The Laci Peterson Case: Legal Q & A

Actor John Cusack listens in front of an electronic billboard with words reading "Only Three Years, Two Months, 18 Days, Ten Hours, 42 Minutes and 44 Seconds Left for the World," at a media event announcing his new film "2012," on Friday, Oct. 2, 2009, in Taipei, Taiwan.
AP Photo
Attorney Andrew Cohen analyzes legal issues for

Scott Peterson has now been arrested and is expected to be arraigned on charges of murdering his beautiful wife and unborn child. But we know very little about the evidence which prosecutors say supports the capital case against him or even about the way that case is likely to unfold. We are betwixt and between, you might say, wedged in the middle of knowing what has happened in the case and not knowing precisely why.

So this is probably as good a time as any to focus upon a few of the many questions lurking about as the Laci Peterson investigation turns into the Scott Peterson murder case. And even if my answers to them don't prove out to be entirely correct - yes, it happens from time to time - at least you'll know what to look for law-wise as this sad story unfolds over the next few days, weeks and months.

What's up with the timing of Scott's arrest? It's interesting that the police would have gotten a warrant and arrest Scott before confirming that the two bodies found last week were those of his wife and unborn child. It means either that investigators felt they had enough evidence against Scott before identifying the bodies or that they haven't exactly leveled with us about when the DNA results came back.

Remember, getting an arrest warrant against someone isn't a day at the beach - but it isn't rocket science, either. And, for the record, the fact that Scott was found near a golf course doesn't exactly suggest to me that he was making a run for the Mexican border. It's more revealing that he had dyed his hair blonde and had groomed a goatee.

Can you convict someone of murder without proving a particular cause of death? Sure. You can even have a successful prosecution if you can't find the victim's body, although that doesn't happen too often. If investigators can figure out precisely how Laci died, they'll make their case in court, either at the preliminary hearing or at trial. If they cannot, they'll simply offer jurors a few alternatives based upon the other evidence they presumably have on Scott. And depending upon how logical these alternatives prove to be, the defense may have to address the issue during its case.

What about proving a motive? Motive is never a formal element of a crime but it is almost always a factor that jurors come to expect from prosecutors. In this case, in particular, Peterson's prosecutors will have to try to explain why a man with a lovely wife and already-named baby on the way would do what they say he did. Otherwise, it's a crime that doesn't make sense. Now, the fact that Scott was fooling around on Laci while she was pregnant pretty much lobs a motive ball into the air for prosecutors to spike back down onto the defense. But we'll just have to wait to find out whether that is the motive prosecutors run with. You just never know.

Can you have a double-murder when one of the victims is an unborn child? Apparently so. Any Supreme Court watcher or abortion activist (on both sides of that debate) knows that late-term fetuses have certain legal rights that do not attach to early-term fetuses. But I wouldn't be surprised if the defense team early on tried to challenge the prosecution's "double-murder" charge, arguing that since the Peterson's baby never was born it could not therefore have been murdered. If that argument sticks - which I doubt - it would turn the case into a "single" murder case and perhaps jeopardize the prosecution's plans to seek the death penalty for Scott if he is convicted.

Is it significant that charges will be brought near where the Petersons lived and not where the bodies were found? Maybe. Maybe not. A lot of cable pundits Friday suggested that this jurisdictional clue means that prosecutors think Laci was killed in her home - maybe after confronting Scott about his affair - and then was transported to Richmond, Ca. before being dumped into the ocean. I don't think you can make that leap right now based upon what we know publicly. Stanislaus County is a logical place to bring the case for many other reasons, including the fact that its law enforcement officials were leading the Peterson investigation. In any event, as a substantive issues, it really doesn't matter.

What about a change of venue? Can Scott get a fair trial in Stanislaus County? Of course Scott cannot get a fair trial in Stanislaus County - you just needed to see the video of those 200 or so people who crowded around near the jail when he was brought in Friday night. Police and prosecutors these days have a sophisticated and nearly foolproof way of tainting jury pools against defendants long before the judge gets onto the scene. But, my proselytizing aside, Scott isn't likely to get his venue changed. First, where else would he be able to go in California where he wasn't a household name? And, second, judges routinely deny venue - change requests unless potential jurors during voir dire one after another say they cannot be fair. And that just doesn't happen often - even if those jurors really don't intend to be fair.

What about the defense? What about it? There will be one - a decent one, I suspect, and a lot of the preconceived notions you have about the Petersons may be jarred a bit. I'm not suggesting that Scott is not guilty - what do I know? I'm only the legal analyst - but I am suggesting that things rarely end up being what they initially seem to be in these high-profile cases. Remember the Robert Blake circus? Compare its beginning movements of sinister apprehension about Blake's actions with the preliminary hearing a few months ago, the one in which glaring weaknesses in the prosecution's case against the aging actor were exposed. In that case, law enforcement overstated its case. Has that happened here? I have no idea. But we'll all know soon enough when the questions above begin to be answered for real.

By Andrew Cohen