A postmodern trial

From the moment last April when Scott Peterson was taken into custody on charges that he murdered his pregnant wife, legal analysts feared that the overwhelming media coverage would shape the final verdict. Now, it is becoming clear that it almost certainly did - but in a way that few expected.

The question of whether round-the-clock scrutiny by television shows and newspapers influence juries is as open and nebulous as ever. What the Peterson trial has shown - in a way that perhaps no other trial has shown before - is that the made-for-TV vigils and talk-show interviews generated by high- profile cases can of themselves become evidence that determines a case.

The prosecution, after all, had no murder weapon or cause of death. But its success in portraying Mr. Peterson as an inveterate liar - helped in no small part by Peterson's pronouncements after his wife disappeared - may have proved decisive, legal experts say. It is a new legal lesson for the Media Age, when a false public performance can be as persuasive as a smoking gun.

"This is a 21st-century trial," says Paula Canny, a former prosecutor who has followed the Peterson case. "The gist wasn't the murder weapon. It was the interviews the defendant did, and what he said to [girlfriend] Amber Frey."

Indeed, almost the moment that Laci Peterson disappeared two years ago on Christmas Eve with little else of moment to report, her story became the stuff of pundits and 24-hour news channels. And it thrust her husband into the national spotlight, with his desperate talk-show interviews parsed at the water cooler as meticulously as any presidential press conference.

Months later, when Laci Peterson's body washed onto the shore of San Francisco Bay, just a few miles from where her husband said he was fishing the day she disappeared, the prosecution had its most compelling piece of evidence. But courtroom observers say the prosecution sealed the verdict by juxtaposing Peterson's seemingly compassionate public face with his private actions.

While he was talking on television about his love for Laci, he was carrying on an affair with another woman, Ms. Frey. The day that the people of Modesto, Calif., held a candlelight vigil for Laci, Peterson made a romantic phone call to Frey, telling her that he was in Paris and had watched New Year's fireworks from the Eiffel Tower, according to a police recording of the conversation.

"It's something compelling ... [because] it's such a disconnect from the normal human experience," says Canny. "And the defense didn't give a reasonable explanation for Scott's bizarre behavior."

Increasingly, Peterson's trial became a daily exercise in the surreal, as well. Last week, Judge Alfred Delucchi dismissed two jurors - including the foreman - in two days of spectacular legal theater that Canny calls "unbelievable, it never happens."

Less than eight hours after the reconstituted jury began deliberations with its two new members, it reached a verdict. The judge has so far not explained in detail why he dismissed the jurors, but like many other of the judge's decisions, it will be subject to intense scrutiny. He cannot replace jurors simply to speed along a verdict, and the legitimacy of the proceeding might hinge on the legitimacy of his dismissals.

"Clearly there has to be a reason for the removals beyond the fact that [the two] wouldn't go along with the crowd, because that's fundamental to the system," says Kirby Behre, a former federal prosecutor.

Without question, though, the dismissals eased a growing sense of frustration in the jury box. At one point early last week, Judge Delucchi had to specifically remind the jury to work together and follow instructions. The trial appeared to be careening toward an increasingly common fate in current jurisprudence: mistrial.

Statistics indicate that in some California courts, 20 percent of cases end in mistrials - a percentage four times higher than what has long been considered the norm. One reason: Jurors have become more headstrong, according to a survey by jury consulting firm DecisionQuest and the National Law Journal. Three-quarters of the respondents said they would follow their conscience rather than instructions.

That trend might have played some part in the dismissals, analysts say. The day after Delucchi repeated his instructions last week, he dismissed juror No. 7 for conducting her own experiments. The next day, the foreman was dismissed with no explanation. But the quick verdict that followed offers clues.

"Chances are that the foreman was a very methodical person ... and that at some level he was what was frustrating the jury," says Philip Anthony, head of DecisionQuest. "My guess is that there was enormous stress associated with the case and that a number of jurors may have complained to the court" about him.

Eight months of jury selection, testimony, and deliberation, surely played their part in any sense of stress, experts say. In high-profile cases, government prosecutors typically draw out their arguments to give the impression of thoroughness. In a move that could have hurt the prosecution in the Peterson case, it called 176 witnesses to the defense's 14.

"Every case needs to be distilled to its essence," says Mr. Behre. "If you hadn't had this big media attention, it would have [finished] in less than a month."

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