1. People v. Zepeda (6th Dist. 2001) 87 Cal.App.4th 1183 has no application to this matter.

The prosecution's Opposition relies heavily on Zepeda, a Sixth Appellate District case that is not binding on this Court. Even so, and more importantly, however, Zepeda has absolutely no application to this case. In Zepeda the defendant alleged violations of the Fourth and Fifth Amendments. Here, the prosecution's misconduct has violated Mr. Peterson's Sixth Amendment right to counsel as well has his due process rights under the United States and California Constitutions.

Moreover, there is no merit to the prosecution's claim that Islince, Zepeda, is the only California case to have addressed the wiretapping statute at all, we must turn to the federal case law for direction regarding the inadvertent monitoring of attorney-client phone calls."(sic) (Opposition at 20:23-26.) As the prosecution acknowledges, "the procedure outlined in [Penal Code section 629.80] 'expressly permits monitoring only to determine if the nature of the communications is still privileged (defense brief of May 27, page 8). That is true." (emphasis added) (Opposition at 14:18-21.)

In this case the prosecution knew from the inception of the calls that they involved attorney-client communications that were totally privileged. Since Section 629.80 is clear on its face, there is no need to review non-binding federal authority. Additionally,

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because Section 629,80 (when applicable) permits monitoring only one-fourth as frequently as the federal "golden rule" on which investigator Jacobson so heavily relies, this Court must infer that the legislature has provided the citizens of California with greater protection than is provided under federal law.

2. The prosecution's almost exclusive reliance on federal law is unfounded under the California Constitution.

As previously argued by Mr. Peterson, subsequent to the adoption of Proposition 8, decisions of United States courts (other than the United States Supreme Court) are not binding on this Court.' Nevertheless, the prosecution repeatedly cites to federal decisions and actually relies heavily on an unpublished "Opinion and Order" from the United States District Court for, the District of Oregon. (Opposition at 23-24 citing United States v. Abbir, (D. Or.) 1999 WL 1074015.)

3. The prosecution implicitly admits that the communications were totally privileged.

The prosecution states,

The defense claims that in this case there was no chance that a communication between the defendant and his attorney did
not involve privileged information. That might be true in
this particular case.
(emphasis added) (Opposition at 15:20-22.)

As set forth in Peterson's previous filings all of the attorney-client
communications at issue here were totally privileged. in light of the prosecution's acknowledgement that there was no chance otherwise, the prosecution's misconduct becomes even more apparent.

4. The prosecution's contention that the agents were acting in, good faith

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¹See also People v. Camacho (2000) 23 Ca1.4th 824, 847 (noting that decisions rendered by lower federal courts are not binding) and People v, Cleveland (2001) 25 Ca1.4th 466 (California Supreme court rejected a federal standard frequently applied by federal courts and chose to adhere to established California law).

4

is of no import.

The prosecution contends that,
The standard to be applied when analyzing minimization violations is whether or not the agents acted in good faith. [In This concept is embedded in the wiretap statute. Penal Code Sec. 629.86 reads; `. ..A good faith reliance on a court order is a complete defense to any civil or criminal action brought under this chapter, or under chapter 1.5 (commencing with Sec. 630) or any other law.

Mr. Peterson is herein seeking sanctions for prosecutorial conduct in a capital criminal case. His concern at this time is not with imposing civil or criminal penalties on the prosecution or its agents: rather his concern is for his life and liberty. The prosecution's reliance on Section 629.86 or any other good faith exception is at best misplaced.

5. The prosecution's repeatedly disclose privileged attorney-client communications.

As previously submitted to the Court, the opposition once again discloses the contents of privileged attorney-client communications. Specifically, see Opposition at 28:22-26.

6. The disclosure of sealed wiretap instructions is in violation of California Rules of Court rule 243.2.

Rule 243.2, subdivision (c) provides,
[References to nonpublic material in public records] A record filed publicly in the court must not disclose material contained, in a record that is sealed, conditionally under seal, or subject to a pending motion, to seal.

Nevertheless, the Opposition provides,

The defense states that `[T]he prosecution orchestrated the

5

eavesdropping in knowing violation of California Law," and "[t]hus, it is inconceivable that DDA Distaso, a California attorney since 1992, did not know his wiretap instructions were in violation of California law.' ...The defense
allegation is especially disturbing in light of the fact that the defense did not have a copy of the instructions in their possession at the time of their filing. Thus, the defense did not know what instructions were given to the wiretap
monitors. The defense did not have a copy of the instructions because the original instructions are sealed with the court and the court has not yet sanctioned their release. (emphasis added) (Opposition at 11:14 - 1.2:3.)

However, despite the proscription of Rule 243.2, subdivision (c) and the fact that the wiretap instructions were under seal with this Court, the prosecution apparently quotes forty (40) lines of the sealed wiretap instructions. (See Opposition at 12:16 - 13:11.)

7. DDA Distaso concedes he misled Mr. McAllister.

DDA Distasto concedes that Mr. McAllister was told that his calls were not monitored. (Sec Declaration of Rick Distaso, page 35, lines 20-26 through page 36, lines 1-4.)

