INTRODUCTION

The Motion by the prosecution reflects a fundamental misunderstanding of one of the most sacred of all privileges - - that between a client and his attorney. As the Court of Appeal for the Second Appellate District recently stated:

The [attorney-client] privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case. (Solin v. O’Melveny & Myers, LLP (2^nd Dist. 2001) 89 Cal.App.4th 451, 457).

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In sum, there can be no balancing of the attorney-client privilege against the right to prosecute a lawsuit to redress a legal wrong.

(Id.)

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While it is perhaps somewhat of a hyperbole to refer to the attorney-client privilege is sacred, it is clearly one which our judicial system has carefully safeguarded with only a few specific exceptions.

 

(Id.)

Despite the bedrock nature of the attorney-client privilege both Constitutionally and statutorily, and bereft of any case law to the contrary, the Stanislaus County District Attorney authorized investigators to monitor conversations between Paterson and his counsel¹. As a result, the prosecution has conceded that a minimum of three privileged

¹Peterson notes that the People admit to having monitored privileged communications between Peterson and a private investigator (Gary Ermoian) known by the People to have been

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conversations between Peterson and his counsel or counsel’s investigator were (improperly) monitored.

As a result of this misconduct, Mr. Peterson respectfully requests that

(1) the Court deny the prosecution motion in its entirety;

 

(2) the Court Order the immediate disclosure (both written and electronically recorded or stored) to counsel for Mr. Peterson all intercepted and/or monitored conversations between Mr. Peterson and his counsel or his counsel’s investigator;

 

(3) the Court set an in camera hearing during which DDA Distaso, among others, may be questioned as to the circumstances surrounding the improper monitoring and intrusion into the defense camp. Counsel for Mr. Peterson also plan to address who initially told Mr. Distaso that the conversations were not recorded (see Declaration of Kirk McAllister at paragraphs 3 and 4), when Distaso received information that apparently directly contradicted his previous statements to Mr. McAllister.  In addition, the defense respectfully requests that the investigators who conducted the improper monitoring be placed under oath so that they may be thoroughly examined as to the nature and scope of the privileged communications overheard by them;

 

(4) the Court Order the immediate disclosure to Peterson of any and all notes taken by the People’s investigators in connection with the improper monitoring.

 

(5) the Court Order the immediate disclosure to the defense only of all transcripts of the January 17, 2003 meeting between Judge Ladine, DDA Distaso, and investigator Jacobson and any other transcripts of related hearings, applications

hired by Peterson’s counsel. This Opposition specifically addresses the law and  facts as to attorney-client communication and the same principles apply to the conversations between Peterson and his attorney’s investigator.

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(whether or nor granted) and declarations by all involved that there are no other eavesdropping of Mr. Peterson and his counsel, investigators or experts either pre or post arrest.

Counsel for Mr. Peterson believe the relief requested above is a necessary threshold requirement to allow the defense an opportunity to properly assess the egregiousness and taint of the admitted prosecutorial misconduct and make a proper determination as to the appropriate sanction.

II.

THE PEOPLES’ ADMITTED MONITORING OF CONVERSATIONS BETWEEN PETERSON AND HIS ATTORNEY WAS IN VIOLATION  OF CALIFORNIA LAW

Apparently the prosecution will seek refuge in Penal Code section 629.80.² However, reliance on this section is misplaced at best. Nowhere does this Penal Code section justify the monitoring of attorney-client communications. In fact, the defense is unaware of any reported case even relying on this section at all for any proposition of law

²Penal Code section 629.80 provides:

No otherwise privilege communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privilege character. When a peace officer or federal law enforcement officer, while engaged in intercepting wire, electronic pager, or electronic cellular telephone communications in the manner authorised by this chapter, intercepts wire, electronic pager, or electronic cellular telephone communications that are of a privileged nature he or she shall immediately cease the interception for at least two minutes. After a period of at least two minutes, interception may be resumed for up to 30 seconds during which time the officer shall determine in the nature of the communications is still privilege. If still of a privileged nature, after which the officer may again resume interception for up to 30 seconds to redetermine the nature of the communication. The officer shall continue to go online and offline in this manner until the time that the communication is no longer privileged or the communication ends. The recording device shall be metered so as to authenticate upon review that interruption occurred as set forth in this chapter.

