By Michael Frye
SAN FRANCISCO – In a virtual hearing before the California Supreme Court Tuesday, attorney Cliff Gardner argued that Scott Peterson did not have a fair trial more than 15 years ago—that the jury was prejudiced, they didn’t follow the law and the prosecution was allowed to present questionable and suspect evidence.
On April 21, 2003, Peterson was arraigned before Judge Nancy Ashley in Stanislaus County Superior Court, and charged with two felony counts of murder with premeditation and special circumstances, in the first-degree murder of his wife Laci, and the second-degree murder of his son Conner. He pleaded not guilty.
Peterson’s lawyers argued in 2012 that his conviction and death sentence should be overturned because he did not receive a fair trial.
Those reasons, according to the brief, include the judge’s failure to move the trial a second time despite massive pretrial publicity that portrayed Peterson as guilty, the judge dismissing potential jurors opposed to the death penalty without determining whether they could put that aside and follow the law, and allowing the prosecution to present questionable and suspect evidence.
Among other evidence this included allowing a dog expert to testify about the results of her dog’s tracking the scent of Peterson’s wife, Laci, despite a lack of scientific basis for that evidence and the dog’s abysmal record.
The focus of Tuesday’s hearing was on the trial judge’s decisions to dismiss potential jurors from the trial and not to move the trial a second time. The trial was originally moved about 90 miles from 
Modesto to Redwood City because of the overwhelming pretrial publicity in Modesto.
Defense attorneys argued this was insufficient.
Jurors, they said, in San Mateo County knew about the case and many had decided Peterson was guilty based on questionnaires they filled out. The judge refused to move the trial to Los Angeles County, which had the lowest rate of people who had already prejudged the case.
Defense counsel focused on three points of review based on a 6th Amendment case, the “Witherspoon inquiry,” on whether a juror can set aside personal views in order to decide the case solely on the facts:
(1) The trial court discharged jurors only on questionnaires. (2) In a substantive standard of review, similar cases where a judge discharged juror members based on questionnaires, they must prove there is no doubt the juror would refuse to follow the law and follow his or her personal views. (3) Because this is a de novo review, the prosecution has the burden to show this has been satisfied, and they did not.
Here, the attorneys said, there was a systematic exclusion of people opposed to the death penalty, but who could have decided on it based on the facts. This disqualification scheme resulted in an imbalanced jury. The 8th Amendment cases do not resolve this issue and the death penalty is not foreclosed by precedent.
Effective group deliberation is essential to reach a guilty verdict, it was argued, and the 8th Amendment does not permit evidence that undercuts neutral group deliberation. This is what happened here, resulting in an 8th Amendment violation of the death penalty conviction, said lawyers.
Furthermore, continued the appeal team, after being exposed to massive media coverage of the trial, jurors were asked in their questionnaires how they felt about Peterson’s guilt. Over 50 percent felt he was guilty, and within that 50 percent, 98 percent had already decided he was guilty, proving that the media coverage greatly influenced the jurors. This strongly contrasts with precedent from the People v. Williams case of which the data displayed lesser percentages based on the mentioned categories.
Finally, the defense said data from San Mateo shows the trial should not have been held there based on the presumption of prejudice. At the time there were better choices to have an unbiased trial based on venue, and this undercuts the inference it could have been held anywhere, claimed the defense.
Judge Carrigan at the time suggested transferring the court to a venue with lower data rates, showing less bias.
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