Juror’s conduct in Scott Peterson murder trial questioned by state high court

A juror who concealed material information about a lawsuit involving threats against her unborn child during jury selection in convicted double-murderer Scott Peterson's death penalty trial in 2004 may have prejudiced the outcome, according to a California Supreme Court order issued Wednesday.

Peterson's death sentence was already unanimously reversed on automatic appeal by the high court in August on the grounds his trial was tainted by jurors who opposed the death penalty. But the court stopped short of vacating his two murder convictions. People v. Peterson, 2020 DJDAR 9221.

A second petition for a writ of habeas corpus filed by Peterson's lead appellate attorney, Clifford Gardner of Berkeley, in November 2015 made 19 other claims of innocence. In re: Scott Peterson, S230782.

Despite summarily dismissing nearly all of them, the high court said Peterson's first claim -- that during voir dire, a juror failed to disclose she had been involved in a lawsuit similar to Peterson's four years before -- warranted an order to show cause as to why his conviction shouldn't be vacated.

The high court's order sent the case back to San Mateo County Superior Court, where Peterson's trial was held after publicity caused a change of venue from Stanislaus County. The county court was told to determine whether the juror in question "committed prejudicial misconduct by not disclosing her prior involvement with other legal proceedings, including but not limited to being the victim of a crime."

"We are certainly pleased that, as it did in reversing Scott's penalty on direct appeal, the Supreme Court recognized the importance of a fairly selected jury," Gardner wrote in an email Thursday. "In particular, we agree not only with the court's apparent concern about juror candor during the jury selection process, but with its recognition about how central the misconduct was to the ability of the jury to reach a fair decision in this case."

According to Peterson's petition, Richelle Nice, the juror, filed a lawsuit in 2000 against her boyfriend's ex-girlfriend alleging harassment and threats. The suit, filed when Nice was four months pregnant, sought a restraining order against the other woman and alleged she had threatened violence against Nice and her unborn baby.

Asked during voir dire whether she had ever been involved in a lawsuit, participated in a trial or had been the victim of a crime, Nice answered no, according to court records.

The state had argued in court filings that Nice had misinterpreted the question of whether she had been involved in a lawsuit, and that even if she did conceal pertinent information, "such concealment was not tantamount to actual bias on her part that prejudiced Peterson."

However, Peterson's attorneys say she gave false answers on purpose so she could sneak her way onto the jury.

Nice was initially seated as an alternate, but she replaced a discharged juror during deliberations, according to court documents. Peterson's attorneys said in their petition that she "worked hard to get on the jury" and stay there.

She was offered the chance to be discharged, as hundreds of others had been, because her employer wouldn't pay her for the duration of the five-month capital trial. But she said she was willing to serve anyway. Her financial situation got so dire during trial that she turned to another juror to borrow money in order to make ends meet, according to Peterson's attorneys.

"This could, of course, be chalked up to a simple desire to be a good citizen," Gardner wrote in Peterson's petition. "But the habeas investigation reveals a darker motive."

"The new evidence establishes that Ms. Nice gave false answers to get on this jury because this case, like Ms. Nice's past case, involved harm to an unborn child," Gardner continued.

He also said the fact that Nice was one of just two holdouts for a first-degree murder conviction in connection to the death of Peterson's unborn son, when the remaining 10 jurors decided to acquit him of that charge, proves she was prejudiced.

On Christmas Eve in 2002, Peterson drove a 14-foot aluminum boat he bought for $1,400 two weeks earlier from his home in Modesto to the Berkeley Marina for what he said would be a day of fishing in San Francisco Bay. That was the same day his wife, Laci, was reported missing by family members after she was unresponsive to phone calls and failed to appear at a Christmas Eve dinner.

Roughly nine months later, the bodies of Laci and her unborn son, Conner, were found a day apart, washed ashore nearly a mile from where Peterson said he went fishing.

A jury convicted Peterson in 2004 of first-degree murder for killing Laci and second-degree murder for killing Conner at their Modesto home in December 2002 and dumping their bodies in San Francisco Bay the day he said he went on a fishing trip.

The state Supreme Court in August ruled Peterson should be given a new penalty determination because the late Alameda County Superior Court Judge Alfred Delucchi, who presided over Peterson's trial, erroneously dismissed more than a dozen prospective jurors because they opposed the death penalty.

However, Stanislaus County District Attorney Birgit Fladager has not said whether she will seek a new death penalty trial. A spokesperson for Attorney General Xavier Becerra, who handled Peterson's appeal for the state, said Thursday his office will assist Fladager in responding to the high court's order to show cause.

"This is just one step in a very long appellate process," said John Goold, a spokesman for Fladager. He said the DA has no comment on the case because the motion is pending.

In the aftermath of the trial, Nice, known during deliberations as "Juror No. 7," sought notoriety for helping secure Peterson's conviction, Peterson's attorneys further allege. She immediately gave a series of television interviews and disclosed her identity to millions of viewers around the country, the attorneys said. In 2006, she published a book with several other jurors describing what it was like to serve on Peterson's jury. And a series of detailed, personal letters she exchanged with Peterson after he was sentenced were published in a 2006 People magazine article titled, "Letters from Scott."

Nice's responses during voir dire about her involvement in previous litigation, paired with her public statements and published writing after the trial, presume prejudice, Gardner argues, adding the state now has the burden of proving her conduct was harmless.

"Given that the state charged Scott Peterson with murdering his unborn child, these false answers did not relate to some unimportant, tangential point," Gardner wrote in a 2018 brief. "And given that Ms. Nice's statements after trial -- in her own book and in her own letters -- the state cannot establish as a matter of law that the misconduct was harmless."

The high court dismissed 18 other claims raised in the petition, eight of which were deemed moot after the court granted penalty phase relief in its opinion on appeal. The other 10, which included allegations contesting forensic reports of Conner's fetal age at the time of death and the prosecution's evidence that a cadaver dog established Laci's scent at the Berkeley Marina, were summarily denied on the merits.

Peterson's attorneys said after his death sentence was overturned that they are confident they will prevail in overturning his convictions as well.

"The way I view it is one down, one to go," Peterson's trial attorney, Mark Geragos of Geragos & Geragos, told the Daily Journal in an interview at the time.