Will Scott Peterson Ultimately Be Executed?
The Impact of Evidence Offered in the Penalty Phase, and Its Effect on Appeal

For the past six months, in the confines of a California courtroom, the twelve people sworn to decide Scott Peterson's fate have breathed the same air as a man they ultimately judged to be a killer. Yesterday, it was their job to judge, in addition, whether Peterson was worthy to breathe at all.

Outside the courthouse on that chilly December afternoon, a crowd gathered to await word of the sentence -- cell phones at the ready. The Peterson case had gripped a nation, since Scott's wife Laci disappeared on Christmas Eve 2002.

The reading of the verdict was quick: The single word "Death." The jury had recommended that Scott Peterson be put to death via the gallows of California's San Quentin State Prison - one of only two correctional facilities in the state to have a death row.

This time, there were no cheers, no jeers, and no cause for celebration -- only a quiet respect for two families who have lost so much.

With the penalty phase concluded, the jury was freed to speak with the media about both phases of Peterson's trial - the guilt phase, and the penalty phase. For example, Foreman Steve Cardosi explained why he voted to convict: "Collaboratively, when you add it all up, there doesn't appear to be any other possibility."

Now, only intervention by the trial court, the appellate court, or Governor Schwarzenegger could save Peterson's life. Interestingly, though the evidence introduced in the penalty phase of the trial did not convince the jury to spare Peterson, it may be effective in convincing an appeals court to do so. In this column, I will explain the reason why. But first, a bit of background on the death penalty in California will be helpful.

The Anatomy of a California Death Penalty Case

Death penalty trials in California are an unusual animal. They are divided into a "guilt" phase, in which the jury is tasked with deciding the defendant's guilt or innocence, followed by, - if necessary - a "penalty" phase in which the jury decides whether or not to recommend a death sentence.

Even in the most serious, non-capital felony cases - such as cases of murder, rape, or a "third strike" that will send the defendant to jail for life - sentencing is the judge's job. Only in capital cases, does the jury weigh in.

California's penal code sets forth a laundry list of relevant factors the jury can consider during the penalty phase. The prosecution may point to "aggravating" factors suggesting the defendant should face death - for instance, that he remains dangerous, was menacing in the courtroom, and has not expressed remorse. The defense may point to "mitigating" factors suggesting why his life should be spared - for instance, that the offense may have been an aberration, or that the defendant is remorseful, or youthful, or has limited mental capacities.

The prosecution can (and almost always will) present "victim impact" testimony - by which family members, friends, and loved ones explain how the crime has affected their lives. Conversely, however, the jury may not consider the impact that execution would have on the defendant's family members.

At the conclusion of the presentation of evidence, attorneys for both sides present closing arguments, just as they did in the guilt phase. However, according to California's Penal Code, in the penalty phase, two attorneys from each side are permitted to make closing arguments. Also, unlike in the guilt phase, the defense attorney, not the prosecutor, has the last word with the jury.

In the end, the jury's decision in the penalty phase is merely a "recommendation" to the judge - but a recommendation to which most judges afford great weight. If the jury recommends death, the judge can still opt for a life sentence. But if the jury recommends a life sentence, the judge cannot impose death. Also, if the jury deadlocks, the judge cannot impose a death sentence, but must impose a sentence of life without the possibility of parole.

The "judgment of conviction" is not official until the judge conducts a formal sentencing hearing. In the Peterson phrase, that hearing is slated for February 25, 2005.

During the penalty phase, Peterson's defense attorneys were caught between a rock and a hard place in two different ways - as I will explain.

How the Defense's "Guilt Phase" Strategy May Have Hurt Them at the Penalty Phase

First, the strategy the defense opted for during the guilt phase limited its options in the punishment phase.

As I discussed in a prior column, in the trial's guilt phase, Peterson attorney Mark Geragos called his own client a "14-karat a-hole," and a "cad." Here's how Geragos began his closing: "Do you all hate him?" Probably, every single juror did.

This was the right tactic to use during the guilt phase - Geragos had to try to convince the jury to separate incontrovertible evidence that Peterson plainly was a liar and adulterer, from tenuous, circumstantial evidence suggesting he may have been a murderer. But it doubtless hurt Peterson in the penalty phase.

There, prosecutors called Peterson a "monster." Geragos - who'd just called his own client a "14 karat a--hole" - could hardly claim, in response, that he was a choirboy.

No wonder, then, that Geragos simply appealed for the jury's mercy, saying "I'd get down on my knee if it wouldn't look so contrived."

Indeed it would have, and Geragos - thankfully - remained upright.

