Prosecutors presented a set of facts that appealed to the life experience and common sense of the jury.
By Burton S. Katz/Retired L.A. Superior Court Judge
Before DNA, before high-tech forensics, before “Court TV,” before “CSI” and its progeny, criminal cases were proven the old fashioned way, by the sweat and brow of the cops and the doggedness and commitment of the district attorney. Naturally, it helped if the prosecutor possessed some of the messianic attributes of a William Jennings Bryan and the craft and charisma of a Clarence Darrow, but it wasn’t always necessary to a conviction. In those pre-reality show days jurors were not given the mantel of instant “celebrity,” while waiting to appear with Katie, Oprah and Larry to sell their stories, but were citizens dedicated to the process of justice.
Nor were prosecutors expected to be media-genic or cast in the formulaic shadows of a David Kelley or Dick Wolfe production district attorney. By and large the media didn’t pit the prosecutor and defense attorney against one another as if it were a tennis match between Andre Agassi and Pete Sampras, after every stroke, a hushed, self-important commentator intoning the perceived significance of a particular move, volley or serve. Yes, this is the era of the “talking-heads” where we get instant analysis by the experts who do our thinking for us. And in the case of O.J., I certainly contributed to this artificial process.
All we heard throughout the guilt phase of the Peterson trial was how boring the prosecutor was, how disjointed his case was, how weak the prosecution evidence was and how brilliant Mark Geragos was as he repeatedly “shredded” the prosecution case. Do any of us even know the names of the prosecutors who succeeded beyond the pundits’ wildest predictions in securing a first degree murder conviction for the slaying of Scott Peterson’s wife, Laci, and a second degree murder conviction for the murder of his unborn son, Conner? I had to look it up! MSNBC reported that “the prosecution” said this, did that … and “defense attorney Mark Geragos …” without identifying the prosecutors. Don’t they have names? Aren’t they entitled to some recognition?
After a laborious search on the Internet, I found at least two of the prosecutor’s names. Rick Distaso, the lead prosecutor, and Dave Harris are to be congratulated for taking all the media abuse and for presenting a final argument that was coherent, passionate and superior to the defense’s arguments. I wonder if Larry will invite them on his show after the conclusion of the penalty phase so they can explain to the public how they tried a circumstantial evidence case in the eyes of the naysayer.
What the prosecution did, without flair and flamboyance, was to present a set of facts that appealed to the life experience and common sense of the jury. As Joseph Campbell once said, “I don’t have to have faith, I have experience.” And so it was that this jury applied their life experience and common sense to the meticulously proven facts and to Scott Peterson’s conduct that was overwhelmingly inconsistent with innocence. The mathematical odds of Laci Peterson’s and Conner’s bodies being recovered within one mile of where Peterson went fishing on the day of Laci Peterson’s disappearance-some 80 miles from the Peterson home-are simply astronomical. But I’ll save a discussion of the evidence for another day.
This is not to say this verdict is without problems. Judge Alfred Delucchi allowed the district attorney to present arguably questionable evidence-that a trained dog picking up a scent off Laci Peterson’s glasses could trace it some 80 miles away to the Berkeley Marina. And while there was no evidence of exactly where, how and when Laci Peterson was killed, the judge gave a second-degree murder instruction, but refused to give one on voluntary manslaughter based upon a theory that the killing was without malice but with criminal negligence.
Delucchi was forced to dismiss the foreman of the jury (a doctor and a lawyer) for undisclosed reasons, just days after having dismissed a juror for allegedly conducting her own research. Jurors are not to conduct experiments or research outside the protective cloak of evidence the judge has allowed to be presented to a jury; presented under the safeguards of time-tested rules.
If the judge failed to make a complete record legally justifying their dismissal, this case will be reversed. What is not known to the public at this time is whether the conduct of these dismissed jurors was so egregious as to irreparably impair the remaining jurors’ ability to render a fair and impartial verdict. Presumably, the judge interviewed each juror separately to determine if they were influenced or “contaminated” by the conduct of the errant jurors. The appellate court will conduct a careful review of those proceedings.
Lastly, Delucchi allowed the jurors to view Scott Peterson’s boat in dry dock on its trailer. Some jurors reportedly stood in the boat and shifted their balance as they tried to get a sense of the boat’s stability and center of gravity. While the judge is said to have admonished them about this, an appellate court might view this as an attempt by the jurors to conduct an experiment under conditions dissimilar to those of a boat in water-and therefore any conclusions derived there from are misleading and prejudicial. Ironically, Delucchi refused to allow Geragos to demonstrate on the water that the boat would have capsized if Laci’s and Conner’s bodies were thrown overboard from such a boat.
It is not known yet whether Scott Peterson will appeal his conviction.