MODESTO, Calif. (KTVU) - Prosecutors in the Scott Peterson double-murder case said they will retry the death penalty phase of his trial the sentencing phase of his trial. The California Supreme Court had tossed out the death sentence due to the presiding judge giving improper jury instructions.
With the death penalty already thrown out, defense attorneys are challenging the guilty verdict. Specifically, they’re pointing to a juror’s alleged misconduct, which could mean Peterson, 47, would get a new trial. The issue of re-litigating the penalty phase wouldn’t come until afterward.
“They may be taking a political or public stance that we’re not giving up on the death penalty yet,” said Professor Ellen Kreitzberg, a Santa Clara University School of Law death penalty expert.
Stanislaus County Assistant District Attorney Dave Harris announced in court Friday that prosecutors intend to retry the penalty phase of the case, spokesman John Goold said after the court hearing.
Peterson was convicted of the 2002 murder of his wife, Lacy, and their unborn son. But California’s Supreme Court struck down the death sentence, saying the trial judge errored during jury instructions.
“The judge was basically removing jurors who disagreed with the death penalty, even if they would follow the law,” said legal analyst Steven Clark.
Before the courts can decide if that part of the process will be retried, defense attorneys requested more time for a hearing questioning alleged misconduct by one of the jurors.
“What the defense is going to do here is examine the former Scott Peterson juror to see if she was honest when she gave her answers during jury voir dire. It is a big deal in this case,” said Clark.
A voir dire is a list of questions the presiding judge presents to jurors at the beginning of a trial. Their answers must be complete and honest.
“In the jury instructions, once someone is selected as a juror, they are told, you cannot do your own homework in this case. You must stay off social media. And you must answer truthfully,” said retired Superior Court of California Judge LaDoris Cordell.
Defense lawyers argue a juror who was pregnant at the time did not reveal that she received a restraining order against her then-boyfriend’s ex-girlfriend. Peterson’s attorneys said had they known, she wouldn’t have been on the jury to help return a guilty verdict.
“Not to have that information and make a decision-- ‘Do we want this juror?’ And more importantly, for the judge not to be able to ask, ‘Do you think you can be fair in this case?' is a significant error and a significant problem in this case,” said Prof. Kreitzberg. Added Judge Cordell, “If it’s determined that the misconduct deprived Scott Peterson of a fair trial, then he must get a new trial.”
Judge Cordell said if a new trial is ordered to determine guilt, it would negate the necessity to retry the penalty phase. Such action could also see the wayward juror facing contempt of court charges.
On Nov. 6 the presiding judge will rule on that juror’s impact on the verdict and whether a new trial is needed. If so, defense attorneys would need to file a change of venue motion again. Prosecutors could look to make a plea deal.