Proving that famed defense attorney Mark Geragos botched Scott Peterson’s high-profile 2004 double-murder trial could be the Modesto man’s best chance at leaving death row, his latest appeal document suggests.
Of 10 claims raised by Peterson’s appellate attorneys in this week’s habeas corpus briefing, six allege “deficient performance” by Geragos, the Los Angeles lawyer who failed to convince jurors that someone else killed Peterson’s pregnant wife, Laci.
Geragos has admitted certain missteps in previous documents. He restated belief in his client’s innocence in a Wednesday email to The Modesto Bee.
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Questions about an attorney’s actions can lead to verdict reversals, because those accused have constitutional rights to competent counsel.
“There are things Mark could have done better,” acknowledged Janey Peterson, Scott’s sister-in-law, in a recent lengthy interview with The Modesto Bee at the family’s crating warehouse near San Diego. She added, “There are a lot of things Modesto police could have done better. There are a lot of things the prosecutors could have done better. There’s some things Scott could have done better.
“The sum total of all of it is that the justice system failed,” she said, “and Scott needs a new trial.”
The state attorney general’s office has opposed Peterson’s appeals at every step, saying he was a plotting narcissist willing to kill to free himself from the burden of being a husband and new father. Jurors agreed in 2004, and he arrived on death row at San Quentin State Prison in March 2005, where he awaits the outcome of various appeals.
This week’s habeas filing is the sixth Peterson appeal document, and could be the last if the California Supreme Court finds no merit. Or the court could ask for more written briefings that might lead to hearings where both sides would argue appeals issues, either before Supreme Court justices or in a lower court, perhaps in Modesto. The end goal for his attorneys is securing an order for a new trial.
“Or, to get for the first time a fair trial,” said Cliff Gardner of Berkeley, the attorney leading Peterson’s appellate team.
The latest filing restates claims initially lodged in late 2015, including allegations that a “stealth juror” lied about her past in order to get on the panel and punish Peterson at the trial, moved from Modesto to Redwood City because of pervasive publicity here. Juror Richelle Nice had been threatened when she was pregnant, two years before Laci disappeared, but the defense team wasn’t aware because Nice didn’t mention it on a pretrial written questionnaire filled out by prospective jurors.
In a subsequent interview with The Bee, Nice explained that the questionnaire asked about involvement in a lawsuit, which she assumed was not the same as the restraining order she had sought.
In an August 2017 response to Peterson’s first habeas briefing, the state attorney general’s office defended Geragos, saying that he, “despite endeavoring to gently fall on the sword here, performed in accord with constitutional mandates.”
Peterson’s latest filing heaps blame on Geragos for:
▪ Failing to call a fetal growth expert to testify
To suggest that Conner had lived past Christmas Eve — and could not have been killed by his father — Geragos put on the witness stand Dr. Charles March, a medical expert in fertility, not fetal development, whose testimony ended in a train wreck for the defense. Later, jurors confirmed that the doctor’s pathetic performance influenced their guilty verdict.
“Dr. March did not know what he was doing ... and was predictably exposed as utterly unqualified to testify in that area,” the habeas reads.
▪ Failing to put a dog-scent expert on the stand
Geragos might have called to testify someone to show how dog handlers made key mistakes, leading to evidence that a dog detected Laci’s scent at the Berkeley Marina, where Scott had launched his boat. Such an expert would have explained why the dog might have been looking for Scott’s scent. The handler who offered Laci’s sunglasses to the dog earlier had picked up Scott’s slippers and hadn’t changed gloves in between, the habeas says.
“All reasonable experts would agree that any alert by (the dog) was meaningless,” the document says. And part of Geragos’ reasoning was based on his misunderstanding of applicable law, the paper reads.
▪ Failing to call an expert on how bodies move in water
An expert hired by Peterson’s post-trial appellate team determined that the bodies of mother and son, recovered after washing ashore four months later, might have been put in the bay at any of three different spots. Jurors heard only one theory from a prosecution expert who pinpointed only one entry location, where Scott had fished.
▪ Making empty promises
In his opening statement, Geragos told jurors he would call certain witnesses, such as people who saw Laci walking the dog after her husband left to fish, one who might have seen Laci pulled into a van several days after Christmas Eve, and others who reportedly saw Scott launching the boat with no body in it. Geragos called none of them to the stand, later explaining that he hadn’t interviewed any of them before telling jurors that and deciding later that their stories weren’t consistent with the timeline he envisioned of Laci’s alleged abduction. He decided they “were either mistaken or not credible,” the habeas says.
“Both the jurors and (prosecutors) knew that (Geragos) had made promises which he did not keep,” the paper reads.
Neither did Geragos ask the neighborhood mailman, Russell Graybill, about his report to police that the Petersons’ gate was open and their dog, McKenzi, wasn’t barking when he delivered mail that morning, after Scott left to fish. Graybill’s testimony could have blown apart the prosecution’s timeline, which was crucial to the guilty verdict, the document says. The dog died in 2007.
“If Laci is alive and walking McKenzi after Scott leaves, he is innocent,” the habeas reads.
▪ Failing to nail down burglary evidence
Apprehended a few days later, two men told police they broke into a home across the street on Dec. 26 and insisted they had nothing to do with Laci’s disappearance. A prison guard monitored an inmate telling his brother on the phone that one of the burglars said Laci saw the break-in, but Geragos did not before trial interview the guard or the brothers or obtain a recording of the conversation, which no longer exists, the habeas says.
“If Laci did see (them) break into the house, they had every reason in the world to lie to police and say they were nowhere near the home on Dec. 24,” the document reads. Another woman said she also saw evidence of the break-in on Dec. 24.
If the burglars “saw Laci alive after Scott left for the marina that morning ... Scott is indeed `stone cold innocent,’ as (Geragos) told jurors in opening statements,” the habeas says.
Geragos initially provided television legal commentary on the Peterson matter before taking over the defense team as the case ballooned to blockbuster status. He came on strong early in the trial, but jurors ultimately did not buy his theory that unindentified vagrants must have kidnapped Laci and disposed of her body in the bay to frame her husband.
Geragos’ clients have included former congressman Gary Condit, late entertainer Michael Jackson and actress Winona Ryder.
The first of Scott Peterson’s habeas filings, in late 2015, was filed by an attorney who since retired. This week’s document was filed by Gardner; he also is handling the other prong of Peterson’s appeals, called a direct appeal. Either could become subject to oral arguments before the state Supreme Court, or a lower court, in coming years.
It’s not unheard of for the same attorney to handle both sets of appeals for a death row inmate.
“He has maintained his innocence from Day 1,” reads the latest filing.
Jurors listened to common sense, the attorney general’s office has said, including Peterson’s “expressed wanderlust and desire to be responsibility-free which he conveyed to his mistress as the birth of his son neared.” Evidence included him buying a boat shortly before Laci went missing, fishing with questionable gear, continuous lies to friends and family, selling Laci’s vehicle and looking into selling their home with its furnishings, subscribing to pornography channels while hundreds searched for Laci, and disguising his appearance when arrested with some $14,000 in cash and survival gear, that document said.
Garth Stapley: 209-578-2390
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