Release of Audio Recordings from Stanislaus County Wiretap No. 2 and 3 Records

Release of Audio Recordings from Stanislaus County Wiretap No. 2 and 3 Records

SUPERIOR COURT OF CALIFORNIA

COUNTY OF STANISLAUS

800 - 11TH Street, Room 100

Modesto, California 95354

Telephone (209) 525-6348 - Fax (209) 525-6385

www.co.stanislaus.ca.us/courts

Michael A. Tozzi

Executive Officer

Jury Commissioner

Donald H. Lundy

Court Administrator

Linda Romero Soles

Deputy Executive Officer

PRESS RELEASE

FOR IMMEDIATE RELEASE

May 23, 2003

CONTACT

Michael A. Tozzi

525-6348

MODESTO, CA- Two additional documents were filed this morning. The document entitled "Release of Audio Recordings Fro Stanislaus County Wiretap No. 2 and 3 Records" is a request for an in-camera hearing on May 27th to release information in preparation for the hearing on June 6th before Judge Girolami. The mere filing of the document does not ensure that an in-camera hearing will be granted. That decision will be made by Judge Girolami on May 27th.

The other document entitled "Additional Points and Authorities in Support of Sealing Records" was filed by Deputy District Attorney Harris and is part if the hearing that will take place on Tuesday, May 27th.

Both documents are attached.

FILED MAY 23, 2003 9:36 AM

CLERK OF THE SUPERIOR COURT

COUNTY OF STANISLAUS

BY [SIGNATURE]

DEPUTY

JAMES C. BRAZELTON

District Attorney

Stanislaus County

Courthouse

Modest, California

Telephone: 525-5550

Attorney for Plaintiff

STANISLAUS COUNTY SUPERIOR COURT

STATE OF CALIFORNIA

D.A. No. 1056770

THE PEOPLE OF THE STATE OF CALIFORNIA

Plaintiff,

vs.

SCOTT LEE PETERSON,

Defendant.

No. 1056770

RELEASE OF AUDIO RECORDINGS FROM STANISLAUS COUNTY WIRETAP NO. 2 AND 3 RECORDS

Hrg: 5-27-03

Time: 8:30 a.m.

Dept: 2/8

Comes now the People if the State of California to request that the Court authorize the release of audio recordings obtained from Stanislaus County Wiretaps No. 2 and 3.

FACTS

Stanislaus County Wiretap No. 2 was authorized by the Stanislaus County Superior Court on January 10, 2003. Stanislaus County Wiretap No. 3 was authorized by the Court on April 15, 2003. The original audio recordings are in the possession of the court. A copy of the audio recordings are in possession of District Attorney Criminal Investigator Steve Jacobson at the Stanislaus County Drug Enforcement Unit.

The prosecuting attorneys have not listened to any audio

recording from either wiretap, preferring to have the court sanction the release of the audio recordings. They were also not involved in the actual monitoring of any wire intercepts as such monitoring requires peace officer status, and certification through the Attorney General's Office (See Penal Code Section 629.94).

Investigator (inv.) Steve Jacobson is a certified wireroom operator and was the wireroom supervisor for Wiretap Nos. 2 and 3. He has listened to, and is familiar with, all calls made during both wiretaps.

Inv. Jacobson informed me that on May 15, 2003, he personally reviewed every intercepted call between the defendant, Defense Attorney Kirk McAllister, and Private Investigator Gary Ermoian. During the conduct of Wiretap Nos. 2 and 3, a total of 69 calls were intercepted between Mr. McAllister and the defendant. A total of two calls were intercepted between Mr. Ermoian and the defendant.

Interception of a call does not necessarily mean that a call was monitored or recorded. Interception simply means that a call was received to, or from, a target telephone and the wireroom personnel were notified.

Monitoring of a call is different from interception of a call. Monitoring involves actively listening to, or recording a call. Agents can choose to start or stop monitoring a call depending on the nature of each particular call. A call may be monitored in its entirely, or the call can be broken down into monitored and unmonitored portions. If a monitored call does

not relate to the subject matter of the investigation (i.e. a non-pertinent ca;;), or is of a privileged nature, the call is minimized (not monitored at all, or monitoring is stopped).

Inv. Jacobson informs me that during the conduct of Wiretap Nos. 2 and 3, segments of two phone calls between Mr. McAllister, and the defendant were monitored and recorded. The monitoring involved short segments of only two calls, out of the total of sixty nine calls that were intercepted between the defendant and Mr. McAllister. The remainder of the intercepted calls were not monitored. Investigator Jacobson also informs me that during the conduct of Wiretap No. 2, one call between the defendant and Mr. Ermoian was monitored and recorded.

According to Inv. Jacobson, on January 14, 2003, Agent Steve Hoek of the Stanislaus County Drug Enforcement Unit inadvertently monitored a brief conversation between Mr. McAllister and the defendant because he did not initially recognize Mr. McAllister's voice. Upon recognizing Mr. McAllister's voice he stopped monitoring. While I have not been informed of the content of the call monitored, Inv. Jacobson reported that no substantive information was obtained as a result of the call being monitored.

