Tuesday, December 14, 2004

State v. Peterson on appeal

First, I like Bashman's take on media idiocy over the Peterson sentencing jury recommendation: "I recall recently having heard a legal commentator remark on television that a death sentence might be good news for Peterson because it would increase the likelihood of reversal on appeal. Of course, on the other hand, it would also be bad news, in the sense that it increases the chance Peterson would be put to death by the State of California for having committed the crime of murder."

But, on a subject that could produce more conversation, I must first ask mouldfan's help with California law. (Beats looking it up myself.) My understanding is that Peterson was eligible for the death penalty because of the multiple victims: wife and unborn son. Is that right?

If that is correct, then his appeal could squarely present the issue of whether the state can criminalize the murder of a fetus by someone other than his mother and her abortionist. Now even pro-lifers should admit that there are obvious differences between a crime committed against a pregnant woman (yielding two victims) and your run-of-the-mill abortion. But how would the issue be presented? Would the argument be that Roe limits the kind of victim that could qualify as a "homicide"? That sounds like more of a common law argument (homicide being the killing of a human being by a human being), with Roe more in the background. Thoughts?


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