« NY Times editorial on Miller puts Gideon cart before the Teague horse | Main | Federal sentencing data junkies rejoice: USSC creates new "Research and Statistics Page" »

July 6, 2012

A decade after the crime, high-profile capital case finally gets to California Supreme Court

This AP article reports that "Scott Peterson on Thursday filed the automatic appeal of his 2004 death sentence to the California Supreme Court, maintaining as he always has that he had nothing to do with the murders of his wife Laci and unborn son Connor."  I find this story notable not only because the Peterson case was very high-profile at the time of the crime and trial (long ago), but also because it spotlights various dysfunctional realities of capital appeals.  Here are some particulars:

Peterson's attorney, noted death penalty lawyer Cliff Gardner, filed the 423-page document eight years after a San Mateo County jury found the former fertilizer salesman guilty of suffocating a Laci and dumping her in the San Francisco Bay on Christmas Eve 2002....

Peterson has always maintained his innocence and his appeal to the Supreme Court is no different.  Gardner claims that the overwhelming publicity Peterson's trial received, incorrect evidentiary rulings and other mistakes deprived him of a fair trial.  Peterson was convicted in 2004 after a trial that his attorney argues surpassed the O.J. Simpson murder trial in terms of publicity....

Gardner argues that the intense publicity the case generated almost from the moment Laci disappeared deprived Peterson of a fair trial.  The trial was ordered moved from Stanislaus County of the Petersons' home, to San Mateo County.  Gardner argued that the trial should have been moved yet again because of the crush of publicity in San Mateo County....

Beyond issues with the publicity, Gardner argues the judge made several erroneous evidentiary decisions and other rulings that led to Peterson receiving an unfair trial. Gardner complains the judge automatically excluded prospective jurors who said they opposed the death penalty.  Gardner argued that those jurors should have been questioned more about whether they could still decide the case fairly....

The thick legal brief delves into numerous other issues alleging incorrect rulings, juror misconduct and other errors.

All death penalty cases are appealed to the California Supreme Court, which is struggling to keep up with the pace of cases.  There are 725 inmates on Death Row and no prisoner has been executed in California since January 2006. Lawsuits in federal and state courts have temporarily halted executions.  The appeal is expected to take months, if not years, to be resolved.

This story arguably highlights everything that can be viewed as broken and wrong with US capital criminal justice, whether one's concern is potential wrongful convictions, or undue media sensationalism of crimes and trials, or the slow pace of capital appeals, or the tendency (and necessity) of capital defendants to allege all kinds of errors in a massive brief (which is longer in this case (with 423 pages) than the original Harry Potter volume), or the fact that California's death penalty now truly exists only in theory in courtrooms, not in reality in the state's (new and unused) execution chamber. 

The fact that this case took nearly a decade to just get to the very first brief being filed in the California Supreme Court suggests to it could be another decade or two before all of Peterson's appeals are exhausted even if he fails to win on any appeal issue in any court.  If he gets some kind of reversal at some stage in the appellate process, then his appeals are likely to outlive him so that his death sentence turns into a functional life sentencing (as has ultimately proven to be the case with all but a dozen of the roughly 1000 California murderers whom have been sentenced to die in the state over the last few decades).

July 6, 2012 at 03:37 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference A decade after the crime, high-profile capital case finally gets to California Supreme Court:


The lawyer talks in years or decades before resolution of these capital cases. I prefer to talk in $thousands if not $millions before these cases are resolved, because that is more honest about the real purpose of these appeals.

Posted by: Supremacy Claus | Jul 6, 2012 5:29:17 AM

"This story arguably highlights everything that can be viewed as broken and wrong with US capital criminal justice..."

What it actually highlights is everything that can be viewed as broken and wrong with CALIFORNIA's capital criminal justice.

It doesn't have to be this way, and in other states, it isn't. In Virginia, the average time from conviction to execution is about seven years.

The problem is that California is no more serious about its death penalty than it is about its solvency -- also a telling contrast with Virginia, which has lower state taxes by far, plus a budget surplus. It has still managed successfully to carry out the jury's judgment in capital cases, having undertaken eight times as many executions as California in the post-Gregg period, with a much smaller population.

Moral of story: California is not the United States, and its mess of a criminal justice system is not representative of the United States. There is no problem with the DP that can't be solved within Constitutional and budgetary constraints. Virginia shows that, with the DP as with everything else in life, where there's a will, there's a way.

Posted by: Bill Otis | Jul 6, 2012 7:28:47 AM

Why in California did it take 8 years to file a brief?

