Scott Peterson’s Habeas Appeal

Scott Peterson’s Habeas appeal is a lengthy document, running to 285 pages, so I thought it might be useful to write a short summary. Very briefly, the case is as follows:

Case summary

On December 24, 2002, Scott reported that his wife Laci was missing from their Modesto, California home. Laci was eight months pregnant with a due date of February 10, 2003. The couple had planned to name her baby boy Conner. The story attracted nationwide media interest. Scott told police that he had made a trip to Berkeley Marina that day, and police made an intensive but unsuccessful search of the Bay near that location, suspecting that he may have murdered Laci and disposed of the body there.

On April 13, 2003, Conner’s body was found close to shore just North of Berkeley Marina, and the next day Laci’s body was found in the same area, also close to the shore. The exact date and cause of Laci’s death could not be determined.

Scott was arrested, tried and found guilty of the murder of his wife and unborn son, and sentenced to death on March 16, 2005.

The fundamental question is whether Scott disposed of Laci’s body, or whether some unknown person or persons planted the bodies in order to cause his arrest and trial.

The State alleged that the murder was premeditated, and that Scott bought a boat to dispose of Laci’s body. Police found a concrete anchor Scott had made, and suggested that he had made four similar anchors to weigh Laci’s body down. A single hair, said to have been Laci’s, was found on a pair of pliers from Peterson’s boat. The state suggested that Laci was murdered before Scott left the house on December 24,

In more detail, the state’s theory was that

  • Scott killed Laci in their home between the night of December 23 and the morning of December 24, possibly by suffocation.
  • Scott put the leash on McKenzi and let him loose in the neighborhood so that it would appear that Laci had been abducted while she walked the dog. Scott moved the body to his Modesto warehouse by putting it in a toolbox in the back of his truck.
  • At the warehouse, Scott then attached homemade cement anchors to the body and placed it in the back of his 14-foot Sears-Roebuck boat which he then towed to the Berkeley marina.
  • When Scott got to the marina he launched the boat and, once on the bay, he pushed the body (with the anchors) overboard.
  • Scott committed the crime either for financial reasons or to obtain freedom from Laci and Conner.

It is not disputed that Scott took his boat out on the bay, but the state did not prove Laci’s body was in it. Scott accurately described an island he visited near the marina.

The state suggested that a dog detected Laci’s scent at the marina.

The Habeas Appeal

The appeal makes nineteen claims in all, I will concentrate on those that seem to me to be the strongest points.

  1. One of the jurors lied during voir dire when asked if she had ever been the victim of a crime. In fact, “when the juror was four and one-half months pregnant in November of 2000, she and her unborn baby were threatened, assaulted and stalked by her boyfriend’s ex-girlfriend”.
  2. An expert called by the prosecution testified that Conner, Laci’s unborn child, died on Dec 23 or Dec 24, 2002, using a formula devised by by Dr. Phillipe Jeanty. However, the defense alleges that the estimate was not done correctly, and the correct calculation would indicate that Conner did not die until January 3, 2003, undermining the State’s case.
  3. An expert  on canine scent detection, Dr. Myers, has concluded that the claim that a dog detected Laci Peterson’s scent at the Berkeley Marina on December 28, 2002, is completely unreliable, and would have appeared completely unreliable to any expert adequately trained in the field of canine scent detection.
  4. The defense claims that a state expert wrongly testified that the bodies must have been placed in the bay near Brooks Island, where Scott went fishing.
  5. The defense has discovered evidence that the Petersons’ gate was open between 10:35 and 10:50 a.m. on Dec 24, 2002. This is very significant, because 15 to 30 minutes earlier a witness had put the family dog Mckenzi back into the yard and closed the gate. The only reasonable conclusion is that Laci took the dog for a walk around 10:30am, meaning that Scott is innocent.
  6. In addition, there were three eyewitnesses who saw Laci walking Mckenzi.  Diane Campos saw a “very pregnant” woman walking a dog  that looked like a golden retriever with a white marking down the front of his chest around 10:45am. Two days later, Campos saw a poster of Laci Peterson, and stated she was sure it was the same person, and reported the sighting to the police. Frank Aguilar reported seeing a pregnant woman walking a Labrador Retriever some time between 9:30am and 11:00am. Aguilar was sure the woman he saw was Laci Peterson. Finally, William Mitchell also saw Laci and Mckenzi on December 24, 2002.
  7. Finally, a corrections office heard Adam Tenbrink telling his brother that Steven Todd admitted that Laci had seen him breaking into the Medina’s home,  some time after 10:35am on Dec 24.

Of course this quick summary is no substitute for reading the full appeal, and I would urge anyone interested in the case to do just that. It is available here.






