1 00:00:00,480 --> 00:00:05,279 Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg 2 00:00:05,400 --> 00:00:08,799 Speaker 1: Radio with a jury and above and titled cause Final 3 00:00:08,880 --> 00:00:11,920 Speaker 1: Dependent Scott Lee Peterson guilty of the farm of murder 4 00:00:11,920 --> 00:00:15,840 Speaker 1: of Lacey D vs. Peterson. Scott Peterson has spent fifteen 5 00:00:15,920 --> 00:00:18,160 Speaker 1: years on death row for the murder of his wife 6 00:00:18,200 --> 00:00:23,079 Speaker 1: an unborn child, a sensationalized case that attracted worldwide attention. 7 00:00:23,480 --> 00:00:26,240 Speaker 1: Peterson will be getting off death row thanks to an 8 00:00:26,280 --> 00:00:30,240 Speaker 1: opinion by the California Supreme Court overturning his death sentence, 9 00:00:30,640 --> 00:00:33,720 Speaker 1: although the court affirmed his conviction and he'll remain in 10 00:00:33,760 --> 00:00:37,240 Speaker 1: prison serving a life sentence. Joining me is John bloom, 11 00:00:37,240 --> 00:00:39,680 Speaker 1: a professor at Cornell Law School and director of the 12 00:00:39,720 --> 00:00:44,280 Speaker 1: Cornell Death Penalty Project. John the California Supreme Court said 13 00:00:44,320 --> 00:00:47,640 Speaker 1: the trial judge made a series of clear and significant 14 00:00:47,800 --> 00:00:51,159 Speaker 1: errors during jury selection. Tell us about those errors and 15 00:00:51,240 --> 00:00:54,360 Speaker 1: why the court considered them serious enough to reverse the 16 00:00:54,400 --> 00:00:57,600 Speaker 1: death sentence. Well, the heirs of the Court focused on 17 00:00:57,720 --> 00:01:03,080 Speaker 1: worthy excusal a jurors who expressed some opposition to or 18 00:01:03,160 --> 00:01:06,840 Speaker 1: moral reservations about the imposition of the death penalty. The 19 00:01:06,880 --> 00:01:09,920 Speaker 1: Supreme courts the United States said, actually, many, many, many 20 00:01:09,959 --> 00:01:13,160 Speaker 1: years ago in a case called Witherspoon versus Illinois, that 21 00:01:13,400 --> 00:01:16,800 Speaker 1: a juror who just expressed general opposition to the death 22 00:01:16,840 --> 00:01:20,760 Speaker 1: penalty couldn't be struck from jury service in a capital case. 23 00:01:21,240 --> 00:01:24,160 Speaker 1: That the court had to make a deeper inquiry to 24 00:01:24,160 --> 00:01:27,160 Speaker 1: to determine if those views that the person has would 25 00:01:27,160 --> 00:01:31,080 Speaker 1: really prevent or significantly impair their ability to follow the law. 26 00:01:31,840 --> 00:01:34,440 Speaker 1: And so the mistake here was that the judge didn't 27 00:01:34,440 --> 00:01:37,039 Speaker 1: do that second part of the process. So then this 28 00:01:37,200 --> 00:01:41,200 Speaker 1: wasn't a novel decision. This is a decision that follows 29 00:01:41,240 --> 00:01:44,200 Speaker 1: the law. Yes, there was nothing really novel about it. 30 00:01:44,360 --> 00:01:46,160 Speaker 1: I mean, what the trial judge did here is it 31 00:01:46,280 --> 00:01:49,400 Speaker 1: is really kind of hard to understand how he wouldn't 32 00:01:49,440 --> 00:01:51,400 Speaker 1: have known that it was going to likely lead to 33 00:01:51,520 --> 00:01:54,760 Speaker 1: reversal in this case. But yes, Witherspoon was decided in 34 00:01:54,840 --> 00:02:00,760 Speaker 1: nine the Supreme Court reversed Peterson's death sentence but affirmed conviction. 