Cook defense team loses a round in courtroom

During the penalty phase of the trial, prosecutors will argue for the death penalty by trying to demonstrate to the jury that Cook has a long history of violence, according to Deputy District Attorney Steve Wagstaffe. The defense will try to show mitigating factors of Cook's behavior.

The Eighth Amendment frees the defense from having to disclose ahead of time what argument it will use. But ultimately Cook's attorneys will try to show some human elements of Cook's character that will cause the jury to conclude that his life is not entirely without merit.

Yesterday, both sides were in court as defense attorney Richard Keyes attempted to suppress evidence about several prior convictions. Keyes made numerous objections ranging from insufficient evidence to requesting that a new jury be used during the penalty phase of the case.

Keyes' objections were, however, denied almost entirely by Kozloski. "Kozloski ruled overwhelmingly in favor of the prosecution," said Wagstaffe.

Consequently the jury will hear witness testimony about an aggravated battery charge in '72 where Cook was found to be responsible for the death of a Chicago drug dealer. Henry Holmes was found shot to death in his apartment with a revolver on his person and a shotgun near the man's body. According to prosecuting attorney Susan Etizati, the fact that Holmes had firearms on his person at the time of his death created mitigating factors that resulted in the court's acceptance of the aggravated battery charge.

However, the fact that he was not convicted of murder does not preclude Cook's behavior from being admissible.

Keyes and Etizati argued tooth-and-nail about the nature of intent and how that plays into what arguments, evidence and testimony will be heard by the jury.

Another case that brought the idea of intent to the surface was an '81 voluntary manslaughter conviction in which Cook was found responsible for the death of his own brother, Michael Cook. Prosecutor's will be flying Michael Cook's girlfriend in from Chicago as an eyewitness. Bobbi Brown, according to attorneys present, will apparently testify that she saw Carleton Cook pull a gun on his brother and discharge the weapon which resulted in the death of Michael Cook.

And finally, perhaps the most damaging evidence to be presented is the testimony of a San Francisco woman whom Cook was found guilty of assaulting. The felonious assault left the woman with long-term medical problems and jurors will be allowed to hear the woman's own personal testimony of how the assault has affected her life.

Kozloski did put some limitations on how detailed the woman's testimony will be. Kozloski stated the witness will be instructed to concentrate on the consequences of the crime. The woman's doctor will also be called in as a witness for the prosecution.

Etizati estimated yesterday the state's case will rest by Jan. 22.

However, Keyes has already stated that he plans to appeal the guilty verdict to the state Supreme Court. Cook's verdict was rendered during the course of some irregularity that resulted in the removal of one juror.

The jury had reportedly reached an impasse and sent a note to the judge stating that it was incapable of coming up with a verdict. The jury foreperson told the court that the juror in question refused to deliberate the case. But when he was interviewed the juror stated that was not the case.

Kozloski opted to remove the juror, which almost automatically opens the case up for appeal, according to Wagstaffe. Wagstaffe would not comment on how successful he imagines the appeal attempt will be. But he did say that the fact that they are appealing the verdict does not at all surprise him. And the fact that it is a capital case mandates that the appeal be heard by the state Supreme Court.

Cook's capital case is the sixth in the last decade in which county prosecution has sought the death penalty, according to Wagstaffe. The latest case was tried in 1999 against then 21-year-old John Miller. Miller was convicted of beating the caretaker of a woman he knew in Atherton to death while he robbed her house. The jury, however, did not grant the death penalty request and instead sentenced Miller to life imprisonment.

In 1994, juries in the county sentenced three convicted murderers to execution, including the first woman ever -- Celeste Carrington -- who murdered two people during burglaries of businesses in Palo Alto and San Carlos. He also shot an employee in the leg at a doctor's office in Redwood City, according to Wagstaffe.

Philip Jablonski was also sentenced to death in 1999 for killing a mother and daughter, the younger of whom corresponded with him while he was in prison for a previous murder.

And then-19-year-old Walter Cook was sentenced to death for murdering three people in the early 1990s during drug transactions.

None of those sentenced to the death penalty have yet been executed, according to Wagstaffe. They are all currently on death row in the high-security prison of San Quentin in San Rafael. Cook faces a similar fate if convicted of both murder and robbery counts.

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