What will happen with Scott's first appeal?

[adnoid]

Scott Peterson was convicted of 2 counts of murder with special circumstances and sentenced to execution at the conclusion of his trial.

Some have expressed the opinion that this is some sort of "conditional" verdict and he's not really guilty until his appeals are over. That's not the case. The charges against him have been litigated and adjudicated. He is a murderer.

No citizen can be deprived of live, freedom or property without a trial. However, nobody found guilty is entitled to an appeal, but anyone can ASK for one. In the case of a felony conviction in California an appeal must be requested within 60 days of the end of the trial. As a function of California law, anyone found guilty of a capital offense has an appeal filed on their behalf automatically, without any affirmative action on their part, and they cannot waive this. So Scott has filed an appeal, and again as a function of California law this was filed by Mark Geragos - but it is not required that Mark Geragos actually do the work.

This appeal ONLY addresses whether or not Scott got a fair trial. Specifically, the ONLY thing that will be examined is the trial record. No new evidence can be brought in, and (most importantly) the appeals court WILL NOT RECONSIDER the jury's decisions on conflicting evidence - i.e. they will not second guess the jury about what the jury considered reasonable explanations:

Originally Posted by Superior Court of California

An appeal is a review of the trial court's decision by another court. A party may appeal an unfavorable judgment and certain orders. Generally, the appeal must be based on an argument that a legal error was made by the trial court. An appeal is not a retrial. You will not be permitted to introduce new evidence, and the appellate court will not reassess conflicting evidence.

The way this works is that the attorney preparing the appeal prepares a written statement called a "brief" and submits it to the court, and the opposing party is allowed to do the same. The appeals court justices will read it, and can either reject the appeal (leaving the original verdict and sentence as is), ask for oral arguments if they want to, or order various things to happen.

The average death sentence appeal is heard about 7 years after conviction in California at the present time. SO, when 2011 rolls around, what do we think will happen with Scott's appeal?

[USAHICK]

They're going to toss it.

He got more than a fair trial. Way better than most get. He has no chance of being heard.

[deputydi]

I believe, in the interest of fairness, oral arguments will be heard after which the appeal will be flatly denied.

The "petri dish" comment has been (IMO) misunderstood. I do not, for one second, believe J Delucci meant there are a multitude of viable appeal issues which have a good chance of succeeding. I took that comment to mean that Scott's appeal attorneys have a multitude of rulings on which to attempt a successful appeal. He is a very smart man who made every effort to ensure SP received the fairest trial possible. Every single ruling that went against the defense was made with consideration and precedent to back it up. There are a lot of possible issues to choose from but none will succeed.

[TopGunner]

Originally Posted by deputydi

I believe, in the interest of fairness, oral arguments will be heard after which the appeal will be flatly denied.

The "petri dish" comment has been (IMO) misunderstood. I do not, for one second, believe J Delucci meant there are a multitude of viable appeal issues which have a good chance of succeeding. I took that comment to mean that Scott's appeal attorneys have a multitude of rulings on which to attempt a successful appeal. He is a very smart man who made every effort to ensure SP received the fairest trial possible. Every single ruling that went against the defense was made with consideration and precedent to back it up. There are a lot of possible issues to choose from but none will succeed.

DD - ITA. I highly doubt Delucci would have publicly stated ISP had an abundance of appeal issues, even if he secretly believed that - can you imagine the ramifications? Besides, I "petri dish" means a big bunch...of nothings.

[Mysteri]

I think the good Judge was being sarcastic when he said that. The silly issues thrown in made it like a melting pot of red herrings, from watches to barbeque sauce to bleach....a veritable smorgasbord!

The appeals are merely a formality in these cases.

imo

[accordn2me]

adnoid, thank you for this simply worded, detailed explanation of what's to happen in SLP's first appeal. He definitely got a fair trial.

If you don't mind, let's jump the gun by decade or so...what's the second appeal?

