Scott Peterson's attorney, Mark Geragos, now has to contend with more than a guilty verdict for his client - and the penalty phase of the trial, now delayed for a week by the judge. Geragos is also facing a bar complaint related to the case.
In the complaint, Florida attorney John B. Thompson - who has no reported connection to the case - argues that Geragos violated a key ethic rules forbidding communication with jurors. According to Thompson, Geragos did so by putting a replica of Scott Peterson's boat two blocks from the courthouse. Geragos, who remains under a under a gag order preventing him from discussing the case with the media, has not been able to respond to the allegations.
Thompson says that Geragos's alleged boat display not only broke the California ethics rule barring juror communication, but also broke the California ethics rule against extrajudicial communications about a case. (As a recent column by Jonna Spilbor for this site noted, the penalty phase of this case - in which a death sentence could be imposed - has yet to occur.)
Reportedly, the boat contained homemade concrete anchors - such as those the prosecution alleged Scott used to weigh down Laci Peterson's body - and a dummy representing the body. The defense's theory was that Scott could not have thrown Laci's heavily pregnant body over the side of the tiny, anchor-filled boat without swamping the boat with water and tipping it over. The display was apparently intended to illustrate just how tippable and tiny the boat actually was.
During the trial, the judge had refused to allow the defense to mount a similar display for jurors - a display that was intended to prove that very theory. According to Thompson, however, Geragos circumvented that ruling by placing the boat near the courthouse. By doing so, Thompson argues in his complaint, Geragos intended "to engage in non-verbal communication" with jury members regarding "certain visual, dimensional aspects of the boat he was barred by the Court to convey." And, Thompson says, that violates the rule against communication - by parties or their attorneys - with jurors.
If Geragos did put the boat on display two blocks from the courthouse - as Thompson claims, and as news account suggest may have been the case - did Geragos indeed violate the bar ethics rules Thompson cites? And in answering that question, is it relevant that the judge's decision preventing the defense from showing the jurors the boat display was ill-founded?
Did the Gag Order on Geragos Encompass the Boat Display's "Speech"?
To begin, it's an interesting question whether the judge's gag order even encompasses putting the boat display by the courthouse. After all, the order gagged speech - not conduct. Which leads to an interesting question: Did the boat display constitute speech by Geragos (assuming he did put it there)?
Even Thompson, in his bar complaint against Geragos, deemed the boat display "non-verbal communication" - differentiating it from pure speech. And Supreme Court precedents equivocate over when conduct also counts as speech. Consider, for instance, the Court's opinion in Barnes v. Glen Theatre, which suggests that nude dancing only barely, and marginally, counts as First-Amendment protected speech.
Moreover, when the Court has found conduct to count as speech, that conduct has often conveyed a fairly clear message. For instance, flag-burning - upheld, in a 5-4 vote, as constitutionally protected speech in Texas v. Johnson -- conveys an anti-government message.
What exact message - if any - was being conveyed by the boat display?
Some viewers who saw the boat might have looked at it and said, "Yeah, that must have been just how Scott Peterson did it. I can see it in my mind now - I know that guy is guilty." Reportedly, the boat display, at some point, was turned into a shrine for Laci, and some jurors may have seen it that way even before the bouquets began to collect there.
Granted, other viewers might have said, upon seeing the boat, "How the heck did he get that body off that boat without tipping it? It's impossible." But they may not even have been in the majority of those who saw the display.
In sum, viewers were free to take their own messages - and, indeed, opposite messages -- from the display. And that means that it might not count as the kind of opionated or factual speech the gag order was trying to target. (Interestingly, no one seems to have alleged the display was in any way inaccurate or misleading.)
For these reasons, the display arguably fell outside of the gag order - especially if the gag order is narrowly construed, as it ought to be.
Did the Boat Display Send a Message to Jurors, and Thereby Violate Ethics Rules?
What about Thompson's claim that the boat display not only violated the gag order, but also violated the rule against juror communications?
First, it's quite possible none of the jurors saw the boat. They were sequestered. The boat was two blocks from the courthouse. They had been instructed that they weren't supposed to learn anything about the case outside the courtroom. Even if they saw it, they knew they were supposed to look away.
