Defense attorneys will ask Superior Court Judge Richard Huffman to postpone sentencing today of convicted murderer Craig Peyer while they appeal the judge's earlier ruling that a reporter could refuse to answer questions about polygraph test results leaked to a newspaper in the trial.
"A continuance would present no hardship to anybody except to our client," said Diane Campbell, one of two attorneys who represented Peyer during his two trials.
On Monday, Huffman ruled that San Diego Union reporter Jim Okerblom could not be held in contempt for refusing to answer 12 questions posed by Campbell during a hearing. Campbell and Robert Grimes, Peyer's other defense attorney, asked for the hearing in order to find out who leaked the test results to the newspaper during the second trial.
According to a story printed in the Union during jury selection, Peyer was given a series of polygraph tests before his arrest. The story said that experts who reviewed the results concluded that Peyer was "attempting deception" when he answered questions about the death of Cara Knott.
Okerblom, citing the California Shield Law, which protects reporters against having to divulge in court the identity of their confidential sources, refused to answer most of the questions posed by Campbell during Monday's hearing, despite orders from Huffman to do so.
Campbell asked Huffman to find Okerblom in contempt, but Huffman ruled that the Shield Law protected him. The judge also added that the leaked information did not prejudice Peyer's right to a fair trial.
On Tuesday, Campbell said Huffman erred in that ruling and that the defense team wants to appeal the judge's refusal to hold Okerblom in contempt. The appeal would be filed with the 4th District Court of Appeal.
The leaked polygraph results are also the basis of an appeal by the attorneys for a new trial for Peyer. In their appeal, which was filed with Huffman, they charged that someone in the Police Department or district attorney's office deliberately leaked the test results in order to improve the prosecution's chances of convicting Peyer.
Huffman is expected to rule on the appeal for a new trial and an appeal to reduce the conviction to second-degree murder before he sentences Peyer. Peyer, a 13-year veteran of the California Highway Patrol, is expected to receive a sentence of 25 years to life in prison.
"The continuance relates directly to our motion for a new trial," Campbell said. "We have indicated that, if the report was released by someone on the prosecution team, that would amount to outrageous governmental conduct."
In order to prove prosecutorial misconduct, the defense attorneys must question Okerblom about the origin of the leaked documents, she said.
Peyer, 38, was convicted in June of killing Knott, 20, on Dec. 27, 1986. Knott, a San Diego State University student, was strangled near the Mercy Road off-ramp of Interstate 15, and her body was thrown 65 feet into a dry creek bed. Peyer's first trial ended in a jury deadlocked 7 to 5 for conviction.