Dec. 14 USA: Report: Fewer executions in 2004 - Group opposed to death penalty finds 5-year decline Use of the death penalty by states continued a 5-year decline in 2004, according to an annual report by a nonprofit group that opposes capital punishment. According to statistics to be released Tuesday by the Death Penalty Information Center, 40 % fewer executions were carried out this year than in 1999. The center also found that fewer Americans support capital punishment and that fewer prisoners are being sent to death rows. In its annual survey, the center found that 59 people had been executed this year as of mid-December, and The Associated Press reported that no more executions were scheduled. In 1999, 98 people were put to death. The vast majority of executions this year, 85 %, occurred in the South, up 10 % points from 1999. 12 % were in the Midwest, and just 3 % in Western states. No one from the Northeast has been executed in the past two years, but Connecticut is scheduled to put a convicted murderer to death next month. Michael Ross has refused to pursue further appeals, and his execution would be the 1st in the state since 1960. He has admitted to killing 8 women in Connecticut and New York in the 1980s. A federal Justice Department survey of the death penalty released last month showed similar statistics, including a 30-year low in the number of defendants given death sentences. The center also released a Gallup poll that showed half of Americans surveyed preferred the death penalty to life in prison without parole for convicted killers and 46 % supported life without parole. A survey 5 years ago showed 56 % supported execution. Questions have been raised about the death penalty in high levels of at least 3 state governments this year. New York's highest court found its capital punishment law to be unconstitutional. Leaders in New Jersey and California have called for a moratorium on executions amid questions about the methods and legal procedures surrounding the issue. In January 2003, outgoing Illinois Gov. George Ryan granted clemency to all 167 inmates then on his state's death row. Last year, a dozen people were freed from death rows, more than any other year since capital punishment was reinstated in 1976, according to the AP. This year, 5 people have been released, the AP reported. "The events of the past year and the statistical evidence all point in one direction," said Richard Dieter, executive director of the Death Penalty Information Center. "The public's confidence in the death penalty has seriously eroded over the past several years. Because of so many failures, the death penalty is rightly on the defensive. Life-without-parole offers the public a better alternative without all the risks and expense." Since 1976, 944 people have been put to death. Texas has had the most executions, at 336, more than 1/3 of the nation's total. Thirty-eight states and the federal government allow capital punishment, but six of those states have not executed anyone since 1976. (source: CNN) *************************** Death Sentences on Decline as Public's Skepticism Grows The number of death sentences imposed in the United States - and the number of executions carried out - have declined sharply over the last 5 years, according to a report to be released today by the Death Penalty Information Center, a group that opposes capital punishment. In addition, a Gallup Poll in May showed that the number of Americans favoring a verdict of life without the possibility of parole over the death penalty has increased in the last seven years. "By every measure, the death penalty in the U.S. has been in decline since 1999," said Richard Dieter, executive director of the Washington-based center, citing the public's concerns about innocence as a principal reason. 5 death row inmates have been exonerated so far this year - 2 in Louisiana and 1 each in Illinois, North Carolina and Texas - for a total of 117 people set free since 1976, when the Supreme Court reinstated capital punishment. Robin M. Maher, director of the American Bar Assn.'s death penalty representation project, agreed that statistics reflect the public's growing skepticism in the reliability of the death penalty and decreased confidence in fairness of the system. "Juries are more reluctant to impose the death sentence for a variety of reasons, prime among them a parade of wrongfully convicted people leaving death row," she said. But Charles Hobson, an attorney with the Sacramento-based Criminal Justice Legal Foundation - which favors capital punishment - said there have been fewer death sentences because the violent crime rate has gone down and people feel safer. He said that budget crises facing many states also may have caused some district attorneys to become more selective about seeking the death penalty. "It is extremely expensive" to prosecute a capital case, Hobson said. Death sentences have continued to decline even though the murder rate increased 1.7% last year, according to FBI figures released in October. In 1999, 282 death sentences were handed down. In 2003, there were 144, the lowest total in 30 years; 2004's total is likely to be smaller still, according to Justice Department projections. And the number of executions around the country has dropped almost 40% in the last 5 years. In 1999, there were 98 executions, the most in the modern era of the death penalty. By 2003, that figure had fallen to 65; this year, there have been 59 with no other executions scheduled. Dieter and other death penalty foes were heartened by the recent Gallup Poll, which showed that though 50% of respondents said they favored capital punishment, 46% said they favored life without possibility of parole if that were presented as an alternative. When Americans were asked the same question in 1997, the gulf was much wider - with 61% favoring capital punishment and only 29% preferring life without parole. Among other developments this year, according to the Death Penalty Information Center's annual report: - New York's highest appellate court ruled the death penalty to be unconstitutional. The Legislature has yet to redraft the law. - In Houston, the police chief said he would support a moratorium on executions from Harris County, where major problems with the crime lab were discovered. The county has generated more death sentences than any other in the state. - The California Legislature authorized a special commission to study the death penalty. - Congress passed the Innocence Protection Act, which provides greater legal resources for those facing the death penalty and added protections for those challenging their sentences. Implementation of the death penalty continues to be concentrated in the South and Southwest, which accounted for 85% of the executions in 2004. Texas again was the national leader, with 23 executions this year. (source: Los Angeles Times) ************************* Death penalty retreats in US The death penalty has been steadily retreating in the United States over the past 5 years, and the tendency was confirmed in 2004, according to an annual report by the Death Penalty Information Center. The number of death sentences as well as executions of prisoners from death row coincide with public opinion polls that show a decline in the popularity of capital punishment in the United States, following its reinstatement in 1976. The number of death sentences has been steadily going down for 5 years, resulting in a 50-% drop compared to 1999, according to