In short, not only was the display not a solid example of "speech," it seems even more dubious to call it "speech to jurors." After all, there was no evidence, in Thompson's bar complaint, that any juror ever saw it, or that Geragos ever thought they would.
The Judge's Ruling On the Boat Display: Wrong in the First Place
It may also be relevant, from the bar's perspective, that the judge made a grievous error in excluding the boat display. Bar officials have a great deal of discretion, and if they see the display as an attempt to correct a grossly wrong ruling, they may be more sympathetic to Geragos.
The boat display could have provided crucial support for the defense's claim that the prosecution's story about how Peterson disposed of the body was a physical impossibility. Indeed, in my view, the defense was entitled not only to a display of the boat, but to a re-enactment of what would have happened -- in a tank of water, or, better, in the Bay on a day when weather conditions were right.
If the re-enactment had showed the boat would indeed have been swamped, the prosecution's case would have been seriously hurt, and rightly so. That's precisely why, in my opinion, the defense was entitled to a re-enactment - or, at a minimum, to display the boat in court.
Will the Boat Display Ruling Cause the Appeals Court To Require a New Trial?
For all the reasons just given, I think the judge's evidence call on the boat display was clearly erroneous and ought to be reversed on appeal - and since it's an important call, Peterson should be granted a new trial. But don't count on it.
Appellate courts generally don't like to reverse trial courts' evidence calls. Such calls are quintessentially the job of trial judges, who see all the evidence, not of appellate judges, who don't. Even if they see a ruling as erroneous, they may still deem it to be "harmless error" - finding that the defendant would have been convicted anyway.
My view is that this error was harmful indeed: The display could have been immensely helpful to the defense, especially since this was a circumstantial case with little, if any, forensic evidence in favor of guilt. But the California appeals court may well disagree, and uphold the "Guilty" verdict.
A Justifiable Act of Civil Disobedience?
If I am right about the likely fate of the "boat display" argument on appeal, then that raises a provocative question: If Geragos were found to have violated the gag order and the rule against jury communications, could his act nevertheless be defended as one of justifiable civil disobedience?
There is a plausible case in favor of that view. If Geragos did mount the boat display outside the courthouse, he probably did so knowing both that the trial judge's evidence decision on the display was clearly erroneous, and that - nevertheless -- the appellate court would probably uphold that decision. In addition, he may have believed that without the boat display, his client probably would be convicted (as, indeed, occurred). Finally, he may also have believed that if Scott Peterson were convicted, he would be sentenced to death.
Might a lawyer ethically be justified in trying to counteract a blatantly wrong evidence call in order to save his client's life - even if doing so counteracts a gag order, and the anti-juror communications rule?
Certainly, the issue is at least a debatable one. There may be a few on the bar ethics committee, at least, who are sympathetic to the "civil disobedience" argument.
In the end, we won't really know what to think of this bar complaint until Geragos speaks out. I've suggested some of its weaknesses above, but a final evaluation ought to wait until he has a chance to defend himself.
It's ironic, to say the least, that the gag order Geragos allegedly violated, also may be preventing him from denying the allegations against him.
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On June 2, the long-awaited trial of 31-year-old Scott Peterson finally got underway. Peterson, as has been widely reported, is accused of capital murder based on allegations that he killed his wife, Laci, and their unborn son on Christmas Eve 2002.
So far, prosecutors haven't exactly come out swinging. And that is largely because, it seems, they don't have much to swing with.
Conspicuously absent from the prosecution's evidence locker so far is any blood or other bodily fluid evidence consistent with a killing. Indeed, prosecutors have failed to offer any physical evidence linking Scott to the crime. Nor have they come forward with a cause of death for either Laci or the couple's son.
Defense attorney Mark Geragos, by contrast, did come out swinging. In his opening statement, he proclaimed that, "The evidence is going to show clearly, beyond any doubt, that not only was Scott not guilty, but stone-cold innocent." This audacious move meant the defense voluntarily shouldered a burden that legally, it never must bear: The burden to prove innocence.
