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The Changing Tide in the Defense Of Scott Peterson:
Why Doubt About His Guilt Is Seeming More and More Reasonable


Tuesday, Jun. 10, 2003

Barely two months ago, bailiffs marched so-called "monster in chains" Scott Peterson before a Modesto judge for arraignment on charges for the double murder of his wife, Laci, and unborn son, Conner. In the court of public opinion, Scott Peterson's guilt was a forgone conclusion.

The crowd outside the Stanislaus County Courthouse then was eerily reminiscent of a time in our history when angry townspeople gathered in the village square to mete out justice with stones and pitchforks. Piercing shouts of "Murderer!" could plainly be heard.

Last week, however, as defense attorneys and prosecutors headed back to court to argue motions, the tide of public opinion seemed to shift. The "monster in chains" had transformed into a clean-cut chap in a two piece suit. And press reports concerning information in the autopsy reports for Laci and her child had raised doubts in the minds of many.

Outside the courthouse were curious, quiet onlookers - many of whom were slowly starting to ponder not how Scott Peterson had committed such a heinous crime, but rather, had he indeed committed it in the first place?

The doubt in the public mind made the outcome of the motions at issue - one of which sought to unseal the very autopsy reports that had apparently been partially leaked - seem all the more momentous.

So far, as I will explain, all the rulings have been favorable to the defense. That suggests again - just as the leaked autopsy evidence did - that this will be a decidedly two-sided trial, not the walkover prosecutors had envisioned.

Meanwhile, there have been some dramatic new developments: Famed attorney Gloria Allred has appeared on behalf of Amber Frey. (Frey, as those who have followed the case will know, is the woman with whom Scott was cheating on Laci, and who says he told her he was single.) And members of Laci's family have reportedly moved her possessions out of the house she shared with Scott. I will also explain the likely legal consequences, if any, of these events.

The Controversy Over the Sealing of the Autopsy Results

Originally, prosecution and defense had agreed that the autopsy reports should remain sealed. But once the leak occurred, prosecutors - who blamed the leak on the defense, but did not provide evidence to support their suspicions - changed their mind, and sought to unseal the report on Conner Peterson.

Prosecutors argued that the leak had been a calculated defense tactic meant to bolster a recent theory that a malevolent third-party - perhaps affiliated with a "satanic cult" - committed the killings. The defense continued to support the sealing order, however, and Judge Girolami declined to lift it.

Autopsy findings are normally a matter of public record. However, a provision of California's Evidence Code allows the judge to keep the autopsy reports private. The provision states, in part, that disclosure of "official information" may be shielded from public consumption if there is a "necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice . . . ."

Defense counsel argued - successfully so - that disclosure of the autopsy findings could affect the arrest of the "real killers" who, according to the defense, "are still out there."

Thus, for now, the status quo will continue. However, the public probably won't have to wait long to hear the full contents of the reports. On July 16, the preliminary hearing in this matter is set to occur. I, for one, am willing to bet the Modesto medical examiner will be one of the first faces we see on the witness stand.

Remember, prosecutors will need to prove Laci's death resulted from a criminal act - rather then being an accident. The cause of death for both victims reportedly remains undetermined. However, the medical examiner has classified the manner of Laci's death as a homicide - giving prosecutors the crucial "criminal act" proof they need. (Reportedly, no manner of death has been designated for baby Conner.)

The Judge Has Declined to Rule on the Gag Order Request Until a Later Time

Prosecutors have sought a gag order preventing the parties' attorneys from discussing the Peterson case. The defense has opposed such an order. Neither party's position is a surprise. After all, what good will it do Scott Peterson to have retained a media-savvy lawyer like Mark Geragos if he isn't allowed to be, well, media savvy?

The prosecution says they have sought a "limited" gag order, but it's not clear exactly what the limits would be. In any event, the judge has refused to put a lid on the leaks just yet - reserving his ruling on this issue for an undisclosed future date.

He was probably wise to do so. Gag orders in cases like these tend to be utterly unenforceable anyway, and thus only to underline the court's ineffectuality in this respect.

That is not - as the prosecution has suggested - because defense attorneys act in bad faith. Rather, it's because the huge press appetite for information in notorious cases like this one - with tabloids paying big money for scoops - creates strong incentives for anyone who's seen the evidence to leak. And how many people, at different levels of authority, likely had access to this autopsy report before it was sealed? It's a losing battle.

Wiretap Evidence: The Judge's Ruling May Turn Out to Be a Bombshell

Thus, the defense achieved two of its goals, at least for now: to seal the autopsy report, and to resist a gag order. The defense also had another goal: It sought evidence as to the government's wiretaps of Scott Peterson's telephone calls. It achieved that one, too. The court ordered all recordings, except those between Scott Peterson and journalists, to be turned over to defense counsel.

If it is proven that police continued to listen in on these calls even when it was plain that there were protected by the privilege, that would be very serious indeed. A variety of possible sanctions would then be available to the judge.

It goes without saying that prosecutors should not be able to use privileged conversations as evidence in court. But the judge could also go further, to punish the misconduct.

He might for instance, suppress all of the wiretap evidence. Or he might prevent anyone with knowledge of the privileged conversations - or anyone involved in listening in - from testifying.