[adnoid]

Originally Posted by accordn2me

...If you don't mind, let's jump the gun by decade or so...what's the second appeal?

Sure. I really shouldn't have used the term "first appeal", because the appeal in process is (barring some bizarre circumstances) the ONLY true "appeal" he will get.

What happens when his appeal is denied is that he will ask for a writ of habeas corpus ad subjiciendum, which is commonly referred to as a "habeus corpus appeal". It's a concept dating back to 12th century England whereby someone being held - generally in a prison, but it doesn't have to be - petitions a suitable judge to require the person holding him to prove that the detention is lawful. THIS is where Scott will attempt to bring in various things to prove that he shouldn't have been convicted because the evidence didn't point to him, because new evidence has arisen, etc. It is a civil action, not criminal, and the remedy is release from prison if it succeeds. Also, unlike the direct appeal, the burden in this case is on the entity doing the holding (such as the prison warden) to prove that the detention is, indeed, lawful.

It's not a retrial. One of the best tools the warden (who doesn't do this himself, the State will take the case) has is the conviction which has been upheld on appeal by this point. To get anywhere Scott is going to have to come up with new evidence that could not have been known at the time of the trial. The Aponte stuff, for instance, won't do it - it was known, it was in evidence. Someone coming forward with a confession that is corroborated would do it.

Both State and Federal courts hear these "appeals". The Federal court will not hear anything until the State has heard and decided - i.e. you must exhaust all state remedies before asking for Federal remedies.

In the past, DR prisoners used habeas corpus to delay execution by asking for a new writ for each individual item they wanted to bring up. They are now required to put them all together to prevent these delays, which various criminal rights groups are working to reverse.

As I recall (don't have a source handy, I could be wrong) about 2% of habeas corpus attempts are not rejected (i.e. 98% ARE rejected) and of that 2% about 20% relate to capital cases. Pretty long odds - 0.4% success rate if my recollection is right.

Here is a little writeup.

[deputydi]

Originally Posted by adnoid

<snip> It is a civil action, not criminal, and the remedy is release from prison if it succeeds. <snip>
Here is a little writeup.

I understand and agree with everything in your explanation, except this. Doesn't the judge hearing the Habeas Appeal have the option of remanding the case back to the lower court for disposition (to retry or not to retry)?

[adnoid]

Originally Posted by deputydi

I understand and agree with everything in your explanation, except this. Doesn't the judge hearing the Habeas Appeal have the option of remanding the case back to the lower court for disposition (to retry or not to retry)?

There's no jury, only judges, after the original trial. And yes, they can order all kinds of things, including a new trial. However, it's almost always the case that the petitioner will ask to be released - I mean wouldn't you? A new trial is better than having your request rejected, usually - unless new evidence has come up that doesn't help your case.

[deputydi]

Originally Posted by adnoid

There's no jury, only judges, after the original trial. And yes, they can order all kinds of things, including a new trial. However, it's almost always the case that the petitioner will ask to be released - I mean wouldn't you? A new trial is better than having your request rejected, usually - unless new evidence has come up that doesn't help your case.

I must have misunderstood your statement. I thought you were saying that the judge's only remedy was to release the petitioner if the appeal is granted.

Yes, they do ALWAYS ask for immediate release but that is almost never granted.

ETA: I don't believe the appeals court has the authority to order a new trial. If the appeal is granted, doesn't that court simply have the power to send it back to the lower court and they are the ones who decide if a retrial is in order? In a case like this, it is almost certain they would choose to retry it, but it is the decision of the lower court whether to release the prisoner outright or to retry the case. I could be wrong about this and I'd like to know if I am.

[Lavindar]

Originally Posted by deputydi

I must have misunderstood your statement. I thought you were saying that the judge's only remedy was to release the petitioner if the appeal is granted.

Yes, they do ALWAYS ask for immediate release but that is almost never granted.

