A three-judge panel of the 1st District Court of Appeals in San Francisco refused to intervene in a petition filed hours earlier by attorney Mark Geragos.
On Monday, Judge Alfred A. Delucchi denied Geragos' motion seeking a new jury in San Mateo County or a new jury somewhere else to decide whether Peterson should be sentenced to death or life in prison without parole.
After a five-month trial, Peterson, 32, was convicted Nov. 12 of one count of first-degree murder in the death of his eight-months pregnant wife, Laci, and one count of second-degree murder for the death of her fetus.
Geragos wanted the high court to decide that Delucchi erred in his ruling, to order the penalty phase moved to another county and to seat a new jury, claiming that, among other things, the jury that found Peterson guilty is now tainted by public opinion.
Geragos cited a frenzied mob who cheered outside the courthouse as the guilty verdicts were read.
A three-judge panel of the apppeals court refused to intervene, issuing its denial within hours of the filing. Geragos can now appeal any sentence to same high court. The defense lawyer is expected to seek intervention from the state Supreme Court this week on his request for a delay.
Geragos also claimed Delucchi wrongly sent jurors home after they reached a verdict instead of keeping the panel sequestered through the penalty phase.
Daniel Horowitz, a criminal defense attorney and regular Peterson trial observer, predicted the appeals court would not intervene, adding that the move is standard strategy in a death penalty case. Defense attorneys often seek to insert as much time as possible between a guilty verdict and a penalty phase to allow for jurors' emotions to subside.
Geragos also cited the ousting of two jurors in two days during deliberations, noting that one, the jury's foreman, told the judge there had been threats to his safety and talk in the jury room of the "popular verdict, the expected verdict." Both ex-jurors remain bound by a gag order.
Geragos said the foreman asked to be removed because other jurors had become hostile to him and felt his decision would be compromised, according to the defense motion for a new jury filed last week.
"When I took the oath, I understood it to mean that I needed to be able to weigh both sides fairly, openly," Gregory Jackson told the judge before being removed, according to the defense motion. "And given what's transpired, my individual ability to do that, I think, has been compromised to a degree that I would never know personally whether or not I was giving the community's verdict, the popular verdict, the expected verdict, the verdict that might, I don't know, produce the best book."
Jurors apparently became angered at Jackson's performance after electing him foreman. His replacement, an easygoing firefighter, told the court that Jackson, a lawyer and medical doctor, "wanted to talk more than other people, and he tends to take a very long time," according to the defense motion.
In response, prosecutors said Geragos' filing neglects to mention that Jackson "completely retracted his claim" he was pressured by other jurors when he was questioned by the judge.
The other juror was removed after she did her own research on the case, disobeying the judge's orders to consider only the evidence presented at the trial, according to the defense motion.
In denying the defense motions for a new jury and a move to another county, Delucchi called the case "a problem without a solution," given the intense media coverage around the country.
But Geragos claimed the judge erred by not questioning each juror on the panel before dismissing its foreman.
"There's no requirement that Delucchi talk to every juror," Horowitz said, adding that Geragos presented no evidence that other jurors also felt public pressure.
"There's a tradition in America to keep judges' noses out of the jury room," Horowitz said. "You can't make chicken out of fish. There's nothing in this writ that would ever get him any relief. Delucchi went by the book."
Horowitz said Geragos is likely laying the foundation for an appeal and may have investigators question jurors after sentencing.
"If he finds there was major misconduct or outside pressures that affected the verdict, then he could get a reversal," Horowitz said.
Loyola Law School professor Laurie Levenson said Geragos raised "substantial issues ... but courts are reluctant to interfere in the middle of a trial."
Even with the appeals court denial, Levenson said, "it doesn't mean this isn't a decent issue for appeal. It just means this isn't the right time to raise the issue."
By Brian Skoloff