According to Inv. Jacobson, on January 15, 2003, Agent Jesse Tovar of the Stanislaus County Drug Enforcement Unit briefly monitored a conversation between Mr. McAllister and the defendant, pursuant to Penal Code Section 629.80 [This section governs the "spot monitoring" of privileged communications to ensure that they remain privileged].

Agent Tovar listened to the initial portion of the call for six seconds. This involved approximately one to two seconds of actual conversation. He did not wait to determine if the call was privileged but immediately minimized (stopped monitoring) the call for 36 seconds. Agent Tovar then conducted a spot check of the call of 6 seconds to ensure that the defendant and his attorney were still conversing. He again immediately minimized the call. Agent Tovar then waited one minute and seven seconds and conducted another spot check of 6 seconds. He then minimized for the remainder if the call. The total time that the call was monitored, including all spot checks, was 28 seconds. While I have not been informed of the content of the call monitored, Inv. Jacobson reported that no substantive information was obtained as a result of that call being monitored.

Finally, according to Inv. Jacobson, on January 29, 2003, a conversation was monitored between the defendant and Gary Ermoian. At the time of the intercepting, Inv. Jacobson did not know that Mr. Ermoian was a private investigator employed by Mr. McAllister. While I have not been informed of the content of the call monitored, Inv. Jacobson reported that not substantive information was obtained as a result of that call being monitored.

Please see the attached declaration by Inv. Jacobson for a full accounting of the three calls at issue. As stated above, the prosecuting attorneys have not listened to any audio recording from either Wiretap No. 2 or 3, and said recordings have remained in the possession of the court and Inv. Jacobson.

The only personnel who are privy to the knowledge contained in the above mentioned recordings are Inv. Steve Jacobson, Agent Steve Hoek, and Agent Jesse Tovar.

UNSEALING PROCEDURE

The People are satisfied that Wiretap Nos. 2 and 3 were conducted in accordance with the provisions of Penal Code Section 629.50, et. al, and all applicable case law. However, it is the People's position that, to ensure the confidential nature of any attorney client communication, the court should follow the below listed procedure regarding the release of audio recordings obtained during Wiretap Nos. 2 and 3:

1. The court should listen, In Camera, to the recordings of the above mentioned three calls to determine if the court believes that any privileged information is involved.

2. If the court finds that the calls involve privileged information, or it the court can not make that determination based on the brevity of the monitored portion of the calls, the People request that all audio recordings, and accompanying documentation be ordered released under seal to Inv. Jacobson for copying and dissemination to the defense.

3. The People next request that all audio recordings, except for the three recordings mentioned above, and all accompanying documentation, except for documentation for the three recordings mentioned above, be released under seal to Inv. Jacobson for copying, and dissemination to the People.

4. Once copied for both parties, all such release information should then be returned to the court and promptly resealed.

5. The court should further order Inv. Jacobson, Agent Hoek, and Agent Tovar to not communicate the content of the three calls to any person.

6. The court should order that neither party shall release, disseminate, or disclose any of the information contained within the audio recordings without further order of the court.

Conclusion

For the above-cited reasons, the People request the court 1) conduct an in-camera hearing regarding the privileged nature of the three calls at issue, and 2) seal all of the audio recordings and documents in question in accordance with the above procedure pending use by the parties in court.

Dated: May 23, 2003

Respectfully submitted,

JAMES C. BRAZELTON

District Attorney

BY: [signature]

RICK DISTASO

Deputy District Attorney

JAMES C. BRAZELTON

Stanislaus County District Attorney

800 11th Street, Room #200

Modesto, California 95353

(209) 525-5550

Attorney for Applicant

The People of the State of California

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF STANISLAUS

IN THE MATTER OF THE APPLICATION OF THE DISTRICT ATTORNEY OF THE COUNTY OF STANISLAUS

WIRETAP NO. 2 AND 3

AFFIDAVIT OF STEVEN P. JACOBSON

I, Steven P. Jacobson, being duly sworn, depose and state as follows:

1. I am a sworn Federal Task Force Agent currently assigned to the Stanislaus Drug Enforcement Agency (SDEA). I am a District Attorney Criminal Investigator with the Stanislaus County District Attorney's Office assigned to the Major Narcotic Vender Prosecution (MNVP) team. I have been a sworn California peace officer, within the meaning of California Penal Code Section 830.1, for eleven (11) years. Prior to my employment with the Stanislaus County District Attorney's Office, I was employed as a Police Officer with the Modesto, Oakdale and Waterford Police Department's.

2. I have been deputized by the Administrator of the U.S. Drug Enforcement Administration to exercise the powers of enforcement as set forth in Section 878, Title 21, United States Code and am therefore, an investigative or law enforcement officer of the United States within the meaning of the title 18 U.S.C. Section 2510 (1), and I am empowered by the law to conduct investigations and make arrests for federal felony offenses.

3. I am certified by the California State Attorney General's Office in the practical, technical, and legal aspects of California State court ordered wiretaps. (California Penal Code Section 629 et. seq.)