ETA: I don't believe the appeals court has the authority to order a new trial. If the appeal is granted, doesn't that court simply have the power to send it back to the lower court and they are the ones who decide if a retrial is in order? In a case like this, it is almost certain they would choose to retry it, but it is the decision of the lower court whether to release the prisoner outright or to retry the case. I could be wrong about this and I'd like to know if I am.

I have to laugh at the habeas thing. Isn't that the appeal that Gibbsons and Gardner are hired for. They sure did a bang-up job for the Menendez Brothers

[Otter]

Originally Posted by Lavindar

I have to laugh at the habeas thing. Isn't that the appeal that Gibbsons and Gardner are hired for. They sure did a bang-up job for the Menendez Brothers

I'd use this guy ---> :lol: but it might offend some, so I won't.

I picture appellant judges sitting in their individual chambers with their clerks eating lunch and ---> :lol:

No oral arguments.

[adnoid]

Originally Posted by deputydi

I must have misunderstood your statement. I thought you were saying that the judge's only remedy was to release the petitioner if the appeal is granted.

Yes, they do ALWAYS ask for immediate release but that is almost never granted.

ETA: I don't believe the appeals court has the authority to order a new trial. If the appeal is granted, doesn't that court simply have the power to send it back to the lower court and they are the ones who decide if a retrial is in order? In a case like this, it is almost certain they would choose to retry it, but it is the decision of the lower court whether to release the prisoner outright or to retry the case. I could be wrong about this and I'd like to know if I am.

Well, it looks like I misheard (heh heh) your question. The appeals court cannot order a new trial, but they can reverse the verdict due to an error and the case can be retried. It can also not be retried if the prosecuting authority declines to, which does happen.

[I'mSun]

Originally Posted by deputydi

I believe, in the interest of fairness, oral arguments will be heard after which the appeal will be flatly denied.

The "petri dish" comment has been (IMO) misunderstood. I do not, for one second, believe J Delucci meant there are a multitude of viable appeal issues which have a good chance of succeeding. I took that comment to mean that Scott's appeal attorneys have a multitude of rulings on which to attempt a successful appeal. He is a very smart man who made every effort to ensure SP received the fairest trial possible. Every single ruling that went against the defense was made with consideration and precedent to back it up. There are a lot of possible issues to choose from but none will succeed.

Excellent post, DD. I agree with just about everything you said. Scott's appeal will be denied.

[I'mSun]

From the California Appellate Court
Case Summary for Scott Peterson

Supreme Court Case: S132449 (this is Scott's case number)
Court of Appeal Case(s): no data found
Case Caption: PEOPLE v. PETERSON (SCOTT)
Case Category: Automatic Appeal
Start Date: 03/16/2005
Case Status: awaiting counsel appt. (AA)
Issues: Automatic appeal from a judgment of death.
Case Citation: none

[adnoid]

Originally Posted by I'mSun

From the California Appellate Court
Case Summary for Scott Peterson

Supreme Court Case: S132449 (this is Scott's case number)
Court of Appeal Case(s): no data found
Case Caption: PEOPLE v. PETERSON (SCOTT)
Case Category: Automatic Appeal
Start Date: 03/16/2005
Case Status: awaiting counsel appt. (AA)
Issues: Automatic appeal from a judgment of death.
Case Citation: none

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Case Number Case Activity Date Registered
S132449 Answer/Reply to Petition for Review Filed 07/31/2007
S132449 Record on Appeal Filed - (Automatic Appeal death penalty cases only) 07/31/2007
S132449 Briefs Filed on the Merits - (Briefs filed after a petition is granted review) 07/31/2007
S132449 Orders Filed Granting Review 07/31/2007
S132449 Disposition Filed 07/31/2007
S132449 Request for Modification of Opinion or Petition for Rehearing Filed 07/31/2007
S132449 Remittitur Issued 07/31/2007
S132449 Oral Argument set 07/31/2007
S132449 Notice of Forthcoming Opinion posted 07/31/2007
S132449 Time Extended for Court to Consider Petition for Review 07/31/2007

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