| The judge overseeing Scott Peterson's murder trial has posed the question to each group of potential jurors. "Do you think you could ever vote to execute a human being?" Judge Alfred Delucchi has asked almost 1,000 San Mateo County residents. "Could you do something like that?" That responsibility will be a primary issue today, as potential jurors return to court for ndividual questioning on their suitability to judge Peterson. Besides the usual legal task of determining guilt or innocence, jurors in capital murder cases also decide sentences -- a job typically left to the judge in other cases in California. Legal observers are mixed on whether that additional authority in death-penalty cases factors into decisions on guilt or innocence. "Jurors have sentencing power in capital cases because of the awesome stakes," said Craig Haney, a University of California at Santa Cruz psychology professor who has written extensively on the death penalty and in 2001 called for a moratorium on executions. "It's hard to say whether jurors behave differently knowing that they have that power," Haney said. "One would like to think that they are more careful and reflective in cases where the stakes are so high. In a general sense, they probably are." There was little dispute among legal observers that death- penalty jurors are typically more conservative and pro- prosecution because only people willing to consider execution can sit as jurors in capital cases. "I do buy the argument that death-qualified juries tend to be slightly more conviction prone," said Rory Little, a professor at Hastings College of the Law in San Francisco and a former federal prosecutor. "There is a lot of empirical support that says that's true." Peterson's attorney, Mark Geragos, has argued that having one jury decide guilt or innocence and a potential sentence denies his client's right to a fair trial. Delucchi rejected that argument last month, though Geragos has said he'll make another request for two juries in the case. To be convicted, 12 jurors would have to unanimously decide that he is guilty beyond a reasonable doubt. If the jury convicts Peterson of first-degree murder on one count, first- or second-degree murder on the other, and determines that the special circumstance of committing more than one murder is true, the same panel would decide whether he should receive death or life in prison. A unanimous decision is required for execution. Having a single jury decide the verdict and sentence raises the concern that jurors faced with clear evidence of guilt may still not convict someone because they think the penalty is too harsh, legal observers said. "We're worried that jurors will get distracted by the possible sentence and not do their duty," said Laurie Levenson, a professor at Loyola Law School in Los Angeles and a former federal prosecutor. "They'll reach a compromise verdict, not on the facts but because they don't like the sentence." In a death-penalty case, having only jurors capable of voting for execution in the event of a conviction largely undercuts the possibility they won't follow the law when considering their verdict, Levenson said. "You've gotten rid of the jurors who would nullify the verdict because they're worried about the death penalty," Levenson said. "They're not looking down the road at the possible punishment." But having one jury decide both raises other questions. "You could have jurors who say, 'I'll find him guilty, but I'll give him a break at the death phase,'" Levenson said. "You could have jurors who are more likely to find him guilty, because if they're going to show any leniency, they're going to show it at the penalty phase." Augustus Accurso, a retired Stanislaus County judge, agreed there is a concern. "It's a problem that exists in selecting juries," Accurso said. "That's a concern of both sides. You get somebody in there and they think, 'I can smooth the edges off; I cannot give him death.'" The remedy, Accurso said, is for judges and attorneys to vigorously question prospective jurors about their attitude, view of the law and approach to the case. "You've got to just keep pounding and pounding away at it," Accurso said. "You're going to go through a lot of jurors before you get to something that works." Little said the possibility of the death penalty usually affects jurors, but said the effect is neither improper nor unfair. "I think it would be unusual if they weren't affected," Little said. "We know that the death penalty had problems. But those problems are generally evidentiary problems and not juror-sympathy problems." If the jury hands up a death sentence, the judge technically imposes it, Little said. Under state law, jurors are instructed to weigh aggravating factors -- such as the heinous nature of the crime -- against mitigating factors -- including if the defendant has no criminal record. If the mitigating factors outweigh the aggravating factors, jurors are instructed to sentence the defendant to life without parole. If they reach a death sentence, the judge automatically reviews their findings and can modify the sentence if hedetermines the aggravating circumstances do not outweigh the mitigating ones. Peterson jurors might never be confronted with that choice, however. "There's a long road between here and conviction," Little said. "This is not a case that looks like a slam-dunk. I think the defense will make a very strong argument that all the evidence is circumstantial -- none of it directly ties Peterson to the murders." HOME INDEX LACI SCOTT TRIAL NEWS ALIBI-WITNESS LIST EVIDENCE-NEWS WIRETAPS SCOTT'S AFFAIRS AMBER'S ALBUM |
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| COULD YOU VOTE TO EXECUTE? March 22, 2004 |
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| LACI & CONNER May Justice Prevail |
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