| Jurors may be told to consider lesser charges against Scott Peterson Wednesday, October 27, 2004 Jurors weighing first-degree murder charges against Scott Peterson will likely have the option of finding the fertilizer salesman guilty of second-degree murder, greatly increasing the chances of conviction in the eyes of legal experts. Judge Alfred Delucchi has scheduled a conference with lawyers for Friday to finalize the charges presented to the panel, but lawyers who have followed the case say rulings by the state's Supreme Court leave the veteran capital trial judge little choice but to add the lower count to the verdict form. Even if Peterson's defense opposes the second-degree charge — which they are expected to do — the judge is to give jurors that choice if he feels there is "substantial" evidence that could support such a conviction. "The judge would be derelict in his duty if he didn't instruct on both first and second-degree murder," said former San Mateo County prosecutor Dean Johnson. "Both crimes are clearly supported by the evidence." Like first-degree murder, second-degree requires proof that a killing was intentional and done with "malice aforethought" — meaning the perpetrator knew or should have known the deadly consequences of his or her act. But second-degree murder does not require proof of premeditation or deliberation, which is defined as "careful thought and weighing of considerations for and against the proposed course of action." If Peterson is convicted of first-degree in the slayings of his wife, Laci, and unborn son, he would be sentenced to either death or life in prison without the possibility of parole. Second-degree murder carries a sentence of 15 years to life. Middle ground Without the second-degree option, jurors are faced with a stark choice between acquittal and capital conviction, but the lesser charge gives a divided jury a chance for compromise. "Instead of a situation where reasonable doubt on the part of a few jurors leads to a hung jury, the minority jurors holding out for an acquittal can be bullied into a second-degree conviction and still puff up their chests at the end and feel like they stood up for justice," said defense attorney Dan Horowitz, who has tried four murder cases in front of Delucchi. Wary of such a compromise, Peterson's defense is expected to argue against adding the second-degree count. The state's highest court, however, has repeatedly said that a lesser-included charge supported by the evidence cannot be kept off the verdict form for strategic reasons. "Our courts are not gambling halls, but forums for the discovery of truth," the justices wrote in a 1970 decision. The court addressed the issue again, 25 years later, writing, "Truth may lie neither with the defendant's protestations of innocence nor with the prosecution's assertion that the defendant is guilty of the offense charged, but at a point between these two extremes." Therefore, the court wrote, "a trial court's failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury's truth-ascertainment function." Evidence of a plan These decisions leave Peterson's lawyers with one possible argument: that the evidence points to a first-degree murder and a reasonable jury could not find substantial proof of second-degree murder. For example, in the case of a mob hit where the victim was followed and then executed, the jury would have no justification to consider a second-degree murder charge. The only question before them is of identity, not degree: Did the defendant do it or was it someone else? Prosecutors in the Peterson case have offered a lot of evidence pointing to premeditation. Jurors heard how Peterson researched currents and tides in San Francisco Bay and bought a boat two weeks before Laci Peterson's Christmas Eve disappearance. They also heard that concrete weights — which prosecutors claim Peterson used to sink her body in the bay — take at least 24 hours to dry. Additionally, Peterson's mistress testified that he told her on Dec. 9 that he had "lost" his wife and would be spending his first holiday alone. He later promised her that by the end of January he would be freer to pursue a relationship with her. But, legal experts say, it is a still a long shot for a defense to persuade the judge that there is no way a jury could find second-degree murder. In 1997, the state Supreme Court reviewed a case in which a man lured two women from Los Angeles into the desert and strangled them. The defense did not want the jury to consider second-degree murder, but the high court said despite the ample evidence of premeditation, including the long trip to the desert and the relatively slow process of strangulation, it was fair for the jury to have the second-degree option. "The nature of the murders themselves would not preclude a finding that the defendant acted on impulse," the justices wrote. Jury leeway In the Peterson case, the prosecution has never spelled out how they believe Laci was killed. Her remains were too badly decomposed to determine a cause of death, there was no blood in their home and no witnesses. Horowitz said that even with all the evidence of alleged premeditation the prosecution presented, the lack of specific evidence about how she was killed allows jurors more leeway. "I can imagine the jury going, 'Yeah, he was planning on killing her, thinking about killing her, buying the boat, making the anchors, but he was still on the fence about it until that night and in that moment he decided to go through with it,'" Horowitz said. Jurors are told to weigh each of the two murder counts separately and Johnson said it was conceivable that the panel could find Peterson guilty of second-degree for the killing of his wife, but first-degree for his son. "He could have called 911 and saved [the baby's] life, but he just stood there, and that becomes deliberate and premeditated," Johnson said. If Peterson is convicted of only one count of first-degree murder, he would still face the death penalty. HOME INDEX LACI SCOTT TRIAL ALIBI-WITNESS LIST WIRETAPS AUTOPSY |
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