Today, we learned that Juror #7 from the Scott Peterson murder trial will testify at Peterson’s upcoming hearing for a new trial beginning on February 25th due to possible juror misconduct by Juror #7. Juror #7, Richelle Nice, will be called as the first witness for the defense.
That’s a big deal!
Previously, juror #7 had stated that she would not testify pursuant to her fifth amendment right to remain silent. Why the change? The prosecution advised the court and Peterson’s counsel that she will be given immunity; thus, she will not face criminal prosecution for any potentially false or withheld information during jury selection. Another words, if she failed to disclose information or misrepresented information relating to her ability to be an impartial juror on the juror questionnaire or otherwise, she would not be prosecuted for, say, perjury, for example. If she is given immunity, she will be required to answer the questions asked when she testifies.
She will be represented by her own private counsel at the hearing and will be subject to examination by all the parties, including the judge. Her credibility, like every witness who takes the stand, will be at issue and evaluated by the judge who will decide whether Peterson gets a new trial.
Get ready for DeJa Vu!
We will also likely hear from Peterson’s prior criminal attorney, Mark Geragos, according to Peterson’s attorney. He will likely be asked whether he would have challenged Juror #7 had he known, as alleged, that she had been beaten by her boyfriend while pregnant and been involved in prior litigation which was not disclosed on the juror questionnaire or during voir dire. If true, most attorneys would have challenged Juror #7 given a potential similarity to Laci Peterson to protect Scott Peterson’s right to a fair trial including impartial jurors.
Depending on Juror#7’s testimony, we may also hear from juror #5 as well, who although excused from the murder trial, may have had conversations with Juror #7 relevant to her potential bias, prior experiences, impartiality or lack thereof. The defense has also indicated that in rebuttal, they may call several journalists who interviewed juror #7 to support their claim of juror misconduct.
Both sides have indicated they will be calling several witnesses and submitting many exhibits. The hearing is scheduled to last for 5 days from Feb 25 to March 4th.
Motions for a new trial happen all the time, but, few are based on statements made by a juror many years after conviction that appear to question her ability to be impartial, truthful, and the integrity of the trial process and verdict. Yet, the question remains, does Juror #7 alleged misconduct amount to “prejudicial misconduct”, thus, denying Peterson’s right to a fair trial—-did Peterson have 12 impartial jurors? Criminal cases require 12 jurors to convict a defendant. Otherwise, a conviction can be thrown out and a new trial ordered.
Stay tuned, we may learn more as we have another hearing on Feb 17th regarding further motions and matters.
Simply my opinion, what say you?
Read my interview with KRON4 News San Francisco
Scott Peterson will likely get a new trial and be re-tried for the 2002 murders of Laci and Conner Peterson if…
The judge finds a substantial likelihood of juror bias against Peterson or his case by juror #7, Richelle Nice.
Why a new trial?
Prejudicial juror misconduct by Juror #7, Richelle Nice.
What is the alleged prejudicial juror misconduct?
The Peterson Defense alleges that Peterson is entitled to a new trial because juror #7, Richelle Nice committed prejudicial juror misconduct during the jury selection process, thus, denying Peterson of the right to a fair trial and an impartial jury.
Specifically, the Defense alleges that the misconduct by Ms. Nice includes her failure to disclose that she had been a victim of a crime resulting from a prior domestic violence incident, while she was pregnant, with her ex-boyfriend approximately 13 months prior to the Peterson case. She also allegedly failed to disclose that she had also been involved in prior litigation regarding a restraining order she obtained against her ex-boyfriend’s girlfriend. All of which, the defense alleges closely mirrors the Peterson case and amounts to improper bias by Ms. Nice against Peterson or Peterson’s case, thus, denying Peterson of his constitutional right to a fair trial and an impartial jury.
Juror misconduct is prejudicial if…
Juror misconduct is deemed prejudicial when the Court finds that the defendant has been denied a fair trial. A defendant has a right to a fair trial by unbiased, impartial jurors. (US Constitution 6th & 14th amendments, CA Constitution Art. 1 Section 16).
An impartial juror is one who decides the case solely on the evidence presented at trial. Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors, it is settled that a conviction cannot stand if even a single juror has been improperly influenced. (People v. Holloway (1990) 150 Cal. 3d 1098, 1112). If a defendant’s right to a fair trial has been violated, the defendant is entitled to a new trial pursuant to California Evidence Code 1181.
The purpose of juror questionnaires and voir dire examinations of potential jurors is to uncover possible juror bias, known and unknown, to allow counsel to dismiss a juror for cause or preemptory challenge. However, “a juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct”. (People v. Hitchings, 6 Cal. 4th at 110-111.)
What is juror bias?
Juror bias includes actual bias and implied bias.
For example, actual bias occurs when a juror states, in voir dire, that they cannot sit on a murder case because their uncle had been murdered. Or, a juror states in voir dire, they cannot vote for the death penalty because they are opposed to the death penalty. In each instance, the juror cannot be fair and impartial because of their actual bias, thus, depriving a defendant of their right to an impartial jury and a fair trial.
While implied bias is determined by the Court, after a showing by the defense of possible misconduct and an evidentiary hearing where witnesses and evidence are presented to prove or not prove juror misconduct.
If bias, whether actual or implied, is found by the Court, the defendant’s conviction will be overturned and the defendant’s motion for a new trial will be granted. The defendant can be re-tried for the charged offenses.
Who determines whether prejudicial juror misconduct occurred?
