Trial Week 27 November 28-December 4

Tuesday, 30 Nov 2004

Rulings

JUDGE: Okay. Also, I want to make part of the record. I have, obviously Mr. Geragos filed a petition for writ of mandate, and I have the ruling by the First Appellate District Judge, Justice Cline. And I'm going to mark that next in order. I'll make that a Court Exhibit. Which is denial. And then I was sent by fax from the California Supreme Court, sitting En Banc. The Application for Stay and Petition For Review denied. And will also be filed as a Court Exhibit next in order

CLERK: First one will be Court Exhibit 40, and the second one signed by Chief Justice George will be 41.

Jury Pre-Instructions for the Penalty Phase

JUDGE: Again, ladies and gentlemen of the jury, what I'm going to do this morning, I'm going to pre-instruct you. Remember when we went through in the voir dire a long time ago, months ago, I went through the process of how you go through deciding which would be the appropriate penalty in this case, about weighing these aggravating and mitigating factors. I'm going to pre-instruct you now so you get another idea where we're going and how you are supposed to approach this part of the trial. And then we're going to have the opening statement by the prosecutor. Going to take approximately ten minutes. And then we are going to send you out for lunch. I know you have had a long morning. Now we're ready to proceed okay? So you are going to hear these instructions again. But these -- I'm just going to pre-instruct you as to certain portions that you will hear again, okay. The defendant in this case has been found guilty of murder in the first degree. The allegation that the murder was committed under a special circumstance has been specially found to be true.

It is the law of this state that the penalty for a defendant found guilty of murder of the first degree shall be death or confinement in the State Prison for life without the possibility of parole in any case in which the special circumstance alleged in this case has been specially found to be true. I instruct you that life in prison without the possibility of parole means exactly what it says, that the defendant will be imprisoned in the State Prison for the rest of his life. You are further instructed that the death penalty means exactly what it says. That the defendant will, in fact, be executed. For you to conclude otherwise would be for you to rely on conjecture and speculation, and it would be a violation of your oath as trial jurors. Under the law of this state you must now determine which of these penalties shall be imposed on the defendant. In deciding whether death or life in prison without the possibility of parole is the appropriate sentence, you may not consider for any reason whatsoever the deterrent or non-deterrent effect of the death penalty or the monetary cost to the state of execution or maintaining a prisoner for life. Cannot enter in your deliberations in any way.

You will be instructed as to all of the law that applies to the penalty phase of this trial. You must determine what the facts are from the evidence received during the entire trial unless you are instructed otherwise. You must accept and follow the law that I state to you. Disregard all other instructions given to you in other phases of this trial. You must neither be influenced by bias nor prejudice against the defendant, nor swayed by public opinion or public feelings. Both the people and the defendant have a right to expect that you will consider all of the evidence, follow the law, exercise your discretion conscientiously, and reach a just verdict.

Statements made by the attorneys during the trial are not evidence. However, if the attorneys stipulate or agree to a fact, you must regard that fact as proven. If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence, and may be considered only as it helps you to understand the answer. Do not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken by the Court. Treat it as though you had never heard of it.

Now, you have heard some of this before when we went through the Hovey voir dire when I took you through this, how you go through this balancing, so I'm going to explain that to you now in a little more detail. In determining which penalty is to be imposed, you shall consider all of the evidence which has been received during any part of the trial of this case except as you may hereinafter be instructed. You shall consider, take into account, and be guided by the following factors, if applicable:

The circumstances of the crime for which the defendant was convicted and the present proceedings in the present proceedings and the existence ever any special circumstance found to be true.

The presence or absence of criminal activity by the defendant, other than the crimes which the defendant has been tried in the present proceedings which involve the use or attempted use of force or violence, or the express or implied threat to use force or violence.

The presence or absence of any prior felony conviction other than the crimes for which the defendant has been tried in the present proceedings.

Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.

Whether or not the defendant acted under extreme duress, under the substantial domination of another person.
Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct, or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication.

