicted anyway.

My view is that this error was harmful indeed: The display could have been immensely helpful to the defense, especially since this was a circumstantial case with little, if any, forensic evidence in favor of guilt. But the California appeals court may well disagree, and uphold the "Guilty" verdict.

A Justifiable Act of Civil Disobedience?

If I am right about the likely fate of the "boat display" argument on appeal, then that raises a provocative question: If Geragos were found to have violated the gag order and the rule against jury communications, could his act nevertheless be defended as one of justifiable civil disobedience?

There is a plausible case in favor of that view. If Geragos did mount the boat display outside the courthouse, he probably did so knowing both that the trial judge's evidence decision on the display was clearly erroneous, and that - nevertheless -- the appellate court would probably uphold that decision. In addition, he may have believed that without the boat display, his client probably would be convicted (as, indeed, occurred). Finally, he may also have believed that if Scott Peterson were convicted, he would be sentenced to death.

Might a lawyer ethically be justified in trying to counteract a blatantly wrong evidence call in order to save his client's life - even if doing so counteracts a gag order, and the anti-juror communications rule?

Certainly, the issue is at least a debatable one. There may be a few on the bar ethics committee, at least, who are sympathetic to the "civil disobedience" argument.

In the end, we won't really know what to think of this bar complaint until Geragos speaks out. I've suggested some of its weaknesses above, but a final evaluation ought to wait until he has a chance to defend himself.

It's ironic, to say the least, that the gag order Geragos allegedly violated, also may be preventing him from denying the allegations against him.


Julie Hilden, a FindLaw columnist, practiced First Amendment and criminal 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, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.

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