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Jeffrey Toobin: Peterson prosecutors keep death penalty option

CNN legal analyst Jeffrey Toobin
CNN legal analyst Jeffrey Toobin

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Scott Peterson is awaiting his formal arraignment on charges of killing his wife and unborn child. CNN's David Mattingly reports. (April 21)
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California Attorney General Bill Lockyer says two bodies found alongside San Francisco Bay are those of the missing woman and her unborn child (April 18)
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CNN) -- Scott Peterson was charged Monday with two counts of murder in the deaths of his wife, Laci, and their unborn son.

CNN legal analyst Jeffrey Toobin discussed the double homicide charges and the unusual legal scenario it could create.

CNN: Explain the special circumstances classification. What does that mean?

TOOBIN: Well, this is a little tricky. The classification of special circumstances makes it worse, under California law, than a regular murder charge. And the special circumstances in this case are a double murder charge.

Subsequently, the penalties can be more severe. Special circumstances under California law allow prosecutors to [seek] the death penalty if they choose. But even if they don't, Peterson could face more jail time if he were to be convicted because it's two murders, not just one.

CNN: Legally, how do you file such charges when the baby had not been born yet?

TOOBIN: Well, what's so unusual about this case is that they are charging two separate murders, it looks like, and California is one of a handful of states that makes murder of a fetus a separate crime from murder of the mother.

As you can imagine, that law has been very much caught up in abortion politics, and the disputes over those laws have been caught up in abortion politics because it goes to the question of [whether] a fetus [is] a person, which of course, is a relevant question in abortion, as well. Those laws have been pushed by the anti-abortion movement.

CNN: Has such a case -- a murder case involving a fetus -- been challenged in California before?

TOOBIN: The California Supreme Court has not settled this. Prosecutors are saying that this [case], they believe, is a double homicide, the murder of Laci Peterson and of her unborn child. That directly implicates that law. ... It will meet a legal test of that law it hasn't had yet.

CNN: Some of the circumstances surrounding the arrest of Scott Peterson -- the timing coinciding not just with the bodies washing ashore but also the DNA match.

TOOBIN: It is a peculiar timing thing given what the police have said. They feel they have this very strong case but didn't arrest Scott Peterson for months and months. It seems they are going to make [something] of the issue of possible flight.

He was arrested with this very transformed appearance, apparently with his brother's travel documents and perhaps with $10,000 in cash, all suggesting he might be trying to flee the country. That transformed appearance seems to be one reason why they decided to pull the trigger on the arrest.

CNN: And then on the indictment issue, do you go for a grand jury or do you go for a preliminary hearing?

TOOBIN: You know, I don't know what the prosecutors are going to do. I don't think in either case they will have any trouble getting ... the charges brought forward. In California and in any other state, they never lose in front of a grand jury. They never lose in front of a preliminary hearing.

If you want to keep your evidence more secret, you use a grand jury. This has been a fairly tightly held investigation. My guess is they don't want to expose any more evidence than they have to. That might suggest using a grand jury instead of a preliminary hearing, which of course is public.

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