First of all, it's not that unusual any more for a defendant to deny guilt and then have to face the jury in the penalty phase. The penalty phase should be as much about showing there is value to the defendant's life as it is about punishment and victim impact evidence.
Often, there are two teams of lawyers in a criminal case in which death is an option, one for the guilt phase and one for the penalty case. I would expect that Geragos has had mitigation experts and death penalty counsel advising him from the beginning. If he believes his credibility has been reduced in the eyes of the jury, you will see his co-counsel Pat Harris take the lead in the penalty phase. You may even see a new lawyer, or a former lawyer, or a lawyer who was at trial most days sitting in the defense section but not at counsel table, take on a prominent role.
Guilt appears to be a given for this jury. Considering its deliberation history--impeaching the foreman who wanted to thoroughly review the evidence and returning a guilty verdict less than a day after beginning deliberations anew with a new juror and foreman -- arguing lingering doubt doesn't seem to have a great chance of success, but it has to be done.
This was a circumstantial case with no cause of death, no time of death, no identifiable crime scene, no murder weapon and no eyewitnesses. Jurors might think they know what happened, but they will probably acknowledge they are not 100% certain and some doubt remains. That should tip the scale in favor of a life sentence.
The victim impact evidence, which I find incredibly prejudicial and unfair due to its inevitable tendency to inflame the emotions of the jurors, has been ruled admissible by the Supreme Court. There's no point in fighting that stuff, you just hope it goes quickly. The best cross examination for Laci's mother and relatives probably is no cross at all. "No questions." Make them run through the witnesses as quickly as possible. Let the jury know you acknowledge their grief and suffering in opening and closing argument.
A "day in the life" video that humanizes Scott would be helpful--showing him as a little boy, as an adoring son, as someone who helped others. In addition to family members, I would expect to see his former teachers, golf coaches, neighbors and friends take the stand, all with a story of something unselfish Scott did.
Other helpful arguments to make to the jury are Scott's lack of prior criminal history; his youth (age 30); and the non-likelihood of him committing future violent crimes.
Another strategy might be to convince the jury that a life sentence in San Quentin will be such a living hell that it is a greater punishment than the death penalty. It would also make Scott Peterson live with the death of Laci and the non-birth of their expected child every day for the rest of his life. Life without parole is a death sentence. Either way, you come out of prison in a box--it's just a question of when.
I believe this jury will sentence Peterson to life. I think they signalled this when they came back with murder two instead of murder one on the expected child. He did a terrible thing, they seem to have been saying, but he's not a total monster.
"Having an affair on your pregnant wife may make you a social pariah and even a murderer," Kreitzberg said. "But of all the people who commit first- degree murder with special circumstances there are only a few for which the death penalty should apply."
In the end, Scott Peterson is no Jeffrey Dahmer, no Ted Bundy, no serial killer. The death penalty should be reserved for the worst of the worst. That's just not Scott Peterson.
The jury must be unanimous in voting for death in order for a death sentence to be imposed. A deadlock means a life sentence. In fact, just one juror holding out for life means Scott Peterson will get a life sentence. If the defense team or its jury expert can identify such a juror, and makes sure that juror is engaged in its presentation during the penalty phase, it could carry the day.
