Guilty Until Proven Innocent?:
Why Scott Peterson's Guilt Remains Far From Obvious

On April 19, not far from the home once shared by Scott and Laci Peterson, California law enforcement officials gathered for a news conference while the nation braced itself in anticipation. Four months of waiting - and hoping - would now come to an end. Authorities were confident that the bodies that had washed up on shore in San Francisco would be identified as those of Laci Peterson and her unborn child.

The announcement left many deeply saddened, of course, but not altogether shocked. The police had subtly prepared us for the worst long before the official announcement.

What was quite shocking, in my professional opinion, was the decision to charge Scott Peterson with murder. But my shock, I soon learned, would not be shared by all.

The History of the Peterson Case

As many readers will recall, it was last Christmas Eve that Laci Peterson vanished from her home in Modesto, California. She was nearly eight months pregnant at the time, and due to give birth to her first child, Conner, on February 10, 2003.

News of Laci's disappearance made immediate headlines. Soon, strangers from across the country would come to feel they knew Laci Peterson almost as if she were an old friend. The beautiful smile of this mother-to-be shone through, even in grainy pictures on television screens.

As days gave way to weeks, images of a woman very much alive spilled warmly into our living rooms. Often, they were accompanied by the prayerful pleas of her parents, in-laws, and siblings requesting - at times, even commanding - Laci's safe return home.

We all waited for their prayers to be answered.

But on March 5, the Laci Peterson case, previously a "missing persons" investigation, was publicly reclassified as a homicide investigation.

And on April 13 and 14, the bodies of a full-term fetus and a woman, respectively, washed up on the shore of San Francisco Bay. Images of blue, Bay-soaked body bags were looping frequently on television screens. Many observers, including myself, held their breath. While we were uncertain as to whom the lifeless bodies belonged, we knew who we hoped they would not be.

On April 18, before the remains were positively identified, Scott Peterson was arrested for the murder of his wife and unborn child. On April 19, as noted above, the decision to charge Peterson was announced. And on April 24, California prosecutors confirmed their intent to seek the death penalty.

Two Sharply Different Views on Peterson's Arrest

Police and prosecutors had barely left the podium before I was whisked away to a well-known cable news network. There, I spent the morning providing legal commentary on the arrest of Scott Peterson from a criminal defense perspective.

The familiar greenroom was filled with an equally familiar sea of faces; a private investigator in one corner; a former police chief in another; and of course a smattering of prosecutors. I sat down next to another "legal expert" and colleague of mine to exchange thoughts on the case before going live.

My first comment went something like this: "Can you believe police actually arrested Scott Peterson so soon? Boy, they really jumped the gun this time!"

Suddenly, the pearly white teeth of my colleague disappeared behind a scowl. His eyes narrowed slightly, and his head cocked just as my pet pooch's does when he is confused by the sounds coming out of my mouth. Then he spoke: "Don't you mean to say, you can't believe he did it? C'mon. Scott Peterson is as guilty as they come."

It was time to do my own confused pooch imitation. With my head titled in a mirror image of my friend's, I continued: "Guilty? How can you say a person is guilty simply because he's been charged? It is a giant leap between arrest and conviction, my friend. I don't know whether Scott Peterson is guilty, and neither do you. What I do know, is there seems to be little physical evidence to support the charges at this point. That's all I'm saying."

Just then, the room which had been abuzz with shop talk when I arrived, became completely silent. I could tell I was alone in my view; the other guests clearly disapproved.

Again, I was somewhat taken by surprise. Not only did I believe what I was saying, I thought it hewed very closely to the facts. After all, no prosecutor or lawyer could credibly claim that the case against Scott Peterson is - based on publicly-disclosed evidence at least - anything but circumstantial.

The main evidence against him is that the location where he said he was fishing, was a few miles from where the two bodies were discovered. That's bad - but for now, that's it. It doesn't sound like "beyond a reasonable doubt" to me. Peterson could be guilty; but he could be the victim of a horrible coincidence, as well.

Finally, after a few seconds which seemed more like hours, one voice broke the awkward silence with this question: "How can you possibly defend someone so guilty?"

Never before had a greenroom been such a cold and scary place. I didn't have a chance to give a full answer then, but I can try to give one now.

Why the Presumption of Innocence Counts Outside the Courtroom Too

Of course, Scott Peterson, like all others in our country who are criminally accused, is presumed innocent until proven guilty. That crucial presumption comes from the right to a fair trial, which has its roots in the weave of the Constitution's Fourth, Fifth and Sixth Amendments.

But my colleagues seemed to be suggesting that, in Peterson's case, they were entitled to adopt not the presumption of innocence, but rather its evil twin: the presumption of guilt. Peterson might be able to vindicate himself at trial, they would concede, but they doubted it. In their minds, he was already convicted, so he'd have to start from there, and work his way upwards to a verdict of innocence.

How could my colleagues defend this presumption - contrary to the most basic touchstone of the criminal justice system? From their point of view, it's easy: As jurors, they'd have to presume Peterson innocent, and then develop views, working from that presumption, based on evidence presented in the courtroom. But as citizens, they would claim, they had no such obligation.

