Guest Column: Is there a trout in the milk?

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The Peterson Trial

By Burton S. Katz/Retired L.A. Superior Court Judge

It is an open secret that prosecutors would rather rely on convincing, circumstantial evidence than on eyewitness testimony, especially in a first-degree murder case. Eyewitness testimony has been proven time and time again to be highly fallible and downright erroneous-subject to a host of witness credibility issues. We need look only to the hundreds of cases of defendants, including many on death row, who were later cleared by circumstantial (DNA) evidence. Innocent humans have spent decades in horrendous prisons because a purported eyewitness erroneously identified the defendant as the killer.

Thoreau got it when he said: “Some circumstantial evidence is very strong, as when you find a trout in the milk.”

It is true that no one saw Scott Peterson kill his wife or drag her body away; no one saw her being dumped into the sea; no one saw him with the murder weapon. But the prosecution will appeal to the common sense of the citizen jurors, to their life experience. He will ask, how would you have acted upon the sudden disappearance of your pregnant wife? Would you continue to play golf, call your paramour during the New Year Eve’s candlelight vigil for Laci Peterson? Would you trade in your missing wife’s car less than two months after her disappearance and before her body was recovered, before it was proven that she was dead? Would you dye your hair? Would you show more emotion when you burned chicken at a summer BBQ than when your wife disappears? Would you tell your girlfriend that your wife was not coming back, before her body was discovered? Would you tell at least three people that you were playing golf on the day your wife disappeared and then subsequently tell the police that you were fishing in the San Francisco Bay-100 miles from your home-when you realized that there was a record of having visited the San Francisco Bay Marina on that day? Would you be surprised to learn that your wife and child were found in the San Francisco Bay?

And the prosecutor will go on and on until such time as he believes that each juror, using his or her common sense, will connect the dots. And the dots he wants connected will, like the French painter Seraut, point to a visage more powerful than an eyewitness photo.

I want to share with you something that only those who have tried first-degree murder, death penalty cases know. (We can save our discussion of the actual evidence presented for another day.) Only those who have sweated over a jury’s verdict in a death case, based wholly on circumstantial evidence, can possibly know. Each side will question whether it has selected the right jurors for this task. Generally, the district attorney wants a jury that is intelligent and intuitive, one that can link the dots and find a clear image of guilt. The problem is that many intelligent jurors, while willing to convict a defendant of first-degree murder on such evidence are much more thoughtful and reluctant to impose the ultimate penalty of death. This is of course not always true, but often is. Thus a conflict exists between the desirability of selecting a juror who is smart enough to “get it” for a conviction, but who will ultimately decide that the state imposed death penalty serves no legitimate purpose or is skewed against minorities and the disenfranchised. The district attorney sometimes has to make a decision, a choice, namely, whether it is more important to go for the death penalty or to insure that he/she gets a first-degree murder conviction. Thus it might be tempting to choose a juror who is less educated, less cerebral, more likely to be emotional and more easily influenced by the egregiousness of the murder. If that juror votes for guilt, you can rest assured that he/she will vote for the death penalty. But that juror just may not be able to connect all the dots and may not be able to see the clear picture that has been drawn.

The defense attorney has the opposite concern. A smart jury means that they are unlikely to follow the path of the “one armed killer” who is still at large; they are unlikely to find against their common sense. But they are more likely to withhold a death verdict on principled grounds. They are more likely to let the defendant live in a prison for 20 to life. The defendant-client, insisting on his/her innocence might not agree with that picture. Thus the defense often will take their chances on less sophisticated jurors, hoping they will not notice the trout in their milk.