the DPIC report. According to the Department of Justice, 144 people were sentenced to death in 2003, the lowest figure in about 30 years. If a tendency observed in the first three quarters of this year holds, the DPIC points out, this year should end with approximately 130 death sentences. Meanwhile, executions have gone down about 10 %. If a total of 65 were carried in 2003, 59 people were scheduled to die in the United States until December 31 this year. Over a 5-year period, the number of executions has dropped 40 %. Most executions -- 85 % -- took place this year in a handful of southern states. Only Ohio and Nevada escape this geographical pattern. At the same time, the number of people on death row increased from 3,504 in 2003 to 3,471 now. Public support for the death penalty continued to weaken in 2004 as a result of a series of scandals sparked by judicial errors. Asked by the Gallup organization if a premeditated murder would justify a death sentence, 50 % of Americans responded positively while 46 % said they would favor a life sentence. In 1997, the gap between the 2 groups was 32 points, according to the DPIC. Other non-statistical indicators point to a decline of the controversial punishment following numerous recent releases of prisoners from death row who have been found innocent. There were 12 such cases in 2003 and 5 others this year. In other cases, there have been charges that defense attorneys have botched their cases, failures that have resulted in death sentences. On December 1, the Texas governor stayed for 4 months the execution of Frances Newton, arguing that the case needed reevaluation. The New York Supreme Court has recently expressed its opposition to executions, opening the possibility for sentence commutation in the state. In Texas, which leads the nation in executions, Houston police chief Harold Hurtt has also called for a moratorium on executions following a scandal involving his department's forensic laboratory whose reliability has been seriously questioned. (source: Agence France Presse) NORTH CAROLINA: Lawyer: Police used false warrant, letter Carrboro police used a fake arrest warrant and a fake letter from the district attorney vowing to seek the death penalty to try to trick a suspect into confessing to a woman's 1997 disappearance, according to documents submitted in court Monday. As a result, the state's murder case against Andrew Douglas Dalzell, charged with killing 35-year-old Deborah Leigh Key, may now be in jeopardy. Defense attorneys are asking that statements Dalzell made to Carrboro police following his arrest be thrown out. A judge is scheduled to hear the defense's motion Wednesday. The defense attorneys argue in their motion that officers used the fake documents to trick Dalzell into believing he was being arrested for Key's murder and would face the death penalty unless he immediately cooperated. In fact, he was being arrested for stealing some fantasy figurines, a credit card number and other merchandise from his former employer, court documents indicate. The motion also claims police officers questioned Dalzell without informing him of his Miranda rights. Dalzell, 28, was charged with 2nd-degree murder on Sept. 9 in connection with Key's disappearance. Her body has not been recovered. Although Carrboro police have not revealed all the evidence against Dalzell, sources familiar with the case have said there may not be enough to try him on the murder charge if a judge throws out the statements he made to police. Carrboro Police Chief Carolyn Hutchison declined to comment Monday. District Attorney Carl Fox also declined to comment, other than to say he didn't write the letter and that the signature on it wasn't his. Key was last seen with Dalzell in Carrboro on the morning of Dec. 1, 1997. Witnesses said the 2 met in a downtown bar and were last seen together in a nearby parking lot after the bar closed. Key, who lived with her mother, never returned home. Although Dalzell was immediately a suspect, police could not find enough evidence linking him to Key's disappearance until he asked Carrboro police to provide security at his apartment in September as he packed up to move. At the apartment, an investigator saw fantasy figurines, jars of paint, model airplanes and other items that Dalzell said he had gotten while employed at Hungate's Arts, Crafts & Hobbies at University Mall. A few days later, the investigator checked with the manager at Hungate's and learned Dalzell was suspected of stealing the items. Warrants were drawn up in Chapel Hill charging Dalzell with theft and with the alleged theft of a customer's credit card number, which he is accused of using to obtain services from a Russian mail-order bride Internet site. Carrboro police investigators then drove to Stanley, more than 140 miles from Orange County, where Dalzell had moved in with his girlfriend's family, and arrested him on charges of obtaining property by false pretense, financial identity fraud and possession of stolen property. Orange-Chatham Public Defender James Williams claims that's when the trickery began, according to an affidavit filed in support of the motion to suppress evidence. 5 Carrboro officers, joined by 5 Lincoln County Sheriff's investigators and 2 uniformed deputies, went to the house in Stanley and arrested Dalzell at gunpoint. He then was handcuffed and placed in the rear seat of a Carrboro police car, the affidavit states. According to the affidavit, Carrboro Lt. John Lau then placed the alleged warrant for Dalzell's arrest on 1st-degree murder charges next to him on the seat. The warrant appeared to be genuine, with Chief District Court Judge Joseph Buckner's name typed in the space where the person issuing the warrant normally signs. Buckner told The Herald-Sun on Monday that he did not sign the warrant. In addition, Dalzell was not promptly told that he was being arrested on charges of obtaining property by false pretense, financial identity fraud and possession of stolen property, a violation of North Carolina law, the affidavit says. "Instead, the officers intentionally and purposely misled Andrew to believe that he had been arrested for first-degree murder," the affidavit states. Dalzell was left alone in the car with the fake warrant for about 20 minutes, before Lau got in the back seat and they headed back to Carrboro, normally about a 3-hour drive. "Without reading his Miranda rights, Lt. Lau began interrogating Andrew within minutes of departing Lincoln County," the affidavit states. "Lt. Lau then gave Andrew a letter, typed on District Attorney letterhead, which purports to be a letter from Carl Fox to Carrboro Police Chief Carolyn Hutchison," the affidavit states. The letter states: "Chief Hutchison: I spoke with Barbara Key this morning, and I assured her that her daughter Deborah Key's murder was considered a capitol [sic] crime, and that I would, without a doubt, seek the death penalty. Knowing the facts as I do, I firmly believe that Andrew Dalzell will be put to death for his heinous crime. I have also promised the Key family that there would ABSOLUTELY BE NO PLEA ARRANGEMENTS OR ANY KIND OF DEAL MADE WITH HIS LAWYERS. "The only exception to this would be that "IMMEDIATELY UPON HIS ARREST, Mr. Dalzell takes the police to Deborah Key's remains. ... If, when Mr. Dalzell is arrested, he professes the desire to continue to live, and he takes the police to Ms. Key's remains, please notify me. I would like to be present when this happens. "If you choose