Reversible Error: A Jury Hostile to the Defendant

Cyril Wecht reacted quite strongly to the death penalty verdict in the Scott Peterson case. Having been involved as a Defense expert, he knew first hand that the State had no physical evidence against Scott.

Absent any physical evidence, Wecht said, the jurors had to imagine Scott Peterson premeditated the murder, transported Laci Peterson's body to a dock, loaded it on a boat and dumped it in the sea -- all without leaving any physical evidence for investigators to find. Given the advanced forensic techniques available to modern investigators, "This is not so easily accomplished," Wecht said. (Source)

Wecht offered an explanation for this miscarriage of justice:

"I think that [the jurors] clearly were in a vengeful mode," he said during a news conference a few minutes later. "They set upon a path, and this is what they were going to do."

"Somewhere along the line it is clear to me that not only was the jury lost to the defense, but the jury became hostile to the defense." (Ibid)

Because of sealed court records that are available through various motions, we can identify that point "somewhere along the line" when the jury became hostile to the Defendant, Scott Peterson, and watch with horror as Judge Delucchi aided and abetted the process.

Delucchi prided himself on understanding human nature, and being able to discern the credibility of witnesses. However, his people skills entirely failed in the Scott Peterson trial, as he was given the first signs of significant hostility towards the defendant very early in the trial. He should have heeded the warning presented by three stealth jurors attempting to get onto the jury for the sole purpose of sending Scott Peterson to death row, as mentioned in both the Court Minutes for April 14, 2003, and the Defense Motion for a new trial:

THE COURT ADDRESSED THE TWO "STEALTH" JURORS EXCUSED. THE COURT WILL REQUIRE THE DEFENSE TO GIVE THE PROSECUTION THE ACCUSORS NAME(S) TO CHECK OUT AND POSSIBLY BRING THEM INTO COURT TO TESTIFY UNDER OATH AS TO THE ALLEGATIONS TO A PROSPECTIVE "STEALTH" JUROR. (Court Minutes)

Even more alarming, three separate "stealth" jurors - people who deliberately lied on their questionnaire in order to convict the defendant - were discovered. Despite these warning signs and a renewed motion for change of venue, the court chose to plow ahead in San Mateo. (Motion, p. 11)

However, just three weeks into the trial, Delucchi failed to recognize and contain concerted efforts by various reporters and by John Guinasso, Juror Number 8, to oust Justin Falconer, Juror Number 5. Is it a mere coincidence, Judge Delucchi, that these two incidents happened in such close succession to each other?

ModBee reporter Garth Stapley described Guinasso's demeanor during the trial and his uncanny ability to recall minute details without having taken notes:

From the jury box, John Guinasso seemed to sneer at Scott Peterson and his attorney Mark Geragos. During the double-murder trial that lasted much of last year, Guinasso, 43, usually sat with arms folded, often scowling, rarely taking notes. . . . More talkative jurors said Guinasso's ability to recall minute details during deliberations was astounding. ("Juror Reveals Secrets of Trial," March 11, 2005)

The timing of Guinasso's allegations against Falconer suggest it was part of a broader concerted effort to identify jurors favorable to the defense and remove them. Falconer was the first target. Various reporters told the public that he was giving Scott and the defense attorneys "verbal encouragement" as he entered the courtroom each day. Then, one morning an innocent exchange between him and Brent Rocha at the security check-in was totally misrepresented. Delucchi interviewed both Rocha and Falconer, and concluded the incident in fact was misrepresented.

Based on press reports over the June 19 weekend, the Court was concerned whether Juror Number 5 had told Laci Peterson's brother, Brent Rocha, something to the effect of "you lose today," when the two of them were at the courthouse security checkpoint. That Monday, June 21, 2004, the Court examined Rocha, who denied that any such words were said, and instead explained that, at the courthouse metal detector, Juror 5 may have been beside Rocha, "all he said is I got in the way of your shot for the news today." (RT 10477:7-8). . . . The Court also examined Juror 5, who's version of the events was identical to Rocha's. (Motion, p. 23)

This first effort failed to remove Falconer, as Delucchi ruled that he had done nothing wrong. That's when Guinasso took over and sent the Judge a note making several allegations against Falconer, serious enough that, if true, warranted his removal.

Juror 8 made a series of accusations against Juror 5: (1) That Juror 5 "constantly" discussed the evidence in violation of the Court's admonition; (2) That Juror 5 stated to other jurors that the anchor was too small to anchor the boat in the bay; (3) That Juror 5 made comments regarding Brocchini's testimony; (4) That Juror 5 made comments about Laci's weight during her pregnancy; (5) That Juror 5 made comments criticizing the Modesto Police reports; (6) That more than once Juror 5 criticized the prosecution; (7) That Juror 5 was told by his girlfriend that Court TV had criticized him and that he took pride in being called a loose cannon, and (8) That Juror 5 had been repeatedly admonished by other jurors and had been defiant. (Motion, p. 26)

Delucchi interviewed each juror and alternate under oath. Without exception, Guinasso's accusations were either denied or were much less than he reported. Juror Number 3, alleged to be a co-complainant, denied the accusations against Falconer and denied ever complaining about him (Motion, p. 32-33).

It was Guinasso's word against Falconer and 16 other jurors and alternates, all under oath, and Delucchi chose to believe Guinasso. Delucchi erroneously claimed that the other 16 confirmed Guinasso's accusations, and explained away Number 3's denials:

But I suspect that maybe she was intimidated by coming in here, and maybe she felt that she was going to be held responsible for her comments. (Motion, p. 52)

Delucchi then proceeded to remove Falconer from the Jury.

Whichever way you look at it, Delucchi made a very bad decision. Either he was not justified in removing Falconer from the jury, or he was, but should have also removed up to 4 other jurors.

• Guinasso implicated two other jurors in the misconduct with Falconer -- the "redhead" and another unnamed juror (Motion, p. 66). Why weren't these two jurors also removed for misconduct?
• Juror Number 3 lied under oath, and Delucchi believed that she was also guilty of discussing the case with Falconer contrary to the Court's instructions. So, why wasn't she removed?
• The anonymous juror who also complained about Falconer, but obviously also lied under oath and denied the accusations.

How much more obvious can it be that something is going on with this jury that is not right? Delucchi himself uses the word "intimidated." Why didn't Juror Number 3 feel secure in confiding to the Judge what was going on, if it was in fact true? And, how could Delucchi trust someone who, he believes, has already disobeyed his instructions but lied under oath to cover it up?

When Delucchi chose to believe Guinasso over 16 other jurors and alternates, he sent a very loud message to those jurors and alternates -- Guinasso is the man in control! Are we surprised, then, to see Guinasso deeply involved in the removal of the two jurors during deliberations, and proudly taking credit for it? (ModBee, "Juror Reveals Secrets of Trial," March 11, 2005)

Conclusion

Cyril Wecht noted that "Somewhere along the line it is clear to me that not only was the jury lost to the defense, but the jury became hostile to the defense." The Court record makes it plain that the events that led to the removal of Justin Falconer from the Jury are that point "along the line" when the jury became hostile to the defense. Three weeks into the trial, Scott Peterson's conviction was sealed.