In most states, the notice of appeal must be filed shortly after sentencing (i.e. a handful of months if not shorter), the record is completed within a year of the notice of appeal, and briefing takes less than a year to be completed.

Unless this was the worst case ever tried, I have trouble seeing the necessity (or the benefit) of a 400+ page brief. The theory that you have to raise every claim, regardless of the present legal merits, to keep the door open for some unlikely futute Supreme Court decision that somehow survives both Teague and Greene analysis to be retroactive on federal collateral review is not good appellate advocacy and detracts from any claim that might have merit.

Posted by: TMM | Jul 6, 2012 9:24:50 AM

TMM --

I wonder what would happen if a lawyer tried filing a 423-page brief in the Supreme Court.

Actually, I think I know what would happen. It would get bounced.

A brief of that size does not show what an important or complex case it is. It shows that the lawyer likes to hear himself talk and has no sense of discipline.

Posted by: Bill Otis | Jul 6, 2012 9:50:04 AM

|| Gardner complains the judge automatically excluded prospective jurors who said they opposed the death penalty.
Gardner argued that those jurors should have been questioned more about whether they could still decide the case fairly. ||

If categorically opposed to the death penalty, one cannot or will not "decide" whether capital punishment is the correct sentence, as it could never be so.

Posted by: Adamakis | Jul 6, 2012 10:41:07 AM

Capital defense counsel in Calif. is not even appointed until an average of 3-4 years after imposition of the death judgment.

Thereafter, counsel has to review and index tens of thousands, if not hundreds of thousands, of pages of trial transcripts. Counsel are expected to conduct this review and indexing at a rate of 40 pages per hour. Guess how long it takes an attorney, who has a significant caseload, to review and index 175,000 pages of trial transcripts.

Thereafter, lengthy record correction and augmentation proceedings take place in the trial court. Sometimes, this phase alone takes over a year.

Strategic considerations, including possible future claims of procedural default, are involved in the decisions concerning the number of issues raised in Calif. capital case opening briefs. Those decisions are made by experienced lead counsel, in consultation with experienced staff attorneys from the California Appellate Project. California appellate courts are not shy about identifying frivolous issues; I don't recall, however, seeing the Calif. Supreme Court proclaiming an issue frivolous that was raised in a capital case brief. Rather, the Calif. Supreme Court regularly writes 100+ page opinions addressing the issues raised in capital appeals. (Over and over again, the court finds errors, including Constitutional errors, that it treats as harmless.)

In one of my capital appeals, the State Attorney General's office did not file its respondent's brief until more than a year and a half after I filed the opening brief.

Several months back, comments of the California Chief Justice were posted on this blog. She observed that the California death penalty system is broken.

Contrary to the unknowing remarks of Bill Otis, the Califirnia death penalty system is irreparable. The facts that he doesn't like it and doesn't understand it don't change the circumstance that it is irreparably broken.

After direct review of California capital convictions, there are even greater delays in the ensuing rounds of state and federal habeas proceedings.

Posted by: Calif. Capital Defense Counsel | Jul 6, 2012 11:43:33 AM

I don't see how the death penalty is irreparable and if it is I think the argument is equally as strong in favor of dumping the entire criminal justice system. They are the same system with similar flaws.

Posted by: MikeinCT | Jul 6, 2012 2:12:08 PM

Causes of this unnecessary delay and steps that could be taken to fix it are noted in my post at C&C.

Posted by: Kent Scheidegger | Jul 6, 2012 2:46:26 PM

Yeah - the Chief Justice of the California Supreme Court is confused; the rabid pro-death penalty crowd has it all figured out --- hangings by midnight the day of the verdict.

Posted by: Calif. Capital Defense Counsel | Jul 6, 2012 4:35:07 PM


I used to ask you to put down the bong before you posted, but your last gem indicates that you've gone way, way beyond the stuff in a bong.

At least you're consistent -- you've been campaigning to legalize heroin too.

Is this the way you behave when you're talking to opposing lawyers face-to-face? Or do you just work up your "courage" from the debasing assurances of Internet anonymity?

Posted by: Bill Otis | Jul 6, 2012 4:57:16 PM

I never knew you blindly accepted the words of a judge. Are judges always infallible or just when they've said what you want to hear?

Posted by: MikeinCT | Jul 6, 2012 10:44:39 PM

The math and economics make it quite clear that the death penalty needs to go. Of course, there is also the immorality of executions.

Posted by: Lilly Watson | Jul 6, 2012 11:30:12 PM

Bill Otis: You should post anonymously. You're a fricking embarrassment.