to let Mr. Dalzell read this letter so that he might realize the seriousness of his situation, feel free to do so." The letter then ends with Fox congratulating the officers for their work and what purports to be the district attorney's signature. According to the affidavit, another Carrboro officer interrogated Dalzell during the return trip to Carrboro and later in an interrogation room at the Police Department. That officer also allegedly showed Dalzell the letter purported to be from Fox. "Even though Andrew was sobbing, emotionally distraught and visibly upset, Corporal Everett continued to question him without advising him of his Miranda rights until Andrew eventually made an oral statement. Corporal Everett then asked Lt. Lau to come into the room. Only then was Andrew advised of his Miranda rights," the affidavit states. Dalzell signed a waiver of his rights to remain silent and have an attorney present, but it was not voluntary, the affidavit says, "because it was obtained by the threat of death if he did not confess and the promise or inducement of life and leniency if he did." "The waiver was not knowing and intelligent, because it was obtained through the officer's unconscionable deceit in using fraudulent court documents to cause Andrew to believe he had been arrested for 1st-degree murder when in fact no such warrant had been issued," the affidavit states. In his motion to suppress Dalzell's statements, Williams said they were involuntary because the officers interrogated Dalzell while in custody and before advising him of his Miranda rights. In addition, it says Dalzell's statements were obtained through substantial violation of North Carolina law, which requires a law enforcement officer making an arrest to "as promptly as is reasonable under the circumstances, inform the arrested person of the cause of the arrest, unless the cause appears to be evident." According to the motion, the Fifth and 14th Amendments to the U.S. Constitution and the N.C. Constitution require the exclusion of Dalzell's statements in order to preserve his right to due process of law and to protect his rights against involuntary self-incrimination. (source: The Herald-Sun) ********************** Convicted killer stays on death row A 2-time convicted killer from Asheville will remain on death row after the North Carolina Supreme Court justices who reviewed his case found no error in his Buncombe County trial. James Lewis Morgan, 49, is sentenced to death for the November 1997 stabbing death of Patrina Lynette King, 34. During the trial, prosecutors asked jurors to deliver a death penalty verdict because Kings killing had been especially cruel. The mother of three had been stabbed 48 times with a broken malt liquor bottle, with most of them being blows to the head and face. She was left to die outside a Ridge Street house near downtown. Kings father, James King, said he doesnt believe in capital punishment, but will not interfere with the court process. "Her birthday was Christmas Day," King said, adding his daughter stays in his mind around the holidays. "I think about the pain and agony she went through. I think about whether she had a chance to get right with God." Witnesses, including inmate Willie Albert Jones, said during trial that an argument over drugs and sex sparked the murder. Jones had shared a cell area with Morgan and testified during trial that Morgan wrote a rap song about Kings stabbing, saying "I told you once, I told you twice, that you are going to have to pay the sacrifice . . . with your life," according the Supreme Court opinion. Morgan, who took the stand, testified that he acted in self-defense and denied writing the rap song. The Supreme Court, in an opinion filed earlier this month, ruled Morgan received a fair trial. Morgan had argued his motion to continue his case should have been granted and one of his attorneys was improperly removed. The attorney was released after she told the judge she recently had brain surgery and pending radiation therapy might result in short-term memory loss. Morgan, through Asheville attorney David Belser, also raised concerns about the statements of Kenneth Cato, who said he witnessed Morgan chasing King with a knife. Cato died a year before the capital case. Morgan argued allowing the jury to hear Cato's statements made to other witnesses amounted to a violation of his right to confront his accuser. The high court determined the trial court erred in admitting Catos statements, but the error was ultimately harmless in light of other overwhelming evidence against Morgan. When King was killed, Morgan was on parole for the 1976 murder of Asheville barber Doctor Thomas Brown. Morgan pleaded guilty to 2nd-degree murder and was paroled in July 1990, having served 14 years. In North Carolina, the state Supreme Court must automatically review each capital case under law. If the state high court finds no error, the inmate can appeal to the U.S. Supreme Court. (source: Citizen Times) SOUTH DAKOTA: Prosecutors not seeking death penalty in Rapid City stabbing Prosecutors will not seek the death penalty against John H. Krogman, accused of stabbing 1 woman to death and injuring another in a restaurant parking lot. Krogman, of Rapid City, was indicted on 1 count of 1st-degree murder, with alternative charges of 2nd-degree murder, felony murder and 1st-degree manslaughter, in the death of Brandi Standing Bear, 25. The grand jury also indicted him on 1 count of attempted 1st-degree murder, with an alternative charge of aggravated assault, for an attack on Tammi Hamilton, 31. The women worked at a Taco John's restaurant and were talking in the parking lot after hours early on the morning of Sept. 1. Police said Standing Bear was stabbed when she came to the aid of Hamilton after Krogman attacked Hamilton. A trial date was set for March 8. (source: Associated Press) CALIFORNIA: We have death penalty, so use it The death penalty, what a joke! The majority of the people of California voted for it. Does not matter to me what your religious, moral or political views are. I do not believe the average taxpayer agrees that we should house, feed and clothe convicted criminals for 20-plus years on death row. We see and hear in the news how many thousands of dollars per convict, per year that we are paying for Cary Stayner, etc. While I am not uncaring, the law is the law. We made it so, so use it. JUANITA BENSON----Modesto (source: Letter to the Editor, Modesto Bee) ****************************** Donors giving blood in Laci's name cheer husband's death sentence In Laci Peterson's hometown, where the expectant mother became more widely known in death than in life, donors giving blood in her name Monday cheered as a jury sentenced her husband to death for her murder. Deantha Myers, with a blue bandage around her arm, led the charge by clapping as she heard the word "death" from a small television in the city's convention center. The rest of the crowd of about 30 blood donors, volunteers, medical staff remained silent as the judge confirmed the verdict to execute Scott Peterson by lethal injection. "Was it death?' asked Lisa Hedrick, a student volunteer. Myers nodded. "Yes!' Hedrick exclaimed. "He shouldn't be able to live in a prison, you know, getting three meals a day, having a bed to sleep in, while she's dead with her son,' said Hedrick, 24. "The crime should fit the punishment and she's dead, so he should be too.' The death sentence verdict closed a chapter on the case that has fascinated