4. During my career, I have conducted and participated in approximately six (6) State and Federal wire intercepts. I have been the case agent, affiant, wire room supervisor and/or surveillance team member in the court-authorized interception of wire, oral and electronic communications, which has made me familiar with the legal, practical and technical aspects of such intercepts.

5. I am the affiant and case agent assigned to Stanislaus County Wiretaps #2 and #3;

6. On May 14, 2003, I was asked to, and did, prepare supplemental report #4 detailing the nature and scope of any intercepted or monitored calls between Scott Peterson and Kirk McAllister (and/or his office) and between Scott Peterson and Gary Ermoian.

7. All exhibits referred to in this affidavit have been sealed and are being maintained in the Stanislaus County District Attorney's Office Investigations Division pending further Court order. The exhibits to in this affidavit are the same as the exhibits I referred to in my previous Supplemental Report #4.

8. I am familiar with criminal defense attorney Kirk McAllister. Prior to joining the investigation, around the first week of January 2003, I was told by Detectives of the Modesto Police Department that Scott Peterson and/or family members had retained Kirk McAllister.

9. Having this information in mind, on January 10, 2003, at 2000 hours, Deputy District Attorney (DDA) Rick Distaso prepared "wiretap instructions" and discussed them with all potential monitors and supervisors to ensure the proper monitoring and interception of wire communications over cellular telephone numbers (209) 505-0337 and (209) 449-8427.

10. As part of the "wiretap instructions" DDA Distaso advised monitors and supervisors of conversations, which may trigger the attorney client privilege, specifically conversations between Scott Peterson and Kirk McAllister. DDA Distaso briefed all monitors and supervisors on California Penal Code Section 629.80 pertaining to "privileged communications." DDA Distaso read nearly verbatim the language used in Section 629.80 and included such language in his "wiretap instructions." DDA Distaso further told all monitoring and supervising agents to become familiar with all telephone numbers regarding any attorney consulting with Scott Peterson, specifically those belonging to criminal defense attorney Kirk McAllister.

11. On January 10, 2003, after the minimization training and before the interception began, Agent Bill Pooley informed me that he entered Kirk McAllister's name and listed business telephone number of (209) 575-4844 into our newly created interception computer database. Upon my visual inspection of the "wire room" prior to the beginning of the intercept, I too noticed Kirk McAllister's name and business telephone number placed on a dry erase board over the monitoring area. Agent Rob Jackson said before the intercept began, he was the individual who placed Kirk McAllister's name and business telephone in this prominent location within the wire room. This was done to further comply with DDA Distaso's "wiretap instructions."

12. On January 14, 2003, at 1624 hours, Kirk McAllister called Scott Peterson. The wire room supervisor, Agent Steve Hoek, was the actual monitor of the telephone call. Agent Hoek told me that the volume on the speaker had been turned down to a degree that he could not hear the initial greeting between the unknown caller and Scott Peterson. Agent Hoek told me that upon turning the volume up, he heard Scott Peterson talking about his computer

software. Agent Hoek believed the conversation was turning into a business related, non-pertinent call. Agent Hoek told me he then minimized the conversation. Agent Hoek said he came back on the line to spot check and heard the unknown caller ask Scott Peterson a question regarding the investigation. It was at that point that Agent Hoek recognized the voice of the unknown caller to be that of Kirk McAllister.

13. Agent Hoek stated as soon as he recognized the unknown caller's voice was that of Kirk McAllister (and it did not appear to him that Kirk McAllister was planning the commission of any other crimes, nor personally involved in Laci Peterson's disappearance), he minimized the conversation all the way through to the end, without performing any more spot checks. Agent Hoek told me that he thought he saw Kirk McAllister's name as the subscriber of the incoming call pop up on the computer screen, but by the time he scrolled the call box up, he had already recognized McAllister's voice and had fully minimized the remainder of the call.

14. Agent Hoek said after this intercepted call, he entered Kirk McAllister's home telephone number (209-664-1208), his Turlock office telephone number (209-668-0488) and his secondary office number of (209-575-4881) into the computer database. Agent Hoek said he did this in order for subsequent monitors and supervisors not familiar with Kirk McAllister's voice to be alerted if Kirk McAllister called Scott Peterson from any other telephone numbers not previously entered. This was done to further alert monitors and supervisors to avoid the interception of potential privileged information between Scott Peterson and Kirk McAllister.

15. On January 15, 2003, at 1120 hours, Kirk McAllister called Scott Peterson. Agent Jesse Tovar was the monitor for the intercept and Agent Bill Pooley was the "wire room"

supervisor. Agent Tovar stated he intercepted communications between Scott Peterson and Kirk McAllister and believed he followed the appropriate provisions listed in California Penal Code Section 629.80 and the "wiretap instructions" as provided by DDA Distaso. Agent Tovar told me he believed that he had effectively minimized then later "spot checked" briefly two times in order to confirm Scott Peterson and Kirk McAllister were still conversing.