Posted by: Vince Wright | Jul 6, 2012 11:34:23 PM

Vince Wright --

Do you agree with CCDC that heroin and other hard drugs such as LSD, Ecstasy and methamphetamine should be decriminalized?

Posted by: Bill Otis | Jul 6, 2012 11:39:07 PM

Speaking of courage and anonymous posting, maybe many defense attorneys hesitate to post because they will suffer plea bargain consequences against their clients, meaning there could be a very real risk of pissing off the government. So if you would like to contribute anonymously you can visit Tor Project dot Org and then you can post without much fear of governmental consequences. You can even run Tails and if the SWAT team breaks down your door because you were too disrespectful to the government and its reps, there will be nothing, no evidence, zilch, on your hard drive at all.

It's what they use in China and some of the Middle East and other U.S.A.-like countries where they have their own versions of the Patriot Act.

Posted by: George | Jul 6, 2012 11:45:12 PM

George --

"Speaking of courage and anonymous posting, maybe many defense attorneys hesitate to post because they will suffer plea bargain consequences against their clients..."

Would you please cite a single case finding that the client was disadvantaged because of an argument or even just an opinion his lawyer posted on an Internet discussion site (like this one).

Posted by: Bill Otis | Jul 7, 2012 8:03:20 AM

Scott Peterson is innocent.

Posted by: Anna Nichols | Jul 7, 2012 9:58:05 AM

IMLO , an ad hominem assault detracts from the user’s argument .

DJB { docile_jim_brady@Safe-mail.net }
Columbus   OH   43209

Posted by:  They call me ▬►Mister Blank◄▬ | Jul 7, 2012 10:59:18 AM

Um -- I don't know about him being innocent. But, I don't remember the prosecution presenting any evidence (as opposed to speculation) regarding how the homicide occurred, and without such evidence, it is difficult to understand how the jury was able to find that it was a first degree, rather than second degree, murder.

Bill Otis -- Why do you care whether I smoke pot? Why do you feel the need to control the actions of others? Is it just an ingrained feature of your authoritarian mindset? Why do you care whether any adult knowingly and voluntarily uses heroin? It is none of your business. Just as I have no right to control what you put in your body, you have no right to control what I put in my body. Your drug war is a colossal failure; it is immoral and idiotic; get over it; move on; stop meddling in the private affairs of other people; try to understand and respect liberty.

Mike in CT -- Judge Cantil, the presiding justice of the California Supreme Court, is a judge I respect a great deal. I read her remarks regarding the hopelessly broken California death penalty system, and I agree with them; I didn't blindly accept them. Did you read her remarks? Are there any specific points she made with which you disagree? Anybody who has handled Calif. capital cases, like I have, and like friends of mine in the Calif. AG's Office have, realizes that the system is dysfunctional and irreparable.

Posted by: Calif. Capital Defense Atty. | Jul 7, 2012 11:22:54 AM

"Why do you care whether I smoke pot?"

If, as you claim, you are like me a member of the legal profession, I care whether that profession loses respect by flouting the law it's supposed to respect.

"Why do you feel the need to control the actions of others?"

Because the actions of others, particularly their illegal actions, have the potential to harm me, and I'm not going to wait until the harm is done to act. This is called "prevention," a normal practice among prudent adults.

"Is it just an ingrained feature of your authoritarian mindset?"

Believing in the legitimacy of democratically encted law is the opposite of being an authoritarian. There are lots of such laws I don't like. Too bad for me. I can work to get them changed; until then, respect for the rule of law requires me to obey them. Anything else is vigilantism or criminality or both.

Posted by: Bill Otis | Jul 7, 2012 2:08:52 PM

"Why do you care whether any adult knowingly and voluntarily uses heroin?"

Because I care whether addicts -- people who started out thinking they could control it but can't -- ruin their lives. Because I care about preventing premature death from overdosing.

Not that is has to do with what I personally care about. I don't make the law, but I am obligated to abide by it until the arguments for change prevail. The consumption of heroin is illegal everywhere in this country (and most others, for those complaining that the USA is an outlier). You are free to seek to change the law. You are free to live on a desert island where there is no law. But you are not free to make your own law under standards you unilaterally adopt. Have you paused to consider what the world would be like if that sort of thinking prevailed?

"It is none of your business."

It's not about me and "my" business. See above.

"Just as I have no right to control what you put in your body, you have no right to control what I put in my body."