the nation and taken a more personal tone in the town where Laci Peterson was once a high school cheerleader. Thousands of strangers have grieved her death, showing up to a public memorial or laying flowers and candles outside her house. Hundreds joined in the four-month search for her body in the grassy foothills outside of town and along reservoirs, canals and San Francisco Bay. Outside the house where the Petersons decorated a nursery for the boy they planned to name Conner, a neighbor, Scott Maxwell, gave a thumb's up sign from the window of his pickup truck as the death sentence was broadcast on the radio. Mishelle Dean showed up later with three children and a sign reading, "Sweet Laci and innocent Conner may you now rest in peace!' They set the sign down, joined hands and said a prayer. The jury's verdicts seemed to have erased any sympathy Scott Peterson once evoked when he spoke of his missing wife. He's scorned as the lying cheat who led volunteers on aimless searches for his wife's body. Some call him a monster. Still, some thought he deserved a life sentence in prison and at least one blood donor was disturbed by the reaction that followed the verdict. "I thought it was ironic that here we are giving blood, giving the gift of life and people are cheering for the death penalty,' said Rodney Cordova, 39, who works at a BMW dealership. "That just doesn't make sense to me. If you're pro-life, you should be pro-life all the way.' Unlike the guilty verdict, which came during the lunch hour, there was hardly a crowd in downtown Modesto in the early afternoon. Where a group of nearly 30 people had pressed into a television van a month ago when Scott Peterson was convicted of 1st-degree murder for killing his pregnant wife, the number of TV trucks at least a half dozen outnumbered the size of any crowd gathered near one. It was by coincidence that the verdict came during the Second Annual Laci and Conner Memorial Blood Drive. It was planned about six months ago, said Arthur Morrison of the Delta Blood Bank. Nearly 700 people had given blood in her name since Thursday, each earning buttons with a picture of Laci's trademark wide smile. Myers, 30, and her husband, Jason Myers, 29, were doing errands when a country radio station announced the drive was taking place. They headed right there not knowing that one pint later they would be hearing the verdict among others sympathetic to Laci's plight. It was the news they hoped for. "She seemed like a wonderful person, just looking at the pictures,' Jason Myers said. "I am so dead against people doing this against their loved ones.' As blood was drawn in the back of the large hall, a small crowd of donors snacked on crackers and gazed at the small monitor. "Sucker!' Deantha Myers said after the judge accepted the verdict. Then she started clapping again. This time most of those wearing Laci and Conner pins joined in. (source: Pasadena Star-News) ************************ Will Scott Peterson Ultimately Be Executed? The Impact of Evidence Offered in the Penalty Phase, and Its Effect on Appeal For the past 6 months, in the confines of a California courtroom, the twelve people sworn to decide Scott Peterson's fate have breathed the same air as a man they ultimately judged to be a killer. Yesterday, it was their job to judge, in addition, whether Peterson was worthy to breathe at all. Outside the courthouse on that chilly December afternoon, a crowd gathered to await word of the sentence -- cell phones at the ready. The Peterson case had gripped a nation, since Scott's wife Laci disappeared on Christmas Eve 2002. The reading of the verdict was quick: The single word "Death." The jury had recommended that Scott Peterson be put to death via the gallows of California's San Quentin State Prison - 1 of only 2 correctional facilities in the state to have a death row. This time, there were no cheers, no jeers, and no cause for celebration -- only a quiet respect for two families who have lost so much. With the penalty phase concluded, the jury was freed to speak with the media about both phases of Peterson's trial - the guilt phase, and the penalty phase. For example, Foreman Steve Cardosi explained why he voted to convict: "Collaboratively, when you add it all up, there doesn't appear to be any other possibility." Now, only intervention by the trial court, the appellate court, or Governor Schwarzenegger could save Peterson's life. Interestingly, though the evidence introduced in the penalty phase of the trial did not convince the jury to spare Peterson, it may be effective in convincing an appeals court to do so. In this column, I will explain the reason why. But first, a bit of background on the death penalty in California will be helpful. The Anatomy of a California Death Penalty Case Death penalty trials in California are an unusual animal. They are divided into a "guilt" phase, in which the jury is tasked with deciding the defendant's guilt or innocence, followed by, - if necessary - a "penalty" phase in which the jury decides whether or not to recommend a death sentence. Even in the most serious, non-capital felony cases - such as cases of murder, rape, or a "third strike" that will send the defendant to jail for life - sentencing is the judge's job. Only in capital cases, does the jury weigh in. California's penal code sets forth a laundry list of relevant factors the jury can consider during the penalty phase. The prosecution may point to "aggravating" factors suggesting the defendant should face death - for instance, that he remains dangerous, was menacing in the courtroom, and has not expressed remorse. The defense may point to "mitigating" factors suggesting why his life should be spared - for instance, that the offense may have been an aberration, or that the defendant is remorseful, or youthful, or has limited mental capacities. The prosecution can (and almost always will) present "victim impact" testimony - by which family members, friends, and loved ones explain how the crime has affected their lives. Conversely, however, the jury may not consider the impact that execution would have on the defendant's family members. At the conclusion of the presentation of evidence, attorneys for both sides present closing arguments, just as they did in the guilt phase. However, according to California's Penal Code, in the penalty phase, two attorneys from each side are permitted to make closing arguments. Also, unlike in the guilt phase, the defense attorney, not the prosecutor, has the last word with the jury. In the end, the jury's decision in the penalty phase is merely a "recommendation" to the judge - but a recommendation to which most judges afford great weight. If the jury recommends death, the judge can still opt for a life sentence. But if the jury recommends a life sentence, the judge cannot impose death. Also, if the jury deadlocks, the judge cannot impose a death sentence, but must impose a sentence of life without the possibility of parole. The "judgment of conviction" is not official until the judge conducts a formal sentencing hearing. In the Peterson phrase, that hearing is slated for February 25, 2005. During the penalty phase, Peterson's defense attorneys were caught between a rock and a hard place in 2 different ways - as I will explain. How the Defense's "Guilt Phase" Strategy May Have Hurt Them at the Penalty Phase First, the strategy the defense opted for during the guilt phase limited its options in the punishment phase. As I discussed in a prior column, in