16. ON January 17, 2003, DDA Distaso and I met with the Honorable Judge Ladine. I presented Judge Ladine with "72-Hour report #2." In this report, I stated the following:

17. While presenting this information to Judge Ladine, he asked that I inform him as to what exact procedures were being followed. Is I explained it to Judge Ladine, he stated he wanted me to reduce our procedure to writing and include it in the "72-Hour report #2." Judge Ladine asked that I redo this portion of the report, to include what was being done with Kirk McAllister's intercepted telephone calls.

18. On January 17, 2003, I wrote the "72-Hour report #2" upon Judge Ladine's request and stated the following:

"During this reporting period, we have intercepted seven (7) calls made to and/or from telephones being used by Kirk McAllister, attorney at law. At this present time, we do not suspect Kirk McAllister is criminally involved or conspiring in anyway with Scott Peterson. It is my understanding Kirk McAllister, is currently being retained by the family. These calls have been effectively minimized to maintain and ensure attorney/client privilege. The minimization procedure was as follows: As soon as the monitor(s) recognized the voices of Kirk McAllister and Scott Peterson, the calls were minimized (the recording and listening devices were deactivated). Spot checks were periodically made to ensure that Kirk McAllister and Scott Peterson were still conversing. As soon as this was confirmed, the calls were once again minimized according to the above procedures and in accordance

with the law. During the initial reception of the calls, and the periodic spot-checks to ensure Scott Peterson was still conversing with Kirk McAllister, no substantive information was obtained."

19. On January 17, 2003, I presented the corrected report ("72-hour report #2") to Judge Ladine. While reading the additional information presented, Judge Ladine expresses concern about the monitoring of any communications between Scott Peterson and Kirk McAllister. I assured Judge Ladine that as soon as the monitors recognized a greeting between Kirk McAllister and Scott Peterson, the calls were minimized. DDA Distaso asked me if the monitors were all familiar with Kirk McAllister's voice and if there had been any problems with the minimization. I told DDA Distaso and Judge Ladine that one Agent (Steve Hoek) had not recognized McAllister's voice initially, but shortly thereafter, and as soon as he did, he minimized the entire conversation and did not perform any spot checks at all. Judge Ladine stated he was not comfortable with the idea of any spot checks being performed upon conversations between Scott Peterson and Kirk McAllister. Judge Ladine told us that once conversations were initiated, Agents should be off the line all together. Judge Ladine said he felt the monitoring or spot-checking of any conversations between Scott Peterson and Kirk McAllister would be inappropriate and could cause problems. DDA Distaso agreed. As Judge Ladine continued voicing his concern, he asked DDA Distaso a question about the admissibility of any information obtained during one of these spot checks. Judge Ladine was concerned about the District Attorney's Office using a wiretap to obtain statements from a suspect who had counsel and had already expressed to the police that he didn't wish to make any statements, yet under the spot checks, police would be able to hear portions (up to 30 seconds by law) of potential privileged communications. DDA Distaso and I provided a brief answer somewhat explaining what a spot check was. Judge Ladine stated once again he did not like the idea of spot checks being performed and instructed me to pass on to the monitors

to fully minimize or not monitor the calls being made between Scott Peterson and Kirk McAllister.

20. According to reports given to me by Intelligence Analyst (I/A) Steven Wright, during the first court order (January 10 to February 4, 2003) there were fifty-eight (58) interceptions between Scott Peterson and Kirk McAllister (or his office personnel) over cellular telephone number (209) 505-0337. Every one of these calls (with the exception of the first two intercepted/monitored calls previously documented in this report) were fully minimized (without any spot checks), or not monitored at all (exhibit "A"). After Judge Ladine's order on January 17, 2003, calls between Scott Peterson and Kirk McAllister were no longer spot-checked.

21. According to the reports given to me by I/A Steven Wright, during the first court order (January 10 to February 4, 2003) there were three (3) interceptions between Scott Peterson and Kirk McAllister (or his office personnel) over the cellular telephone number (209) 499-8427. The first call occurred on January 20, 2003, at 0935 hours, where Kirk McAllister called Scott Peterson. After their greeting, the call was fully minimized without any spot checks being made. The second call occurred on January 20, 2003, at 1732 hours, and was not monitored due to audio problems. The third call occurred on January 23, 2003, at 1019 hours, where Scott Peterson called McAllister's office and confirmed an appointment (exhibit "B").

22. According to the reports given to me by I/A Steven Wright, during the second court order (April 15-18, 2003) there were eight (8) interceptions between Scott Peterson and Kirk McAllister (or his office personnel) over cellular telephone number (209) 505-0337. Each call was fully minimized. without any spot checks being made (exhibit "C").

23. To my knowledge, I do not know Gary Ermoian (at least by name) and I'm not familiar with Gary L. Ermoian Investigations. On January 20, 2003, at 2210 hours, an interception occurred between Scott Peterson and Amber Fry. I reviewed this interception and noted Scott Peterson had told Amber Frey he knew that the National Enquirer tried to hire him. This was the first time I was made aware of the fact that Scott Peterson had an unidentified private investigator working on the case.

