By David Greenwald
While last month the California Supreme Court threw out the death penalty in the Scott Peterson case, that was almost a moot point because there effectively is not a death penalty in California and there may never be again.
The bigger deal may be the order to show cause issued by the California Supreme Court on Wednesday—the issue of whether a juror’s failure to disclose information at trial is reason enough to require a new trial.
Pretty much everyone I have talked to is absolutely convinced that Scott Peterson murdered his wife, and most are unsympathetic to his cause. I get it. I was convinced at the time of his 2005 murder trial—I was convinced up until two or three years ago.
But we have learned a lot about wrongful convictions in the last 15 years and, more importantly, issues that Scott Peterson and his attorneys pointed out at the time of the trial seem to be a lot more important now than they seemed back then.
There are three fundamental problems with this case. The first is the timeline of Laci Peterson’s disappearance. At the time of the murder, there were witnesses who saw Laci Peterson walking her dog around 10 am. That is important because Scott Peterson had left at that point and, therefore, the timeline that the police and prosecution created to show his culpability is in question.
Around the same time, there was a burglary across the street—and her dog was found by neighbors on its leash alone.
Appellate attorneys have also called into question when she died. Forensic investigators used fetal growth to determine the time of her death, but better technology has led them to re-examine those assumptions and potentially place her time of death perhaps as much as three weeks later.
The initial forensic pathologist determined that Baby Connor died on October 24.
But, as Mark Godsey of the Innocence Project pointed out, “He reached this conclusion based on a formula developed by Dr. Phillippe Jeanty, who ‘wrote the book’ on this discipline, and which involves measuring fetal bones and comparing them to the last known ultrasound to determine when the bones stopped growing. Before he began his analysis, Dr. DeVore was told that the prosecution believed Connor died on Dec. 24. So not only did the risk of confirmation bias set in, but worse, to reach the conclusion that would match the prosecution’s theory, Dr. DeVore used the wrong mathematical formula and didn’t measure the correct fetal bones.”
The experts re-examining put forward the possibility that he may have been alive as late as Jan 3 and definitely past December 24.
That’s a problem that no one seems to want to resolve, but it suggests a theory that she was kidnapped rather than immediately murdered by her then-husband.
Why do people believe he killed her? It seems to come down to two factors. One is that he was found boozing it up in a vehicle near the Mexican border with a ton of cash on hand.
Here’s the thing—that is definitely suspicious behavior. But does that mean he did the crime? Or can there be other explanations for the behavior? For instance, perhaps he feared this would get pinned on him—as it turned out it was. Perhaps he simply freaked out under the pressure of the spotlight glaring on him?
Mark Godsey, Director of the Ohio Innocence Project, in his three-part analysis on the Peterson case from 2018, warns against using “demeanor evidence” because it has been found to be unreliable.
He writes, “Peterson undeniably appeared ‘aloof’ and ‘unemotional’ if not cocky when caught on camera by the paparazzi during the investigation and then at his trial.” The jury found him “remorseless” and that was “the most critical factor that caused them to convict him and send him to death row.”
But Godsey argues: “Despite what our intuition tells us, demeanor evidence just doesn’t mean that much and can’t be taken to the bank. And that’s been proven not just by the thousands of innocents who were wrongfully convicted after the police or jury disbelieved them and thought their demeanor indicated guilt, but by clinical studies as well.”
One of those cases was Cameron Todd Willingham, who was out at a night club after his children died in a fire—which they deemed to be arson but was later, after he was executed, found to be caused by faulty electric wiring.
The problem is: under stress we just don’t know how people will react.
Finally, people are convinced that he killed his wife because the body was found near his fishing spot in the San Francisco Bay.
I had always believed that this meant was that they found the body at the spot where he went fishing. That would be strong evidence of guilt. But when I started looking into this case, I was stunned to learn that this was false.
Instead, what actually happened is they found the body and had an “expert” calculate where it would have been dumped.
Mark Godsey in part three writes: “There were three types of ‘scientific’ evidence presented by experts at Scott’s trial, including a hydrologist’s conclusions regarding water drift and where Laci Peterson’s body would have been dumped in the water, the estimate of Connor’s fetal development to show the date of his death, and the reactions of dogs trained to detect the scent of Laci Peterson when taken to the marina where the prosecution alleged that Scott departed in his boat to dump her body in the bay.”
That’s a big difference between what people think and what actually happened.
The science upon which this is based is actually quite sketchy.
Godsey, for his part, argues all of the scientific evidence in this case is problematic, and believes that, instead, what happened is that “the experts were made aware by the prosecution of the ‘right answer’ before they started.”
The hydrologist estimation is critical because it calls into question the idea that the body was dumped in the area where Peterson had been fishing.
The more you look into this fact, the worse this actually gets.
Godsey notes ”this “tidal expert” admitted on the stand that he had done no studies, and that he had no expertise, education or practice with respect to the movement of bodies in water. Further, he was well aware of the prosecution’s theory regarding where Scott had allegedly dumped Laci’s body, and where both Laci and baby Connor’s bodies had eventually washed ashore.”
So the basis for the claim that the body was dumped in the location of his fishing is based entirely on specious grounds.
Remember, this is the piece of evidence that everyone points to in order to establish guilt. Someone dumped the body in the fishing spot. No, they dumped the body in the San Francisco Bay and a forensic investigator, without sufficient expertise or experience, used calculations and guesswork to pinpoint the place where the body was dumped—full well knowing where the investigators wanted him to find.
This is not the case of finding the body at the location of the fishing spot. Nor is it the case where a double blind test was performed to eliminate potential bias. This is a huge flaw.
Given all of that, shouldn’t we re-examine this case – even if you believe you know that Scott Peterson murdered his wife? Seems reasonable to me.
—David M. Greenwald reporting
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