Guest Column: Has Geragos won in jury selection?

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The Scott Peterson Trial

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

In my lectures on the jury system I’ve often included the famous story about an argument between two famous trial lawyers, F. Lee Bailey and Percy Foreman. Bailey and Foreman were reputedly bragging about who had selected the “most stupid jury.” Bailey had acknowledged the well-known fact that “when you see a lawyer trying to pick a smart jury, you know he’s got a strong case.” He also bragged, “I think I won with one that returned a verdict which amounted to ‘not guilty with a recommendation of clemency because of reasonable doubt.”

Even one of our greatest presidents, Abraham Lincoln, had his doubts about the jury when he said, “A jury too frequently has at least one member more ready to hang the panel than to hang the traitor.” Juror Justin Falconer was dismissed from the Scott Peterson case purportedly because of comments he had made to Laci Peterson’s brother-in-law and to Peterson’s attorney, Mark Geragos, in violation of the court’s express order not to have any contact with any persons connected to the Peterson case. By Falconer’s own admission he was “a distraction to the jury.”

What is truly scary is not that Falconer was dismissed over Geragos’ strong objections, but how he viewed the case from his perspective. This is a circumstantial evidence case scheduled to take at least six months to complete. Very little real evidence of guilt has been presented to date. Yes, there has been some testimony about Scott Peterson’s lack of emotion concerning his wife’s whereabouts and some conversations he had with the police and others, but this is just the beginning of a long series of dots that the district attorney says will link Peterson to the murders of his wife and child.

Falconer blasted the district attorney, saying that the case was “weak” and so boring that “it was driving me nuts.” I guess the district attorney’s entertainment Q-rating didn’t rise to the high expectations of “The Practice,” or perhaps “Survivor.” Poor juror Falconer; it just wasn’t entertaining enough, though he indeed seemed to enjoy the showmanship of Geragos. That impressed him. This juror wanted the prosecutor to “tell a story.” Perhaps Falconer has forgotten that some of the great books he has read require an intellectual commitment of several hundred pages before the story line becomes clear-before it really gets going. Then again, I’m probably assuming facts not in evidence, namely that he has ever read a noteworthy book. So, in the first four weeks of a six-month-long trial, Falconer pronounces that the prosecution has no case and that “Scott is innocent.” “Scott?” Is he talking about a friend?

Falconer is just three years older than Scott Peterson. Though divorced, he apparently identifies with Peterson. “I can kinda understand where he’s coming from-I’m not a very emotional person either.” He made this statement when asked if he found Peterson’s conduct following the disappearance of his wife noteworthy. Regarding Peterson’s vacuuming his home within 24 hours of his wife’s disappearance, Falconer said, “I’ve got friends who do crazy stuff when they’re stressed.” Even the evidence that Peterson told his mistress, Amber Frey, that he lost his wife (before her body was recovered) and was considering a vasectomy was dismissed as, “Guys say pretty stupid stuff to get a girl.” I’ll leave you with his observation that “pregnant women are crazy, they’ll say they are too tired one day and then go out and run a marathon the next day,” thus dismissing evidence that Laci Peterson would have been too exhausted to go for a walk with the dog on the day she disappeared.

It is a trial lawyer’s axiom that you win or lose a case at jury selection. Geragos needs to reach only one juror to hang the jury. Had this juror remained, it is clear that he would have achieved this goal. That is why Geragos was so angry at this juror’s dismissal. What remains to be seen is whether there are other jurors like Falconer on the Peterson jury. It’s a long trial. That is why alternates were selected. Lawyers don’t always put the same energy in selecting the alternates as they do with the first 12 jurors. Well, alternate juror No. 2 may spell trouble for the district attorney. The female juror was eager enough to offer to quit her bank job to sit on this jury. And her brother is reportedly a drug abuser who has been to prison more than once for drugs.

The jury system is still better than a system of government bureaucrats telling us whether we are guilty or innocent. But Geragos may have outdone Bailey and Foreman on this one.