In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

California: Stealth juror poisoned Scott Peterson's trial, death sentence appeal says

Scott Peterson (DOC photo)
Scott Peterson (DOC photo)
A woman assaulted when she was 4 1/2 months pregnant wanted so badly to sit in judgment of Modesto's Scott Peterson a little more than 3 years later that she lied before being picked as a juror, then helped send him to death row in 2004, Peterson's latest appeal says.

The 285-page document, filed Nov. 24, also heaps blame on Peterson's celebrity defense attorney, Mark Geragos, for lapses in the sensational trial, including failing to fulfill promises to jurors that he would prove Peterson "stone cold innocent" or to call witnesses who might have debunked prosecution evidence, the appeal says.

"In view of (Geragos') broken promises, the jury - not without reason - concluded that Scott was 'stone cold guilty,'" says the document, written by Berkeley appeals attorney Lawrence Gibbs.

Substitute teacher Laci Peterson, 27, was 8 months pregnant when she disappeared on Christmas Eve 2002. Her husband, then 30 and now 43, said he had been fishing in a newly purchased boat in San Francisco Bay and returned to an empty house, and the badly decomposed bodies of mother and fetus washed ashore nearly 4 months later.

The revelation of juror Richelle Nice's deception, combined with recent testimony from prospective witnesses ignored by Geragos, constitute new evidence warranting reversal of Peterson's conviction and death sentence, Gibbs says in the habeas corpus appeal aimed at winning Peterson's release.

"It turns out that (Richelle Nice), herself, had been a victim of a crime that endangered the life of her unborn child - a crime similar to that for which Scott stood accused. Ms. Nice suppressed this information, however, in an apparent attempt to gain a spot on Mr. Peterson's jury."----Lawrence Gibbs, appellate attorney

A 2nd legal team based in Oakland previously presented separate pending appeals claiming missteps by Judge Al Delucchi, who died of cancer in 2008. California Supreme Court justices could elect to weigh the appeals separately or together.

Media, afforded a rare visit on Tuesday to California's death row at San Quentin Prison, reported seeing Peterson playing basketball with other inmates in a section housing those with the fewest behavioral problems. He turned his back to photographers and declined to speak, reporters said.

Gibbs' appeal details 19 reasons for overturning the conviction that captivated people across the United States and beyond. Some points cover ground similar to the previous appeals, casting doubt that a certified dog with a poor track record could have picked up Laci Peterson's scent at the Berkeley Marina four days after authorities believe her husband launched his 14-foot boat to dump her body, and on expert testimony about water currents carrying bodies.

"In each of these forensic areas (gestational age, scent-tracking dogs, water currents), police told their experts the result they hoped the experts would arrive at, thus introducing a form of 'expectation bias.'"----Lawrence Gibbs, appellate attorney

But Gibbs delves into other areas, often blaming authorities for overstepping, and concluding that Geragos was sloppy.

"It turns out that the jury deciding this case did not have the whole truth - or anything close," Gibbs said in the appeal.

Geragos, of Los Angeles, initially provided television legal commentary on the Peterson matter before taking over the defense team as the case ballooned to blockbuster status. He came on strong early in the trial but jurors ultimately did not buy his theory that unidentified vagrants must have kidnapped Laci Peterson and disposed of her body in the bay to frame her husband.

Nice, nicknamed "Strawberry Shortcake" by observers during the trial for her flamboyant hair dye, was asked in a pretrial questionnaire for prospective jurors whether she had ever been in a lawsuit or trial and whether she, family or friends had been crime victims. She checked "no" boxes - all false answers, the appeal reveals.

In 2000, when Nice was pregnant, her boyfriend's ex-girlfriend stalked and threatened them and spent a week in jail, and Nice said nothing about it when she was considered for Peterson's jury.

In fact, Delucchi, knowing the trial would stretch several months, started to excuse Nice because her job would stop paying her after 2 weeks, but she asked to stay on anyway and later bummed $1,000 from a fellow juror, Gibbs said.

"Ms. Nice wanted to sit in judgment of Mr. Peterson in part to punish him for a crime of harming his unborn child - a crime that she personally experienced when (the assailant) threatened her life and the life of her unborn child," the appeal reads.

Gibbs quoted from 6 letters sent by Nice after the trial to Peterson on death row, all fixating on his dead boy, including one in which she visualized what he might have looked like.

"My heart aches for your son. Why couldn't he have the same chances (in) life as you were given? You should have been dreaming of your son being the best at whatever he did in life, not planning a way to get rid of him!"----Richelle Nice, in a post-trial letter to Scott Peterson

"Damit (sic) Scott that was your son! Your first born. If you never wanted children you should have married someone with the same wants as you," reads one.

Gibbs later obtained a statement from Geragos, who said he would have kept Nice off the panel had he known her history. "There is no way in the world I would have wanted a juror to sit in judgment of Mr. Peterson, when that juror had been a victim of the very crime for which Mr. Peterson was on trial," Geragos reportedly said.

Geragos told jurors early in the trial that he would call to the stand people who had seen Laci Peterson walking the family dog after the time authorities said she was killed, but he never produced those witnesses. Geragos later admitted, in Gibbs' investigation, that he had not read a "critical police report" and said he would have called the eyewitnesses had he realized that the document undermined the prosecution timeline.

"(Geragos') broken promises deprived Scott of effective assistance of counsel," Gibbs said.

"Mr. Geragos' deficient representation - in which he gave an opening statement in which he promised the jury it would hear these witnesses, but then failed to call a single one of them - was prejudicial."

----Lawrence Gibbs, appellate attorney

Also, a man convicted of burglarizing a house across the street from the Petersons' Covena Avenue home later told people that he verbally threatened Laci Peterson when she confronted him, Gibbs said. The burglary occurred shortly after her husband left to go fishing; if the burglar's story is true, Scott Peterson must be innocent, Gibbs said.

The appeal castigates Geragos for calling a fertility doctor, whose testimony ended in a train wreck, to estimate the gestational age of Conner Peterson. The prosecution's counter-expert, using a special computation, calculated that Conner died by Dec. 23, 2002 - fitting authorities' theory. But Gibbs tracked down the doctor who invented the computation, and he told Gibbs that the prosecution's witness botched the calculation.

In fact, Conner probably died Jan. 3, 2003, and might have lived as late as Jan. 5, the doctor told Gibbs, who wrote, "The jury never knew any of this."

"The state's case was riddled with false evidence," Gibbs said. "(Geragos) failed to expose the falsity of this evidence, he failed to deliver on promises made to jurors in opening statements, and he failed to support the theory of defense he himself had selected."

Gibbs' appeal also claims that the death penalty amounts to unconstitutional cruel and unusual punishment.

California has 745 condemned inmates but has not executed any since 2006. A federal judge declared executions unconstitutional last year, but appellate justices overturned that ruling and competing initiatives could appear on the ballot next fall, one asking to abolish the death penalty and the other hoping to fast-track it.

Source: modbee.com, January 1, 2015

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