24. Later, on January 22, 2003, at 1809 hours, an interception occurred between Jodi Hernandez (a media reported) and Scott Peterson. I reviewed this interception and noted that Jodi Hernandez asked Scott Peterson if he and/or his family hired a private investigator. Scott Peterson didn't answer her question directly. Scott Peterson subsequently told her he believed he was being followed around by private investigators from the National Enquirer.

25. On January 26, 2003, at 1828 hours, an interception occurred between Scott Peterson and his parents, Jackie and Lee Peterson. While reviewing the interception, I noted that Scott Peterson's parents asked him if he still had his "hired guy" working for him. Scott Peterson responded by asking them if they meant "Gary." They responded they did. This was the first time I was made aware of the fact that Scott Peterson's "hired guy" was known by the first name of "Gary" and was possibly the same private investigator he had told Amber Frey about on January 20, 2003.

26. On January 29, 2003, at 1404 hours, an interception occurred between Scott Peterson and his mother, Jackie Peterson. While reviewing the interception, I noted Jackie Peterson asking Scott Peterson if he wanted her to pay his "detective." Scott Peterson told his mother he did, that the detectives name was "Gary" and she should make the check out to Kirk

McAllister. This was the first time I was made aware of the fact that "Gary," the private investigator, was working for Kirk McAllister and was being paid through him.

27. Approximately 31 minutes later (at 1435 hours on January 29, 2003), an interception occurred between Scott Peterson and a subject identifying himself as Gary Ermoian. While reviewing the interception, I noted Gary Ermoian called Scott Peterson to warn him that the media was outside of his residence on Covena. I subsequently checked the telephone number Gary Ermoian used in communicating with Scott Peterson. The telephone number appeared to be a listed number subscribed to Gary L. Ermoian Investigations. I then believed Gary Ermoian was "Gary," the "hired guy," the "detective" and the private investigator.

28. After this last call, one other interception occurred on January 29, 2003, at 2232 hours, between Scott Peterson and Gary Ermoian but the conversation was not monitored. No other interceptions between Gary Ermoian and Scott Peterson occurred over the first court order (exhibit "D"), nor were there any other interceptions that occurred between Gary Ermoian and Scott Peterson during the second court order (April 15-18, 2003).

29. On May 15, 2003, I reviewed every intercepted call between Scott Peterson and Kirk McAllister (as shown in exhibits "A, B and C"). I checked the meter (time measuring devise) for each intercepted call, specifically agent Hoek and Agent Tovar's aforementioned interceptions (on January 14, 2003 and January 15, 2003 respectively). As shown in the transcription of Agent Hoek's call, Agent Hoek minimized the first time for a total of thirty-one (31) seconds before coming back on the line to spot check the conversation. He did this for the purpose of re-determining the nature of the call (to see if the conversation had changed from a business related call to anything pertinent). Agent Hoek did not know the identity of

the caller at this time, nor that it was a privileged communication (as they were discussing events that had transpired in the investigation). His thirty-one (31) second minimization went beyond the standard thirty (30) second non-pertinent minimization rule used by the Federal Government here in the Eastern District of California. When Agent Hoek came back on the line, he monitored the communication for forty-one (41) seconds before recognizing Scott Peterson was talking to his attorney, Kirk McAllister, and that they were communicating about information specific to this case (making it a privileged communication). As Agent Hoek realized this, he completely minimized the remainder of the call. This intercepted call has been transcribed (exhibit "E").

30. While reviewing Agent Tovar's aforementioned interception of Scott Peterson and Kirk McAllister using the time measuring device, I noted that Agent Tovar listened to the initial portion of the call for six (6) seconds, then he minimized for thirty-six (36) seconds. He came back on the line to spot check for another six (6) seconds then minimized for one (1) minute and seven (7) seconds. He then listened again for six (6) seconds then minimized the remainder of the call (twenty-four [24] seconds).

31. On May 15, 2003, after learning this information I spoke with Agent Tovar. Agent Tovar stated on the specific interception in question, he believed he had effectively minimized the conversation between Kirk McAllister and Scott Peterson. Agent Tovar stated he only came back on for a brief period of time, (six [6] seconds each time), to confirm Scott Peterson was still talking with Kirk McAllister. Agent Tovar said at no time did he ever learn the nature of their communication. This intercepted call has been transcribed (exhibit "F").

32. In summary, between both Stanislaus County Wiretap #2 and #3, there were sixty-nine (69) intercepted communications between Kirk McAllister and Scott Peterson. The very

first two (2) intercepted calls (with audio attached) were intercepted and were monitored with spot checks being performed. The first of which, Agent Hoek explained he did not recognize Kirk McAllister's voice initially. As shown above, once Agent Hoek recognized the call was from Kirk McAllister and privileged in nature he immediately ceased (minimized) the interception and never returned back on the line. After Agent Hoek ceased monitoring the call, two (2) minutes and forty (40) seconds remained for the duration of the call. By law (PC 629.80). after minimizing for the two (2) minutes of the "privileged" conversation, Agent Hoek could have come back on the line for up to another thirty (30) seconds to re-determine if the call was still "privileged." But being overly cautious and acknowledging his previous mistake in not making the initial identification between the two, Agent Hoek chose to forgo that right and cease monitoring it all together.

33. With Agent Tovar's interception of Kirk McAllister calling Scott Peterson, Agent Tovar minimized after they both said each other's name (approximately one second of actual conversation). By law he could have continued to monitor (for up to 30 seconds) to determine the nature of the conversation, yet he chose in the abundance of caution to minimize immediately. After waiting thirty-six (36) seconds more, once again which is more than the Federal "golden rule" of thirty (30) seconds used by Federal and Task Force Agents here in our Eastern District of California, he chose to spot check the conversation. During his spot check he heard Scott Peterson mid-sentence saying thirteen (13) words, which didn't form a complete sentence (actual time of conversation approximately five (5) seconds). After hearing Scott Peterson's voice, he was satisfied Scott Peterson was still talking to Kirk McAllister. In the abundance of caution, he minimized again, without finding out if the conversation was in fact "privileged." This time he more than doubled the normal Federal "golden rule" of thirty

(30) seconds by staying off the line for 1 minute and seven (7) seconds. After effectively minimizing, Agent Tovar came back on the line and heard Scott Peterson say five (5) more words, which didn't make a complete sentence. He heard Scott Peterson's attorney say one (1) word. He then heard Scott Peterson agree and his attorney state a few more words. This time after hearing both Scott Peterson and Kirk McAllister briefly communicate, he chose to once again minimized the conversation. This minimization lasted until the end of the call (twenty-four seconds later). I believe Agent Tovar, in the abundance of caution, did not fully monitor the call enough to learn the nature of the communication between Scott Peterson and Kirk McAllister. At no time do I believe Agent Tovar heard any privileged communication between Scott Peterson and Kirk McAllister triggering the requirements of Penal Code Section 629.80. I believe that the recorded audio verifies and confirms this.

34. Furthermore, after Judge Ladine and DDA Distaso, who, in my opinion chose to be more conservative than the provision of 629.80 dictates, mandated that I fully minimized on all communications between Kirk McAllister and Scott Peterson (and no longer perform spot checks), such orders were in fact carried out by my supervisors and monitors, as depicted in exhibits "A, B, and C." I have reviewed all calls presented in the aforementioned exhibits and believe the listed synopsis properly and accurately represents the incoming and outgoing intercepts involving Kirk McAllister, Scott Peterson and Gary Ermoian. I find no other incoming or outgoing intercepted communications between Scott Peterson and Kirk McAllister where the calls were not minimized, or any other call, besides the aforementioned calls concerning Agents Hoek and Tovar, where spot checks were performed.

I declare under the penalty of perjury that the foregoing is true and correct to the best of my ability.

DATED: May 22, 2002.

[signature]

Steven P. Jacobson, Criminal Investigator II

County of Stanislaus, State of California

DECLARATION OF PERSONAL SERVICE

I, the undersigned, say:

I was at the time of service of th4e attached RELEASE OF AUDIO RECORDINGS FROM STANISLAUS COUNTY WIRETAP NO. 2 AND 3 RECORDS, AFFIDAVIT OF STEVEN P. JACOBSON, over the age of eighteen years and not a party to the above-entitled action. I served a copy of the above-entitled document(s) on the 23rd day of May, 2003, by delivering a copy thereof to the office(s) of:

Kirk W. McAllister

1012 11th Street Ste. 101

Modesto, California 95354

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 23rd day of May, 2003, at Modesto, California.

[signature]

People v. PETERSON

D.A. No. 1056770

Court No. 1056770

kjh

AFFIDAVIT OF SERVICE BY MAIL (C.C.P. 1013a)

STATE OF CALIFORNIA )

(

COUNTY OF STANISLAUS )

I, the undersigned, say:

That I am a citizen of the United States, over 18 years of age, a resident of Stanislaus County, and not a party to the within action.

That affiant's business address is Stanislaus County Courthouse, Modesto, California.

The affiant served a copy of the attached RELEASE OF AUDIO RECORDINGS FROM STANISLAUS COUNTY WIRETAP NO. 2 AND 3 RECORDS, AFFIDAVIT OF STEVEN P. JACOBSON, by placing said copy in an envelope addressed to Mark J. Geragos, 350 South Grand Avenue, 39th Floor, Los Angeles, CA, 90071, which envelope was then sealed and postage fully prepaid thereon, and thereafter was on May 23rd, 2003 deposited in the United States mail at Modesto, California. That there is delivery service by United States mail at the place so addressed, or regular communication by United States mail between the place or mailing and the place addressed.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 23rd day of May, 2003, at Modesto, California.