Invalid juror inference

In this audio interview after the penalty retrial, 14 minutes 20 seconds in, a juror concludes that Jodi lied on the stand.

According to the juror, Jodi testified that when she was looking for a house with Darryl Brewer, they wanted to purchase a house in a good school district, because of his son.

But in earlier testimony, it was stated they only had the Darryl’s son Jack during the summer time.

Juror : “So at that point I felt like, ok, she’s lying to my face, I can’t give any credit to any of her testimony.”

However, in Darryl Brewer’s testimony from the first trial, it was explained that Jack’s mother had plans to re-marry, and move to that area, to be close to Jack. There was shared custody , and Jack would live with Darryl part of the time. So in fact there was no reason to believe Jodi’s testimony was untrue. Darryl was simply doing forward planning for an anticipated change in circumstances.

Were these jurors fit to judge a case of this complexity?


Spouse Murder Defendants in Large Urban Counties

An interesting 1995 study. Some highlights:

While most persons arrested (70%) for spouse murder were charged with first-degree murder, most persons convicted (52%) of spouse murder had negligent or nonnegligent manslaughter as their conviction offense.


The average prison sentence for unprovoked wife defendants was 7 years, or 10 years shorter than the average 17 years for unprovoked husband defendants.


Wife defendants had a lower conviction rate than husband defendants
* Of the 222 wife defendants, 70% were convicted of killing their mate.

By contrast, of the 318 husband defendants, 87% were convicted of spouse murder.


* Of the 100 wife defendants tried by either a judge or jury, 31% were acquitted. But of the 138 husband defendants tried, 6% were acquitted.


Self-defense as possible explanation for wives’ lower conviction rate
In certain circumstances, extreme victim provocation may justify taking a life in self-defense. Provocation was more often present in wife defendant cases, and wife defendants were less likely than husband defendants to be convicted, suggesting that the relatively high rate of victim provocation characteristic of wife defendant cases was one of the reasons wife defendants had a lower conviction rate than husband defendants. Consistent with that, of the provoked wife defendants, 56% were convicted, significantly lower than either the 86% conviction rate for unprovoked wife defendants or the 88% conviction rate for unprovoked husbands

Cruel and unusual

How can people sit in a room for days or weeks on end with a person who may or may not be correctly convicted at the end of the trial and then proceed to kill that person in cold blood? It IS barbaric and inhuman, cruel and unusual punishment by any civilised standard.

My thoughts on reform

Some thoughts on how to reform the criminal justice system in the USA.

1. Eliminate the death penalty and very long sentences.

A culture of excessive sentencing has built up over a period of the last few decades, doubtless fuelled by public anger about crime.

I believe

(a) Nobody should be sentenced to more than 20 years before parole is considered.

(b) For people who maintain their innocence, this should not be a barrier to release.

(c) Behaviour while in prison should be the main factor in determining whether an offender may be safely released.

(d) Monitoring technology should be used for those who are released on probation. Sex offenders should be offered treatment and/or technology to assist them with not re-offending, as a condition for release.

There are multiple reasons for eliminating excessively harsh sentences.

(a) Very few people will be the same criminal that they were after serving a 10 or 20 year sentence, especially if they are young when convicted. Most people do deserve a second chance.

(b) Excessively harsh sentences do not deter crime, and can provoke it. Excluding wrongful convictions, no prisoner should feel their sentence is unjust.

(c) It is unfair to those who are wrongly convicted – and this will always be a possibility.

(d) Incarceration rates are currently excessive.

2. Educate police, prosecutors and juries on wrongful convictions, and the real danger of convicting someone on weak evidence. Ensure that expert testimony is based on proven science. Jurors should be cautioned NOT to attempt to function as unreliable “human lie detectors”, instead they should focus on the content of witness testimony.

3. Criminal trials should be kept short. If the prosecution has credible evidence, it should be able to make it’s case in two or three days of testimony at most, and very lengthy cross-examination of defendants and defense witnesses should not be allowed.

4. Experts should be required to prepare reports for the jury, and these reports should be subject to anonymous peer-review. Defense attorneys should be able to flag reports for peer review, pre-trial.

The investigation should be DOCUMENTED. That means recording everything  that can be recorded with photographs and videos, especially ALL interviews, the crime scene and the autopsy.

5. Prosecutors should not be allowed to inflame juries, the only task for a jury should be to determine facts.

6. The jury should be given a written summary of the evidence by the judge before considering their verdict.

7. The jury should be required to give a written summary of their reasoning when they return their verdict. They should specify any evidence about which they have doubts, especially if further investigation or information could resolve those doubts.  If necessary the trial should be adjourned to allow such investigations to be completed.

