By Rudabeh Shabazi
Perspectives Editor
The Scott Peterson trial demonstrates the familiar balancing act of two fundamental rights the United States seeks to protect: the First Amendment right to a free press and a criminal defendant’s Sixth Amendment right to a fair trial.
Journalism and mass communication law professor Mike Jordan, who was involved in a First Amendment case that set a national legal precedent, moderated last week’s Comm Connection session on free press, fair trial which examined high-profile trials like that of Scott Peterson. The panel of experts included NPR reporter Barbara Bradley Haggerty, First Amendment expert Terry Francke and Pepperdine law professor James McGoldrick.
Scott Peterson, a 31-year-old fertilizer salesman, is accused of killing his wife Laci and their unborn son. She disappeared on Christmas Eve of 2002 from her Modesto home, and that April her body washed ashore along San Francisco Bay, two miles from the location Scott Peterson said he was fishing the day his wife vanished. He could face the death penalty if he is convicted of the double murder. Judge Alfred A. Deluchi has ruled that cameras will not be allowed in the courtroom for the remainder of the trial and that the jury will not be sequestered.
The Experts
In 1984, the Riverside Press-Enterprise, of which Jordan was assistant managing editor of news, established in the U.S. Supreme Court that the right of public access applied to U.S. voir doir, the examination process of jurors, even though voir doir is not a part of the trial itself.
A year later, in a second Press-Enterprise case, Jordan’s team established that prior to closing a proceeding in which the accused seeks to close, the court must find a substantial probability that the defendant’s right to a fair trial would be prejudiced by publicity that closure would prevent, and that no reasonable alternative to the closure could protect the defendant’s right to a fair trial.
Francke, who wrote part of the Brown Act, which established that the public should have access to government meetings and the right to speak at those meetings, said open courts are necessary to shield against censorship and government interference.
“The press isn’t trying to do injustice, it’s just that justice isn’t its primary driver,” said Francke, noting that people need open debate in order to trust government. “The most we can hope for is that the media will at least educate the courts one by one because you can’t expect the court system to do so.”
McGoldrick, who has served as a trial attorney for the Department of Justice, sited the Sam Shepard case, in which the U.S. Supreme Court reversed a murder conviction, holding that pretrial coverage had a prejudicial effect on the trial. He also mentioned the Billy Sol Estes case, in which the court allowed cameras into the courtroom but reversed the conviction because the cameras were so intrusive they changed the dynamics of the proceeding. McGoldrick said this precedent is no longer valid because technology has replaced obtrusive cameras. McGoldrick said sequestering the jury is not an effective tactic because the “jury gets the information anyhow.”
The Jury
Deluchi ruled against defense attorney Mark Geragos’ request for two separate juries, (one to find Peterson innocent or guilty and another to sentence him if he is found guilty) affirming that only one jury will serve both functions.
Usually juries of high profile murder cases are sequestered, but Deluchi made the rare concession. “The jury will be permitted to go home every night with an admonishment, and we’ll see what happens,” he said. Geragos, however, called the notion that jurors would not seek out news coverage or conversations about the case an “almost childlike belief.”
The judge also ordered the potential juror questionnaire be a maximum of 30 pages, as opposed to the usual 40 pages most death penalty cases use.
The first juror, an environmental inspector from San Jose, was selected Monday in a process that is scheduled to last until the middle of May. So far, more than 700 potential jurors have been dismissed from a pool of about 1,000 people.
Geragos, who has represented celebrities such as Nate Dogg and Winona Rider, and is simultaneously working on the Michael Jackson case, exercised Peterson’s right to a change of venue. Another retired judge, Richard Arneson, who was previously presiding over the case, agreed that the community where Laci Peterson grew up was too biased to make a fair decision regarding her husband’s guilt or innocence. The case was moved from the Petersons’ California hometown of Modesto to Redwood City. Geragos is expected to request another change of venue about a week after jury selection is finished.
Laci Peterson’s family is concerned about the movie “The Perfect Husband” starring Dean Cain, which was released just days before jury selection, setting a legal precedent. The film depicts Peterson as a loving and devoted husband and does not address his guilt or innocence. Peterson is free to sell book rights and make movie deals regarding his case.
The Evidence
The admission of Global Positioning System evidence is another precedent set by the Peterson trial. This is the first time the technology, which Geragos argues is not a precise science, will be allowed as evidence in a California criminal courtroom. Investigators secretly stuck a device in Peterson’s truck after his wife’s disappearance, tracking his visit to the marina where her body was later found. Prosecutors had to demonstrate reliability and prove the technology was used correctly.
Deluchi will also admit evidence obtained through wiretaps of more than 3,000 of Peterson’s conversations, including 76 between him and his previous lawyer Kirk McCallister. Geragos insists that taping those calls violated Peterson’s attorney-client privilege.
The dogs used to lead investigators to the location where Laci Peterson and her baby’s bodies were later found has been another issue of controversy. The bloodhounds sniffed the path from Peterson’s warehouse to Highway 580, which was the route he allegedly took to the bay where the bodies turned up. Because one of the dogs turned in the wrong direction at one point, Geragos argues the evidence should be inadmissible. “Sometimes a dog just wants to go home, lie on the couch, eat Milk-Bones and watch ‘Lassie’ reruns,” said the defense team‘s Pat Harris.
The judge also ruled that TV interviews Peterson gave after the disappearance of his wife can be used in court. Prosecutors allege Peterson lied several times in the interviews, despite opposition from Geragos, who said they bare no relevance to the case. Prosecutors say Peterson lied about his sexual history, as well as using his unborn son’s nursery as a storage room.
The defense said it will concentrate on autopsy photos of Laci Peterson and her unborn baby as his main body of evidence. Geragos said he can prove that stains found on Scott Peterson’s boat was not the blood of his wife Laci and that hair found on the duct tape around the victims’ bodies was not that of Scott Peterson.
Prosecutors are charging that Scott Peterson had more than three affairs with other women during his relationship with Laci, and have said that Amber Frey, his massage therapist-turned-lover, was his motive to kill his wife and unborn son. She will be the prosecution’s leading witness. Meanwhile, she has maintained in numerous interviews that she did not know Peterson was married during her relationship with him.
A neighbor who was hypnotized to extract a statement saying she was the last witness to see Laci, will not be allowed to testify.
Potential jurors are asked if they have had affairs or lost a child and what they think about the death penalty.
Submitted March 25, 2004