In early December, Peterson told Amber Frey he had "lost" his wife. Of all the lies he told her, "that one is the strongest piece of evidence," says McGeorge School of Lawprofessor Ruth Jones. Photo by: PAUL SAKUMA / AP / POOL |
So how might the jury begin to sift through the mountain of evidence? If Geragos has one clear edge it is California's rules for jury instruction in such cases, which gives the defense almost every benefit of the doubt. The rule is that if jurors are presented with a piece of evidence that can be reasonably interpreted in two ways – one that points to guilt and one that tilts toward innocence – they are obliged to accept the argument for innocence. That holds true, says Goldman, "even if the one pointing to guilt is far more reasonable and probable and likely." During his cross-examinations of prosecution witnesses, Geragos did an impressive job of punching holes, even if they were often small ones, in the government's scenarios. "But the biggest challenge for the defense," says Prof. Ruth Jones of McGeorge School of Law in Sacramento, "will be that at some point the jury will say, 'Yeah, you can explain away a few of these things, but there are just so many little things that don't make sense."
That raises what is perhaps a deeper issue for the defense: the Scott problem. All along public opinion polls have shown that an overwhelming majority of those surveyed believe that Peterson killed his wife. If the jurors share this opinion, the issue is whether they will let their gut feelings carry them over the hump of reasonable doubt to a guilty verdict. As the analysts are quick to point out, "beyond a reasonable doubt" doesn't mean no doubt at all. "It leaves open the possibility that someone else
could have done it," says Alamo, Calif., jury consultant Dr. Joseph Rice. "But the evidence doesn't point to anyone but the defendant, so therefore it's unreasonable to think somebody else did do it."
