- The Washington Times - Wednesday, April 23, 2003

California has been able to take the first steps in a capital-murder prosecution in Laci Peterson's killing because it is among 29 states where intentional killing of a fetus is murder, with an exception for abortions.
Prosecutors of husband Scott Peterson, 30, assumed a heavier burden when they formally filed the charges that could send him to the injection gurney.
If Stanislaus County District Attorney James Brazelton follows through, as he said yesterday was likely, Mr. Peterson's trial would be the first ever in which a death sentence was at stake for the death of a fetus, according to San Antonio lawyer Denise Burke, staff counsel of Americans United for Life.
Although Mr. Brazelton said he will not decide whether to seek Mr. Peterson's execution until a May 19 preliminary hearing, he began the process Monday when he charged the "special circumstance" of multiple murder. That charge elevates the maximum punishment to death.
"I think just the nature of the crime itself is pretty heavy on the side of proceeding as a death-penalty case," Mr. Brazelton said in a CNN interview yesterday.
In separate counts, Mr. Brazelton accused Mr. Peterson of "deliberately and with premeditation" murdering his pregnant wife, 27, and their unborn child, "Baby Conner Peterson, a fetus." The charging documents did not specify a weapon or cause of death.
The district attorney also contradicted state Attorney General Bill Lockyer by saying that no murder prosecution is a "slam dunk." Mr. Lockyer's office said yesterday that his "slam dunk" remark was limited to factors involving DNA from skeletal remains of the two decomposing bodies found in Richmond, Calif., April 13 and April 14 on rocks above the high-tide marks of San Francisco Bay 100 miles from the couple's Modesto home.
Mr. Peterson, a fertilizer salesman, was held without bail at Monday's arraignment after pleading not guilty to double murder and separately pleading not guilty to acting "intentionally, deliberately and with premeditation."
Conviction of first-degree murder of Laci Peterson alone would carry a sentence of anywhere from 25 years to life without parole. Because she was about eight months pregnant, a separate law banning intentional injuring or killing in a way that terminates a pregnancy would add five years to the base sentence. That sentencing-enhancement charge also was filed against Mr. Peterson.
Authorities first said they believed the killing occurred Christmas Eve at the Peterson home, but the formal charges were less specific, saying it occurred in Stanislaus County on Dec. 23 or 24.
Mr. Peterson said he saw his wife leave the house to walk the dog on the morning of Dec. 24. He said he spent that evening fishing at Berkeley Marina, some three miles from the Point Isabel Regional Shoreline, where her body would be found almost four months later. Mrs. Peterson's stepfather reported her missing.
In 1973, California expanded its 1872 murder law known as Section 187(a) by adding the words "or a fetus" to say: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."
Neither Maryland, Virginia nor the District has aligned its laws with those of the 29 states in which killing a fetus is murder, Miss Burke said yesterday.
"Bills were introduced at the most recent sessions in both Maryland and Virginia, but they appeared not even to have gotten a committee hearing," she said from her office in Texas, which also does not have such a law.
Miss Burke said she researched the subject of murder prosecutions involving fetuses and found "none that I'm aware of" in which the death penalty was sought.
"In 21 other states, even though two bodies washed up on shore, a murderer would be prosecuted for killing only one of them, and not charge murder of the unborn child and seek justice on behalf of that child," she said.
In 1974, California courts ruled that a prosecutor need not prove the killer intended to kill both the mother and fetus. In its People v. Carlson decision one year after the state outlawed fetal murder, the California Supreme Court said the concept of "transferred intent" covered both deaths.
"The doctrine of 'transferred intent' applies even though the original object of the assault is killed as well as the person whose death was the accidental or the unintended result of the intent to kill the former," the 1974 ruling said.



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