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let alone authorizing the repeal of the 6^th amendment of the United States Constitution or Evidence Code section *954 et. seq.. To the contrary, this section as no applicability to eavesdropping on attorney client communications because by their very nature they are privileged as a matter of fact and law.

A. The People knew that Peterson had retained Attorney Kirk McAllister in this matter and that all communications between McAllister and Peterson were absolutely privileged under California law.

The prosecution motion states that “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.” (Motion at 1:21-24.) The People, through the Affidavit of Steven P. Jacobson (“Jacobson Affidavit”), also state that “(the People are) familiar with criminal defense attorney Kirk McAllister. Prior to joining the investigation, around the first week of January 2003, (the People) were told by Detectives of the Modesto Police Department that Scott Peterson an or family members had retained Kirk McAllister.” (emphasis added) (Jacobson Affidavit at paragraph 8.) Knowing that (a) McAllister is a criminal defense attorney, (b) that Scott Peterson knew he was the target of an investigation by the Modesto Police department, and c) that Peterson had retained McAllister, the People cannot credibly contend they did not know that all communications between McAllister and Peterson were absolutely privileged.³ Moreover, the People admit that on January 10, 2003, before the improper monitoring, “Agent Bill Pooley informed (Affiant Steven Jacobson) that he entered Kirk McAllister’s name and listed business telephone number of (209)575-4844 into (the People’s) newly created interception computer database.” (Jacobson Affidavit at paragraph 11.) The People also admit that McAllister’s name and business telephone had been placed on a dry erase board over the monitoring area and that the People knew when McAllister was calling Scott Peterson (presumably through caller ID or some

³As noted above, the California courts have held that the attorney-client privilege is absolute

but for a few very limited exceptions which are wholly irrelevant to these proceedings. (See Solin

v. O’Melveny & Myers, LLP (2^nd Dist 2001) 89 Cal. App. 4^th 451, 457.)

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similar technology). (See Jacobson Affidavit at paragraphs 11, 12, and 15.)

As to one of the calls that was improperly monitored the Jacobson Affidavit states “Agent Hock stated as soon as he recognized the unknown caller’s voice was that of Kirk McAllister (and it did not appear ro him that Kirk McAllister was planning the commission of any other crimes, nor personally involved in Laci Peterson’s disappearance). He minimized the conversation.” (Jacobson Affidavit at paragraph 13.) This statement clearly indicates the prosecution also, unbelievable as it my seem, intends to rely at least in part on the crime-fraud exception to justify the improper monitoring. Such a reliance is not only disingenuous and utterly without merit, but insulting to the Court and Counsel.

As discussed at length by the Court of Appeal for the Second Appellate District in State Farm Fire and Casualty Company v. Superior Court (2^nd Dist. 1997) 54 Cal.App.4th 625, rehearing denied, review denied:

Evidence Code section 956 is the so-called crime/fraud exception: “There is no privilege under this article if them services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.”

'To invoke the Evidence Code section 956 exception to the attorney-client privilege, the proponent must make a prima facie showing that the services of the lawyer ‘were sought or obtained’ to enable or to aid anyone to commit or plan to commit fraud. (Citation)’ (BP Alaska Exploration, Inc. V. Super Court (1988) 199 Cal.App.3d 1240, 1262, 245 Cal.Rptr. 682)

(State Farm at 643.)

On its face, [the facts of this case] fall] within the traditional application of the attorney privilege in a litigation setting; the

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client has already committed an alleged crime or a civil fraud and retains the attorney to provide a defense to the action. The information exchanged between the attorney and the client is totally privileged, even if the client confesses the wrongdoing to the attorney.

(Emphasis added) (State Farm at 644.)

The instant matter is no different. Investigators from the interception of the missing persons investigation, focused their almost undivided investigative resources and efforts on Mr. Peterson. Mr. Peterson, knowing he was the target of an investigation into the disappearance of his wife, retained Attorney McAllister to provide a defense to these false allegations. Consequently, as the State Farm court properly found, all information exchanged between Peterson and McAllister is totally privileged. Moreover, as set forth above, the prosecution not only knew of the attorney-client relationship, they actively monitored the privileged communications and subsequently misled the Court and Counsel as to their actions.