8. Sentencing should be done by judges not juries.

9. Defendants of good character who are convicted on uncertain evidence should be given early parole.

10. Misconduct is a serious issue. I believe absolute immunity for prosecutors from wrongdoing should be removed, and all information and evidence held by the State should be disclosed to defense attorneys. In addition law enforcement ( police, prosecutors and judges ) should NOT be directly elected, as politics and justice do not mix well.

11. The appellate system needs to be functional – to actually right wrongs, ensure that convictions are SAFE – and not just procedurally correct. The standard for appeal should be whether the prosecution case really was objectively proved beyond a reasonable doubt, not simply that the jury returned a guilty verdict.

Discussion Here.


“Decades ago, the UK encountered a similar roadblock to fair policing. A national law, the Police and Criminal Evidence Act of 1984 [PACE], however, subsequently required officers to videotape their interviews, among other provisions.” see A recurring problem in ‘Making A Murderer’ used to be huge in the UK — and the country figured out how to fix it


Dialogue about Science Peer Review in the Courts : Scientific American : Faigman

I very much agree with this idea. Just the possibility of peer review should curtail some of the bogus pseudo-science that can contribute to wrongful convictions.

FORENSICS and LAW in FOCUS @ CSIDDS | News and Trends

This is a “how to do it” from Law Professor David L. Faigman at Hastings of UCBerkeley. He shows an extensive review on where the US courts are on this subject and why they are not always reliable. He has some interesting proposals on “gatekeepers” and experts’ testimony.


“Properly done, peer review nearly always involves some level of anonymous evaluation by scientists actively engaged in similar research. If the law could access a similar system of independent evaluation to assess the methods and principles underlying expert testimony, it would produce a host of benefits.”

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Neuberger: A Scientific rationale lends depth to legal reasoning but vice versa? #Forensics

On the other hand, a legal dispute appears to proceed on an almost reverse basis; a legal case starts with already established laws, which each party applies to a series of facts with a view to creating a hypothesis, which then becomes that party’s case, and the judge then decides which of the two cases she prefers. And the validity of published scientific discoveries can be confirmed or falsified by repeating the published experiments, whereas the best the law can do about judicial decisions is a sort of peer review, namely by way of an appeal to a higher court; and as a recent study in the journal Nature showed, peer review is not always a guarantee of accuracy.

FORENSICS and LAW in FOCUS @ CSIDDS | News and Trends

Image result for royal society

This is a striking personal account recently given by an English legal gentleman before the Royal Society in London. His career spans formal scientific education, initial research experience, and a professional transition to the law. As of this writing he is President of the UK Supreme Court. He is Lord Neuberger.

These lecture notes are his verbatim account of the conceptual/philosophical voyage through the years and gives all of us a valuable view regarding scientific “binary thinking” contrasted with legal “logic” suppositions and moral proclamations.

Here is a quote of modest reflection:

” I believe that my scientific training has been valuable in my career in the law.”

And then he drops the bombshell:

“The explanation, I said, was plain: it is far easier to switch from a more rigorous subject to a less rigorous subject than the reverse.”

The “takeaways” will produce some insight.

Lord Neuberger (Long read)

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Reasoning about probability

There are many ways to approach the thorny issue of “reasonable doubt“.

Jury instructions may give guidance in this way:

“The State has the burden of proving the defendant guilty beyond a reasonable doubt. This means the State must prove each element of each charge beyond a reasonable doubt. In civil cases, it is only necessary to prove that a fact is more likely true than not or that its truth is highly probable. In criminal cases such as this, the State’s proof must be more powerful than that. It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find her guilty. If, on the other hand, you think there is a real possibility that she is not guilty, you must give her the benefit of the doubt and find her not guilty.”

Estimates suggest that about 5% of people convicted and sentenced to death are innocent, meaning juries are regularly making mistakes, thinking a case for guilt has been proved beyond a reasonable doubt when this is not the case.

The reasons for these errors are undoubtedly complex and varied, but here I want to concentrate on fallacious reasoning about probability. Sometimes people talk about “too many coincidences”, when I hear that claim I immediately suspect fallacious reasoning.

How should a jury deliberate? Well, it would be good to reduce that error rate from 5% to a more acceptable rate, let’s say 1 in 1,000. That would be 500 times better than the current rate, and a significant improvement.

So let’s say we will convict if the chance of innocence is less than 0.1%, recognising that we cannot overcome every doubt. To put it another way, the probabilty of guilt should be more than 0.999.

But how can we estimate this probability in a rational way?

One thing to beware of is something known as the “prosecutors fallacy”.


