Sunday Commentary: What Purpose Would Be Served by Seeking Death Penalty in Peterson Case?

By David M. Greenwald

A series of events has led to an absurd place—on Friday in Stanislaus County, prosecutors indicated their intent to seek the death penalty once again in the case of Scott Peterson, where he was found guilty in the killing of his wife and unborn child.

“At this point in time, we are on track to retry the (death penalty) case,” Stanislaus County Assistant District Attorney Dave Harris told a judge in Modesto.

Two months ago, the California Supreme Court overturned the death sentence, citing problems with jury selection during the trial.  Last week, they also ordered the case to return for a possible new trial based on the failure to dismiss a potentially biased jury.  From a logistical standpoint, it would seem that legal question would need to be addressed first.

But leave those matters aside.  Leaving aside possible doubts about his guilt and my strong opposition to the death penalty in all circumstances, it is patently absurd that we would retry the penalty phase of this case.

For those unaware, the death penalty has two phases—both decided by the jury.  First is the guilt phase, where the jury determines beyond a reasonable doubt if they have enough evidence to convict.  The second phase, tried in front of the same jury, determines the penalty—whether it is death or life without parole.

Generally speaking it costs far more to try a death penalty case.  Usually there are at least two appointed defense attorneys.  The jury selection process is more extensive.  The trial is often twice the length.  More experts.  More time.  More cost.

That’s under normal conditions.

Retrying the Peterson penalty phase introduces its own challenges.  For one, the case is 15 years old.  The jury would have to have the full case tried—all of the evidence put on, all of the experts, and more.  That is because this jury would not be familiar with the case, so, in effect, they would have to retry it.

In a way this is to the benefit of Scott Peterson.  That is because they now have new expert testimony to introduce—testimony that would call into question some of the original expert analysis, and they would be able to cast doubt as to the guilt of Peterson.

New evidence introduced here could form the basis of a challenge overall on the sufficiency of the evidence used to convict Peterson.

But from the standpoint of the state, what is really to be gained here?

Right now there is no death penalty in California.  Last year, Governor Newsom put a moratorium on executions.  It has been since 2006 that California last executed a man—in January that will have been 15 years ago.

We figure the cost of retrying this 15-year-old case would be at least $1 million, between the cost of new investigations, having experts re-examine the forensic and other evidence, and the court time and expenses.

And for what?  The chance of Scott Peterson ever being executed in California is almost zero.  He is already convicted and expected to serve a life without parole sentence, unless he is exonerated.

Why put everyone through the trouble and expense?  Why put the family of Laci Peterson through the trauma again?  Why expend court time and resources on a symbolic sentence?

It seems like there is nothing to be gained by doing this again.

On the other hand, Scott Peterson seemingly has nothing to lose here.  We have started looking at key pieces of evidence which suggest errors made during the court trial.  Perhaps if they are skillful in their presentation, they can start creating doubt in the public eye—which does not exist right now—in terms of their belief that Scott Peterson did it.

—David M. Greenwald reporting

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