the trial's guilt phase, Peterson attorney Mark Geragos called his own client a "14-karat a-hole," and a "cad." Here's how Geragos began his closing: "Do you all hate him?" Probably, every single juror did. This was the right tactic to use during the guilt phase - Geragos had to try to convince the jury to separate incontrovertible evidence that Peterson plainly was a liar and adulterer, from tenuous, circumstantial evidence suggesting he may have been a murderer. But it doubtless hurt Peterson in the penalty phase. There, prosecutors called Peterson a "monster." Geragos - who'd just called his own client a "14 karat a--hole" - could hardly claim, in response, that he was a choirboy. No wonder, then, that Geragos simply appealed for the jury's mercy, saying "I'd get down on my knee if it wouldn't look so contrived." Indeed it would have, and Geragos - thankfully - remained upright. Defense Lawyers' Brutal Choice: Should They Cite Doubt, Despite A Guilty Verdict? Second, the Peterson defense was limited not only by its own admissions, but also by the simple fact that the jury had rendered a verdict of guilty. Defense lawyers have a particularly difficult strategic choice to make at the penalty phase of a capital trial: Should they point to remaining doubt about their client's guilt - even though jurors convicted, and thus did not find that doubt "reasonable"? Or, should they throw their client to the lions, and proclaim - in effect -- "The jig is up. You're right, he did it. We apologize for wasting the last 6 months of your life. Now could you show our murderous client a bit of mercy?" Neither of these options is palatable - the first may rub the jury the wrong way, and the 2nd goes contrary to professional obligations. If even his own attorney concedes his guilt, the defendant may suffer from the concession on appeal. So most defense attorneys are forced to pick a safe middle ground - neither insisting on innocence, nor conceding guilt in so many words. And that is exactly what occurred in the Peterson case. Fortunately for the defense, however, California law -- unlike that of most death penalty jurisdictions -- offers a term for the kind of doubt that is less than reasonable doubt, and makes that "lingering doubt" a mitigating factor counting against a death sentence. It was also fortunate for the defense that the judge in the Peterson trial thought a case could be made for "lingering doubt." Before the jury retired to deliberate on their sentencing recommendation, Judge Delucchi informed counsel, "I believe under the facts and circumstances of this case that the court should give a lingering doubt instruction, so I intend to do so." As the judge instructed the Peterson jury, under California law, lingering doubt - also called "residual doubt" is defined by jury instruction as doubt that is beyond a reasonable doubt, but short of being beyond any doubt. By making "lingering doubt" a mitigating factor, California law sends the message that it is possible that a defendant can be guilty enough to be convicted of the highest form of murder -- capital murder -- but not guilty enough to pay the ultimate price: death. How can "lingering doubt" be established? Geragos might have gone over the circumstantial nature of the evidence against Peterson. But he wisely chose not to: After all, that evidence did convince the jury. Instead, Geragos opted for a subtler, smarter tactic. He tried to introduce lingering doubt as to whether Peterson was the kind of man who could have murdered his wife and unborn child. Specifically, he called thirty-nine upstanding, respectable citizens - coaches, teachers, neighbors, friends and relatives -- to the witness stand. Each of them described, one by one, the good they saw in Scott Peterson, and most - if not all -- testified that the Scott they knew could not have committed such a heinous crime. The jury still was not convinced to spare Peterson. But Geragos's strategy may yet help Peterson avoid death, for it may convince Judge Delucchi to disregard the jury's recommendation, or at a minimum, may help Peterson on appeal. The Timing of the Appeal, and of the Possible Execution If Judge Delucchi does confirm the jury's death recommendation - as most California judges historically have - Peterson's appeal will, by law, automatically go to the highest court in the state, the Supreme Court of California, skipping the Court of Appeal. (In contrast, should Delucchi impose a life sentence, despite the jury's recommendation, Peterson's appeal will go through the usual appellate process.) Several years or more may pass while the appeal is briefed and heard - especially if Peterson seeks appointed appellate counsel, if he has run out of funds. Meanwhile, if Peterson is under a death sentence, he will spend his days alone in an 8' by 10' cell. Death row inmates are segregated from the general population, while "lifers" are permitted to mix and mingle. In Peterson's case, the lack of mixing and mingling may be a blessing; with no criminal record, and lacking a fierce demeanor or unusual strength, he would be vulnerable to prison beatings - or worse. If Peterson is ultimately executed, when would it happen? The answer is probably: Years from now. At present, there are more than 600 inmates currently on California's death row. Of them, only ten inmates since 1978 have actually been executed. Meanwhile, 3 death row inmates have had their death sentences overturned. Ironically, the most recent to be freed from death row was a defendant from Stanislaus County, the very place where this case began. In June, 2003, the California Supreme Court in People v. "Jesse" Hernandez, overturned Hernandez' conviction on grounds that "numerous and serious errors" during the penalty phase required a new sentencing trial. Incidentally, Hernandez' prosecutor was none other than District Attorney James Brazelton - the man who made the decision to file Scott Peterson's case as a capital case. Exonerations often take place due to DNA evidence that either clears the prisoner, or implicates another perpetrator. If DNA someday showed Scott Peterson was not a perpetrator -- but rather the victim of a bizarre coincidence, by which his wife's body was dumped near his favorite fishing spot -- would you be shocked? If not, then perhaps you too, dear reader, have "lingering doubt." (source: FindLaw -- Jonna M. Spilbor is a frequent guest commentator on Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review) ******************************* Wecht shocked by Peterson sentence The jurors who sentenced Scott Peterson to death for killing his wife and unborn child "went wild" and were "out of control," Pittsburgh forensic pathologist Dr. Cyril H. Wecht said Monday. "Wow. Oh, my God," Wecht said as he watched the news broadcast of the jury's decision. "I think that they clearly were in a vengeful mode," he said during a news conference a few minutes later. "They set upon a path, and this is what they were going to do." Wecht, the Allegheny County coroner, said he was shocked by the death sentence because the case against Peterson was purely circumstantial. "(There was a) complete absence of physical evidence," he said. "I never would have thought there would be a death penalty verdict. "Somewhere along the line it is clear to me that not only was the jury lost to the defense, but the jury became hostile to the defense." Absent any physical evidence, Wecht said, the jurors had to imagine Scott Peterson premeditated the