Peterson trial to go to jury

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

The defense abruptly ended its case without calling Scott Peterson to the stand. Ten defense witnesses out of 184 called over six days of a four-month trial. And the question please: Did the defense end with a whimper or a bang? I suppose some will say that it is irrelevant, since they will contend that defense lawyer Mark Geragos effectively mitigated damaging prosecution testimony by suggesting on cross examination that burglars, who admitted to committing a burglary across the street from the Peterson home on Dec. 26, had allegedly been seen by neighbors in the area at or about the time Laci Peterson went missing, and were responsible for her death. The problem is, the prosecution contends, that Laci was allegedly killed by Scott either on the 23rd or 24th-two days before the burglary. Geragos suggests that the reported date of the burglary is wrong.

Others will assert that Geragos had failed to live up to his opening statement in which he promised the jury too much, namely that he would prove his client was “stone cold innocent.” Geragos chose to shoot for the stars in pursing his theory that Conner, the baby Laci Peterson was carrying, was born some days or weeks after Laci went missing. And that is important, because Scott Peterson was under heavy surveillance at that time and presumably the police would have seen him trying to dispose of a body.

As a seasoned observer of trial tactics, either you put on a complete defense or you waive any presentation of a defense under the pretense of contempt for the “failed” prosecution case. Indeed, Geragos only needed to reiterate his contention that the prosecutors “can’t tell you where, they can’t tell when, they can’t tell you how” Laci and Conner met their deaths. And that is a true statement.

So, Geragos, swinging for the fences, called Dr. Charles March, a gynecologist who opined that Conner had been born after the prosecution said Laci went missing. Unfortunately, for Geragos, March was destroyed on cross-examination as reflected in the jurors’ accompanying sneers and guffaws.

Ending on this discordant note, without having called Scott Peterson to the stand, cannot sit well with this jury. Yes, I know that no defense attorney in his right mind would call Peterson to the stand to be subjected to a scathing cross on all of his inexplicable, incongruent actions just before and following Laci’s disappearance. The judge will tell the jury that they are not to draw any adverse inferences from Peterson’s failure to testify, since the burden rests with the people to prove him guilty beyond a reasonable doubt. That is, if Geragos even allows that instruction to be given, since it draws attention to the defendant’s failure to testify. I don’t care what the jurors may say; it is only human nature to want to hear from the accused, so one can assess the transparency of the defendant’s story. They would want to hear why Peterson did the things he did when it appears to be the antithesis of innocence.

The most damning tooth of evidence is still the fact that Laci’s and Conner’s bodies were found within two miles of where Peterson went fishing. Out of all the places in the world, their bodies surface in that area, not in a shallow grave, dumpster, street, bushes or in her car, but in the area where he went fishing, 100 miles from his home.

The judge gave a gift to the prosecution when he granted its request to give a jury instruction on second-degree murder. The weakness in the prosecution case is the absence of any evidence to show under what circumstances the killing occurred. Did it occur during a heated argument? Did Laci find out about her husband’s affair with Amber Frey? Or did he plan the killing of his wife and son? The latter would require the jury, if they found Scott Peterson guilty, to then consider the issue of the death penalty. And, in a case where there is no eyewitness, no DNA and no strong evidence of premeditation, a jury will feel more comfortable with returning second-degree murder verdicts (each of which carry 15 years to life).

My wife brought home the Globe Tabloid featuring a picture of a smiling Scott Peterson with the headline, “Laci Jury Deadlock-Scott will Walk Free.” So I guess I could be wrong.

So I ask you to answer my paraphrase of Carl Sandburg’s query: “When the lawyers are through, what is there left? Can a mouse nibble at it, and find enough to fasten a tooth in?