[signature]

KAREN HUGHES

People v. PETERSON

D.A. No. 1056770

Court No. 1056770

FILED MAY 23, 2003 9:35 AM

CLERK OF THE SUPERIOR COURT

COUNTY OF STANISLAUS

BY [SIGNATURE]

DEPUTY

JAMES C. BRAZELTON

District Attorney

Stanislaus County

Courthouse

Modesto, California

Telephone: 525-5550

Attorney for Plaintiff

STANISLAUS COUNTY SUPERIOR COURT

STATE OF CALIFORNIA

D.A. No. 1056770

THE PEOPLE OF THE STATE OF CALIFORNIA

Plaintiff,

vs.

SCOTT LEE PETERSON,

Defendant.

No. 1056770

ADDITIONAL POINTS AND AUTHORITIES IN SUPPORT OF SEALING RECORDS

Hrg: 5-27-03

Time: 8:30 a.m.

Dept: 2/8

Comes now the People of the State of California to submit the following Additional Points and Authorities in support of SEALING RECORDS:

FACTS

See previous statements of facts.

ARGUMENT

1. The term "Public" does not automatically mean discoverable.

The media has now filed a supplemental opposition stating that the coroners report is public and therefore subject to inspection. This simplistic logic is absurd. Any document that may allow the government to better do the job can become public, but that does not mean that it is discoverable. Examples abound,

such as tax records, mental health records, "rap sheets," and investigative records, which are public but are not subject to disclosure. (See Government Code §6254.)

The media have attached a letter from Contra Costa's County Counsel to "prove" that the records are public and quote two lines from the letter. This court should read the entire letter to see the four pages of reasons Contra Costa used to deny access to the records under the CPRA. The letter cites §§6254 (a), (c), (f), (k), and §6255 (a) to show an exception to disclosure; this was not mentioned by the media.

2.The People have standing.

Intervenors argue that the District Attorney as no standing to object to disclosure by Contra Costa. The media is wrong. In a criminal case, which this is, the District Attorney is responsible for the evidence in possession of the "prosecution team." (Brady v. Maryland, (1963) 373 U.S. 83; Kyles v. Whitley, (1995) 514 U.S. 419; In re Brown, (1998) 17 Cal.4th 873, 879.) Contra Costa is part of this team.

3. The defendant's right to a fair trial.

The media claims that by filing the autopsy reports with the court the records have become judicial records and "subject inspection by the public." They cite no authority for this proposition. Secondly they claim that by the defense obtaining copies of the reports they should have access to the records as well. They also fail to cite any authority for that proposition. What the media fails to grasp, is the defendant is entitled to a fair trial. (See previous points and authorities.) The court is

responsible to ensure this right is protected. The defendant is also entitled to discovery. (Penal Code §1054.1.) This court has assumed control over all discovery matters in this case and should decide these issues. The media is not a "party" and is not entitled to discovery, which is a separate process from the CPRA.

Conclusion

For all of the above0cited reasons, the People request the court, 1) grant an in-camera hearing, 2) seal all of the documents in question pending use by the parties in court, and 3) deny the intervenor's request to have access to the documents.

Dated: May 22, 2003

Respectfully submitted,

JAMES C. BRAZELTON

District Attorney

By: [signature]

David P. Harris

Deputy District Attorney

PROOF OF SERVICE BY FAX

Re: People v. Scott Lee Peterson

No. 1056770

I, the undersigned, am over the age of eighteen years and not a party to the within above-entitled action. On April 18, 2003, I served the within POINTS AND AUTHORITIES IN SUPPORT OF SEALING RECORDS by faxing a true copy thereof to the fax numbers:

Kirk McAllister

1012 11th Street

Modesto, CA 95354

(209) 575-0240

Mark Geragos

350 S. Grand Avenue, #3900

Los Angeles, CA 90071

(213) 625-1600

Charity Kenyon

2500 Venture Oaks Way

Suite 220

Sacramento, CA 95833

(916) 779-7120

Karl Olson

639 Front Street, 4th Floor

San Francisco, CA 94111

(415) 433-7311

James M. Chadwick

1755 Embarcadero Rd.

Palo Alto, CA 94303

(650) 320-7401

I declare under penalty of perjury that the foregoing is true and correct.

Dated:

[signature]

Confirmation Report - Memory Send

Page: 001

Date & Time: May-23-03 09:18

Line 1: 209 525 5545

Line 2:

Machine ID: Stanislaus Co. DA

Job number: 400

Date: May-23 09:11

To: 914154337311

Number of pages: 004

Start time: May 23 09:18

End time: May-23 09:19

Pages sent: 004

Status: OK

Job number: 400

***SEND SUCCESSFUL***

OFFICE OF DISTRICT ATTORNEY

JAMES C. BRAZELTON

District Attorney

Court House

P.O. Box 442

Modesto, California 95353

Tel: (209) 525-5550

FACSIMILE COVER SHEET

FAX NO. (209) 525-5545

Date: May 23, 2003

SEND TO: Law Office

ATTN: Karl Olson

FAX TELEPHONE NO: (415) 433-7911

NO. OF PAGES 3

If you have any problems with this transmission, please call (209) 525-5550 immediately.

SENDER'S NAME: D. HILL

OFFICE PHONE NO: (209) 525-5550

DEPARTMENT NAME: DA

COMMENTS: People v. Scott Lee Peterson, No. 1056770

SENT BY: DLM

DATE: 5/23/03 TIME: 9:15 a.m.