At its heart the fallacy involves assuming that the prior probability of a random match is equal to the probability that the defendant is innocent. For instance, if a perpetrator is known to have the same blood type as a defendant and 10% of the population share that blood type, then to argue on that basis alone that the probability of the defendant being guilty is 90% makes the prosecutor’s fallacy (in a very simple form).

The basic fallacy results from misunderstanding conditional probability and neglecting the prior odds of a defendant being guilty before that evidence was introduced.

In other words, we must look at the “prior odds” of a defendant being guilty.

Let’s take a concrete example, the case of Jodi Arias. This may have looked like a simple case to a casual observer. Travis Alexander’s body was found dead in the shower at his home in June 2008. He had been shot in the head and stabbed repeatedly. Photographs recovered from a camera that was found in the washing machine showed Arias had visited Alexander on 4 June 2008, and pictures taken by the same camera showed Travis in the shower, around 5:30pm and then just a minute later, lying on the flood bleeding. Moreoever blood recovered from the scene contained a mixture of Arias’ DNA and Alexander’s DNA. However Arias when questioned first denied having visited Travis, then when shown the photographs claimed that intruders had appeared and shot and killed Alexander.

Finally she claimed that she had acted in self defence, that Alexander had become angry after she dropped his camera, and he had been shot after he assaulted her, then chased her, and she pointed a gun at him to keep him away ( explaining that she had squeezed the trigger without meaning to ). After he was shot, she claimed to be unable to remember very much about what happened, other than an overwhelming sense of fear.

The prosecution asserted that Arias’ account was untrue, and that Arias had travelled to Mesa with the intention of killing Alexander, evidenced by measures she took to keep the visit secret.

At first sight the defense case seems highly improbable. Why would Arias not have immediately told the police what happened if she acted in self defense? Why would Alexander become violent simply because she dropped his camera? And how if she was defending herself, could she have stabbed Alexander so many times, ultimately slashing his throat? And how could she have almost no memory of what happened after Alexander was shot?

Here there is a danger of what I would call a “lack of imagination”. The universe is full of events that are hard to comprehend, which may seem unusual, paradoxical and unlikely. For example, how did life start? Life is very complex, and it is hard to comprehend how such complex assemblies of atoms could come together by chance.

But we should also consider the prosecution version of events. The prosecution claimed that Arias had concealed her trip to Mesa, and there was circumstantial evidence to support this hypothesis. Travis was shot by a 0.25 caliber bullet, and  a 0.25 caliber gun had been stolen from Arias’ home seven days earlier. Secondly Arias had borrowed two gas cans from a friend, and bought a third gas can, and there was no record of her buying gas while in Arizona. Thirdly, Arias had turned off her mobile phone shortly before entering Arizona, perhaps in an effort to conceal the visit. Finally, when Arias was stopped by a policeman in Salt Lake City the day after Travis was killed, one of her licence plates was upside down, and the other was missing ( it was inside her car ). Could all this evidence of premeditated murder simply be a series of coincidences?

A reasonable person might easily conclude that this is overwhelming evidence of guilt. Firstly Arias’ denials, and secondly circumstances suggesting that she took measures to keep her visit to Mesa secret.

There is one big, massive problem here though. It can be expressed as a single word : why? Why would Arias want Alexander dead, and be prepared to risk ruining her life by being convicted of his murder?

In other words, the “prior odds” mentioned above are massively AGAINST Arias being guilty.

So, now to the question of how we could estimate the probability of guilt in the case, based only on the evidence given above.

There is no real doubt that Arias did kill Alexander. Firstly she testified that she killed him. Secondly her story that intruders appeared at the moment when Alexander was shot is not credible.

But is it possible that she was first attacked by Alexander? If there is a fight between two people, it’s reasonable to suggest that either could have started the fight, from that perspective, the chance that Arias is guilty is only 0.5.

The big issue here though is the improbability, before the evidence is considered, that Arias planned to murder Alexander. Planned murder is a very serious criminal offence, and very rare as well. Looking at women on death row in the United States, or the history of crime, there are almost no cases that could be said to be similar examples, where a woman has planned many days in advance to murder a man for no credible reason.

There was apparently no financial motive – although Arias did owe Alexander some money, it was not a large sum, and few people have even suggested that as a motive. Instead, the suggestion is that Arias may have acted due to feelings of jealousy or rejection. It is not unusual for men to murder women for this reason, especially at the end of a relationship. However cases of women murdering men for this reason seem much more unusual, and there seem to be no precedents for a woman who was not even living with the man at the time, and who had no reason to feel unreasonably rejected, to have embarked on murder.

