Dear Viewers,

I have received many e-mails from viewer asking what happens if the judge in the Scott Peterson (search) double murder trial declares a mistrial. First, someone needs to ask the Judge to do so — although technically the judge could do so on his own. While I am not surprised the prosecutor has not asked for one, it has surprised me that Peterson's lawyer has not done so based on recent problems created by the lead detective. I hear that Peterson's lawyer Mark Geragos is confidant he will win the trial and thus does not want a mistrial. He wants to take this jury to verdict.

When I practiced law, no matter how strong my case, I never had confidence. I could not read jurors' minds and thus I always worried when the jurors heard false or improper information. Could they really set it aside? Would they consider it true even if the judge told them it was not? How would I know? I would play it safe for my client and ask for a mistrial even if I knew it would result in starting the trial anew.

In the Peterson case, if I were his lawyer, I would ask for a mistrial — but trial strategy is an art not a science. Unfortunately, whether a defense attorney or prosecutor, you never know if your strategy is right or wrong until after the verdict — and then it is too late to change.

If I were the prosecutor in this case, I would be spending the long holiday weekend doing three things:

Giving the detective hell and combing through all his reports and his investigative notes; 2) meeting with other prosecutors in my office to discuss the case and how to adjust my strategy in light of the problems raised by this detective and 3) trimming my case to the essential evidence showing guilt and eliminate the irrelevant (e.g. What was the point of putting on evidence that there were dirty rags on the washer? The maid said she cleaned windows that day! It wasted time and gave the defense something to talk about and make the investigation look sloppy.)

But, assuming someone DOES ask for a mistrial, what happens? If the judge determines that a mistrial should be granted — essentially deciding the jury is so poisoned by inadmissible evidence or evidence that the trial is unfair — the trial ends. And then what? One of two things: Scott walks out the door (after the prosecution appeals the decision to grant the mistrial), or the judge sets it down for a new trial (which is what the prosecution wants.) It all depends on WHY the judge grants the mistrial. If he decides that it must be granted because of outrageous, deliberate, bad and dishonest behavior by the prosecution team, then it would not be re-tried and Scott walks out the door. That is extremely, extremely, extremely rare. Don't expect that — especially in a murder trial. Most likely the judge, if he grants a mistrial in this case, would allow a re-trial (and, of course the defense would appeal that decision.)

In all likelihood, after both sides meet Tuesday, the judge will turn to the jury and tell them about the detective's latest "blunder" (misconduct?) — assuming there is no dispute as to the conduct. He will tell the jury that the detective fabricated the statement — or made a mistake — about the "duct tape" when he testified about the tip he received. He will tell the jury this to try and undo the harm created by the detective's incorrect testimony about the duct tape.

The jury will then make its own decision what to do with the detective's testimony. The judge won't tell the jury how to think. The jurors can credit the detective's testimony anyway, ignore it in part, or ignore ALL his testimony — or even go further and decide, when it deliberates, it can't rely on the prosecution case because of the level of the conduct. Jurors don't "like" to convict if they think the police did not play "fair and square." They can still think the defendant is guilty but not be able to convict if they think the police were "dirty." The police misconduct is enough in many instances to create "reasonable doubt."

We won't know until after trial what the jury decided to do with the detective's testimony.

And, one other note: this is a long trial. Just because one side has a very bad day or very bad days, doesn't mean that party will lose in the end. Trials are not that predictable.

Finally, I may start putting a new feature on this Web site. After the show I may answer e-mails sent to me during the show on camera, tape my reading of the e-mails and my answers and then videostream the tape to this Web site. That means if you want to e-mail me, I may read your e-mail on camera, answer it, and then put it on the blog the following day. You then log on to the Web site, click on the icon for the videostream and can watch. What do you think? Any interest in this? I need to know, since frankly it requires me to stay later at night and I will do it if you want to see it on this Web site — otherwise... I will go home.

Let me know...


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