The determination of prejudicial juror misconduct rests with the Court. Thus, it is up to Judge Anne-Christine Massullo of the San Mateo County Superior Court to weigh the credibility of witnesses, determine the facts and to decide whether prejudicial juror misconduct occurred to warrant a new trial for Peterson. If the Judge decides not to grant Peterson a new trial, the defense will have to show the Judge abused her discretion, given the entire court record, a difficult standard to overcome.
What is the standard of proof required?
The standard of proof required to show prejudicial juror misconduct is not a heightened standard of proof like strict scrutiny or even reasonable doubt. It simply requires a finding of substantial likelihood of prejudicial juror misconduct. Upon a showing by the defense of juror misconduct by a preponderance of the evidence (that false answers were given by juror #7), then, the court presumes prejudice and the burden of proof shifts to the prosecution to show no prejudice occurred, not an easy feat for the prosecution.
Upon a showing of juror misconduct, the court has a duty to conduct a reasonable inquiry into allegations of juror misconduct. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two ways. First, the court can find bias if the extraneous material (outside the courtroom) judged objectively is inherently and substantially likely to have influenced the juror. (People v. Holloway, supra, 50 Cal. 3d at pp 1110-1112). Or, upon review of the nature of the misconduct (failure to disclose and denial) and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. (In re Hitchings, supra, 6 Cal. 4th at p. 121) The conviction must be set aside if the court finds prejudice under either test.
Keep in mind, a defendant is not entitled to an evidentiary hearing as a matter of right. A hearing should only be held to resolve material, disputed issues of fact. (People v Avila (2006) 38 Cal. 4th 491, 604). The trial court has the discretion whether to conduct an evidentiary hearing to determine the truth of the allegations. (People v. Hedgecock (1990) 51 Cal. 3d 395, 415).
However, in Peterson’s case, the California Supreme Court has already found a showing of prejudicial misconduct and has ordered the San Mateo Superior Court to conduct an evidentiary hearing (order to show cause) as stated, “The Secretary of the Department of Corrections and Rehabilitation is ordered to show cause in the Superior Court of California, County of San Mateo, [. . .] why the relief prayed for should not be granted on the ground that Juror No. 7 committed prejudicial misconduct by not disclosing her prior involvement with other legal proceedings, including but not limited to being the victim of a crime.”
At the evidentiary hearing… sometime in the near future, Ms. Nice, and potentially other witnesses will be called to testify as the presumption of misconduct is a rebuttable presumption. Both the defense and the prosecution will have an opportunity to ask questions as well as present documentary evidence in support or in opposition to a claim of juror misconduct. If Ms. Nice fails to testify or claims the 5th amendment right against self-incrimination, then, the Court can make a determination based on other evidence presented i.e., prior domestic violence police report with Nice and ex-boyfriend, copy of the restraining order, Nice’s responses to juror questionnaire, etc.
BTW, it’s not likely the Court will consider Ms. Nice’s letters to Peterson post-conviction as it is Ms. Nice’s bias at the time of jury selection that is relevant. However, if Ms. Nice’s made statements in the letters to Peterson or in the book she co-authored with fellow jurors that contradicts her testimony, the letters and the book would become relevant and admissible as prior inconsistent statements used to impeach her credibility. And….it could be argued that her post-trial conduct (book, letters, media interviews, etc.) is/are relevant to show bias supporting a claim of prejudicial juror misconduct.
The failure of a juror to disclose they have been a victim of a crime during voir dire alone has been found to constitute prejudicial misconduct. (People v. Diaz, (1984) 152 Cal. App. 3d 926, 931-juror failed to disclose attacked at knife-point). Ms. Nice’s alleged failures can be argued to have far exceeded the Diaz standard.
Even though, Ms. Nice has claimed that her prior life experiences did not influence her decision to convict Peterson, when she claimed, “When I filled out that questionnaire, my situation never came into my mind because it was not similar at all.”. Or, even when she implicitly denied any improper bias, when she claimed that she “did not lie to get on this trial to fry Scott. That was not my intention.”, Ms. Nice’s intention, her denial of actual bias, is not the only test. Bias can also be implied.
Further, judges are not required to take juror’s statements at face value nor are they permitted to assume the worst of a juror. A judge is still required to conduct a reasonable inquiry into the juror’s ability (or inability) to perform his/her duties. While Ms. Nice may defeat a claim of actual bias, the Court may still find implied bias. The test for juror bias is an objective standard not a subjective standard.
Another words, even if Ms. Nice subjectively denies her prior experiences influenced her decision to convict Peterson, would a reasonable juror be influenced by these prior experiences? Could a juror be impartial (objective) with the life experiences of Ms. Nice? Or, does Ms. Nice’s life experiences mirror the Peterson case so as to imply a bias against Peterson or his case?
The answer… and the decision to grant a new trial rest solely with Judge Massullo.
Simply my opinion, what say you?
Beginning February 25, 2022, Judge Massullo will conduct an evidentiary hearing to determine if prejudicial juror misconduct occurred to warrant a new trial (re-trial) for Peterson.
This Wednesday, October 6, 2021, Judge Massullo of San Mateo Superior Court will set a date for the re-sentencing of Scott Peterson to life without the possibility of parole. Peterson’s initial death penalty sentence was overturned last year by the California Supreme Court due to the improper dismissal of jurors. Peterson to be re-sentenced in person Dec 8, 2021 10 am by Judge Massullo.
Here’s my interview on San Francisco’s KRON4 News on 10/8/21 re possible juror misconduct in Peterson murder trial.