How does the defense team intend to stay true to its word? The short answer is: Science. As on "CSI," they're hoping the evidence will speak for itself - and in favor of Scott's innocence.
Meanwhile, the prosecution is hoping to build a circumstantial case based on Scott's whereabouts; on testimony as to his demeanor after Laci disappeared; and on evidence that he was unfaithful to Laci, unhappy in their marriage, and unhappy about the coming birth of his son.
In a contest between scientific and circumstantial evidence, it's very likely that science will win out. Unless there is some shocking new development, we can expect an acquittal in the Peterson case.
The Importance of the Evidence As To Whether Laci's Baby Was Born Alive
What scientific evidence will the defense present? Centrally, the defense contends that forensic evidence will show that the couple's unborn son, whom they had planned to name Conner, was born alive sometime after Laci went missing.
Geragos told the jury, "If this baby was born alive, clearly Scott Peterson had nothing to do with this murder." He promised that "[t]he evidence is going to show that [Laci] was alive on December 24, when Scott went to the marina."
It's highly unlikely that Geragos would make such a promise if he couldn't keep it. After all, he's an experienced advocate, and breaking promises to the jury is probably the single biggest no-no in the realm of trial advocacy.
And so far, the reported evidence seems to be on Geragos' side. Laci went to the doctor the day before her disappearance. At the time, the fetus was estimated to be 32 weeks old.
The bodies were discovered on April 17, 2003. The medical examiner who performed the autopsies on the bodies after that date estimated the fetus' gestational age at 9 months, which would be just less than 39 weeks. And he could not rule out the possibility that the fetus had been born alive. Similarly, a forensic anthropologist measuring the baby's body's bones estimated Conner's gestational age at 33 weeks to 38 weeks.
This evidence is pivotal - and very problematic for the prosecution. Presumably, for Conner to continue to develop for one to seven weeks after the doctor's appointment - as the evidence shows -- he would have had to either have remained in a living Laci's womb for that period of time, or been born alive and continued to live on.
But the prosecution's claim is that the unborn baby and Laci both died a day after the doctor's appointment. How can that be reconciled with the 39 week, and 33-38 week estimates?
Could Scott have killed his wife and unborn child after the investigation began? Highly unlikely - as soon as Laci disappeared, he was under an intense police microscope.
The best way to reconcile the evidence is the one Geragos offers: Either Conner was born alive, or Laci lived on, and Conner developed in her womb, for at least a week after December 24, when the prosecution claims she was murdered.
In sum, the prosecution may be devastatingly undermined by evidence provided by the state's own medical examiner and forensic anthropologist.
The Prosecution's Case: Based on Demeanor, Whereabouts, and Possible Motive
The prosecution would be facing an uphill battle even if it didn't have this huge evidentiary setback. So far, as noted above, the prosecution's case against Peterson has been based on testimony as to circumstances, whereabouts, motive, and demeanor. But this kind of evidence, by itself, can't replace the lack of physical or scientific evidence favoring the prosecution.
As has been widely reported, Peterson's solitary fishing trip, on the day his wife disappeared, placed him precisely where the bodies washed ashore. But this coincidence is less striking than it may seem. Of course Peterson, if he went fishing, would have gone to the marina. Of course the killer - even if he was not Peterson - might have thought that an ideal place to dispose of a body would be the nearby marina.
In addition, Peterson's prior affair with Amber Frey, and well as other evidence, does suggest he was unhappy with the status of husband and father - and that he might have had motive to kill the pregnant Laci. But there are many unfaithful men out there who complain to their mistresses about their wives, and stay married. While Scott's unhappiness may have been motive for the affair, and perhaps even divorce down the road, it alone is not motive enough for murder.
Then there's the demeanor evidence. So far, in the first two weeks of trial, five witnesses have testified that Peterson's demeanor was hardly that of a grieving spouse during the days and weeks following Laci's disappearance. The witnesses - drawn from the Petersons' family and friends - testified that Scott seemed standoffish, often evading questions, and when he did speak, he seemed "odd."
