The Changing Tide in the Defense Of Scott Peterson:

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

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.

According to reports, the baby's body was found with a knotted piece of tape wrapped tightly around its neck in a "noose-like" fashion. The terrible modus operandi seemed not to fit Peterson - who had been depicted as a cheating husband who might have wished his wife would disappear, not a twisted killer capable of using perverse means to kill a helpless unborn child.

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.

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."

If this argument sounds familiar, it should. Earlier in the week, co-defense counsel Matt Dalton made the same argument before Judge Roger M. Beauchesne - the jurist assigned to handle requests by the media to unseal search warrants and related affidavits. (Incidentally, the search warrant issue was not before the court on Friday morning. Instead, a closed-door conference was conducted in Judge Beauchesne's chambers later in the day. Although neither side offered comment following the meeting, the search warrants and affidavits continue to remain sealed.)

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.)

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.

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.

Police investigators intercepted more than 3800 telephone calls to or from Scott Peterson. Sixty-nine of them were calls between Peterson and his lawyers. Assuming that Peterson was seeking legal advice in these conversations, as he almost certainly was, they were protected by the attorney-client privilege.

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.

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.

Of course, Frey doesn't really need a lawyer - the prosecution reportedly has ruled her out as any kind of suspect. Nor does she have a right to have one appointed for her, since she is not a defendant. But she does have the option to hire one, as she has done.

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.

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June 9 — It was on June 9, one year ago, that Laci Peterson broke the news to her family and friends, joyous news, that she couldn’t wait to share: she was pregnant. Much later, of course, her family would receive a horribly different piece of news: a phone call on Christmas Eve, that something was wrong. Laci was missing. Ever since, the family of Laci Peterson has been enduring a very public kind of pain, from the months of fruitless searches and countless missing posters, to that terrible discovery on the California coast, to the arrest of their son-in-law Scott. Laci’s family spoke to NBC’s Katie Couric in their most extensive television interview to date, sharing new details about Laci’s life, her husband’s actions, and their own hopes for justice.

SHARON ROCHA: “It’s just moment by moment. I’ve said that since December 24, and it’s still that way. One minute I’m fine, and the next minute I’m not. It’s just, it’s an impossible situation. It’s hard to believe that this even happened.”

Katie Couric: “I bet you feel like you’re living in some kind of horrific nightmare.”

Sharon Rocha: “There’s many times I wake up in the middle of the night. I wake up and I just start crying because I realize that Laci’s gone and that I’ll never see her again.”

Not a day goes by that Sharon Rocha doesn’t think about her grandson, Connor, who’d be almost four months old now if he had lived.

Rocha: “I imagine to be holding her baby. I imagine her feeding her baby and calling me, and saying, Mom, say, now what do I do? She wanted so much to have that baby. She wanted to be a mother.”

They were just about to have another family get-together when it happened. A single word struck terror in this family. They heard it Christmas eve. Sharon rocha was preparing a big holiday dinner when the phone rang.

Sharon Rocha: “It was Scott. And he said, Hi, Mom. He said, is Laci over there? And I said, no. And he said, well, Laci’s missing. I thought that it was odd that he said Laci’s missing. Any other time, you know, you would have heard, I don’t know where she is, or I can’t find her or something to that effect. Scott said Laci’s missing. I mean I knew immediately, by hearing the word ‘missing’ that something terrible had happened.”

Something terrible had happened. For five and a half months now, an entire nation has been gripped by the story. A 27-year-old mother-to-be disappears on Christmas eve. Fourteen weeks later, her body and that of her unborn son wash up in San Francisco Bay. Her husband, Scott Peterson, is arrested on two counts of murder, and pleads not guilty.

In the meantime, “Laci” has become a household name. And for months, she’s been seen as a face in a photograph. But her family wants us to know the young woman behind the bright eyes and beaming smile, not just as victim, but as a daughter, sister and friend — someone who seemed to be born on a sunny day.

Sharon Rocha: “I would go in in the morning to get her out of her crib and she’d just sit there grinning. Just always happy.”

Laci Rocha was born in 1975 and grew up in Modesto, Calif. But after her parents divorced when she was two, she spent weekends as a country girl on her father’s dairy farm just outside town.

Amy Rocha (half-sister): “You know, just even when you weren’t in the best of moods, you’d get together with her and be in a better mood.”

Amy Rocha: “We spent weekends with our dad on the dairy, and you know, did the country thing. So, I was always the tag-along with her and her friends.” Those who knew her say she liked being part of a blended family. And the fact she had a doting stepfather, Ron Grantski, who took her on family vacations.

Grantski: “My nickname for her, when she was growing up, was ‘J.J.’ for ‘Jabber Jaws.’ And we planned a trip, remember that trip, we went on a trip to the caverns up by Sonora. And she’s little, maybe five or six years old, and talking all the way up there. And I said, Laci, do you think you can be quiet for 30 seconds? And, sure, how long’s 30 seconds? Is it thirty 30 yet?”

Time goes by so slowly when you’re a kid. But before her family knew it, Laci had grown up. In high school, Van Morrison’s “Brown Eyed Girl” was her favorite.

She was a cheerleader and one of the most popular students in her class. By the time she was 16, Laci had become a striking brown-eyed girl, who’d left a striking and indelible impression on everyone at Downey High, like science teacher Bob Starling.

Starling: “My first impression, she was short with a bunch of hair that stuck really high and a big, huge smile. That was my first impression. She was one of those kind of special people, that you just never forget.”

Couric: “You have a book of photographs of your students in that book and there’s here picture in the very front.”

Starling: “She came in and she said, ‘Hey, I need to put my picture in your photo album.’ Then she came over and interrupted me and said, ‘Every time you open this book, you’ve got to smile.’”

Sharon Rocha: “From about the time she was two she loved to dance which at times could be a little embarrassing.”

Laci obviously wasn’t shy. She knew she wasn’t a great dancer or singer, but that didn’t stop her. Her friends remember another night she was doing a song from “Grease,” that time at a karaoke spot.

Kim: “She got up there and just absolutely tore this song apart. And we were all just looking at her going, oh my God, is she ever going to stop? When she couldn’t do something, she pretended like she could, and she had a good time doing it. And those nights were some of the best nights we had.”

While the law says "presumed innocent," majorities of Americans have already decided that Scott Peterson and Eric Rudolph (search) are guilty as charged. Both men are accused of murder and, if found guilty, may face the death penalty — a punishment favored by a solid majority of Americans in the case of premeditated murder.

Many Americans think Scott Peterson (search) was involved in the murder of his pregnant wife Laci, but fewer think so today than did a month ago. In the latest FOX News poll, conducted June 3-4 by Opinion Dynamics Corporation, 58 percent of the public think Peterson was involved, down from 67 percent in early May.

Similarly, the number saying he was “definitely involved” has dropped 12 percentage points (31 percent now, compared to 43 percent last month). Only five percent think he was not involved (four percent “probably” and one percent “definitely” not involved).

In addition, over a third of the public (37 percent) are withholding judgment today, up from 30 percent of respondents who said they were unsure of Scott’s involvement in early May.

Despite the large amounts of media attention to the case, a plurality of the public (47 percent) thinks Peterson will get a fair trial. Thirty-six percent say Peterson will not be able to get a fair trial and 17 percent are unsure.

In another case that has captured the attention of the country, 62 percent of Americans think Eric Rudolph is guilty of involvement in the various bombings he has been charged with committing. Thirty-three percent think Rudolph was “definitely involved” and 29 percent “probably involved” in the four Georgia and Alabama bombings, including the 1996 Olympic Park bombing in Atlanta.

Those living in the South Atlantic region of the country, which includes Georgia, the site of the Olympic bombing, as well as North Carolina where Rudolph was discovered, are the most likely to believe he was involved (74 percent).

Rudolph’s clean and healthy appearance when captured has led to speculation that he might have received aid from local people. In the case that Rudolph, a federal fugitive, was being helped, 74 percent of Americans believe those individuals should be charged as accessories to his crimes. Fourteen percent think such people should not be charged and 12 percent are unsure.

In general, 69 percent say they favor the death penalty for persons convicted of premeditated murder and 23 percent oppose the punishment. Men are more likely than women to favor the death penalty (74 percent and 64 percent respectively), as are whites (70 percent) in comparison with nonwhites (59 percent).

However, the largest difference is found in the gap between the major political ....................

They're filing every motion they can think of--and some that haven't been thought of--apparently. That way they can attempt to make the denial of these cockamamie motions into some sort of grounds for appeal when they LOSE.

As for the wiretaps, I only know what was in the pleadings that RB posted a while back. But I fail to see how the inadvertant collection of some calls from Scott's attorney would render all the other intercepted calls--which had NOTHING TO DO with Scott's attorney--inadmissible. I still have a lot of hope that the intercepted calls will be admitted. I have seen nothing that seems to indicate they might be excluded.

Could there be calls in there, from the evening of the 24th on, in which Scott sounds jubilant and carefree, while calling Amber or someone else? How does one explain such a thing? I mean, suppose there's a call in there, say, on Dec. 26th, in which he's, like, calling the video store to see if a particular DVD is in? Or calling to make reservations at a restaurant that week? Or making yet another hair appointment? I mean, suppose that that week, btw Christmas and New Year's, suppose he had the usual volume of calls about everyday things, that one would have if one's wife weren't missing? How could that not seem very strange? Hearing his voice, say, two days after the big Disappearance, calling a salon and saying something like, "Is Diana in? I want her to give me a shave and a pedicure."

All of the foregoing is just me speculating; none of the speculation about his calls is culled from news reports. But, what if?

It isn't a "popular recreation spot" on Christmas Eve.

Very few murders involve dumping the body hours a way from where they are taken.

The problem with this line of thinking is that LE has no indication that Laci was dumped in the bay on Christmas Eve. After months of decomposing it is safe to bet that they might, maybe have a two week window for the dumping. I would bet that a month is more likely.

Once someone hears that Scott was on the bay it becomes the perfect place to dump the body.

The other problem I see is that there really doesn't seem to be much blood in the house.

While I have never dismembered a person, I have butchered several hogs in the 150-300 lb weight range. This is not a job which an inexperienced person could do in darkness. If Scott set up a light he would be visible for miles.

Somewhere there is a place where Laci was dismembered. It is either inside a building or in dense vegetation, hidden from passerbys. There is/was a lot of blood at that location and probably bits of flesh as well.

Those things you listed are circumstantial evidence, if you're listing them in relation to a murder case.

Circumstantial evidence is evidence which, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. One often-used example is: You are in your house one night, asleep. You come out the next day and see snow on the ground--snow which wasn't there before. The snow on the ground is circumstantial evidence from which you can infer that snow fell from the sky during the night.

You find a bullet in the body of a dead person, say, and there's no gun anywhere near the body. You COULD infer that the bullet was shot by some other person. Then they do the ballistics tests on the bullet, and match it to a gun. The gun is found in the possession of Mr. X. You COULD infer that Mr. X shot the bullet that killed the dead person. Notice that there is room for mistake here. So there'd also have to be some proof to refute Mr. X, if he shows proof that he didn't HAVE his gun at the time the now-dead person was shot. And on and on, making logical inferences.

You find, say, Laci's blood in the kitchen of the Petersons' former home. You can infer that Laci was in the kitchen, and that she was bleeding while she was in there. Just a piece of the puzzle; doesn't prove the whole case.

You find, say, Scott's fingerprints on some duct tape that was found attached to Laci's body. You can infer that Scott handled the duct tape at some point. Once again, this one thing will not prove the case. But it will give rise to that inference at least. This might lead to an inference that it was Scott who put the duct tape on Laci's body.

You find a hole in Laci's abdomen, and it looks like a knife wound. You can infer that someone stabbed her. This doesn't prove that Scott was the one who stabbed her. But suppose you found Scott's fingerprints on a knife which was in a dumpster, and the knife's blade seems to fit the wound? You can infer that Scott has at some time handled a knife which fits the wound in Laci's abdomen. Another building block.

Fiber evidence: Say you find fibers on a murder victim's body, and the fibers match those of a blue carpet in Mr. X's car. You COULD infer that the now-dead person was lying on the floor of Mr. X's car at one time. Why the heck would someone be lying on the floor of a car? You could infer that they were incapacitated or dead at the time.

Direct evidence: Someone comes forward and says, "I saw Laci come running out of the house, and Scott came after her, and he grabbed her by the neck and pulled her inside. Then I heard her screaming, but suddenly her screaming stopped. I was there. I didn't know what to do, etc." Actually, I guess there's even an element of circumstantial evidence here--if this imaginary eyewitness didn't actually see Scott murder her.

As the findlaw article points out one of the more interesting parts of this case is the fact that Modesto PD allowed the Rochas to get away with a televised burglary and grand theft of Scott's property.

The fact that they have plenty of evidence and the Rochas even admit to the crime, but have not been charged indicated that MPD is strongly biased against Scott.

Whether we like him or not, it was his property, and before it was disturbed he did have the right to an independent examination of the house & its contents.

How does the court balance taking away his best chance to come up with evidence of his innocence? Clearly the MPD was prejudiced against him & might not have even bothered to collect anything exculpatory.

