Oral arguments in the appeal of Scott Peterson’s death sentence to begin

Oral arguments in Scott Peterson's high-profile murder case begin Tuesday nearly a decade after his lawyers filed an appeal with the California Supreme Court.

Peterson was convicted in 2004 and sentenced to death in 2005 for the first-degree murder of his pregnant wife and second-degree murder of their unborn son.

His appellate attorneys are seeking a reversal of his two convictions and death sentence. They are also requesting a new trial, arguing jury selection was tainted by the trial court and the venue was improper. People v. Peterson, S132449.

In its nearly 500-page brief, filed in 2012 by the Law Offices of Cliff Gardner, he further argues San Mateo County Superior Court Judge Alfred Delucchi should not have instructed the jury it could convict Peterson of murder based on dog tracking evidence and expert testimony to prove he dumped his wife's and son's bodies in San Francisco Bay.

The trial court also erred in its decision to allow the prosecution to experiment with the boat it accused Peterson of using without his counsel being present, while not giving that same courtesy to the defense led by Mark Geragos of Geragos & Geragos, Peterson's team argues.

"Defense counsel made clear his view that the court's limitation on the defense's ability to use the actual boat -- permitting access to the boat only on condition that the state be present for any test -- was an unconstitutional limit on the ability of the defense to present its case," the appellate brief states.

Geragos, the high-profile celebrity attorney who replaced two public defenders assigned to Peterson in 2003, was sure he would secure an acquittal for his client, the Associated Press reported. At trial he argued the prosecution had a flimsy circumstantial case and asserted he could prove Peterson didn't commit the crimes because the baby was born alive.

"The evidence is going to show that Scott Peterson is not only not guilty," Geragos told jurors in June 2004, according to the AP. "The evidence is going to show that he is stone cold innocent."

It appears the state prosecutor isn't planning to focus on the defense's arguments about evidence this week.

On May 22, Supervising Deputy Attorney General Donna M. Provenzano sent a letter to the high court indicating she is planning to focus on the jury and venue complaints Tuesday. But she said she's "prepared to address any other issue that appellant specifies in his focus letter, and any remaining matter of interest to the court."

Gardner plans to argue it was improper for the trial judge to exclude more than a dozen prospective jurors who in their written questionnaires had opposed the death penalty.

"Every one of these prospective jurors stated in the questionnaire that despite their opposition to the death penalty, they would consider death as an option, and not a single one of these jurors was ever even questioned about their views," the defense brief states.

The state, in its response filed in 2015, argued these excused prospective jurors were "substantially impaired in the ability to consider both penalties." The state also asserted, "Appellant's contention on appeal that the trial court ... tipped the venire to favor death is baseless."

"Appellant, through his able counsel, helped to shape the venire," the state wrote. "And, from this constitutionally acceptable venire, impartial and unbiased jurors were culled."

Peterson's defense further argues Delucchi committed prejudicial error and violated his constitutional rights by forcing him to stand trial in a venue where they say 96% of actual jurors had been exposed to "massive pretrial publicity" about the case. They also argue nearly half of all prospective jurors had concluded Peterson was guilty of capital murder.

The state maintains the case was heard by an impartial jury and that San Mateo County was the proper venue.

Oral arguments in the case begin at 1:30 p.m. Tuesday.