murder, transported Laci Peterson's body to a dock, loaded it on a boat and dumped it in the sea -- all without leaving any physical evidence for investigators to find. Given the advanced forensic techniques available to modern investigators, "This is not so easily accomplished," Wecht said. Wecht made two visits to California, performing autopsies on the bodies of Laci Peterson and her unborn child, reviewing all the evidence with detectives and visiting Peterson's home and the site where the bodies were discovered. Wecht did not testify because there was no physical evidence to discuss. "There wasn't anything to grab hold of," he said. "There wasn't enough to go on." Wecht said Peterson has strong grounds for an appeal, particularly because two jurors were dismissed late in the trial. "There is going to be a new trial," he told reporters. "I will wager you will all be grandparents -- every one of you here -- before Scott Peterson is executed." Wecht said he wonders how the jurors can justify their decision to themselves or their God. "I'd like to be sitting next to them in their churches in 10 days," he said. (source: Pittsburgh Tribune-Review ***************** Good Riddance, Peterson Trial So now, finally, the day-to-day agony that was the Scott Peterson trial is over. Good riddance to it. The legal significance of the case (none) was always completely out of proportion with the media attention given to it (excessive). It's no wonder judges are taking out their frustrations upon journalists, jurors don't want to serve as the conscience of their communities and the public has a distorted view of what's really important in the world of the law. The story of the Peterson story - by that I mean the narrative that began with his wife's disappearance and ended today - really is more of a story about how the media and the law sometimes intersect in ways which do neither justice. While the cameras and notebooks were trained on Scott and Laci and Amber and the grieving parents and the angry in-laws and the combative friends those cameras and notebooks were not trained on legal events and issues of far greater significance. There is a crisis within the federal court system brought about by a lack of judicial appointments - a problem that affects tens of thousands of people every day. The very concept and structure of sentencing in criminal cases is now in doubt after a Supreme Court ruling last June. This is a concern so troubling that the Justices themselves scheduled it back onto their calendar at the first of the current term. As chronicled earlier this week, there is a big fight over the death penalty between the Supreme Court and the courts of Texas. There are cases involving the USA Patriot Act that touch upon some of the freedoms we take for granted and there are the cases where journalists are being criminally sanctioned despite the First Amendment's free press protections. How many times have you seen any of these issues debated at night on cable television? How many breathless websites have you seen devoted to these topics? Despite the obvious fact that these cases and these issues will affect your life much more directly than the sad tale of Scott and Laci, you probably haven't heard boo about these stories unless you've gone out of your way to do so. This is a shame upon too many mainstream journalists, who have shown again that they are perfectly willing to cater to the public's basest instincts in the false name of "newsworthiness." And it's also a shame for the legal system, which Lord knows could use a big dose of attention drawn to the huge problems listed above. Scott Peterson? He is merely a boil on the butt of the law. His case adds nothing new to what we already know about crime and punishment in America. It gives us no scintillating new legal theories and certainly does not represent a high-water mark in the annals of legal representation. The prosecution case against him was miserable and inexcusably long. His defense was lame, right down to the dubious mea culpa offered during the penalty phase by star attorney Mark Geragos who didn't even have the courtesy and respect to show up in court at his client's side at last month's announcement of the initial verdict. Even the trial judge failed to adequately protect or respect jurors by allowing a four-week trial to turn into an eight-month-long ordeal. If the trial were a Broadway play it would have been panned and closed early. If it were a movie, it would be Ishtar or Gigli. Unfortunately, the truth is that spouses murder each other all the time in this and every other country in the world. Husbands murder wives. Wives murder husbands. It is a tragedy every time it happens and yet every time it happens we don't as a society become fixated with who did what to whom and why. So how and why did the Scott and Laci story become such an obsession? Why them and not some other sad tale of a marriage gone bad? Did people care about the case because the media covered it or did the media cover it because people cared? The answer is both and neither. Let's face it. Among all the other murder cases that rose up a few years ago and could have drawn our attention, we fixated upon the Peterson case because the principals both were white and good looking; because Laci, pregnant, disappeared right before Christmas, and, most importantly, because family members on both sides (before they split over Scott's arrest) used the media to initially get out the story of Laci's disappearance. When Laci was just missing, when there still was hope that she might be found, the Peterson and Rocha families shrewdly took to the airwaves seeking help. They knew, as more and more savvy news consumers know, that journalists, especially television journalists, especially cable television journalists, cannot resist a dramatic tale. So they used the media to help with the search. And in so doing, they struck a chord with viewers and listeners around the country who, once Laci's body was found, were already so invested with the story that they have never since turned away. It didn't hurt, from the sleaze point of view, that the story also included a hot mistress, and plenty of stormy and steamy and unseemly audiotape. The Peterson case is the 1st post 9-11 story that reminds us of how unfocused we were about what really mattered before the attacks on America. At the beginning of this story, the families used the media (can you blame them?) and ever since the media have used them (can you blame them)? And in the middle of this dance have been the American people, at least those millions who actually care about this case. If this scenario sounds familiar, it is. Remember Chandra Levy? How about Elizabeth Smart? Samantha Runnion? Dru Sjodin? In each case, the family of the victim was savvy enough to know that the way to expedite the search for a loved one is to get onto local television-- whether or not local reporters initiate the contact that first makes it happen. And local television is savvy enough to woo the networks and cable television with these sorts of local stories, which, like wildfire, can spread with repeated exposure on cable. So instead of giving us an important lesson about the law, or even marital relationships, perhaps the only lesson of the long, sordid Peterson case is that there is now a confirmed channel, a pathway, an itinerary, a charted course for turning an ordinary, average murder into a national news sensation. If you or your family suffers a tragedy, and you want to