From this perspective, the likelihood that Arias is guilty of murder planned a week or more ahead is very, very low, perhaps 1 in a million, or even 1 in a billion, perhaps even less, depending on your point of view.

So, the question then becomes, do the apparently improbable suspicious circumstances suggesting Arias concealed her trip to Mesa, combined with the apparent improbability of the defense case,  mean that it is very probable this is premeditated murder?

Let’s be generous to the prosecution here. Firstly, let’s say that the chance of such a suspicious event such as the theft of a gun of the correct caliber from Arias’s home a week before the murder is quite small. Perhaps 1 in 100. There is a problem here, in that the universe of possible “suspicious events” is very large. What if the theft had been two weeks before? That would presumably still be suspicious. What if the theft had been from the house next door, would that be suspicious? This consideration must tend to reduce the weight of this circumstance.

Now what about other circumstances? Well, I suggest that the other circumstances are really not at all conclusive. It is not unusual to switch a mobile phone off to save the battery. Paying for gas with cash is perhaps unusual ( which is what Arias claimed ). However having irregular license plates seems more likely to attract attention than be part of a plan of concealment, and the explanation Arias gave that pranksters were responsible seems more plausible to me.

So let’s take stock. Taking a view favorable to the defence:

Arias’ final story is in fact quite possible, with some imagination.

Likelihood that Arias planned the murder a week in advance for some very unusual reason : 1 in a billion.

Likelihood that the gun theft and other circumstances are just coincidences : 1 in a thousand.

Likelihood that Arias is guilty : only 1 in a thousand. Not nearly enough for a conviction.

Of course this process has been massively subjective. It is a matter of opinion how improbable the circumstances are, how improbable the defense case is, or how improbable it is that Arias is capable of premeditated murder planned a week in advance.

This is not the end of the matter though. There is a lot of evidence that has not yet been taken into account. The purpose of this article was to show the danger of believing the “too many coincidences” argument. We must not consider only circumstances that make the prosecution case seem likely, the general improbability of the prosecution case must also be taken into account.

I believe this is where juries mostly go wrong. There are numerous examples of defendants being convicted in spite of having a solid alibi. Many juries seem blind to exculpatory evidence or circumstances, and perhaps do not understand the idea of prior odds.

[ Please see here for a much more complete description of the evidence in this case ]

See also How juries are fooled by statistics a TED talk by Peter Donnelly.

Trapped with Ms. Arias

This blog is some observations about Kirk Nurmi’s performance as a lawyer for Jodi Arias, in light of some of the information he discloses about the pre-trial preparations in the first of three books about the case.

Although being a self-published book, presumably written without the aid of a professional editor, the first thing to say is I found the book to be very readable and engaging. Kirk explains his view of the law, the case and his feelings about Jodi Arias with great clarity. For anyone interested in the case, I would say this book is a “must-buy”.

I would also say this is a very honest book. It pulls no punches in making it very clear that Nurmi, before the trial began, did not like Jodi Arias and did not wish to represent her at trial.

There is a lot of fascinating information in the book, much of it new. For example we learn that the first domestic violence expert could not testify due to illness.

I have no criticism of the analysis Nurmi makes about the relationship between Jodi and Travis Alexander. I also agree with his assessment of the State’s professional witnesses. He observes that DeMarte was inexperienced, Flores was evasive, and suggests Dr Horn’s change of theory was suspicious. In addition Melendez was not a true expert, only having minimal training in the operation of Encase.

Now to some criticisms. I have to say Nurmi shows a lack of empathy. Of course an attorney must maintain some distance from his client, but by his own account he had a very poor relationship with both Jodi and her mother. He indicates he was unable to communicate effectively with Jodi at meetings, failing to adapt to any shortcomings she had.

He also jumps to early conclusions. For example he deduces from Jodi’s booking photo that she is mentally ill. According to my sources, the truth of the matter is that when the photo was taken, it was suggested to Jodi that she looked miserable, and so she smiled for the camera.

More seriously, he seems to assume that Jodi and not Travis was the aggressor in the fight that happened on June 4, 2008. I believe this mistaken belief meant that he did not closely examine the evidence at the scene to determine if it could be used to argue that Travis was in fact the aggressor.

He also failed to anticipate that the case would hinge on Jodi’s testimony concerning the gas cans, and failed to obtain evidence that would corroborate her testimony.

Ultimately I believe these failures contributed to Jodi’s wrongful conviction, but on the positive side, I also believe that the State’s case is utterly false, and Jodi should and will win a new trial.

I look forward to parts two and three.

Discussion here.

See also Raising the bar – but certainly not in Arizona by Lise LaSalle.




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