The age of the defendant at the time of the crime.

Whether or not the defendant was an accomplice to the offense, and his participation in the commission of the offense was relatively minor.

And, any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime, and any sympathetic or other aspects of the defendant's character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the he offense for which he is on trial. You must disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with this principle.

You may also consider any lingering or residual doubt as to the defendant's guilt or intent as a factor in mitigation. Lingering or residual doubt is defined as a state of mind between reasonable doubt and beyond all possible doubt. You may not relitigate or reconsider matters resolved in the guilt phase, but you may consider lingering doubt as a factor in mitigation.

Okay? Now, you are going to get these all. You will have these with you in the jury room. But that's just to give some direction so you know what to be listening for when you hear the evidence.

Opening Statement by David Harris

As the judge has just instructed you, one of the factors for you to consider is the circumstances of the crime. And as we go through this part of the trial, the penalty phase, the circumstances of this crime are like ripples on water.

When the defendant dumped the bodies of his wife, his unborn son into the bay, those ripples spread out. They touched many, many lives. Those are circumstances of the crime. You are going to hear, as part of this portion of the trial, from Brent Rocha, Amy Rocha, Ron Grantski and Sharon Rocha. They are going to try and explain something to you. They are going to try and explain something to you that you now need to consider as part of the circumstances of the crime, and that is, who are the victims.

Who was Laci Peterson? Who was Conner Peterson? Because for you to decide what the circumstances of the crime were, you have to know the victims. So these witnesses are going to tell you who Laci and Conner were. They are going to talk to you about the joy that Laci brought into their life.

They are going to talk to you about what it's like to have a big sister like Laci; what it was like to grow up and play with Laci as a younger sister. You are going to hear about her as a person, and what she meant to this family and the loss that they all suffered. You are going to hear about that, because that is a circumstance of the crime. That is one of the factors for you to consider.

You are also going to hear about what Laci's plans were, what her dreams were, the baby that she wanted, Baby Conner. You are going to hear about the plans that Laci and Brent had for Conner to grow up with his cousins and play like they did. You are going to hear about Conner and the plans that a grandmother who is going to have to spoil that baby shopping, all the things that grandparents do, but were taken away in this particular case.

You are also going to hear about something else in this particular case. You are going to get to hear from them, how they had to live this, day in, day out, starting on Christmas Eve, with a killer in their midst, this monstrous act by the defendant, the ripples on the water as it touched them.

You are going to hear what it was like for a mother, every single day, waiting to find out what had happened to her daughter. Waiting to find out what had happened to her grandson. That panic, that fear, never knowing what had happened. 100 and 16 days. The entire time with the defendant, the one who caused those ripples in the pond, in their midst.

You are going to hear that they actually feel guilty, because they didn't protect Laci from the one person that they didn't think she needed protection from. You are going to hear how the second part of the circumstance of this crime, not just who Laci was, but how it's touched this family. How, as we come close to the Christmas time, their holidays will never be the same. How Mothers Day will never be the same. How birthdays will never be the same. How there is a hole in their heart that can never be repaired.

They are going to try, in the words that they can, explain to you what that circumstances of the crime mean to them. What it's like to be left behind.

As the judge has already told you, has instructed you, given the instructions, these are, this is an aggravating circumstance, circumstance of the crime.

You are going to hear about, you already have heard about one of the mitigating factors, and that's lack of prior record of the defendant.

When we're all done with this, after the witnesses have testified, I'm going to have an opportunity to come back up and talk to you at that point in time.

As the judge told you, it will be your duty to weigh these aggravating, bad things, versus the mitigating, the good things, positive things. I'm going to tell you now, when I get up and come back up here and argue to you at the end of the case, based on what you are going to hear of the circumstances of this crime from this family out here, the only appropriate and just punishment will be death.

Thank you.

Prosecution Witness #1: Brent Rocha, Laci's Brother