35 00:02:01,040 --> 00:02:03,920 Speaker 1: But if the jury selection was unfair and the jurors 36 00:02:03,920 --> 00:02:07,280 Speaker 1: were not considered impartial for the death penalty portion of 37 00:02:07,320 --> 00:02:10,040 Speaker 1: the trial, why would they be considered impartial for the 38 00:02:10,080 --> 00:02:13,359 Speaker 1: guilt portion of the trial leading to his conviction? Are 39 00:02:13,440 --> 00:02:17,480 Speaker 1: and so called death penalty qualified jurors considered to be 40 00:02:17,760 --> 00:02:21,240 Speaker 1: law and order types unquestionably. But again, the answer is 41 00:02:21,280 --> 00:02:23,480 Speaker 1: that the Supreme Court of the United States has already 42 00:02:23,600 --> 00:02:26,160 Speaker 1: passed on this. So yes, there's no doubt that all 43 00:02:26,160 --> 00:02:31,079 Speaker 1: the empirical studies indicate that people who are death qualified, 44 00:02:31,160 --> 00:02:33,200 Speaker 1: people who you know, basically don't have a problem with 45 00:02:33,200 --> 00:02:37,200 Speaker 1: the death penalty, are more likely to convict than our 46 00:02:37,280 --> 00:02:40,600 Speaker 1: jurors who have reservations about the death penalty. And that 47 00:02:40,720 --> 00:02:43,600 Speaker 1: challenge was raised back in the eighties and it went 48 00:02:43,639 --> 00:02:46,079 Speaker 1: to the Supreme Court in in a case called Lockhart 49 00:02:46,160 --> 00:02:50,680 Speaker 1: versus McCree. They said that that didn't pose a constitutional problem. 50 00:02:50,720 --> 00:02:54,760 Speaker 1: The justices on the California Supreme Court also chastised the 51 00:02:54,840 --> 00:02:58,919 Speaker 1: prosecutors for not speaking up as the jury selection errors 52 00:02:58,919 --> 00:03:02,520 Speaker 1: were occurring. Would they have known that errors were occurring? 53 00:03:02,639 --> 00:03:04,760 Speaker 1: Would it have been obvious? Yes? I mean, it just 54 00:03:04,800 --> 00:03:08,440 Speaker 1: seems like there were large numbers of jurors being excused 55 00:03:08,720 --> 00:03:12,120 Speaker 1: without any questioning because of something they said on the 56 00:03:12,200 --> 00:03:16,000 Speaker 1: questionnaire indicating opposition to the death penal. So it is 57 00:03:16,080 --> 00:03:18,840 Speaker 1: kind of mind boggling that somebody didn't say, well, wait 58 00:03:18,880 --> 00:03:21,280 Speaker 1: a minute, you know, we should probably hear from these jurors, 59 00:03:21,320 --> 00:03:24,079 Speaker 1: and let's decide if their views would really prevent or 60 00:03:24,080 --> 00:03:26,799 Speaker 1: impair their ability to follow the law. So I mean, 61 00:03:26,840 --> 00:03:29,640 Speaker 1: it worked out obviously to Mr Peterson's benefit and that 62 00:03:29,720 --> 00:03:32,120 Speaker 1: the death penalty was overturned, but it does seem like 63 00:03:32,160 --> 00:03:36,560 Speaker 1: it was a fairly fundamental mistake. The prosecutors could appeal 64 00:03:36,680 --> 00:03:39,480 Speaker 1: this to the Supreme Court, but are they likely to 65 00:03:39,720 --> 00:03:42,880 Speaker 1: and would they get any different decision? Trying to figure 66 00:03:42,920 --> 00:03:44,520 Speaker 1: out whether they're going to do this or not? Is 67 00:03:44,840 --> 00:03:47,280 Speaker 1: I don't know these particular prosecutors, but I can just 68 00:03:47,320 --> 00:03:49,840 Speaker 1: say that looking at the opinion, there was nothing the 69 00:03:49,880 --> 00:03:53,560 Speaker 1: California Supreme Court did which was novel or unusual or 70 00:03:53,680 --> 00:03:56,440 Speaker 1: was an extension of current law. So I think the 71 00:03:56,520 --> 00:03:58,760 Speaker 1: chances that the Supreme Court of the United States would 72 00:03:58,760 --> 00:04:02,480 Speaker 1: agree to hear this are extremely low or virtually nil. 73 00:04:03,000 --> 00:04:05,600 Speaker 1: The d A can also seek the death penalty again, 74 00:04:06,000 --> 00:04:09,240 Speaker 1: and they said they haven't decided about that. Is that likely, 75 00:04:09,480 --> 00:04:12,960 Speaker 1: especially in light of the fact that California hasn't executed 76 00:04:13,000 --> 00:04:17,400 Speaker 1: anyone since two thousand six and California's governor has a 77 00:04:17,480 --> 00:04:21,440 Speaker 1: moratorium on executions as long as he's in office. It 78 00:04:21,560 --> 00:04:24,359 Speaker 1: would seem to me to be a waste of time 79 00:04:24,520 --> 00:04:26,719 Speaker 1: for all the reasons you suggest, and not only waste 80 00:04:26,720 --> 00:04:29,920 Speaker 1: of time, a waste of money, another just huge ordeal 81 00:04:30,080 --> 00:04:33,760 Speaker 1: for the victims family to have to go through another 82 00:04:33,920 --> 00:04:37,080 Speaker 1: trial again because it is difficult, and so it would 83 00:04:37,120 --> 00:04:39,360 Speaker 1: just seem like a huge waste of time and money. 84 00:04:39,480 --> 00:04:41,560 Speaker 1: But you know, prosecutors do things all the time that 85 00:04:41,720 --> 00:04:43,760 Speaker 1: I consider to be a huge waste of time and money. 86 00:04:44,080 --> 00:04:48,719 Speaker 1: The defense attorney at the trial, Mark Garrigos, said he 87 00:04:48,920 --> 00:04:51,960 Speaker 1: thinks the only reason the prosecution sought the death penalty 88 00:04:51,960 --> 00:04:55,240 Speaker 1: in this case was to get a guilt prone jury. 89 00:04:55,400 --> 00:04:58,680 Speaker 1: Looking outside this case, does that happen in many death 90 00:04:58,720 --> 00:05:02,839 Speaker 1: penalty cases? Yes, well, I think prosecutors often notice the 91 00:05:02,880 --> 00:05:08,120 Speaker 1: death penalty in cases for two reasons. One is to 92 00:05:08,160 --> 00:05:10,680 Speaker 1: basically try and get the defended to plead guilty. They 93 00:05:10,760 --> 00:05:13,520 Speaker 1: use it as a guilty plead extraction device. You know, 94 00:05:13,640 --> 00:05:15,880 Speaker 1: now the person is looking at the death penalty supposed 95 00:05:15,920 --> 00:05:18,240 Speaker 1: to just life in prison, so maybe they'll put guilties. 96 00:05:18,240 --> 00:05:20,360 Speaker 1: And in reason number two is the one that you suggest. 97 00:05:20,400 --> 00:05:23,919 Speaker 1: Sometimes in cases which are weak or circumstantial, where there's not, 98 00:05:24,120 --> 00:05:27,440 Speaker 1: you know, really strong forensic evidence of guilt, they also 99 00:05:27,480 --> 00:05:30,040 Speaker 1: seek the death penalty for the reasons we discussed previously. 100 00:05:30,200 --> 00:05:32,960 Speaker 1: Once they death qualify the jury, you have more jurors 101 00:05:33,000 --> 00:05:35,720 Speaker 1: who are prone to convict and their chances of obtaining 102 00:05:35,720 --> 00:05:39,839 Speaker 1: a conviction go up. This appeal was automatically filed in 103 00:05:40,880 --> 00:05:45,080 Speaker 1: Does it usually take eight years to get a decision 104 00:05:45,360 --> 00:05:49,200 Speaker 1: in a death penalty case like this? Well? Uh not 105 00:05:49,360 --> 00:05:53,760 Speaker 1: in most other states. Uh, it doesn't. Uh. The California 106 00:05:53,800 --> 00:05:57,840 Speaker 1: Supreme Court does seem to be generally sort of slower 107 00:05:58,560 --> 00:06:01,200 Speaker 1: uh than other courts. Assume that has something to do 108 00:06:01,279 --> 00:06:03,520 Speaker 1: both with their docket and the manner in which they 109 00:06:03,640 --> 00:06:08,680 Speaker 1: sometimes do The corresponding state habeas petition mentioned Habeas Peterson 110 00:06:08,720 --> 00:06:12,640 Speaker 1: also has a petition for Habeas corpus pending with the court. 