DA won't seek death even if Scott Peterson gets new trial

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California Department of Corrections and Rehabilitation

FILE - This May 11, 2018, file photo, provided by the California Department of Corrections and Rehabilitation shows Scott Peterson. California prosecutors said Tuesday, June 1, 2021, that they won't again seek the death penalty against Sctt Peterson in the 2002 slaying of his pregnant wife even if he is granted a new trial based on juror misconduct. (California Department of Corrections and Rehabilitation via AP, File)

SACRAMENTO, Calif. – California prosecutors said Tuesday that they won't again seek the death penalty against Scott Peterson in the 2002 slaying of his pregnant wife even if he is granted a new trial based on juror misconduct.

But even that declaration wasn't enough to entirely take a death sentence off the table, Superior Court Judge Anne-Christine Massullo said.

“Laws change, district attorneys change,” she said. “I want to make sure that we do this right.”

Massullo is considering when to resentence Peterson to life without parole after Stanislaus County District Attorney Birgit Fladager said in a court filing Friday that she would not seek to retry the death penalty portion of the case after it was overturned by the state Supreme Court in August.

“From the legal point of view — I hate using this term — it’s a done deal,” Chief Deputy District Attorney Dave Harris told the judge during what was otherwise an unresolved procedural hearing over who will represent Peterson. "He's no longer eligible to be housed on death row. He’s not going to be subjected to the death penalty.”

As a legal matter, “it would be a violation for us to ‘up’ that punishment” once Peterson is re-sentenced to life in prison, Harris said. "That can’t be changed once it’s relied upon by the other side.”

But Massullo is also considering if Peterson should get an entire new trial because of juror misconduct.

One of Peterson's defense attorneys, Pat Harris, said that from his legal research it appears prosecutors could again seek the death penalty if they have to retry the entire case, because a new trial “would send it right back to square one.”