Guilty, Murder One and Murder Two, One Count Each

So says the jury in the case of People of the State of California v. Scott Peterson, which jury just announced their verdict fifteen minutes ago.

Let me explain that:

Under California law, if you kill an unborn child in the course of killing or otherwise harming its mother, that's murder, and they can charge you for that as a separate count apart from the count on the mother's behalf. Accordingly, the prosecution in Peterson did charge Scott Peterson with two counts of murder, one in the death of his wife, and the other in the death of their unborn child.

So why the difference in degree? Simple: First-degree murder, in California and in most jurisdictions, is premeditated murder--that is, you wanted the other person dead and planned it for some time. Second-degree murder is a more spur-of-the-moment affair: you meant to kill that person, but you only just decided that as you struck the blow, or whatever. Either that, or you were going to commit another crime anyway, and if the victim involved died as a result, too bad.

The prosecutor concentrated on showing premeditation regarding Laci's death. Premeditation was easy to show--you had Amber Frey's testimony, and further to that, Scott's alibi fell apart completely. Worse yet, he did not conduct himself after the fashion of a grieving husband. In short, he acted guilty, and had established an incriminating paper trail with some of his purchases. What surprised me, frankly, was that the prosecution was able to show his doing of the deed--because after all, he did a bang-up job of removing physical evidence from his house and so on, and nobody saw him actually doing the deed. The real reason why the prosecutor nailed him is what Sean Hannity has just said: "No husband refers to his wife in the past tense"--at least not while anyone might reasonably expect her to be still alive and wanting to be found alive.

The prosecutor did not, however, spend enough effort in showing that Scott Peterson cold-bloodedly wanted his unborn son to die. All they showed was that he killed Laci, Connor died as a result of that, and therefore he's guilty of two murders, not just one. But the second murder was a mere side effect of the first--or rather, that's what this jury ultimately believed. Had the prosecutor made more effort to show that Scott had premeditated the baby's death as well as his wife's death, we might be looking at a verdict of "Guilty of Murder One on two counts" instead of one count each of Murder One and Two.

I have never served on a jury. (I flunked voir dire in traffic court once, when I had to admit that I'd gotten a ticket for speeding before I received the petit-jury summons.) But I did once serve on a "mock jury" in a case "tried" by two teams of law students participating in the Trial Advocacy Course designed by the National Institute for Trial Advocacy. I also "appeared" as a fictitious medical-examiner witness in another NITA "case" tried before a sitting Federal District judge--who later told me that I carried off my role so well that he wondered whether I had actually had forensic training. (Sadly, no--my "forensic professors" all had names like Raymond Burr, Robert Foxworth, and Andy Griffith.)

All that to say this: I can guess what that jury did and why. If you don't make an adequate showing of a thing, don't expect the jury to apply the maximum penalty "just because." One memorable thing stood out from my mock-jury experience, for example. The "prosecutor" cut a deal with a man who actually had pulled the trigger and killed a convenience-store clerk, in order to prosecute the getaway driver, who, they alleged, had actually hatched a robbery plot that had gone tragically wrong. We found the getaway driver guilty in the robbery but not in the murder--because we weren't going to watch the triggerman get off scot-free and send the drive up the river for a murder that he didn't directly have a hand in! Besides: the prosecutor never showed that the defendant had ordered his accomplice to go into the store and kill someone. Absent such a showing, we couldn't find murder.

And similarly, the Peterson jury could hardly find premeditation in the death of an unborn baby if the prosecutor never bothered to show that specific state of mind. Prosecutors everywhere need to recognize this about the Unborn Victims of Violence Act: Prosecuting people for killing unborn children is an entirely new field of law, but the basic rules of evidence are unchanged: If you want the jury to find it, show it--and don't think you've shown it just because you showed something else that had a given lethal effect on someone.

And, of course, this general rule applies: Contrary to typical Hollywood courtroom drama, rarely, if ever, does a jury pronounce a defendant "guilty as charged." Rather, the jury names the specific crime of which they pronounce a defendant guilty, and it might be a little less than "as charged."

The penalty phase will begin on November 22--and significantly, the jury did find a set of "special circumstances" which clear the way for consideration of the penalty of death in this matter. So for all the practical effect that their verdict will have, they might as well have found Peterson "guilty as charged." Stay tuned...