Scott's attitude, witnesses say, was sullen - or simply devoid of emotion. For instance, Harvey Kemple testified that "I saw more emotion out of [Scott] when he burnt the damn chicken [several months before Laci's disappearance] than when his wife was missing."
This demeanor evidence, however, is weak. Some of the witnesses are relatives of Laci who have been suspicious of Scott from the start - and perhaps never liked him much in the first place. If they didn't perceive him as an ideal husband when she was alive, how likely is it that they'd see him as ideal after she disappeared - and after they learned of his extramarital affair?
How Would An Innocent Spouse Supposedly Behave?
More fundamentally, as jurors will doubtless know, different people respond to grief and trauma in very different ways. Just how is an innocent spouse-turned-suspect supposed to behave?
Consider three notorious cases of accused wife-murderers (or near-murderers) who were acquitted - and how these men behaved after the crime. These examples make it clear that defendants don't get convicted because their demeanor evidences likely guilt. These examples also open up the possibility that some among the three were acquitted because they actually were innocent, and that even an innocent man can react to his wife's death or disability with a demeanor that some observers find suspicious.
First, there's O.J. Simpson. Simpson fled in the infamous Ford Bronco chase - at times holding a loaded gun to his head. Though many still believe he was guilty, and that his fleeing was a tacit admission of guilt, a criminal jury disagreed. Also, what is typically cited now as the reason he should have been found guilty is scientific, physical evidence - DNA and blood - not his demeanor, bizarre or otherwise, near the time of the crime.
Second, there's the Claus von Bulow case - later the basis for the film "Reversal of Fortune." Like Scott Peterson, von Bulow was accused of callous indifference in the wake of the total disability of his wife, Sunny -- who lapsed into a permanent vegetative state, allegedly as a result of his murderous insulin injection. In that case, the prosecution also offered evidence that, on an earlier occasion, von Bulow refused to call a doctor when his wife was so ill she fell into a temporary coma. But von Bulow, too, was acquitted - though only after a second trial.
Third, and most similar to the Peterson case, is the 1954 case of Dr. Sam Sheppard - later the basis for the film "The Fugitive." Sam Sheppard woke one July morning to find his young, pregnant wife, still in their bed, beaten beyond recognition. Dazed and himself injured, he followed the "form" of a "bushy haired" intruder out onto a nearby beach, where the doctor was knocked unconscious.
At first, the press and other members of Sheppard's small Ohio community consoled the good doctor over his tragic loss. But, just as happened in Peterson's case, it didn't take long for public sentiment to change. Sheppard's affair with a younger woman was revealed, and it was revealed, too, that they had discussed his possibly divorcing his wife. (In contrast, Peterson reportedly did not even tell Amber Frey of Laci's existence.)
Yet Sheppard's demeanor could be classified as cooperative. He gave statements freely (perhaps too freely) to police. He wept over the loss of his wife. He painstakingly tried to recall details of the murderous night.
In 1956, at his first trial, Sheppard was acquitted of capital murder, but convicted of a lesser charge: murder in the second degree. Ten years later, Dr. Sheppard was retried, and found not guilty.
What, if any role, did each of these defendants' demeanor play in his respective prosecution and ultimate acquittal? In the end, it's hard to say, especially since it seems likely that much more physical evidence was admitted at these defendants' trials, than is expected to be admitted against Scott Peterson.
But one lesson can be learned: A "suspicious demeanor" is more likely to satisfy the "probable cause" needed for arrest, than the "beyond a reasonable doubt" standard needed to convict.
As I noted in a prior column, the husband is virtually always going to be a suspect in his wife's murder (especially if it seems she was murdered in or near their house), and he'll probably be arrested no matter what his demeanor. In addition, there will always be something about his demeanor that can be deemed "suspicious."
The husband is in a Catch-22, after all: If he is cooperative, why isn't he disabled by grief? If he's uncooperative, why isn't he able to pull himself together to help solve the crime?
The Likely Outcome, Based on What Is Known Now, Is Acquittal
My guess is that we are in for some very convincing defense expert testimony as to the gestational age of Conner. If the evidence weren't strong, Geragos would never have put so much reliance upon it. Being able to draw on the evidence of the state's own medical examiner ought to help his case greatly too.
