November 23, 2004
Private: The Peterson Case: Did Juror Removal Manipulate the Verdict?
by Todd Chatman, editor at large
Although the penalty phase in the Scott Peterson trial has been postponed for a few days, pundits have already begun looking ahead to possible bases for an appeal. Foremost among them is whether the judge, San Mateo County Superior Court Judge Alfred A. Delucchi, committed reversible error when he removed three jurors and replaced them with alternates. After the final replacement -- Greg Jackson, the jury's foreperson -- the "new" jury reached its verdict in less than eight hours, finding Peterson guilty of first-degree murder in the death of his wife Laci, and second-degree murder in the death of his "unborn son."
The last minute removal of the final two jurors, followed by such a quick verdict, shocked many pundits. "The biggest issue is juror removals," said San Francisco prosecutor and trial observer Jim Hammer. "Kicking someone off the jury is one of the riskiest things you can do in a trial... Two jurors in two days? I've never heard of that happening before."
The first juror the judge replaced was Justin Falconer; Falconer lost his spot on the jury in June after he "exchanged pleasantries" with Laci Peterson's brother. The other two replacements were much more controversial because they took place after the jury had begun deliberating. The next juror to go was Fran Gorman, because she was supposedly performing her own research on the case outside of the evidence presented at trial. According to some reports, Gorman has since said that she supported the jury's final verdict.
The final replacement came the very next day when the judge replaced foreperson Greg Jackson. (In a strange coincidence, Jackson was originally an alternate; he was Falconer's replacement last June.) Jackson is a doctor and a lawyer and reportedly "took more notes than any of his colleagues on the jury, carrying a stack of about 12 spiral-bound memo pads into the deliberation room." His replacement as foreperson was described as "a firefighter in his early 30s who has taken relatively few notes."
Exactly why Jackson was replaced remains unclear, but the New York Post reported that Jackson asked Judge Delucchi to be released from the jury. In the same Post story, Edward Benson, a jury expert and professor emeritus at California State University at Chico, said that Jackson "was clearly the obstacle... Whether he was a dissenter or he was slowing up the process, it's pretty clear that he was the roadblock."
The Post reported that "some close to the case say [Jackson] angered fellow jurors when he demanded the panel methodically sift through all witness testimony and introduced exhibits before holding even a preliminary vote to see where the jury stood. Shortly after his refusal to hold a vote, Jackson reportedly went to Delucchi claiming he was being threatened by other jurors."
Immediately after Gorman was replaced, many analysts agreed that the Judge was acting well within the scope of his authority. Indeed, the California Code of Civil Procedure requires jurors to swear that they will render a true verdict "according only to the evidence presented to [them] and to the instructions of the court"; therefore, if Gorman really was bringing in outside research, the judge probably did have "good cause" to replace her. According to Terri Towery, a Los Angeles County public defender who represented Lyle Menendez, "If the judge becomes aware of juror misconduct while the jury is deliberating, the judge is within the power of the court to remove that juror for misconduct." However, it's possible Gorman had already impermissibly influenced the jury by bringing in outside information, and it seems likely Peterson will include such an argument in his appeal.
But as Hunter noted (above), Peterson might have an even better argument that the two replacements in two days during deliberations, the fact that one of them was the foreperson, and the fact that Jackson may have been the lone holdout for acquittal, combine to suggest that Judge Delucchi abused his discretion. "If he has excused a holdout juror and brought in a juror ready to convict, the defense lawyer is going to say the judge coerced a verdict by improperly excusing a juror," said Laurie Levenson, a Loyola Law School professor.
But according to Golden Gate University law professor Peter Keane, trial judges have "wide discretion" to unseat jurors. "The judge would have had to have done something very arbitrary or whimsical or capricious or unjust," he said. "I didn't see any kind of error for the defense to jump on that's going to get any kind of mileage."
A California trial judge's broad discretion to remove jurors comes from California Penal Code