Peterson Penalty Verdict: ‘We, the jury, recommend death’
By Burton S. Katz/Retired L.A. Superior Court Judge
The imposition of the death penalty is ultimately a personal decision that each individual juror must make for himself or herself, answerable only to their conscience and any higher spirit to which they are beholden. They must be able to look to the depths of their soul, for the rest of their being. It is easy for those of us who do not have this heavy responsibility to tell the jurors to “give him the death penalty.”
Without the unanimous vote of each juror, there can be no death penalty. One hold-out is all it takes to invalidate a death verdict. So, in essence, each juror is a jury of one and has it within their sole power to decide life or death; and each must accept that “but for their vote” there could be no death verdict. That is indeed the most important decision any of us could make in our lifetime: whether another human being should die because we say so … that there is insufficient redeeming value to that life.
I want to tell you about a case I tried many years ago as a prosecutor for the Los Angeles County District Attorney’s Office. A 26-year-old woman was brutally raped then stabbed some 27 times in the bedroom of her apartment in West Los Angeles. The rapist-murderer left a deep bite-mark on her wrist that later helped us connect him to the crime. This defendant had a record of aggravated assaults, and a short time before this rape-murder had committed a burglary in the same area at knife point after he climbed through the victim’s bedroom window at night. The rapist left his blood and fingerprints at the crime scene.
When selecting the jurors who would be qualified to sit on this death-penalty case, I received assurance from each juror that if they found a premeditated rape-murder, they would carefully listen to all the evidence in the penalty phase and retain an open mind as to whether the death penalty was appropriate. Each juror individually assured me that they would have the “courage” and “resolve” to vote their conscience, and if they believed the death penalty was warranted, they could “look the defendant in the eyes” and tell him by their verdict “you are sentenced to death.” I carefully questioned each of them, using different techniques. I observed their body language that often betrayed their words. Several did not pass the “body language” test or otherwise equivocated. Those who passed remained on the jury.
I thought I had the right facts, the right case and the right jury. The evidence was overwhelming and the victim’s mother’s testimony regarding her beautiful loving daughter will haunt me for the rest of my life. Yet one juror held out on the guilt phase for days, telling jurors that she could not vote for first-degree murder, because “she knew” she would then be faced with the unacceptable task of having to decide if the defendant would get life or death. Whether she had lied to me on voir dire or whether she first realized the enormity of her personal responsibility as a “jury of one” at the time she had to first tender a vote on guilt, is unknown to me.
The reluctant juror ultimately joined the other jurors in returning a first-degree murder verdict. During the penalty phase, evidence of the defendant’s total lack of remorse, and increased violence and danger to the community was presented to the jury. The jury hung 11-1 for death. That juror refused to consider any possibility of a death verdict, believing that the rapist-murderer would spend the rest of his life in prison. She was wrong. He was released from prison after seven years.
The Peterson jury has now answered with a death verdict. But this case is far from over. The media will converge on the jurors like Alfred Hitchcock’s screeching birds over Bodega Bay. The media will hound, cajole, induce, extract and misrepresent what the jurors say. This will only serve the defense on appeal as jurors will inevitably talk about what we all know, namely that they wanted to hear from the defendant (not required to testify); they didn’t like his sneer or smile or his lack of emotion when the guilty verdict was returned (not a good reason) or that there was no evidence that anyone else had murdered Laci and Conner (not defendant’s burden). The appeals will surely follow, alleging juror misconduct, based substantially upon their answers to the inevitably inane barrage of questions. What happened between last Friday, when the jurors were hung, and Monday when the penalty verdict was returned, will be the subject of hot accusations. But for the moment, perhaps, Sharon Rocha and her family will find a little peace.