I'm not controlling it. Take it up with Harry Reid and Barack Obama. For that matter, take it up with the voters of your state, who defeated Prop 19, which would have legalized pot (as a matter of state law). What do you think the result would have been had the question been about legalizing heroin? Do you think you would have gotten even 15% of the vote?

"Your drug war is a colossal failure; it is immoral and idiotic..."

Ipse dixit.

"...get over it; move on..."

My arguments have prevailed in Congress, the Supreme Court, the executive branch, and public opinion for forty years or more. One of us should get over it and move on, but it's not me.

"..stop meddling in the private affairs of other people..."

Lawbreaking is not a private affair, and the dangers posed by drug use do not threaten just the user, as you surely know.

"..try to understand and respect liberty."

Are you in a position to give me orders? Well, maybe you are. You can start establishing this unlikey "fact" by disclosing your credentials rather than hiding behind the curtain. Absent that, people willing to identify themselves are generally disinclined to take orders from those too afraid to do so.

Posted by: Bill Otis | Jul 7, 2012 3:43:43 PM

So Bill --- what about anti-miscegenation laws, Jim Crow laws, and laws like that upheld in Bowers v. Hardwick?

Was it necessary to obey those laws in order to avoid the "vigilantism and criminality" about which you are so concerned?

Your beloved drug laws are senseless, immoral, liberty-crushing govermental restrictions that are just like these horrible, oppressive laws.

When people like you go away, and when your mindset mercifully goes away, the drug laws will be rightfully relegated to the same waste bin of history into which these other vile laws have been dumped.

Posted by: Calif. Capital Defense Counsel | Jul 8, 2012 3:33:39 AM

"So Bill --- what about anti-miscegenation laws, Jim Crow laws, and laws like that upheld in Bowers v. Hardwick?"

Gee, you forgot to mention that those laws were challenged, and tossed out, through the very legal process you claim the right to disregard. This is the big difference you just whistle past.

Your side has repeatedly challenged the drug laws on exactly the grounds you argue (albeit with your usual high-horse ipse dixit holding the place of "argument"). But you lost, most recently in Gonzales v. Raich, an opinion authored by the Court's then-most liberal member, Justice Stevens. D'ya think he supported Jim Crow and all that other diversionary stuff you routinely throw in? Sure.

And if you're counting on "evolving standards," count again. You know quite well that your side would lose Raich today by a fatter margin than you lost it originally. You had three dissents back then. You'd get one today.

Yelping that every law is to be presumed to have no more authority than Jim Crow, etc., is not only blatantly false as a factual and historical matter, but the road to what you apparently really want, to wit, vigilantism.

No one individual gets to decide for himself what laws, or what categories of laws, are good or bad, and then act as he sees fit based on this solipsistic conclusion. This is really too elementary to have to explain to someone who is (or claims to be) a lawyer.

Should Mr. A, an expert psychologist, get to decide that the age of consent should be 10, and therefore, with impunity, he gets to have sex with a childishly willing little girl?

Should Mr. B, a wealthy businessman, get to decide that taxes are too high, so he's not going to pay his? (And besides, his share is just a drop in the collective bucket, so -- he correctly concludes -- the actual harm of cheating is de minimis if it really exists at all).

Should Mr. C, a sicko, get to decide that a marathon of torturing puppies in the privacy of his basement at home is how he has the "inalienable right" to get his kicks, so the laws against animal cruelty don't apply to him?

In the process of forming civilization, the human race decided to replace every-man-gets-to-decide-for-himself -- otherwise known as the law of the jungle -- with a different kind of law, now known as the rule of law. The human race did this because it dawned on us, although apparently not on you, that the surrender of a degree of personal autonomy is worth it in exchange for the peace, safety and overall decency of community life and commonly accepted rules.

The surrendered autonomy occasionally chafes each of us. I get it, thanks. The beauty of democracy is that we have the opportunity continuously to re-think and re-adjust the laws we have adpoted. This process is abetted by having, as we do, an independent judiciary.

You have made (or shouted, as usual with you) all your arguments about legalizing pot, meth, heroin and all the rest of it. But you have been losing for at least 40 years. You lost with the CSA, with Oakland Cannabis Buyers' Cooperative, with Raich, with Prop 19, and even with the current Administration, the most liberal in history.

Someday, you might win. If and when you do, I will think it unwise, but unlike you I will accept it -- that's my part of surrendering personal opinion to the (overall and in the long run more beneficial) rule of law.

Until then, you can blow all the smoke you want, literally and otherwise, but understand that your high horse will do you no good when you're caught.

Posted by: Bill Otis | Jul 8, 2012 8:26:30 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB