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 ....................

I think that was a 'wise' response on their part. I'm not sure I could be that fair.

I'm tempted to say that I absolutely could not, but then I have never stood in their shoes.

If they were told to do as advised to help the prosecution of Scott, I suppose they could find that self control.

Still.....it must be very difficult.

This is interesting, about their subpoenaing the judge.

I can't believe there would be a law in CA that would require a court reporter to be present during proceedings to get a warrant. Such proceedings are allowed to be held ex parte, and having to have a court reporter present would just about defeat the utility of that. Furthermore, getting warrants is often an emergency matter (they might have to get a warrant in a hurry, say, b/f someone destroyed some evidence in a house), and this would make them have to dig up a court reporter, which would take time and might jeopardize the safety of other potential victims of the suspect the police were getting the warrant against.

I mean, the defense might just as well be saying, "you have to notify the suspect of all you are doing to get a warrant against him or his property." What the heck good would a warrant BE, if the suspect were notified about its details ahead of time??

I think the judge/magistrate is there to protect the rights of the suspect, and that in general, that should be trustworthy enough. B/C the judge/magistrate who hears or reads the stated grounds for the warrant is definitely supposed to be an impartial judge/magistrate, who is not in any way on the side of the police. I think that was the way lawmakers decided to try to protect the rights of suspects, while still allowing the police to conduct their investigations with the secrecy required not to tip their hand and allow suspects to flee or destroy evidence.

So I am thinking of about 100 different ways that this subpoenaed judge probably will think of, to quash that subpoena they are serving him with.

Oh, well. I guess it figures that they would be cautious, while the trial's still pending.

Their restraint has been admirable. I'm curious as to how much of the evidence the Rocha's are privy to. Their body language indicates (to me anyway) that they are completely convinced.

Speaking of "lingo" I heard the other day that teens refer to being sexually active as "being busy".

If OJ walked. Scott is a free man. No way Scott Peterson is convicted.

Not the same thing after all. In OJ, there was first and foremost jury nullification. Marcia Clark picked WRONG. The minority jurors decided early on that if the rich white man can get away with all his crimes, it's the black man's turn now. I am not sure how many were even listening to the evidence testimony.

Second, those who were listening to the evidence testimony, which was exceedingly damning (DNA and blood evidence), must have been fed up with the thoroughness of the experts, and come to the conclusion that it was all a bunch of science mumbo jumbo.

Third, you need a court jester defense team who will spout rhymes and over-the-top displays to emotionally connect with above-mentioned moronic jurors.

Fourth, you need a witness or cop who will perjure himself in court over a racial slur which could be perceived as being against the defendant, and he should be the one who has found a crucial piece of evidence.

Fifth, it would be nice to have a camera-crazy judge who loves every second of his televised trial, and can be heard wisecracking with the defense counsel from behind a clock-covered bench...

I don't think Geragos is quite up to that. All he has done so far is to try and plant doubt in potential jurors' minds with such outlandish stories that the doubt may end up being whether Geragos is sane.

I can't believe there would be a law in CA that would require a court reporter to be present during proceedings to get a warrant. Such proceedings are allowed to be held ex parte, and having to have a court reporter present would just about defeat the utility of that.

How is it normally done? I know the proceeding is transcribed at some point. Can the judge or LE use a tape recorder and have the proceeding transcribed at a later date by a court reporter?

There was so much evidence that OJ did it it was truly obscene that he walked. It appears so far there is zero evidence that Scott peterson did kill Laci. There is so far really slim evidence that he could have killed Laci.

I don't expect him to be convicted.

You can say that AFTER the OJ trial because you now KNOW what that evidence was.

We haven't SEEN the evidence in this case yet.....have we?

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