-- 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
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
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
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 would 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 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 such as these tend to be
unenforceable anyway, and only 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. 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 --
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 higher-ups approved that decision, a strong sanction could be appropriate.
The hearing on this issue will take place on June 26.
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
Now bringing you back...
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