Scott Peterson's attorney cited a "lynch mob atmosphere" and "poisonous" news coverage in a request to move Peterson's trial on double-murder charges.
"Only a change of venue can ensure that Mr. Peterson obtains the fair and impartial trial to which he is constitutionally entitled," Mark Geragos wrote in a motion filed Monday in Stanislaus County Superior Court.
"The widespread, pervasive and negative nature of the media reports surrounding this case have made it impossible to seat a fair and unbiased jury in Stanislaus County," Geragos wrote in the 21-page motion backed by more than 8,000 pages of documents.
Peterson is charged with killing his pregnant wife, Laci, and their unborn son, Conner.
The motion is pivotal for a defense team trying to secure a sympathetic jury and stave off the death penalty, legal observers said.
"Basically, everything is at stake here," San Francisco Assistant District Attorney James Hammer said.
If granted, the request would almost certainly delay Peterson's trial, scheduled to start Jan. 26.
Prosecutors are scheduled to file their response Jan. 2, but one legal observer said Monday that the defense argument for jury bias appeared lacking.
Prosecutors have said they hope to keep the trial in Modesto but want to survey possible jurors to gauge potential prejudice against Peterson. Judge Al Girolami wrote in a July ruling that moving the trial is "not a desirable option" and would result in "considerable hardship for the witnesses and added expense to the public."
The defense motion cites a range of factors, including more than 8,000 articles in various newspapers, two surveys by sociologists who concluded it would be difficult or nearly impossible to seat an impartial Stanislaus County jury and what Geragos termed "political overtones" in the case.
The filing also offers anecdotal incidents:
The defense request was widely expected. Geragos months ago suggested he would seek to move the trial, and publicly affirmed his intent at the close of Peterson's preliminary hearing last month.
Girolami raised the prospect of having jurors from another county bused to Modesto, a cost-saving option that has been used in cases experiencing local publicity.
But "grand-scale media coverage of this case has been undeniably biased against Mr. Peterson," according to Geragos' request. He wrote that potential jurors in San Joaquin, Merced, Tuolumne, Sacramento, Contra Costa and Fresno counties "are in the same media market" and have likewise been inundated with reports on the high-profile case.
Bringing in a jury would require defense approval, which Geragos wrote he would not give.
As a further indication that unbiased jurors cannot be found, Geragos cited two potential juror surveys.
Paul J. Strand, a jury consultant and dean of the College of Arts and Letters at San Diego State University, found in December that 98 percent of 300 randomly selected Stanislaus County residents were aware of the Peterson case, Geragos wrote. And, 39 percent "admitted predisposition toward Mr. Peterson's guilt," Geragos wrote.
Stephen Schoenthaler, a criminal justice professor at California State University, Stanislaus, performed a survey in late May. Results of that survey of 150 people showed that 75 percent of county residents had prejudged whether Peterson was guilty, what his sentence should be or both. Additionally, 59.3 percent thought Peterson was "probably guilty" or "guilty beyond a reasonable doubt" and 2.7 percent believed he was innocent.
Results of a similar survey in a 1983 case where an appellate court ordered the trial moved showed a 22.4 percent prejudgment rate, Geragos wrote.
"These levels of prejudgment could only suggest that residents of Stanislaus County have already made up their minds and convicted Mr. Peterson."
Hammer prosecuted the murder trial in the dog-mauling death of Diane Whipple, which was moved to Los Angeles last year. He countered that the survey figures showed limited support for the defense argument.
Hammer said the May survey -- which showed 75 percent prejudgment -- came months before Peterson's preliminary hearing, where prosecutors unveiled some of their case and the defense had a chance to attack it in court.
"They're trying to bolster their argument by that old data," Hammer said. "Opinions change. Look at presidential polls or the last governor's race. What counts is now."
The 39 percent prejudgment rate found in the survey conducted earlier this month falls well short of the 62 percent threshold established in a 1961 U.S. Supreme Court case as "clear and convincing" evidence a change of venue was necessary.
"It's pretty stunning," Hammer said of the December survey numbers. "If that's all the evidence they have, then I think Scott Peterson is going to be tried in Modesto."
Schoenthaler, who conducted the first survey, said the two polls "probed slightly different mindsets."
"The 39 percent is still sufficient," Schoenthaler said. "There is not one case since 1968 where the state Supreme Court has allowed the conviction to be upheld where more than 31 percent prejudged guilt."
Pleasanton defense attorney Harry Traback said that while the surveys showed a notable decrease in prejudgment, the media saturation in the case was of more concern.
"You'd have to have been in the hole with Saddam Hussein to not have heard about it," said Traback, who defended George Souliotes, a Modesto landlord convicted of three murders and arson in a case where jurors were bused into Stanislaus County.
"The question becomes -- is there some place with less exposure?" Traback said. "Probably not."
Wherever the trial is held, prospective jurors would be expected to assure a judge that they could disregard what they've already heard.
"It is unrealistic to expect that any individual bombarded by the frenzy of media reports in Stanislaus County would be able to do so," Geragos wrote.
"Jurors are the community," Hammer said. "They express the community. There are not supposed to give in to community pressure, but it's naive to think that they would be oblivious to the fact that all their neighbors are watching them."
Bee staff writer John Coté can be reached at 578-2394 or email@example.com.
Bee staff writer Garth Stapley can be reached at 578-2390 or firstname.lastname@example.org.
AT A GLANCE
The California Supreme Court's standard for weighing whether to move trials takes into account five factors:
Nature and gravity of the offense.
There is no verdict more serious than the death penalty, Peterson attorney Mark Geragos wrote.
The more people, the less reason for moving, the theory goes. Geragos noted that other important cases have been moved from counties larger than Stanislaus County's population of about 468,566.
Status of victim and accused.
"Although almost all media reports emphasized Laci Peterson's good looks, infectious smile and other worthy attributes, Mr. Peterson has consistently been portrayed as an adulterous fertilizer salesman in dire financial difficulty who is an outsider to Modesto," Geragos wrote.
Nature and extent of publicity.
Geragos noted more than 8,000 media reports, including more than 500 in The Bee and hundreds more on radio and television stations from Sacramento to the Bay Area and Fresno. Bee articles, he wrote, "have presented a very one-sided, pro-prosecution version of the case. The articles have had only one purpose -- to inflame and bias the public against Mr. Peterson." Geragos also took to task "graphic television" and radio coverage.
Geragos noted that California Attorney General Bill Lockyer referred to "slam dunk" odds of convicting Peterson the day he was arrested in April. Also, Laci Peterson's mother, Sharon Rocha, lobbied in Washington, D.C., for federal legislation regarding fetal murder, Geragos wrote.