try to use the media to help you, understand that you will end up being used yourself. You try to ride the tiger and you end up inside. Even if that lesson says a lot about who we are as a society, it just doesn't justify all the attention. Not even close. Peterson himself now begins his long journey through the appellate system in California (and then on to the federal courts, which have to vet every capital conviction). This isn't a quick process. Unless his conviction and sentence are overturned on appeal - an unlikely scenario even though the evidence against him is weak and the trial was often marred by bizarre events - he probably will be kicking around the state's penal system for decades, a generation perhaps, before he is executed. And that assumes no major changes in the dynamics of the death penalty between now and then. Did Scott really murder Laci despite the lack of evidence that says he did? Or is he really just one of the unluckiest guys in the history of the world, a cheating, lying, despicable creep of a husband who just happened to be fishing in the same bay where his murdered wife's body eventually turned up. Who knows? And, unless you are part of the Peterson or Rocha families, for whom this tragedy never will end, who cares? (source: CBS News -- Attorney Andrew Cohen analyzes legal issues for CBSNews.com and CBS News) *************************** Death sentence draws muted applause in the streets Bystanders cheered as a jury recommended that Scott Peterson die for killing his pregnant wife and her fetus, but the reaction lacked the wild exuberance that characterized the response to the guilty verdict last month. "Today, a chill went through my body," said Steve Chapman of San Jose, who was outside the courthouse Monday as jurors delivered their verdict after deliberating for about 11 hours over three days. Chapman was among about 300 people gathered outside the San Mateo County Superior Court building in Redwood City for the verdict in the penalty phase of the trial. He also had been in the 1,000-strong crowd that turned out for the guilty verdict Nov. 12 and noted that the mood this time was far more somber. "The death penalty is too good for him," said Chapman. "He'd be worse off in a cell for 50 years." Peterson, a 32-year-old former fertilizer salesman was convicted of 1st-degree murder in the death of his wife and second-degree murder for killing her fetus. Prosecutors say he strangled or smothered Laci Peterson on or around Christmas Eve 2002 and dumped the body in San Francisco Bay. About 4 months later, the remains of Laci Peterson and the fetus washed ashore, just a few miles from where Peterson claimed to have gone fishing alone the day his wife was reported missing. Jurors delivered their verdict of death after deliberating for about 11 1/2 hours over three days. The San Francisco Examiner came out with a special edition within minutes of the sentence, with the giant headline "DEATH." Formal sentencing is Feb. 25. The judge will have the option of reducing the sentence to life, but such a move is unlikely. Bystanders agreed that execution was a suitable penalty. "He got what he deserved and I'm glad," said Carol Tripp of Redwood City. "I'm a Democrat, but I'm for the death penalty," said Dave Ogden, 38, of Sunnyvale. "If there was anyone to have the death penalty apply to it's Scott Peterson," he said. "It's disgusting what he did." Joan O'Keefe of Redwood City was drawn to the courthouse Monday to watch the reaction of the crowd after seeing the cheers broadcast on TV following the guilty verdict. She attributed the public's fascination with the case to the way Scott and Laci Peterson seemed to be a typical American family and the timing of Laci Peterson's murder. It was, she said, "a modern Christmas epic." (source: Associated Press) ******************* SAN QUENTIN: LIFE ON THE INSIDE -- Long, lonely wait lies ahead Breakfast arrives about 6 a.m., on a thermal tray through a port in the door. Later, Scott Peterson can walk under escort to the yard for a game of hoops or chess, a splash of sun and a breath of sea air. Then it's back to a windowless cell and the 48 square feet he will call home. State prison officials say Peterson, who was sentenced to die Monday for the murders of his wife, Laci, and their unborn son, Conner, most likely will live among 450 condemned inmates in East Block, a 5-tier structure built in 1927 on the grounds of the Marin County prison. The 32-year-old former fertilizer salesman and high school golf star will peer through bars and a thick black mesh with diamond-shaped holes little bigger than sunflower seeds, said Sgt. Eric Messick, a warden's assistant. There's not much to view anyway, he said. The windows across the outer walkway are tarnished from weather and time. "All they can see is maybe a (guard) go by every now and then, and an inmate under escort," said Messick. East Block is the largest of 3 buildings where the state's 611 condemned men pass their years, plot their appeals and await state-prescribed death. Unlike other prisoners, death row inmates stay locked in their cells. Peterson can lie there and read, watch TV or just think on his steel-frame bunk with the roll-up mattress made by other San Quentin inmates who, unlike death-row inmates, can hold jobs. A sack lunch comes with sandwich fixings, chips, a piece of fruit and flavored drink powder. The state has executed 10 men since voters reaffirmed the death penalty in 1978. They sat on death row an average of 16 years. The most recent, Stephen Wayne Anderson, died by lethal injection in January 2002 after more than 20 years there. 9 death row inmates have lived there for more than a quarter century, state data shows. The average is nearly 12 years. The oldest condemned man is 74, the youngest 23. About 70 of the longest-serving, best-behaved of them live in North Segregation, the original "Condemned Row" built in 1934. More than 100 of those deemed most dangerous live behind solid cell doors in the Adjustment Center, prison officials said. 2 guards escort each of those "Grade B" inmates to a 12-by-6 foot, fence-enclosed "walk-alone yard" for exercise. "It's enough room to wander back and forth," Messick said. That's where Peterson will stay for a few weeks after his formal sentencing in February if San Mateo County Superior Court Judge Alfred Delucchi affirms the jury's decision. When Peterson arrives, he'll be strip-searched and given a medical exam, a haircut and 2 sets of prison blues -- jeans and chambray shirts. In return, he'll give a sample of his DNA. Corrections officials will decide where to house him, based on medical, psychological and other factors, including any threats he poses to others, or vice versa. "There are other inmates who may view assaulting him or harming him in some way as a feather in their cap," said Terry Thornton, a Department of Corrections spokeswoman. "It's a warped way of thinking, but there it is." Peterson can expect a rough greeting from some inmates, said Oscar Lee Morris, who spent six years on death row. Morris, 61, left death row in 1989 after an appeals court found prosecutorial misconduct, then was freed in 2000 when a key witness recanted his testimony. "A lot of guys'll be calling him a baby killer," said Morris. "He'll have to get used to the atmosphere, the whole environment. It's the end of the line right there. Technically, all you're doing is waiting to die." Peterson will likely be assigned to a yard based on "compatibility" with other