SAN JOSE, Calif. - The prosecution will tell jurors Scott Peterson is a manipulative, selfish, callous man who murdered his wife and their unborn child and destroyed the lives of so many others. But even that might not convince the jury he should be put to death.
Legal experts say most California juries facing this choice are increasingly deciding to let the killer live.
The decision for the Peterson jury is made that much more difficult by the factors before them: Peterson had no criminal record, no history of violence, and was convicted on circumstantial evidence.
That means that despite the national attention paid to the case - and the sense that, for some, death equals justice - the prosecution has an uphill battle. Prosecutors also face the likelihood that Mark Geragos will appeal the verdict - probably based on what happened last week when two jurors were dismissed.
Juries across the state, including in San Mateo County, have been increasingly reluctant in recent years to sentence murderers to die, which experts attribute to mounting skepticism about the death penalty and reports of innocent men on death rows.
The penalty phase has become tougher for even the most seasoned homicide prosecutors. In the past year alone, two Alameda County juries deadlocked on the death penalty in separate murder cases, one involving multiple drive-by shootings and the other the killing of a sheriff's deputy. "They are reluctant to impose the death penalty because of all these factors," James Anderson, a recently retired Alameda County prosecutor who has put 10 men on death row, said of local jurors. "People are looking for a higher quantum of proof."
The penalty phase is an entirely new trial, complete with opening statements, testimony and closing arguments.
"One side tries to humanize, and the other side tries to demonize," said LaDoris Cordell, a longtime Santa Clara County judge.
The prosecution will emphasize the irreparable damage that the deaths have caused. They will underscore the fact that Peterson has killed an innocent child, who had no chance to greet the world, grow and thrive.
Laci Peterson's family will probably testify about the hole the deaths have left in their lives, legal experts said.
"They'll try to have the jurors in tears," Cordell said. "They'll show pictures of her body again, and of the fetus, and will try to show just how awful this crime was."
