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New court brief says judge botched Scott Peterson’s 2004 trial

A memorial service was held for Laci Peterson and her unborn son at the Worship Center of the First Baptist Church in Modesto on May 4, 2003.
A memorial service was held for Laci Peterson and her unborn son at the Worship Center of the First Baptist Church in Modesto on May 4, 2003. Modesto Bee file

Scott Peterson got a bum trial in 2004, his appeals attorney says in the latest California Supreme Court brief from a case that captured attention around the globe and landed the Modesto fertilizer salesman on death row for the murders of his pregnant wife and unborn son.

“Because of various errors committed by the trial court, he did not receive the fair trial to which he was entitled,” the document reads. Peterson’s Oakland attorney, Cliff Gardner, blames Judge Al Delucchi, who died of cancer in 2008, for legal missteps, and not celebrity defense attorney Mark Geragos of Los Angeles, who gave up television commentary on the matter to lead Peterson’s camp when the case ballooned to blockbuster status.

There were major gaps in (prosecutors’) case. They cannot be filled by a rhetorical sleight of hand.

Peterson appeals brief

“The trial in this case was certainly not perfect,” Gardner said in the document. “Far from it.”

Another attorney is working on a separate but parallel effort to have Peterson freed from custody while waiting for Supreme Court justices to weigh his appeal.

Substitute teacher Laci Peterson, 27, was eight months pregnant when she disappeared on Christmas Eve 2002. Her husband, then 30 and now 42, said he had been fishing in a newly purchased boat in San Francisco Bay and returned to an empty house; the badly decomposed bodies of mother and fetus washed ashore nearly four months later.

To escape pervasive publicity, Scott Peterson’s trial was moved from Modesto to the Bay Area, where he was convicted of double murder in late 2004 and sentenced to die. Gardner formally appealed Peterson’s sentence in July 2012, focusing on Delucchi’s alleged errors in jury selection and allowing evidence that helped prosecutors while barring testimony that could have helped Peterson’s defense.

The office of California Attorney General Kamala Harris countered each objection in a January document, and Peterson’s latest 181-page reply brief was filed Thursday with the state Supreme Court. Much of the document restates previous contentions, such as:

▪ Delucchi improperly excused some prospective jurors because they shared objections to the death penalty on written questionnaires.

But 13 specifically stated in other answers that they might be able to set aside their views, to comply with the law, Gardner said in the latest brief. All should have been questioned verbally, but none were, Gardner contended.

The results of such a skewed view of jury selection were predictable. ... It was anything but a level playing field.

Scott Peterson’s July 23 appeals brief

“The improper exclusion of even a single juror based on opposition to the death penalty requires a new penalty phase,” Gardner said in the brief.

▪ The judge allowed testimony about a certified dog picking up Laci Peterson’s scent at the Berkeley Marina four days after authorities believed her husband launched his 14-foot boat to dump her body. The dog had failed two-thirds of tests with similar conditions; “No case anywhere in the country has approved admission of such evidence with such a track record,” Gardner said.

A study of scent tracking in 2011 – seven years after the Peterson trial – concluded that dogs gave false alerts, or signs at having found a scent trail, 85 percent of the time when their handlers were aware of where the scent was supposed to be, Peterson’s brief says. Prosecutors’ reliance on tracking testimony “ignores case law, scientific research and common sense as well,” Gardner concluded.

He additionally noted that “the FBI requires a success rate of 90 percent before admitting dog scent identification evidence.”

Also, Delucchi gave jurors “one-sided instruction” by telling them the dog evidence could be used to convict Peterson but not telling them that it could be used to acquit him, Gardner contended.

▪ Delucchi prevented Geragos from showing a video of a similar boat capsizing under like conditions, with a man about Scott Peterson’s size disposing of a mannequin about Laci’s size in the bay. But the judge allowed prosecution testimony about stability experiments on the same boat model performed in a freshwater swimming pool in Indiana 25 years before the trial.

The judge offered to let Peterson’s defense camp recreate the experiment with authorities watching. That would have been “an indefensible intrusion” into the defense process, inconceivable in most courts, Gardner said.

▪ After the trial was moved from Modesto to Redwood City, Delucchi refused a defense plea to move it again to Los Angeles.

A fair trial was simply not possible in San Mateo County.

Peterson appeals brief

Gardner cited another case that had been moved after a surveys found that 52 percent of prospective jurors had been exposed to pretrial publicity, and a third trial that moved when 30 percent believed the defendant was guilty before hearing evidence. Yet Delucchi denied Geragos’ request even though 96 percent of prospective jurors in San Mateo County knew about the Peterson case and 45 percent believed he had killed his wife.

“The publicity which attended the Scott Peterson trial was beyond anything any of the participants had ever seen,” Gardner wrote. “If this is not an extreme case, then the term has lost all meaning.”

▪ Harris’ office had noted that Geragos did not exhaust his peremptory challenges – his right to excuse prospective jurors without explaining why – and concluded that he must have been satisfied with those finally selected. That idea “has no basis in the real world. None,” Gardner wrote. He contended that Geragos, having lost his motion to move the trial, knew from questionnaires the views of remaining prospective jurors and simply opted to “make the best of a bad situation.”

▪ A prosecution witness specializing in tides acknowledged he was not an expert on how bodies might be carried by water currents, yet Delucchi allowed him to testify about that very thing.

▪ Harris’ office made much of the fact that Scott Peterson rented five vehicles at different times to spy on dive teams searching for bodies in the bay, surmising that he was “checking to see if searchers were looking in the right place.” But prosecutors left out that he also drove to the Medeiros boat launch area of the O’Neill Forebay at San Luis Reservoir, where authorities conducted a similar search, and watched, also speaking to no one.

“Under (prosecutors’) theory, there was no reason for him to travel there,” Gardner said.

Harris’ office in January had said that Peterson was “fueled by the trifecta of selfishness, arrogance and wanderlust” and sought to escape marriage and impending fatherhood. They noted “overwhelming evidence,” albeit circumstantial, of his guilt, including subscriptions to pornographic television programs less than two weeks after Laci vanished, selling her vehicle and considering selling their home less than a month later, stopping mail and using a nursery they had prepared for storage.

Gardner scoffed at prosecutors’ “insistence that no errors at all were made at trial and that this was the perfect trial,” at one point exclaiming with sarcasm, “The golden fleece has been found.”

State Supreme Court justices could elect to weigh Gardner’s appeal after or at the same time that they consider Peterson’s request to be freed while awaiting the appeal; that petition has yet to be filed.

“This case gets in line behind their other cases, so it’s not something that will happen quickly,” said Birgit Fladager, who steered a team of prosecutors from Stanislaus County in the Peterson case before winning election as district attorney.

California has not had an execution in nearly a decade, and 751 condemned prisoners were on death row as of July 6.

Garth Stapley: 209-578-2390

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