If the defense can show Conner continued to develop after the day prosecutors say the fetus died, that will be devastating. It's possible the prosecution may yet pull a new rabbit out of its hat, but I doubt it. With science on his side, Scott Peterson may soon enjoy his own reversal of fortune.
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So far, the prosecution's case against Scott Peterson, in his ongoing California murder trial, has been unimpressive. The prosecution's opening was unconvincing - relying heavily on weak circumstantial evidence that could have an innocent interpretation.
For instance, prosecutors pointed out that (in a wiretapped call) Scott Peterson gave a whistle of relief when an object found on the floor of San Francisco Bay was an anchor, not his wife Laci's body. But so what? Maybe he was relieved because this meant she might still be alive. Is it really evidence suggesting Peterson murdered his wife, if he was happy that an object found was not his wife's body?
To take another example, prosecutors noted in their opening that the jewelry Laci wore every day was still in her bedroom when she disappeared. They imply that therefore she never left the house, and Scott must have killed her there.
But would Laci necessarily have worn her diamond earrings and sapphire ring to walk the dog - which is what the defense, supported by three witnesses, will maintain that she was doing when she disappeared? It wouldn't have been very surprising, especially given that she was eight months pregnant, if she'd walked the dog in her pajamas.
In the last few weeks, as the prosecution's case has unfolded with witness testimony and other evidence, it hasn't improved much. As a result, commentators have been almost universally harsh in their condemnation of the prosecution's effort.
Meanwhile -- as I noted in an earlier column -- Justin Falconer, the juror who was recently dismissed, was adamantly anti-prosecution. . If even one remaining juror feels as strongly as Falconer, the prosecution is in serious trouble.
But granted, prosecutors are not done with presenting their case yet. Star witness Amber Frey -- who says she believed Peterson was single when they had a "romantic relationship" -- has yet to testify. And wiretaps of Frey's conversations with Peterson have yet to be introduced.
Could prosecutors use this type of evidence to turn things around for themselves? It's possible, but unlikely.
A Paucity of Physical and Forensic Evidence
Potentially damning physical or forensic evidence is scant in the Peterson case. Scott's attorney, Mark Geragos disparaged it as "zero, zip, nada, nothing." That's not quite accurate - but it's close.
Prosecutors do point to a hair identified as being Laci's (or very similar to Laci's; the mitochondrial DNA evidence was not as definitive as other DNA evidence would have been). This hair was found in pliers that were apparently on Scott's boat the morning Laci disappeared.
The prosecution has made a great deal of this hair. Specifically, the prosecution suggested that since Laci, while alive, had never seen Scott's boat, the hair must have come from her dead body - which, they say, Scott carried in the boat so he could later dump it in the San Francisco Bay.
The problem with this argument, however, is that its premise is false. Shortly before she disappeared, Laci had in fact been to the warehouse where Scott kept his boat. A disinterested witness at the warehouse identified her as having asked to use the bathroom there.
Doubtless, Laci would have seen the boat during that visit. So the presence of her hair in the pliers on the boat, while still significant, is hardly overwhelming evidence of Scott's guilt.
Besides the hair, there is the tiny amount of blood in the form of spots found on the couple's comforter. But these spots, it seems, were Scott's blood, not Laci's. And that could be consistent with Scott's claim that he'd cut his knuckle.
More importantly, the prosecution cannot explain the disappearance of the copious amount of blood that should have been everywhere, had Scott really killed Laci in their own house, as the prosecution maintains. For Scott to have cleaned the house that immaculately, he would probably have had to be a professional killer or "fixer." In fact, he was a fertilizer salesman.
Nor can the prosecution explain the total lack of any scratches or bruises on Scott (except for that one cut). And that's a problem, given that if Scott had tried to kill Laci in their house, she would doubtless have fought fiercely against him -- not only for her own life, but for the life of her unborn son as well.
There are a few items of physical evidence, however, that do help the prosecution's case. One is the tarpaulin that was used to cover Scott's boat. By the time police found it in the warehouse, after Laci had disappeared, it was soaked in gasoline.