Indeed, he might even go so far as to disqualify the district attorney from prosecuting the case if the misconduct was grave. For instance, if there was an intentional - rather than merely mistaken or negligent - decision to ignore the attorney-client privilege, and especially if that decision was approved by higher-ups, a strong sanction could be appropriate.

The hearing on this issue will take place on June 26.

Gloria Allred Has Joined the Fray, for Frey

Just when you thought the most talked-about witness in this double-homicide, death penalty case could use a makeover, in walks Gloria Allred, representing Amber Frey.

Frey's image was tainted when she was initially pegged as the "other woman." Then it was purified when it became clear she probably did not know Scott was married when they were involved. But then, in the eyes of some, it was tainted again, when news reports this week mentioned her having posed - sans either pants or taste - in 1999 for a nudie magazine.

Gloria Allred has professed her dedication to protecting the reputation and character of this much-anticipated witness for the State. Under the circumstances, Allred may have the toughest job of all.

At Peterson's trial, Allred will be relegated to the cheap seats in the gallery like the rest of the spectators, but may be permitted to sit adjacent to the witness stand while Frey is testifying. Moreover, in the unlikely event that any questions to Frey did get into areas implicating her Fifth Amendment right against self-incrimination, Allred could counsel her on whether to invoke that right.

The Rochas' Decision to Take Property from Peterson Home

Finally, one last legal issue has arisen - though so far, it hasn't generally been seen as one.

One week prior to the hearing, Laci's family, together with a few friends, descended upon the Modesto home Scott shared with Laci before her death. With neither permission nor legal justification, they removed truckloads of property - furniture, clothing, jewelry, even the salt and pepper shakers - and drove it away. Television cameras captured nearly the entire event on tape.

The property apparently belonged to Scott Peterson, as his wife's heir. Thus, the Rochas' and their friends' actions constituted both trespassing and theft. Indeed, this was technically a textbook residential burglary - which is a felony in California.

Sympathy aside, crime victims do not gain the right to break the law by virtue of their misfortune. The Rochas had no more right to take items from the Peterson home than they had, for example, to rob the local bank.

Far worse than the actions themselves, is their impact on the trial. It is virtually impossible to determine to what extent the Rochas' actions may interfere with Scott Peterson's defense. After all, the prosecution claims Laci's murder occurred inside the Modesto home.

Police had their opportunity to investigate the so-called crime scene. But Mark Geragos and his investigators have not fully completed their own investigation. Now, they may never be able to.

The loss of that chance is all the more significant because police have seemingly focused on Scott Peterson as their sole suspect. Yet they have come up with little, if any, forensic evidence indicating his guilt. Might the house have contained evidence someone else was guilty?

Sadly, the Rochas' actions not only were illegal, but also may have seriously hurt the defense case - and hurt Scott's right to a fair trial in the process.

Of course, nobody wants to see the Rochas behind bars. They are victims and, as such, deserve our compassion and respect. Accordingly, the best remedy may not be to punish the Rochas, but rather to sanction the prosecutors and police who did not intervene to stop them. Law enforcement had a duty to uphold the law. In this it failed - willfully.

While Justice may indeed be blind, it does not mean prosecutors should turn a blind eye to obvious wrongdoing. That's known as "willful blindness," and it's anything but just. Let us not forget there is a man who has yet to be convicted who is sitting in a cell - ostensibly on his way to death row. He too, deserves justice.

The solution? The Stanislaus County District Attorney's office should be disqualified from prosecuting the case against Scott Peterson. In accordance with the California Penal Code, the defense may move to recuse the prosecutor when there is a conflict of interest that is likely to prevent the defendant from receiving a fair trial.

As noted above, there may already good reason to disqualify this D.A.'s office based on its alleged misconduct in taping attorney-client privileged conversations. Perhaps those allegations, along with the apparent decision not to preserve the integrity of the alleged crime scene, will result in disqualification. It would certainly be fairer if these prosecutors - apparently out to get Peterson, come hell or high water - did not try this case.

Why the Tide of Public Opinion Is Dramatically Shifting in the Peterson Case

To what does Scott Peterson owe the changing tide of public opinion? One reason, perhaps, is the fact that prosecutors have produced little evidence to support their theory of the case.

If Scott had really killed Laci in their home, driven her body out to the Bay, rowed it out to deep water, and dumped it there - as the prosecution apparently is suggesting - then there would probably be a wealth of forensic evidence in their Modesto house and in his truck. In fact, there seems to be little to none, although there are some unconfirmed rumors.

That lack of evidence seems to suggest that Laci might have been kidnapped while walking her dog, and killed elsewhere, by strangers - with the evidence remaining, still undiscovered, at another site. After all, why else was the dog wandering the neighborhood with a muddy leash, to be discovered by a neighbor, about an hour after Laci was seen walking it?

Mark Geragos, of course, is another reason for the shift in public opinion. He's turned a case that was seen as a "slam dunk" for prosecutors into a far closer contest than anyone might have imagined. For now, at least, Scott Peterson's defense strategy - walk softly and carry a big lawyer - is proving successful.

Jonna M. Spilbor is a frequent guest commentator on Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.

Spilbor's earlier columns on the Peterson case may be found in this site's guest column archive.

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