Commentary: Scott Peterson’s Case May Return for a New Trial – and It Should

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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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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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33 thoughts on “Commentary: Scott Peterson’s Case May Return for a New Trial – and It Should”

      1. Keith Olsen

        You left out so much here I don’t even know where to begin.  The whole case is based on circumstantial evidence but it’s overwhelming.  For instance, Peterson told several friends that he went golfing on the day of Laci’s disappearance.  But Peterson told the cops that he had went fishing in the Berkeley marina and produced a receipt.  That’s when he dumped her body.  It took over 3 months for the bodies to wash ashore, so finding them 2 miles from where Scott claimed he was fishing is not surprising.

        1. David Greenwald Post author

          “You left out so much here…”

          Duh. This is a 1300 word column. The actual appellate brief is over 100 pages.

          “But Peterson told the cops that he had went fishing in the Berkeley marina and produced a receipt. That’s when he dumped her body. It took over 3 months for the bodies to wash ashore, so finding them 2 miles from where Scott claimed he was fishing is not surprising.”

          Point one is correct: he went fishing.

          Point two is speculative: never said that’s when he dumped the body.

          Point three is the point of my article – the basis for their determination of where the body was dumped is based on flawed science, performed improperly without a double-blind methodology and highly speculative.

          The problem that you have here is that without being able to pinpoint the location of the body dumping is that anyone could have dumped the body in the bay. That’s the whole point of my column and the analysis by experts in the appellate brief and Mark Godsey’s piece linked above.

        2. Keith Olsen

          Point one is correct: he went fishing.
          Point two is speculative: never said that’s when he dumped the body.

          DUH, did you expect him to say that’s when he dumped the body?

           

        3. Keith Olsen

          Well David, Laci went missing on Dec. 24, Scott went fishing(?) on Dec. 24, Scott lied to friends that he golfed on Dec. 24, the bodies were found close to the marina months later where Scott fished on Dec. 24, it’s not hard to surmise that’s when the bodies were dumped.  DUH!

           

        4. Bill Marshall

          Except if the baby was still alive into January.

          Two strikes on ‘correctness’ scale:

          Never was a baby, alive… it was a “fetus” or, “product of conception”… and definitely not ‘alive’… no evidence it ever took a breath… please be sensitive to the ‘pro-choice’ folk…

  1. Tia Will

    David,

    You mentioned something about the measurement of the “wrong fetal bones”? This is an area in which I had some expertise. Do you have any more details about which fetal bones were used and what formula was used?

      1. Tia Will

        I doubt many of you are going to want to wade through all of the obstetric data provided. I did. What I will state is that the single biggest point made is the flaws in the adversarial means by which data is claimed to “prove” either the point of the prosecution or the defence. From my perspective, none of the data presented here proves Scott’s guilt or innocence. Here are the major points as I see them.

        1. When the 18-20 week US differs significantly from the first trimester US and the due date by LNMP, the dating is not changed but the discrepancy is noted in the chart. The 18-20 week US is not used to change dates unless a review of the earlier US or LNMP was demonstrated to be in error which is not the case here.

        2. Much seems to have been made of the assessment of “term pregnancy”. This is not a meaningful obstetric term although we do use it for ease of understanding of family members, and as short hand for speaking with a consulting service such as pediatrics or anesthesiology. Amongst obstetricians, we discuss dating in terms of weeks +days of gestation. Any reference to “term” as described by even experienced observers, is subjective.

        3. One of the most troublesome points for me was the basic assumption that this particular fetus would have been growing along the 50th percentile curve for fetal growth. This is an assumption very few obstetricians would be comfortable with, especially given the evidence from the discrepancy between the first and second-trimester ultrasounds that it indeed was not.

        4. I feel that such a heavy weighting of only the fetal femur length would not be warranted. I am unclear why the head circumference was not also considered in the initial determination of fetal age at time of death by the prosecution’s expert.

        Overall, I do not feel this evidence standing alone is sufficient to convict or exonerate.

         

        1. David Greenwald Post author

          But remember one of the factors with establishing him as the killer was that the forensic pathologist testified that the date of death was December 24. What you are telling us is that it is not that exact and therefore the time of death cannot have been pin-pointed with as much certainty as testified to at trial?

          1. David Greenwald Post author

            There is a 13 page declaration from Dr. Jeanty I have been looking for.

            But in their petition, they argued: “The state’s theory of the case was that Scott killed Laci on the evening of December 23 or the morning of December 24, 2002. At trial, the state called Dr. Greggory Devore who testified that he measured Conner’s femur bone, applied a formula developed by Dr. Phillipe Jeanty, and concluded that Dr. Jeanty’s formula showed Conner died on December 23.

            It turns out Dr. Devore got it wrong. As explained in Dr. Jeanty’s 13-page declaration submitted with the Petition, along with an additional 34 pages of graphs and
            data, Dr. Devore relied on the wrong formula, he erroneously applied that formula to only one bone (rather than three) and — not surprisingly — his result in applying the formula was wrong.

            A correct application of Dr. Jeanty’s formula shows that Conner died not on December 23 (as Devore testified) but January 3.”