In the face of this admitted prosecutorial misconduct, this Court is also requested to stay all pending motions by the media and others concerning the inspection of all communications intercepted by the prosecution until such time as a plenary hearing can be held. In light of the failure of the prosecution to heed the Constitution of California as to privileged attorney-client communications, we respectfully request that this Court stay the other pending motions until this motion is resolved and a subsequent anticipated motion for sanctions. The defense believes that the People’s failure to obey the laws of California may be so great that all intercepted communications are tainted by the prosecutorial misconduct and should therefore remain sealed and unavailable for inspection by anyone other than the defense.

B. Penal Code section 629.80 did not authorize the People to monitor any communications between Peterson and McAllister.

As noted above, Penal Code section 629.80 governs the monitoring of privileged

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communications. However, Section 629.80 expressly permits monitoring only to “determine if the nature of the communication is still privileged.” (Section 629.80.) AS such, when there is no possibility that the communication is not privileged, no monitoring is permitted. Moreover, this fact was recognized by Judge Ladine during the January 17, 2003 meeting between Judge Ladine, DDA Distaso, and investigator Jacobson:

Judge Ladine expressed his concern about the monitoring of any communications between Scott Peterson and Kirk McAllister.

(Jacobson Affidavit at paragraph 19.)

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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.

(Id.)

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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 check police would be able to hear portions...of potential privileged communications...Judge Ladine stated once again be did not like the idea of spot checks being performed and instructed me to pass on to the monitors to fully minimize or

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not monitor the calls being made between Scott Peterson and Kirk McAllister.

(Id.)

Judge Ladine’s concern was well founded and present. At the time the attorney-client communications were eavesdropped upon the prosecution not only knew Peterson had retained McAllister, but the prosecution conceded that communications between McAllister and Peterson were obviously totally privileged. So, they come hat in hand to this court on one hand claiming that they knew that the communications were privileged ans as soon as the recognized that it was Mr. McAllister that they turned off the recording equipment and on the other hand now admitting that there are three entire conversations that were not only listened to but recorded as well! This Court should not condone the People’s brazen disregard of Peterson’s rights and the laws of California. As such, the Court must grant the relief requested.

III.

THE PROSECUTION FAILED TO PROPERLY ADVISE INVESTIGATORS THAT ALL CONVERSATIONS BETWEEN PETERSON AND HIS COUNSEL WERE ABSOLUTELY PRIVILEGED, AND IN FACT, DIRECTED THE INVESTIGATORS TO ENGAGE IN PROHIBITED MONITORING OF PRIVILEGED COMMUNICATIONS.

As set fort in Section II herein, the People knew that all communications herein between Mr. Peterson and Attorney McAllister were totally privileged. Nevertheless,

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 phone numbers (209)505-0337 and (209)499-8427.” (Jacobson Affidavit at paragraph 9.)

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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 [s]ection 629.80 pertaining tp ‘privileged communication.’ DDA Distaso read nearly verbatim the language used in Section 629.90 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 attorney consulting with Scott Peterson, specifically those belonging to criminal defense attorney Kirk McAllister. (Jacobson Affidavit at paragraph 10.)

From the above it is clear that despite the implicit Section 629.80 prohibition against monitoring communications that could not conceivably be privileged (and in this case were actually known by the People to be totally privileged), the prosecution clearly and improperly instructed the investigators to monitor these protected attorney-client communications under the auspices of Section 629.80. Hence, the prosecution knowingly and in violation of well-established law, orchestrated eavesdropping on totally privileged attorney-client communications.

Not unexpectedly, the United States Supreme Court and the courts of California have frowned upon this type of grave prosecutorial misconduct. The United States Supreme Court has recognized that in cases of egregious prosecutorial misconduct resulting in prejudice to a criminal defendant, dismissal of a case, with prejudice, is appropriate. (See United States v. Morrison (1981) 449 U.S. 361, 101 S.Ct. 665) Expanding on this proposition, California courts have found that,

Where, as here, the prosecutor orchestrates an eavesdropping

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upon a privileged attorney client communication in the courtroom and acquires confidential information, the court’s conscience is shocked and dismissal is the appropriate remedy. Even when the issue is narrowed to a Sixth Amendment violation, dismissal is still appropriate because here there is a ‘substantial threat of demonstrable prejudice’ as a matter of law. (Morrow v. Superior Court (2^nd Dist. 1994) 30Cal.App.4th 1252, 1261, citing United States v. Morrison (1981) 449 U.S. 361, 365.)

