Jury Problems May Give Scott Peterson Grounds for Appeal

After more than five months of testimony and three dismissed jurors, the Peterson jury has finally spoken.

But even while newspapers around the country report the sense of closure with which residents of Stanislaus County met the guilty verdict, there is a growing belief that Scott Peterson (search) may mount a meritorious appeal.

The jury impaneled to render a verdict on the murder of Laci Peterson (search) is one of just a handful in the history of California jurisprudence that have seen so many regular jurors rotated out for alternates. Many of the state’s leading defense lawyers have said that never in their career have they encountered a jury from which two jurors were dismissed, let alone three. Prevailing wisdom says that the higher the number of jurors dismissed in favor of alternates, the greater the likelihood that the jury deliberations were tainted with error.

Several theories as to what caused the dismissals have bubbled up in the past week.

We are all familiar with first dismissed juror, Justin Falconer (search), who was let go only four weeks into the five-month trial because, reportedly, he discussed with other jurors the fact that he believed Scott Peterson was innocent and was then seen on camera joking with Laci Peterson’s brother while inside the courthouse.

The events that led up to Falconer’s dismissal probably could not be argued to have had an adverse effect on the jury’s credibility.

Though communication with witnesses, litigants and, in some cases, members of a litigant’s family, can get one booted from a jury, far too little testimony had been heard for Falconer’s comments to have had an effect on objective jurors.

But the dismissal of Fran Gorman, Juror 7, is far more troubling. After all the testimony in the case had been heard, and Gorman began her participation in the jury’s deliberations, it was revealed that she had injected into the deliberations some of her own “research.”

While we don’t know what exactly was meant by this, we know it is something quite distinct from the trial record, which is the only source of information that jurors are permitted to use when evaluating a defendant’s guilt.

It’s possible that Gorman went home and used the Internet to look up the strengths and weaknesses of scientific techniques used by the medical examiner’s office in preparing evidence for the case. It’s possible that she read press reports and recited some of their substance inside the jury room. Whatever occurred, it occurred well into deliberations.

It is at least possible that without knowing it, jurors reached some preliminary conclusions on information that Ms. Gorman brought into the jury room and that was not part of the trial record. The information might have served to bolster a largely unproven scientific technique, for instance.

And that might help to explain the dismissal of the jury foreman. By all accounts, the jury foreman was a squared-away individual. He took copious notes during the trial and was a rarity among jurors: one with legal training. (Both prosecution and defense take a gamble when selecting a fellow lawyer to score their performances.) Of the three dismissed jurors, his is the only dismissal for which the media was given no explanation.

It’s likely that after Gorman’s dismissal, the foreman realized that the substance of her “research” had been passed along to him in conversation. Not wanting deliberations to be further imperiled, he asked to be relieved.

The foreman’s action might just have saved the jury’s guilty verdict. The court apparently accepted his representation that the off-the-record information that Gorman brought into the jury room never made it past him and did not taint the jury’s deliberations. Had the foreman not done this, Peterson’s lawyers would be in an excellent position to argue that the foreman, who pushes and prods and is actually tasked with helping the jurors reach a verdict, relied on extrinsic information to the very end.

When the jurors reached the end, they had been through one juror who fraternized with Laci Peterson’s family, one who brought non-record information into the jury room and a foreman who might have been made privy to that information. And that foreman was replaced with a man whose son-in-law does business with Laci Peterson’s family.

When an appellate court is asked to look at the appeal that will almost inevitably come, it will have to decide if any of these events was a substantial contributing factor in the verdict. The jury’s finding will be given great deference, but if the information that Gorman brought into the jury room made its way to other jurors and affected their votes, we will probably be watching Peterson II in about 18 months.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of the soon to be published, "The New Immigration Law and Practice."

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