111 00:06:13,680 --> 00:06:16,480 Speaker 1: Why wouldn't we decide them both at the same time. 112 00:06:17,320 --> 00:06:22,520 Speaker 1: I don't really know exactly about this, but it could 113 00:06:22,560 --> 00:06:28,120 Speaker 1: be that the habeas petition involves more complex factual questions 114 00:06:28,160 --> 00:06:31,040 Speaker 1: which they either need to maybe send back for an 115 00:06:31,040 --> 00:06:34,280 Speaker 1: evident try hearing to allow more evidence to be taken, 116 00:06:35,160 --> 00:06:38,559 Speaker 1: or because they haven't resolved and this seemed relatively easy 117 00:06:38,600 --> 00:06:41,920 Speaker 1: to resolve on this issue involving the jurors. In general, 118 00:06:42,240 --> 00:06:44,800 Speaker 1: public support for the death penalty, as you know, has 119 00:06:45,160 --> 00:06:50,359 Speaker 1: dropped and executions have declined in the US in states, 120 00:06:50,920 --> 00:06:56,360 Speaker 1: what states are still going full force on executions? Are 121 00:06:56,360 --> 00:07:04,520 Speaker 1: there many? Now, it's it's dwindle to a relatively small handful. UH. Texas, Florida, 122 00:07:04,800 --> 00:07:09,040 Speaker 1: Tennessee had a number of different UH people that they 123 00:07:09,080 --> 00:07:14,520 Speaker 1: executed one point, but it's primarily you know, in the South. 124 00:07:15,000 --> 00:07:17,680 Speaker 1: In Ohio they had a number of execution schedule, but 125 00:07:18,440 --> 00:07:20,520 Speaker 1: many of them have been put off through inability to 126 00:07:20,560 --> 00:07:24,760 Speaker 1: get drugs or now due to the pandemic um So 127 00:07:25,840 --> 00:07:28,840 Speaker 1: it's really just a small handful of sort of hardcore 128 00:07:28,960 --> 00:07:31,920 Speaker 1: states that are really kind of proceeding with the death 129 00:07:31,920 --> 00:07:34,040 Speaker 1: not only at this moment. And even in those states, 130 00:07:34,520 --> 00:07:37,640 Speaker 1: they're not many new cases. I mean, they're trying to 131 00:07:37,680 --> 00:07:41,280 Speaker 1: execute people that have previously been convicted and sentenced to death, 132 00:07:41,760 --> 00:07:44,000 Speaker 1: but there are very few new death sentences even coming 133 00:07:44,000 --> 00:07:47,840 Speaker 1: out of places like Texas and Florida and other sort 134 00:07:47,840 --> 00:07:52,120 Speaker 1: of conservatives. So then it's the the federal government has 135 00:07:52,240 --> 00:07:56,040 Speaker 1: resumed federal executions. Was that a shock to the death 136 00:07:56,040 --> 00:07:59,760 Speaker 1: penalty experts in the in the community, No, I don't 137 00:07:59,760 --> 00:08:02,560 Speaker 1: think so. It I think, you know, sometimes people were 138 00:08:02,600 --> 00:08:05,440 Speaker 1: surprised that it took them this long to get around 139 00:08:05,440 --> 00:08:09,520 Speaker 1: to trying three years into the Trump administration, but you know, 140 00:08:09,600 --> 00:08:11,200 Speaker 1: now they're doing it, and there are a number of 141 00:08:11,240 --> 00:08:14,280 Speaker 1: these people on federal death row have exhausted that you 142 00:08:14,280 --> 00:08:18,560 Speaker 1: would call the normal appeals process. So I don't think 143 00:08:18,600 --> 00:08:21,440 Speaker 1: it was a total shock. I mean, nobody would be 144 00:08:21,440 --> 00:08:24,840 Speaker 1: surprised to know that both the President and General Barr 145 00:08:25,160 --> 00:08:29,520 Speaker 1: are both very strong supporters of capital punishment. That puts 146 00:08:29,600 --> 00:08:31,600 Speaker 1: them in the strong minority of people, but they're the 147 00:08:31,600 --> 00:08:33,840 Speaker 1: ones that get to make the decisions on federal death row. 148 00:08:34,440 --> 00:08:37,000 Speaker 1: Thanks for being on the Bloomberg Law Show. That's John 149 00:08:37,000 --> 00:08:39,480 Speaker 1: bloom a professor at Cornell Law School and director of 150 00:08:39,480 --> 00:08:42,600 Speaker 1: the Cornell Death Penalty Project. And that's it for the 151 00:08:42,640 --> 00:08:45,839 Speaker 1: sedition of Bloomberg Law. I'm June Grossol. Thanks so much 152 00:08:45,880 --> 00:08:48,319 Speaker 1: for listening, and remember to tune to The Bloomberg Law 153 00:08:48,360 --> 00:08:51,360 Speaker 1: Show every weeknight at ten m Eastern on Bloomberg Radio.