The prosecutorial misconduct orchestrated here is no different than that which occurred in Morrow. Indeed, even more shockingly, knowing that all communications between Mr. Peterson and Attorney McAllister were totally privileged, the prosecution instructed their investigators to repeatedly monitor the privileged communications.

As noted by the Morrow court,

It is true today, as it was 100 years ago, that an attorney ...owes the duty of good faith and honorable dealing to the judicial tribunals before whom he practices his profession. He is an officer of the court - - a minister in the temple of justice. His high vocation is to correctly inform the court upon the law and the facts of the case, and to aid it in doing justice and arriving at correct conclusions. He violates his oath of office when he resorts to deception or permits his clients to do so.

(Morrow at 1261-1262, citing People ex re). Attorney General v. Beattie (1891)127 Ill. 553, 574 {27 N.E. 1096, 1103}.)

Here, not only were investigators directed to monitor totally privileged attorney-client communications, but the prosecution admits that they become privy to confidential

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information. “The third call occurred on January 23,2003, at 1019 hours, where Scott Peterson called McAllister’s office and confirmed an appointment.”⁴ (Jacobson Affidavit at paragraph 21.) As discussed at length above, all communications between McAllister and Peterson were totally privileged. Nevertheless, the prosecution not only obtained privileged information from these communications but compounds the matter by publishing this privileged information in papers not filed under seal.

As the court in Morrow aptly noted,

We would be remiss in our oaths of office were we to discount or trivialize what occurred here. The judiciary should not tolerate conduct that strikes at the heart of the Constitution, due process of law, and basic fairness. What has happened here must not happen again. The prosecutor used methods that offend a sense of justice. This is conduct which shocks the conscience.

( internal citations and quotation marks omitted) (Morrow at 1263.)

In light of the grave prosecutorial misconduct described herein, this Court must grant the relief herein so that Peterson may prepare and file any and all appropriate motions.

IV.

THE DISTRICT ATTORNEY’S INVESTIGATORS IMPROPERLY RELIED ON FEDERAL STANDARDS GOVERNING THE MONITORING OF ATTORNEY-CLIENT COMMUNICATIONS

This matter is pending in a California state court. Subsequent to the passage of Proposition 8, federal authority (other than cases decided by the United States Supreme Court) is not binding on this Court. Nevertheless, investigator Jacobson repeatedly makes

⁴Counsel for Mr. Peterson submits that this exemplifies the urgency of the relief requested so that the defense can, in camera, question all those involved in the improper monitoring as to the scope of information from these calls that has been provided to the prosecution.

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reference to, and apparently relied upon federal law. This misplaced reliance has further deprived Peterson of the protections of California law detailed herein. A few examples of Jacobson’s improper reliance are,

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.

(Jacobson Affidavit at paragraph 29, page 10, lines 2-4.)

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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. (Jacobson Affidavit at paragraph 33, page 11, lines 19-21.)

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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. (Jacobson Affidavit at paragraph 33, page 11, line 27 - page 12, line 1.)

These examples are particularly disturbing in that not only do they reflect the investigators’ improper reliance on federal law, the conclusively demonstrate that the investigators failed to even heed DDA Distaso’s purported ‘wiretap instructions’. As noted previously, DDA Distaso allegedly read “nearly verbatim” the language in Section 629.80. Section 629.80 provides in pertinent part, “[a]fter a period of at least two minutes, interception may be resumed.” (See Section 629.80, emphasis added.) According to the Jacobson Affidavit, the longest the agents stayed off the line was sixty-seven (67) seconds . . barely over one-half the time required under California law.

Hence, not only was their improper monitoring and intrusion into the defense camp

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but investigators failed to even follow the requirements of their very own instructions. This failure demonstrates the necessity for the defense to have an opportunity to question the investigators and prosecutors in camera as to the events surrounding the improper monitoring of privileged attorney-client communications.

V.

THE AFFIDAVIT OF STEVEN P. JACOBSON FAILS TO COMPLY WITH CODE OF CIVIL PROCEDURE SECTION 2015.5

Code of Civil Procedure section 2015.5 sets forth the requirements of affidavits’/declarations submitted to California courts. Specifically, Section 2015.5 requires that these submissions state the location at which they are executed and requires that they be signed under penalty of perjury of the laws of California. The Affidavit of Steven P. Jacobson fails to comply with these requirements and is therefore improper.

