Peterson case hits uncharted territory

January 18, 2004 

It's not unusual for defendants to insist on their rights to a speedy trial. In fact, it can be good strategy, some experts say.

Neither is it uncommon for defendants to want their cases tried in another city.

Combining the two, though, is rare. And both of the above, plus a new judge: Virtually unheard of.

Such is a real possibility in Scott Peterson's double-murder case.

"That is shocking," retired San Francisco Judge David Garcia said. "It's extremely rare in a case of this consequence for lawyers not to take additional time."

The accused killer's lawyer didn't answer earlier this month when Stanislaus County Superior Court Judge Al Girolami asked if Peterson were willing to waive his right to a speedy trial. A quick "yes" is normal, for a defendant succeeds in getting a trial moved in hopes of finding unbiased jurors.

The picture turned murkier when Girolami, who has handled the case since April, raised the prospect that he will bow out of the trial.

Decisions on the timing and the judge, as well as a ruling on where the trial will be held, are expected Tuesday. The trial is scheduled to start six days later.

Peterson, 31, faces the death penalty if convicted of murdering his pregnant wife, Laci, and their unborn son.

A defendant is guaranteed the right to a trial within 60 days of a preliminary hearing. Peterson's ended Nov. 18, and his trial is scheduled to start Jan. 26.

Many experts expected defense attorney Mark Geragos of Los Angeles to ask for a delay if the judge agreed to move the trial.

But Geragos hasn't. And until he does, it's full steam ahead, prosecutors and court officials say.

"It's a good tactical move on the part of the defendant," Sacramento defense attorney John Virga said. "He has put the prosecution's feet to the fire."

Said Kevin Clymo, also a Sacramento defense attorney, "It's easier for the defense to charge off into battle and be ready to go."

Both have experience with moved trials and high-profile cases. Virga's clients include Lynette "Squeaky" Fromme, who attempted to assassinate President Ford in 1975. Clymo's include boarding house serial killer Dorothea Puente of Sacramento and Unabomber Ted Kaczynski.

But neither could think of a case that combined a quick trial and a move to another county. Ditto for several other experts.

Virga once won an acquittal after pushing for a speedy trial for a murder defendant.

And Clymo represented a college student accused of helping a woman poison her husband, a Sacramento lawyer, and bury him in a vineyard near Lodi.

Clymo obtained a quick trial, eclipsing potentially damaging details that came out after his client was convicted of manslaughter, not murder.

But the tactic doesn't always work; David Westerfield insisted on haste after killing 7-year-old Danielle van Damme in San Diego in 2002 and was sentenced to death.

"It's a high-stakes game, a big roll of the dice," Clymo said.

Ramon Magana, a Modesto defense attorney, in 1993 helped Jason LaMarsh avoid death row "because we took time to develop and prepare our defense," Magana said.

His client was one of five men who killed four people in a Salida duplex three years earlier; the trial was moved to Alameda County because of massive publicity. Three of the five were sentenced to death.

The possibility of demanding a speedy trial never entered anyone's thinking, Ma-gana said.

The same goes for Robert Bell of Santa Rosa, who argued for a change in trial location all the way to the California Supreme Court. His client was Archie Fain, who in 1967 killed an Oakdale youth and raped his two female companions.

Nothing stops gears of justice

In Peterson's case, the question of a new judge requiring time to get up to speed is a nonfactor, said three retired judges who continue to try cases on a part-time basis.

"That's not going to delay the trial," said Augustus Accurso, who hears two or three trials a year, several years after retiring as a Stanislaus County judge.

"The judge goes in cold turkey and says, 'Call your first witness,'" Accurso said. "During opening statements, they tell the jury, 'This is what the case is.' It's not a pain in the neck to do that. Justice keeps churning."

Garcia and William Cahill, retired judges from San Francisco, agreed.

"A lot of us get cases on the day of," Cahill said, "and we go forward."

There's another twist in the Peterson case: Geragos' calendar shows him starting two trials Jan. 26.

Geragos also is scheduled to represent Jeffrey Alan Hambarian, a former trash executive charged with theft, fraud and money-laundering, including taking $4.2 million owed the city of Orange.

"There's been no official motion to continue filed at this point," Orange County prosecutor Ron Cafferty said Friday. He estimated Hambarian's trial would take three months.

Those involved in the Peterson trial say it likely would take at least five months.

California Judicial Council officials have said Santa Clara, San Mateo, Alameda and Orange counties could accommodate the trial.

Geragos, Peterson's lawyer, wants the trial moved to Los Angeles, near his home. But Girolami -- who said in court a couple of weeks ago, "Better one person be inconvenienced than a whole lot of others" -- prefers the Bay Area.

Prosecutors on Friday reaffirmed their choices, in this order: Santa Clara, San Mateo and Alameda counties. They really wanted Sacramento, but Geragos contended that its TV stations have fed on the Peterson case, and Girolami pared that city from the list.

The case's status as one of the nation's top mysteries probably helped state court officials line up potential trial sites quickly, San Joaquin County Deputy District Attorney Thomas Testa said.

When he prosecuted triple-murderers Wesley Shermantine and Loren Herzog, it took months to get a list of possible locations, while the Peterson people waited five days.

"The notoriety (of the Peterson case) is greasing the wheels," Testa said.

The Speed Of Justice

Bee staff writer John Coté contributed to this report.

Bee staff writer Garth Stapley can be reached at 578-2390 or gstapley@modbee.com.

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