Gettiing a fair trial in this circumstance could be very hard to prove.

curly dave......how would the cops know that it was not the business of the Rochas to be there taking their dead dtrs stuff....afterall, it was done in broad daylight..hardly a criminal's method....

it is a civil case imo....

fair trial?....you kidding?.......they had bumper stickers on their cars down in San Diego about westerfield....

and how do you think SLC is going to treat the two Smart (not so smart) kidnappers???:

its tough out there but we can't move every big trial ......

Those things you listed are circumstantial evidence

From a theoretical viewpoint, I suspect you are right.

However I, like most of the population, make a distinction between forensic evidence, and circumstantial evidence.

For instance, suppose my business rival was shot in Chicago last week.

My plane ticket to Chicago on the day before would certainly be circumstantial evidence. However a balistic report tying a revolver I own to the bullets recovered would not be just circumstantial evidence, but also forensic evidence.

Neither proves I shot him, but the ballistic report is much stronger.

So far, all the public has seen is evidence of Scott being in various places at various times.

We do have direct evidence of an affair, but if every man who ever had an affair killed his wife, we would have very few living wives.

how would the cops know that it was not the business of the Rochas to be there taking their dead dtrs stuff

1. They should know the law in a case like this--the stuff belongs to the husband until he is found guilty. That is part of their training and to earn their pay they should remember it.

2. In a high-publicity case like this one they should know what court orders have been made.

3. They certainly know right now that the removal of belongings was unauthorized and therefore a theft. If they were not biased against Scott, the Rochas would be in the greybar hotel by now.

For crying out loud, if they watch a bunch of looters pull up to a store and start carrying stuff out on TV don't they have an obligation to at least go down to the store and ask what these guys are doing?

this raised a red flag, because there would be no plausible explanation of why this individual would be at a fishing -- a place where he went fishing and should have no other significance

The fact that every Radio, TV station and newspaper in the entire state was reporting that the police were searching for his dead wife in that location isn't a "plausible reason" for him to be there?

Guilty or not, if they were searching in a very public way for my dead wife I would go out and watch.

I realize that the public is dazzled by forensic evidence, especially given the fairly recent developments with DNA, and many other wonders, such as insect life cycles. But it's STILL not direct evidence! It is CIRCUMSTANTIAL evidence.

We could find Scott's blood mixed with Laci's in that kitchen. That would still not be direct evidence of a bloody battle! It would be circumstantial evidence that Scott and Laci both shed blood in the kitchen, and from that we COULD infer that they had a bloody fight in the kitchen.

Direct evidence is, essentially, eyewitness testimony. There will always be exceptions, so I will not say that direct evidence is ALWAYS eyewitness testimony. But it is an "I was there" sort of thing.

Forensic evidence is circumstantial evidence. It can tell us a lot about the person or thing which left it. However, that information will not point to the solution without the necessary links of inferences.

And CD, it's not just from a theoretical viewpoint--it's what the judge will instruct the jury!

In your example about your shot business associate, the ballistics tying the bullet in him to your revolver might be quite impressive--unless you proved that your revolver was in a shop being repaired while you were in Chicago. In that case, the plane ticket placing you in the same city with him would become the stronger circumstantial evidence. The ballistics findings might be wrong, but you might still be a suspect due to knowing him and being in the same city when he was shot.

If your business associate was shot in Chicago, and ballistics indicated that it was a revolver owned by you which shot him, that would still not be much if it were proved that YOU were far away from Chicago while he was in Chicago.

So the forensic (ballistics) evidence would not necessarily be the stronger circumstantial evidence in every case.

The public has seen and heard more than just evidence of Scott being in various places at various times. We've heard of things he DID and SAID, and of his manner. Some of his mannerisms and mood, not too long after the "disappearance", can be directly seen by us in videotapes of him being interviewed. These are very telling. No, not enough to convict him, on their own, but very telling.

And call me optimistic, but I don't think the MAJORITY of married men have affairs. Therefore, even if all the men who had affairs ended up killing their wives, still, the majority of wives would not have been killed by their cheating husbands.

They should know the law in a case like this--the stuff belongs to the husband until he is found guilty. That is part of their training and to earn their pay they should remember it.

It becomes his sole property when the death certificate is issued. Since it was issued AFTER the so-called robbery took place, it was still community property at the time.

Plus, the Peterson family had been in and out of the house regularly, even swimming in the pool, so the scene of the crime had been contaminated long before the Rocha family set foot in it.

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