Peterson Appeal May Target Geragos' Performance

Dec. 14, 2004 — -- High-profile defense attorney Mark Geragos once promised jurors in Scott Peterson's murder trial that he would prove that Peterson was "stone-cold innocent." Now that Peterson has been convicted of murder and the jury has recommended the death penalty, Geragos' performance could be grounds for an appeal.

The attorney's performance is just one issue for an appellate court to consider. Other issues include: that the scope of the judge's gag order was too narrow and should have been extended to include the lawyer for Peterson's former mistress; concerns about pretrial juror prejudice; denied requests for further changes of venue; and concerns about jurors conducting what the defense considered an investigation during deliberations.

Geragos said after the jury's recommendation was announced Monday that he was "very disappointed."

"Obviously, we plan on pursuing every and all appeals, motions for a new trial andeverything else," he said.

However, some observers say, Geragos may be the primary target of those appeals and likely won't be handling the case.

"Unfortunately Mark is going to become a pincushion for not only legal analysts, but for people working for Scott Peterson on his appeal," ABC News legal analyst Dana Cole said on ABC News Now, a 24-hour broadband and digital television news channel. "And they're going to be dissecting every one of his decisions. Look, the bottom line is, no lawyer can guarantee results."

Unfulfilled Promises to the Jury

The jury recommended that Peterson receive the death penalty in the slayings of his pregnant wife, Laci, and the baby the couple planned to name Conner. Jurors convicted Peterson on Nov. 12 of first-degree murder in Laci's death and second-degree murder in the death of the unborn baby.

Early in the trial, Geragos used the prosecution witnesses to emphasize the lack of physical evidence linking Peterson to the disappearance and death of his wife. He suggested investigators focused solely on his client, ignoring other potential theories and leads in the case.

But Geragos may have doomed the defense when he promised jurors during opening statements that he would prove his client was "stone-cold innocent" and show them who Laci's real killer was.

However, the defense's expert was not able to tell jurors decisively -- as Geragos had promised -- that the baby could have been born alive sometime after Laci was reported missing on Dec. 24, 2002. Peterson could not have killed Laci at that time, the defense argued, because he was under too much scrutiny.

"Geragos is going to take a hit on the defense appeal. I don't believe he will handle the appeal," said ABC News Supreme Court reporter and legal analyst Manuel Medrano. "He made a few critical errors. For example, I was astounded when, during closing arguments in the penalty phase, he essentially admitted that he hadn't prepared for this part of the trial because he didn't expect a conviction. The question is whether that can be brought up on appeal as an argument that he [Geragos] provided ineffective counsel."

The Turning Point

The prosecution's case gained momentum when Peterson's mistress, Amber Frey, took the stand. Prosecutors had suggested Peterson killed Laci because he was feeling pressure from her pregnancy and wanted to pursue a relationship with Frey. They believe Peterson killed his wife and used his boat to dump her body in San Francisco Bay.

From Frey's testimony and her wiretapped phone conversations with Peterson, jurors learned the fertilizer salesman told her he wanted them to be together and told elaborate lies to keep his marriage secret.

Before Laci's disappearance, Peterson had told Frey that he was a widower and would be celebrating his first holiday season without his wife. During one phone conversation, which took place during the search for Laci, Peterson told Frey he was in Paris on a business trip.

Through Frey, jurors saw Peterson as a liar and a philanderer. That, combined with the fact that Peterson told investigators he had been fishing on Dec. 24 at the Berkeley Marina near where the remains of Laci and Conner ultimately washed ashore, convinced jurors of his guilt.

"Mark Geragos really did not do any damage to Amber Frey when she took the stand," Medrano said. "This woman did not sell her story to the tabloids and, as a result, her credibility was not undermined in that fashion."

Other Issues to be Challenged

Frey's attorney, Gloria Allred, also could be an issue for Peterson's appeal.

Frey has remained mostly silent but Allred has spoken freely, granting multiple media interviews. Long before the trial began, Geragos had argued Allred was jeopardizing Peterson's right to a fair trial and that she should be placed under the court-imposed gag order. But Judge Alfred A. Delucchi denied the request.

"Amber Frey may have been silent, but Gloria Allred appeared on every single program she could find," said Cole. "That might be an appellate issue that might come up, whether she should have been under the gag order."

Experts say Peterson's attorneys also could argue that the trial should have been moved farther away than Redwood City, 70 miles from the Petersons' hometown of Modesto. Geragos had tried to get the trial moved just before opening statements because of alleged juror prejudice, and he tried again before the beginning of the penalty phase.

"There are just a variety of issues that will be appealed," said California defense attorney Steve Cron. "They could challenge the venue, the episode where jurors were seen rocking the boat [allegedly used to dump Laci's body], and they could look into what led to the ousting of several jurors."

During deliberations in the guilt phase, two jurors -- including the foreman -- were replaced by alternates. There was speculation that the ousted jurors had been leaning toward the defense. Shortly after those jurors were removed, the panel convicted Peterson. During deliberations, Geragos called for a mistrial when he saw jurors get in Peterson's boat and begin rocking it, as if to conduct their own test.

Peterson's lawyers are "going to argue that the juror who was dismissed shouldn't have been dismissed, there will be issues regarding all of those matters," said attorney Michael Bachner. "Anything that goes to the deliberative process with the jury, I think, will be looked at significantly. The defense is going to be very interested in what jurors have to say, to look for any modicum of juror misconduct, whether they did their own independent legal research, performed their own investigation."

Safe Haven on Death Row

Delucchi will take the recommendation into consideration when he formally sentences Peterson on Feb. 25. He is not bound by the recommendation, and could sentence Peterson to life in prison without parole. However, it is highly unusual for judges not to follow a jury's finding.

For now, Geragos is recovering from a court defeat and Peterson is headed to death row. His life on death row actually may be better than what he would have faced in the general prison population because of the nature of his crime.

"Scott Peterson will, by all accounts, get better treatment on death row than he would in the mainline prison population, where he would face more danger, get fewer privileges and perks," ABC News legal analyst Royal Oaks told ABC News Radio. "He will have three different levels of legal help, paid for by the state, and this will just wind through the state system and the federal court system."