inmates, officials said. Some groups feature inmates pegged as active gang participants. "They may love to have him there, but I don't think that's going to happen," said Messick. More likely he'll be placed with inmates classified as being no threat to each other, although he might be isolated further based on his notoriety. "He'll be all right as far as anybody doing anything to him," said Morris, who now lives in Los Angeles. "A lot of guys are involved in their (legal) cases. They won't give Scott Peterson a second look. He's just another guy, another statistic." For Morris, pain came with the pictures of loved ones he got in the mail. "You can talk to the pictures," he said, "but they can't talk back." Peterson, like all the condemned, will have his own cell with a stainless steel sink and toilet and, for a mirror, plastic covered with reflective tape. He can keep a TV up to 13 inches. A prison system offers a few local channels. Closed-circuit TV pipes in occasional movies -- PG-13 and gentler. The inmates can keep books, a music player and a wall poster, if it's not too racy. The condemned can take in-cell study courses and request law journals and other books. Until July 1, when it is outlawed in all state prisons, they can buy tobacco. Maybe Peterson's lawyer will come by to hash over his appeal. Or family members will visit during scheduled hours. If not, he can call them on the phone that rolls by each day on a cart. At first, he will greet visitors only through thick Plexiglas with phone receivers on either side. Later, he can meet them face to face, embracing them upon meeting and again before they go. "One brief kiss," said Messick of the rules. "No movie kisses." Conjugal visits are prohibited. Still, Peterson could spark up a written romance. He could even get remarried. The prison has a marriage coordinator and a justice of the peace. Weddings are held the 3rd Thursday of each month. "I know one thing," said Messick. "They're not having a honeymoon night." Inmates can shower every other day, "on their own, by themselves" in secured showers, taken there in handcuffs under guard escort, said Messick. Dinner comes about 5:30 p.m., again served in their cells. There is no "lights out" time, said Messick. Peterson will control his cell light, and he can stay up as long as he wants. Breakfast arrives about 6 a.m., on a thermal tray through a port in the door. (source: Contra Costa Times) ************************** Alexander juror wants off panel -- 'Sausage king' juror wants off of panel A juror standing between convicted triple killer Stuart Alexander and the death penalty asked a judge Monday to remove her from the panel weighing the fate of San Leandro's deposed "sausage king." Juror No. 7, a former probation officer turned Realtor, contended she wasn't getting enough respect in the deliberation room, where she aligned herself with the defense stance that the 43-year-old Alexander should be sent to prison for life instead of executed. The juror dug into her position at the outset of penalty phase deliberations and has refused to budge or discuss her reasoning, another member of the panel told Alameda County Superior Court Judge Vernon Nakahara as he probed the situation in open court. The juror told Nakahara that a similar standoff developed during deliberations in the first phase of the trial, which ended with Alexander found guilty of murdering federal and state meat inspectors Jean Hillery of Alameda, Thomas Quadros and William Shaline and trying to murder state meat inspector Earl Willis at Santos Linguisa Factory in San Leandro on June 21, 2000. Juror 7 "made a scene and got snappy" at one point but has basically sat quietly in the deliberation room, one of her peers told Nakahara. Juror 7 contended her fellow jurors have made the defense the butt of jokes and bought pig key chains to mock the linguisa plant heir, who used swine for pets as well as sausage stuffing. "We can't come to a decision because we have a juror who is not comfortable with the deliberation process and doesn't feel they can make a decision within this group," the jury foreman said, reading to Nakahara from a prepared statement after the judge gave the panel some time in the jury room to ponder whether it was at an impasse. Nakahara sent jurors home for the night and ordered them to return to his courtroom this morning, when he will decide how to proceed. Nakahara can replace Juror 7 with an alternate, leave the panel unchanged and encourage members to find common ground or declare a mistrial. Defense attorney Michael Ogul demanded that Nakahara declare a mistrial. The assistant public defender said that from his perspective, Juror 7 was deliberating, and the jury was irrevocably deadlocked. "It's not an impasse if a juror refuses to deliberate," Deputy District Attorney Paul Hora countered to Nakahara. "If there is a problem, nip it in the bud." Monday was the 5th full day jurors have been considering whether Alexander's multiple murders of government agents should be punished by execution or life imprisonment with no chance of parole. Deliberations began at 2:15 p.m. Dec. 6. Ogul argued at trial that Alexander killed Hillery, Quadros and Shaline because he was convinced they were bent on destroying the sausage business founded by Alexander's family generations earlier. Prosecutors Jack Laettner and Hora countered that Alexander gunned down the inspectors as merciless payback for insisting he conform to food safety standards. Alexander did not testify at the proceedings. (source : Oakland Tribune) *********************** Dead Men Walking, Dead Man Talking The jury says he's guilty and the jury says he dies, and that would be it for California's Scott Peterson save for the fact that, given the nature of the appeals process, in which Peterson presumably will participate because that is what the condemned usually do, it will be at least 10 years and probably closer to more than twice that before he ever goes over to the beautiful golden shore. During which time you can bet Peterson's name will loom regularly large in American society's continuing wrenching debate over the death penalty. He might as well get his own cable channel right now. All Scott, All the Time. By contrast, Long Island's own Danny Pelosi merely goes off to the big house and you'll never hear his name again, as here in New York there is, unfortunately, no death sentence available to prosecutors, thanks to our highest court and the Assembly's refusal to write a simple fix into the law. And even were the law in effect, New York's statute says Pelosi's crime would not qualify as capital in any case, cold-blooded murder though it was. So here is the death penalty as it stands, East Coast and Left: Both Scott Peterson and Danny Pelosi have lengthy lives yet ahead of them. By refreshing contrast, here is Connecticut's Michael Ross, who hopes the courts will not interfere with his scheduled Jan. 26 execution. There have been no executions in kind-hearted Connecticut in 45 years, but Ross is well-deserving - he is the self-admitted slayer of eight women and girls - and after 20 years of appeals, he's throwing in the towel because he wants to spare his victims' families further anguish. "I am hoping that Jan. 26, that will be a signpost that they can say, 'That was the day I began letting go of the anger.' I'm just trying to bring this to an end, Your Honor," Ross said. Ross got that point just right. Enough is enough. (source: Editorial, New York Daily News)