I strongly disagree. The right to be presumed innocent does not begin at the moment a jury is impaneled. Rather, it begins well in advance of the filing of an accusatory instrument; indeed, it should guide the way the facts are gathered and disseminated throughout an investigation. In addition, it is not just jurors who must hold fast to this presumption. All citizens should - and law enforcement, in particular, should as well.

The presumption of innocence is not something that can simply materialize inside a courtroom at the time of trial. Instead, it is a premise which must be cultivated and protected from the very birth of a criminal investigation, and all involved must honor it if it is to truly exist.

But that is not what happened in Scott Peterson's case.

Prosecutors' Prejudicial Comments

Never, in my experience, has the presumption of guilt been more evident than in the case against Scott Peterson. It is barely a week since his arrest, and already, the examples are plentiful.

All lawyers in California - defense attorneys and prosecutors included - are bound by the rules of professional responsibility. Among these rules is Rule 5-120, which prohibits an attorney who is investigating or litigating a matter from making an extra-judicial statement if two conditions are fulfilled.

The first is that the comment be public, not private - more specifically, a reasonable person must expect it to be disseminated by means of public communication. The second is that the attorney knows, or reasonably should know, that the comment will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

California prosecutors broke this rule in the Peterson case. Indeed, the highest ranking prosecuting attorney in the entire state of California grabbed a microphone within hours of Scott Peterson's arrest, and declared the case a "slam dunk."

There is no question this was a public comment. Nor is there any question it is highly likely to prejudice Peterson's trial. After all, the likelihood that a potential juror - or twelve - heard the remark as it was broadcast on national television is great.

Will this action negatively affect Scott Peterson's right to a fair trial when and if his trial occurs - be it six months, a year, or more from now? It very well could. Unfortunately, we may never know whether it has or not, as there exists no magic chemical that conclusively tests for taint in the jury pool. Defense attorneys can try to screen for prejudice in voir dire (the questioning of potential jurors), but such screening is always imperfect.

The Police's Myopic Investigation: Presuming Scott Peterson Was The Culprit

The Modesto police are a different, but no less damning story. I can understand their treating Scott as a suspect initially because, let's face it, as I noted in a prior column, the husband is always a suspect. But just because he is one logical subject of an investigation, shouldn't make him the sole subject of an investigation.

This rather myopic approach presents a serious danger. When only those facts that support a single theory are sought, other potentially significant evidence can be overlooked - or, indeed, never discovered in the first place, because the police are looking in entirely the wrong place.

Eight thousand phone tips poured in between Laci's disappearance last Christmas Eve and now. Police have admittedly ignored the vast majority, if not all, of them. Are they really so confident they have their man, that they can now afford to assume that none of the eight thousand callers had anything at all significant to add to the investigation?

I hope they've saved the phone numbers. Surely Scott's defense team would like to know what some of those eight thousand people may have seen or heard.

The Press's Bias: Prejudicial Pretrial Publicity

What about the press and the public? Are they, at least, entitled to boo and hiss the defendant long before the verdict is in? One might answer: Why not? After all, a guilty verdict in a greenroom doesn't necessarily guarantee a guilty verdict in a courtroom.

Or does it?

Just three days after his arrest, Scott Peterson's picture - complete with his new orange wardrobe with metal accessories - appeared on the cover of the New York Post. The headline: "Monster in chains." I ask you: Does this sound like a story about a man presumed innocent?

It's a vicious circle: The press assumes the public thinks Peterson's guilty. Indeed, Boston Globe reporter Mark Jurkowitz quoted a news exec as asking, "Can you find an American who thinks [Peterson] didn't do it?" Then any member of the public who might have been on the fence reads press coverage, and becomes convinced Peterson is guilty - and indeed, a monster. Then that person answers a poll, and the press reads the results, and the cycle of the presumption of guilt continues.

Peterson has already been convicted in the public eye. His trial is far from having begun, yet for many, its outcome is a foregone conclusion.

We Must Remember It's the Defendant Who Is On Trial - Not the Crime

In today's society, the atrocity of the crime seems to dictate the haste with which we seek to convict the accused in the court of public opinion. And of course nobody - not the best and brightest lawyer in the world - could ever defend a crime as unspeakable as that which was likely committed against Laci Peterson and her unborn baby.

Fortunately, no lawyer will ever have to. It is not the job of Scott's lawyers to defend the crime, contrary to the misleading suggestions of those who assume his guilt as if his trial were already over.

It's obvious, but it bears saying: Defense lawyers defend people, not the crimes they stand accused of committing. Equating the person with the crime before a trial occurs defeats the very point of having a trial in the first place.

The presumption of innocence is not merely a legal fiction buried in an obscure jury instruction for us to recite and ignore. It is part of what it means to have a fair trial. And a systems in which trials are fair benefits us all, for a fair trial not only ensures that those who are innocent go free, but also that those who are guilty do not.

I never did answer the question posed to me in the greenroom: "How can you possibly defend someone so guilty?" Actually, I wouldn't know how to answer it. Why? Because all of my clients are innocent.

Certainly, they may be guilty someday, if a jury so finds and appeals courts agree, but not a moment before.

Author's note: I wish to offer my heartfelt condolences to the families and loved ones of Laci Peterson. Although I am not among the privileged who knew Laci in life, her smile is one I will not soon forget.