That could have been done purposefully, if Scott had used the tarp to wrap Laci's body and knew gasoline got rid of trace evidence. But it could also have been done accidentally - apparently, there was a leaf blower atop the tarp that might have been leaking gas.
In the end, we'll never really know how much gas was on the tarp, for police were reportedly foolish enough to air it out after they found it. And that fact limits the tarp's value as evidence.
Another helpful item of physical evidence for the prosecution is the homemade cement boat anchor found in the warehouse. Apparently, Scott Peterson has conceded that several such anchors existed, and circles in the dust on the warehouse floor indicate there may have been as many as five such anchors. (Although, of course, one anchor could have made multiple circles at different times.) Now, only one anchor exists.
Did the other anchors go into San Francisco Bay with Laci's body when - according to the prosecution - Scott dumped the body there? Scott says the anchors are gone because he used the cement from them to patch his driveway. But it has yet to be seen whether the evidence bears out this explanation.
In sum, there is some physical and forensic evidence that favors the prosecution - but not anywhere near as much as one might expect, if the prosecution is correct that Scott murdered Laci in the house they shared, loaded her body into the toolbox of his truck, took her out on his boat, and dumped her body in the Bay. Not only is the house free of damning evidence, but so are his truck and his boat - except for that one hair.
The Defense Has Contemporaneous Eyewitnesses; the Prosecution Does Not
Meanwhile, another blow for the prosecution comes from the fact that, in this case, it is going to be the defense - not the prosecution - calling contemporaneous eyewitnesses to the stand.
In his opening, defense attorney Mark Geragos promised to call three witnesses who each saw a very pregnant woman fitting Laci's description walking her dog in her neighborhood the day after prosecutors claim she was murdered - and during a time Scott Peterson can offer a strong alibi as to his own whereabouts.
If even one of these witnesses is believable, his or her testimony may raise the necessary reasonable doubt. It would do so by suggesting that the defense's version of events - that Laci was abducted after Scott left to go fishing - could well be true, and that therefore, Scott could well be innocent.
The Evidence to Come: Amber Frey May Play a Pivotal Role at Trial
In light of all these blows to the prosecution's case - and these are far from the only ones that have been struck in defense cross-examination so far - can prosecutors possibly win this case?
I think it's possible, but it will be very, very difficult. If there is strong evidence of Scott's guilt in the wiretapped conversations between him and Amber Frey, that might be enough. But the evidence would have to consist of a remark by him that was close to a confession. And if that kind of admission exists, I think it would have leaked by now - and would also have been featured in the prosecutors' opening. That's not the case.
Testimony that Scott told Amber (or the friend who introduced them) that he was a widower before Laci died could also be powerful evidence for the prosecution. But I do think the jurors will prove more than able to separate evidence about Scott's admitted infidelity - and all the various lies and multiple cellphone calls that accompanied it - from evidence as to the key question of whether he murdered Laci.
Married men tell all kinds of lies to get women to sleep with them, and jurors will doubtless be aware of that. That Scott first claimed he was a widower, then later actually became one, may be more a sick coincidence than a self-fulfilling prophecy.
The Crucial Concrete Anchors: Could They Win the Case For Prosecutors?
In the end, the case may come down to those missing concrete anchors. Scott says he used the concrete from them on his driveway, and thus they no longer exist. But when did this driveway-patching project occur? Did he talk to anyone about it? Were there any witnesses to his work - work that he would have done outside his house, in full view of neighbors? And what about the handles for the anchors - which seem (from the one anchor that survives) to be made of pipe, not concrete? Where are they?
If Scott Peterson, or his defense attorney, cannot account for the whereabouts of those extra anchors, then they may be in real trouble - for jurors may conclude the anchors are just where the prosecution believes them to be: at the bottom of San Francisco Bay.
Granted, the anchors haven't been discovered there. But the area where they might be is huge - as big as numerous football fields - and concrete anchors can sink into sand at the bottom, and get buried there as tides shift.
If Scott can't account for the anchors, he may be doomed. But if he can convincingly explain where the concrete and the anchor handles disappeared to, he may end up with a "Not Guilty" verdict, after all.
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