            I have no idea. But the date seems important because December 23 or 24 does put Scott as the most likely killer while later puts the question up in the air.

  2. Eric Gelber

    I don’t have any quibbles with the substance of the arguments discussed in the article; they raise legitimate issues. But the headline and the content of the article fail to note that none of the issues discussed were the reason the Supreme Court sent the case back to the trial court.

    The Court’s ruling rejected 18 of 19 arguments made in support of a new trial and was based only on the argument that a juror had failed to disclose the fact that she had been the victim of a crime when she was four months pregnant, which could have led to her dismissal based on a possible predisposition to convict. This issue received only passing mention in the article: “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.“ Peterson may, in fact, deserve a new trial and, if granted, the issues discussed in the article would likely be addressed. But the Supreme Court did not accept those arguments as the basis for a potential new trial.

     

    1. David Greenwald Post author

      Demeanor evidence. If there was actually blood in the house, investigators would have found it because you can’t clean a house well enough to remove all trace evidence.

      From a 2004 article:

      “Skultety testified that the FBI used Luminol — a chemical that can detect unseen traces of blood and body fluids — in the home. He did not say whether anything was found.

      However, on cross-examination Skultety acknowledged that brown stains found in the kitchen and on a water heater tested negative for blood.”

      1. Keith Olsen

        Yeah, but it’s possible that there wasn’t much blood and Scott got it all as he cleaned the house with bleach.  Just some more of the mountain of circumstantial evidence.

  3. Keith Olsen

    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.

    That’s another thing, how does anyone know exactly where Peterson went fishing?  Do you really think  Peterson told the authorities exactly where he dumped Laci’s body?

    1. David Greenwald Post author

      You are reversing the problem.

      At trial, an “expert” calculated from the location of the body that was found to the point where the body had to have been dumped. That point supposedly was Peterson’s fishing spot which became the basis of his testimony tying the murder to Scott. The problem is that (A) the expert really didn’t have the experience to be able to make those calculations, (B) there was no science to back up his claims, and (C) and perhaps most important, he calculated knowing the location of the fishing spot so it wasn’t like he blindly analyzed the location and currents, he knew the “right” answer going in. Your point misses the problem here.

      1. Keith Olsen

        Still, Laci goes missing and Scott told everyone he went golfing when he actually went to the marina to dump her body.  Why would he lie about going golfing instead of fishing unless he was trying to hide something?   Divers found planter pots in the bay near the marina that matched pots that were in Peterson’s shed/garage.  He used them to weigh down Laci’s body.   There’s a mountain of circumstantial evidence and we haven’t even touched on Amber Frey’s testimony.

         

        1. David Greenwald Post author

          Always start with the physical evidence because everything else can be spun. The physical evidence here is full of holes. That should lead us to reevaluate the rest of the evidence.

        2. Keith Olsen

          Speaking of spinning, it sounds like a lot of that is now happening with those that want to get Peterson off.  Once again, we’re only hearing one side of the story.

          1. David Greenwald Post author

            I have spent a lot of time studying wrongful convictions. One thing that is striking to me is how often when physical evidence *proves* that someone is innocent like DNA, you start looking at the basis for how someone was convicted and all of a sudden you realize that the circumstantial evidence was much more ambiguous than it seemed at the time. That’s why I keep pushing away from discussion on the circumstantial evidence because despite some of it casting suspicious, much of it is reading tea leaves and inferring. That’s much more problematic than you are thinking.

  4. Ron Glick

    “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.”

    As Eric points out none of your speculations are in play here as a legal question but let us consider how preposterous these claims are anyway.

    Lacy Peterson was reported missing right around Christmas. For her to have died in January you would have to believe that somebody held her captive for over a week before she died. This person would then have figured out where Scott Peterson went fishing and dumped the body nearby to frame him or simply by coincidence dumped the body in the same general area.

    The prosecutions theory of the case makes much more sense, so much so, that the Supremes didn’t even bother with those parts of the appeal.

    1. David Greenwald Post author

      Why is it impossible for a person to have been held captive for a week?

      The other point is less important: ” This person would then have figured out where Scott Peterson went fishing and dumped the body nearby to frame him or simply by coincidence dumped the body in the same general area.”

      This is the problem, the way that the evidence was presented was like her body was found near his fishing spot. But as I understand the evidence, someone dumped the body in the bay and they inferred that it was dumped near the fishing spot. Anyone could have dumped the body in the bay. And I am pretty sure by the time the body was found, everyone knew that Peterson was fishing in the bay. I don’t think it would have taken much to do that.

      The Supremes did not consider the evidence because they don’t look at evidence of innocence – they look at judicial error. And the only error they found was the juror that should have been excluded. That’s common even in cases where the evidence of innocence is far stronger than this one.

  5. Tia Will

    David

    What you are telling us is that it is not that exact and therefore the time of death cannot have been pin-pointed with as much certainty as testified to at trial?”

    Yes. The early chart entries muddied the waters by confusing, not clarifying the best dating. An unwarranted assumption was made about the fetal rate of growth proceeding at the 50th percentile. And femur length alone is a weak indicator of fetal age although often used. A more accurate assessment would include multiple bony growth indicators including fetal head circumference.

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