Confirmation Report - Memory Send

Page: 001

Date & Time: May-23-03 09:18

Line 1: 209 525 5545

Line 2:

Machine ID: Stanislaus Co. DA

Job number: 397

Date: May-23 09:10

To: 9570240

Number of pages: 004

Start time: May 23 09:05

End time: May-23 09:17

Pages sent: 004

Status: OK

Job number: 397

***SEND SUCCESSFUL***

OFFICE OF DISTRICT ATTORNEY

JAMES C. BRAZELTON

District Attorney

Court House

P.O. Box 442

Modesto, California 95353

Tel: (209) 525-5550

FACSIMILE COVER SHEET

FAX NO. (209) 525-5545

Date: May 23, 2003

SEND TO: Law Office

ATTN: Kirk McAllister

FAX TELEPHONE NO: (209) 575-0240

NO. OF PAGES 3

If you have any problems with this transmission, please call (209) 525-5550 immediately.

SENDER'S NAME: D. HILL

OFFICE PHONE NO: (209) 525-5550

DEPARTMENT NAME: DA

COMMENTS: People v. Scott Lee Peterson, No. 1056770

SENT BY: DLM

DATE: 5/23/03 TIME: 9:15 a.m.

Confirmation Report - Memory Send

Page: 001

Date & Time: May-23-03 09:18

Line 1: 209 525 5545

Line 2:

Machine ID: Stanislaus Co. DA

Job number: 398

Date: May-23 09:10

To: 916503207401

Number of pages: 004

Start time: May 23 09:17

End time: May-23 09:18

Pages sent: 004

Status: OK

Job number: 398

***SEND SUCCESSFUL***

OFFICE OF DISTRICT ATTORNEY

JAMES C. BRAZELTON

District Attorney

Court House

P.O. Box 442

Modesto, California 95353

Tel: (209) 525-5550

FACSIMILE COVER SHEET

FAX NO. (650) 320-7401

Date: May 23, 2003

SEND TO: Law Office

ATTN: James M. Chadwick

FAX TELEPHONE NO: (415) 433-7911

NO. OF PAGES 3

If you have any problems with this transmission, please call (209) 525-5550 immediately.

SENDER'S NAME: D. HILL

OFFICE PHONE NO: (209) 525-5550

DEPARTMENT NAME: DA

COMMENTS: People v. Scott Lee Peterson, No. 1056770

SENT BY: DLM

DATE: 5/23/03 TIME: 9:15 a.m.

Confirmation Report - Memory Send

Page: 001

Date & Time: May-23-03 09:19

Line 1: 209 525 5545

Line 2:

Machine ID: Stanislaus Co. DA

Job number: 401

Date: May-23 09:12

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Number of pages: 004

Start time: May 23 09:10

End time: May-23 09:17

Pages sent: 004

Status: OK

Job number: 401

***SEND SUCCESSFUL***

OFFICE OF DISTRICT ATTORNEY

JAMES C. BRAZELTON

District Attorney

Court House

P.O. Box 442

Modesto, California 95353

Tel: (209) 525-5550

FACSIMILE COVER SHEET

FAX NO. (213) 625-1600

Date: May 23, 2003

SEND TO: Law Office

ATTN: Mark Geragos

FAX TELEPHONE NO: (415) 433-7911

NO. OF PAGES 3

If you have any problems with this transmission, please call (209) 525-5550 immediately.

SENDER'S NAME: D. HILL

OFFICE PHONE NO: (209) 525-5550

DEPARTMENT NAME: DA

COMMENTS: People v. Scott Lee Peterson, No. 1056770

SENT BY: DLM

DATE: 5/23/03 TIME: 9:15 a.m.

Confirmation Report - Memory Send

Page: 001

Date & Time: May-23-03 09:18

Line 1: 209 525 5545

Line 2:

Machine ID: Stanislaus Co. DA

Job number: 399

Date: May-23 09:12

To: 919167797120

Number of pages: 004

Start time: May 23 09:17

End time: May-23 09:18

Pages sent: 004

Status: OK

Job number: 399

***SEND SUCCESSFUL***

OFFICE OF DISTRICT ATTORNEY

JAMES C. BRAZELTON

District Attorney

Court House

P.O. Box 442

Modesto, California 95353

Tel: (209) 525-5550

FACSIMILE COVER SHEET

FAX NO. (213) 625-1600

Date: May 23, 2003

SEND TO: Law Office

ATTN: Charity Kenyon

FAX TELEPHONE NO: (916) 779-7120

NO. OF PAGES 3

If you have any problems with this transmission, please call (209) 525-5550 immediately.

SENDER'S NAME: D. HILL

OFFICE PHONE NO: (209) 525-5550

DEPARTMENT NAME: DA

COMMENTS: People v. Scott Lee Peterson, No. 1056770

SENT BY: DLM

DATE: 5/23/03 TIME: 9:15 a.m.

Transcribed by: HM