Additionally, Peterson notes that some of the statements reflect the fact that the District Attorney, rather than place himself in the position of being called as a witness, has chosen to improperly allege his own actions through Jacobson’s Affidavit. For example,

Deputy District Attorney (DDA) Rick Distaso prepared ‘wiretap instructions’ and discussed them with all potential monitors and supervision...

(Jacobson Affidavit at paragraph 9.)

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DDA Distaso advised monitors and supervisors of conversations... (Jacobson Affidavit at paragraph10.)

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DDA Distaso briefed all monitors and Supervisors...

(Id.)

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DDA Distaso read nearly verbatim the language used in Section 629.80..

(Id.)

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DDA Distaso further told all monitoring and supervision agents to become familiar with all telephone numbers regarding any attorney consulting with Scott Peterson, specifically those belonging to criminal defense attorney Kirk McAllister.

(Id.)

These statements are of particular interest because the Jacobson Affidavit fail to indicate that Jacobson attended the meeting at which DDA Distaso purportedly took the above - alleged actions and made the alleged statements. Peterson also notes that the Motion itself (signed by DDA Distaso) contains numerous statements that should have been presented to the Court in the form of an affidavit signed under penalty of perjury,

Investigator Jacobson informed me...

(Motion at 2:11.)

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Inv. Jacobson also informs me that...

(Motion at 3:10.)

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According to Inv. Jacobson...

(Motion at 3:22.)

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Finally, according to Inv. Jacobson...

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(Motion at 1:15.)

None of these statements refers to the Jacobson Affidavit. As such, they constitute testimony given by Mr. Distaso without the protection of his attestation under penalty of perjury that the statements are true. These examples further demonstrates the need for an in camera opportunity to question Mr. Distaso, among others, under oath, as to the improper monitoring orchestrated by him.

VI.

CONCLUSION

In light of the foregoing Mr. Peterson respectfully requests that:

(1) the Court deny the Peoples’ Motion in its entirely;

(2) the Court Order the immediate disclosure to the defense only (both written and electronically recorded and stored) of all intercepted and/or monitored conversations between Peterson and his counsel or his counsel’s investigator;

(3) the Court set an in camera hearing during which (a) Deputy District Attorneys involved, including Mr. Distaso may be questioned as to who initially told him that the conversations were not recorded, and when Mr. Distaso received information that directly contradicted his previous statements, and (b) Mr. Peterson will be given the opportunity to place under oath the investigators who conducted the improper monitoring so they can be thoroughly examined as to the nature and scope of the privileged communications overheard by them, and:

(4) the Court Order immediate disclosure to the defense only of any and all notes taken by the People’s investigators in connection with the improper monitoring and;

(5) the Court Order the immediate disclosure to the defense only of all transcripts of the January 17, 2003 meeting between Judge Ladine, DDA Distaso, and investigator Jacobson and any other related hearings or requests for wiretaps. Additionally, Peterson respectfully requests that the Court stay all pending motions by the media and others

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concerning the inspection of all communications intercepted by the People.

Dated: May 26, 2003

Respectfully submitted,

Geragos & Geragos

By: [signature]

Mark Geragos

Attorney for Defendant

SCOTT LEE PETERSON

                                                                                                                   /6/

 DECLARATION OF KIRK MCALLISTER

I, KIRK MCALLISTER, declare as follow:

1. I am an attorney duly admitted to practice law in the State of California. I have personal knowledge of the following facts and if called as a witness, I could and would competently testify thereto.

2.I am co-counsel representing Scott Lee Peterson in the criminal matter currently pending before this Court.

3. On or about May 11, 2003, I spoke with DDA Rick Distaso. Mr. Distaso told me that I would receive notices of interception of conversations with my client, Scott Peterson. He also indicated that he expected that these interceptions would be reported in the media. Mr. Distaso assured me that my privileged attorney-client conversations had neither been recorded or listened to.

4. During this same phone conversation DDA Distaso told me that investigators had intercepted Scott’s phone calls, however, if it was me on the line than the recording was shut off immediately. Mr. Distaso never mentioned listening to my attorney client conversations for any period of time. Having read the Peoples’ Motion, it is apparent that Distaso’s statement that attorney-client conversations had not been recorded nor listened to was untrue.

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

Executed this ________________day of May 2003, in ____________________, California.

 [signature]_________________________