Defense Lawyers' Brutal Choice: Should They Cite Doubt, Despite A Guilty Verdict?

Second, the Peterson defense was limited not only by its own admissions, but also by the simple fact that the jury had rendered a verdict of guilty.

Defense lawyers have a particularly difficult strategic choice to make at the penalty phase of a capital trial: Should they point to remaining doubt about their client's guilt - even though jurors convicted, and thus did not find that doubt "reasonable"?

Or, should they throw their client to the lions, and proclaim - in effect -- "The jig is up. You're right, he did it. We apologize for wasting the last six months of your life. Now could you show our murderous client a bit of mercy?"

Neither of these options is palatable - the first may rub the jury the wrong way, and the second goes contrary to professional obligations. If even his own attorney concedes his guilt, the defendant may suffer from the concession on appeal.

So most defense attorneys are forced to pick a safe middle ground - neither insisting on innocence, nor conceding guilt in so many words. And that is exactly what occurred in the Peterson case. Fortunately for the defense, however, California law -- unlike that of most death penalty jurisdictions -- offers a term for the kind of doubt that is less than reasonable doubt, and makes that "lingering doubt" a mitigating factor counting against a death sentence.

It was also fortunate for the defense that the judge in the Peterson trial thought a case could be made for "lingering doubt." Before the jury retired to deliberate on their sentencing recommendation, Judge Delucchi informed counsel, "I believe under the facts and circumstances of this case that the court should give a lingering doubt instruction, so I intend to do so."

As the judge instructed the Peterson jury, under California law, lingering doubt - also called "residual doubt" is defined by jury instruction as doubt that is beyond a reasonable doubt, but short of being beyond any doubt.

By making "lingering doubt" a mitigating factor, California law sends the message that it is possible that a defendant can be guilty enough to be convicted of the highest form of murder -- capital murder -- but not guilty enough to pay the ultimate price: death.

How can "lingering doubt" be established? Geragos might have gone over the circumstantial nature of the evidence against Peterson. But he wisely chose not to: After all, that evidence did convince the jury.

Instead, Geragos opted for a subtler, smarter tactic. He tried to introduce lingering doubt as to whether Peterson was the kind of man who could have murdered his wife and unborn child. Specifically, he called thirty-nine upstanding, respectable citizens - coaches, teachers, neighbors, friends and relatives -- to the witness stand. Each of them described, one by one, the good they saw in Scott Peterson, and most - if not all -- testified that the Scott they knew could not have committed such a heinous crime.

The jury still was not convinced to spare Peterson. But Geragos's strategy may yet help Peterson avoid death, for it may convince Judge Delucchi to disregard the jury's recommendation, or at a minimum, may help Peterson on appeal.

The Timing of the Appeal, and of the Possible Execution.

If Judge Delucchi does confirm the jury's death recommendation - as most California judges historically have - Peterson's appeal will, by law, automatically go to the highest court in the state, the Supreme Court of California, skipping the Court of Appeal. (In contrast, should Delucchi impose a life sentence, despite the jury's recommendation, Peterson's appeal will go through the usual appellate process.)

Several years or more may pass while the appeal is briefed and heard - especially if Peterson seeks appointed appellate counsel, if he has run out of funds. Meanwhile, if Peterson is under a death sentence, he will spend his days alone in an 8' by 10' cell.

Death row inmates are segregated from the general population, while "lifers" are permitted to mix and mingle. In Peterson's case, the lack of mixing and mingling may be a blessing; with no criminal record, and lacking a fierce demeanor or unusual strength, he would be vulnerable to prison beatings - or worse.

If Peterson is ultimately executed, when would it happen? The answer is probably: Years from now. At present, there are more than 600 inmates currently on California's death row. Of them, only ten inmates since 1978 have actually been executed.

Meanwhile, three death row inmates have had their death sentences overturned.

Ironically, the most recent to be freed from death row was a defendant from Stanislaus County, the very place where this case began. In June, 2003, the California Supreme Court in People v. "Jesse" Hernandez, overturned Hernandez' conviction on grounds that "numerous and serious errors" during the penalty phase required a new sentencing trial. Incidentally, Hernandez' prosecutor was none other than District Attorney James Brazelton - the man who made the decision to file Scott Peterson's case as a capital case.

Exonerations often take place due to DNA evidence that either clears the prisoner, or implicates another perpetrator. If DNA someday showed Scott Peterson was not a perpetrator -- but rather the victim of a bizarre coincidence, by which his wife's body was dumped near his favorite fishing spot -- would you be shocked?

If not, then perhaps you too, dear reader, have "lingering doubt."