8. The above seven points clearly indicate the need for a comprehensive, in camera bearing during which the Court may assess the gravity of the prosecution's misconduct.

During such a hearing, the individuals involved in the above-described violations of California law and Rules of Court may be questioned under oath. Only after such a hearing can. the Court (and the defense) properly assess the gravity of the prejudice suffered by Peterson and determine the appropriate remedial sanctions.

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6

THE LAW OF WIRETAPS¹

The prosecution correctly notes that "the conduct of state run wiretaps is provided for in Penal Code Sections 629.50 to 629.98." (Opposition at 2:16-17.) As previously argued herein and elsewhere, Section 629.80 does not permit any monitoring of totally privileged attorney-client communications. Indeed, Judge Ladine apparently was well aware of this fact when he ordered all monitoring of attorney-client communications to be halted.

As set forth above, the prosecution's reliance on the non-binding and distinguishable Zepeda case is unfounded and should be disregarded in its entirety. There simply is no authority for the proposition that any monitoring of privileged attorney-client communications is permitted.

(A) Periodic Reports to Court

The fact of the prosecution's making of periodic reports to the Court is of no import here. In fact, the only interesting thing about the reports is that Judge Ladine had to order investigator Jacobson to redo "72-hour report 42" because the report was deficient. (Jacobson Affidavit at paragraph 17.) This also displays the necessity for the defense to immediately gain possession of the affidavits.

(B) Termination of Wiretap No. 2

This section of the prosecution's opposition is wholly irrelevant to the issues at hand.

DEFENSE ALLEGATIONS AND PEOPLE'S RESPONSE

The prosecution states, "[t]he defense asks for a number of 'sanctions' as a result of what they complain is a violation of attorney-client privileged communications." (Opposition at 5:9-1 1.) In actuality, as noted above, the defense's current immediate

____________________

¹As noted above, the remainder of this Reply will address the prosecution's Opposition in sections corresponding to those in the Opposition.

7

request is for immediate access to the affidavits as well as all intercepted communications and then a hearing (or hearings).

The prosecution's extended discussion of wireroom operations is both irrelevant and should be disregarded in its entirety in that the "discussion" is not properly before the Court in the form of an affidavit, declaration, or other manner bearing any indicia of reliability. Obviously, we join in the prosecution's repeated statements that the agents will he available to testify to these matters with the caveat that we first need the affidavits and all intercepts and sufficient time to review them.

Mr. Peterson also notes that the Opposition actually misrepresents the interval at which calls may be monitored.¹ The Opposition also incorrectly states that federal law is applicable to this case. As set forth above, California law is clear - - monitoring of privileged attorney-client communications simply is not permitted. Judge Ladine recognized this when he ended the prosecution's improper practice of monitoring Peterson's calls with his attorney.

1. Grave Prosecutorial Misconduct

The prosecution asserts,

Instead of citing case law concerning the conduct of wiretaps,
the defense relies instead on three cases that only discuss
misconduct involving law enforcement personnel and
attorney-client communications. None of the cited cases are
applicable to the setting of the case here.

The prosecution is partially correct. The defense has cited cases involving (1) misconduct involving law enforcement personnel and (2) attorney-client communications. This is because in this case we have (1) a prosecutor who has apparently orchestrated eavesdropping on totally privileged (2) attorney-client communications. Hence, the cases cited by Peterson squarely address the key issue here - - the appropriate sanctions to be

____________________

'See Opposition at 6:6-8 which sets forth a 30-second interval, whereas Section 629.80, when it is applicable, provides that agents must stay off the line for two (2) minutes.

8

imposed on the prosecution.

The government attempts to distinguish United States v. Morrison (1981) 49 U.S. 361, inter alia, on the grounds that "the defense has not been able to make any showing of prejudice in this case." (Opposition at 9:8-9.) This is accurate in that Mr. Peterson has requested a hearing for the purpose of determining the magnitude of the prejudice inflicted upon him. Unfortunately, in its frenzy to distract the Court from its own misconduct, the prosecution has entirely ignored the fact that Mr. Peterson has requested a hearing regarding prejudice, not the immediate imposition of sanctions.

The prosecution's attempt to distinguish Bather v. Municipal Court (1979) 24 Cal.3d 742 also fails. As the prosecution notes, Barber involved the infiltration by the government into privileged attorney-client communications - - exactly what has occurred in this matter.

The third case the prosecution attempts to distinguish is perhaps the most similar of the three cases. In Morrow the prosecutor orchestrated the eavesdropping into privileged attorney-client communications by instructing an investigator to listen in. This is exactly what happened here when prosecutors instructed investigators to monitor the totally privileged communications between Peterson and his attorney.

2. The Wiretap Instructions Given were Improper

As described above, this section of the Opposition constitutes prosecutorial misconduct in and of itself because of the apparent violation of a scaling order and California Rules of Court rule 243.2. Moreover, as previously argued at length, the purported wiretap instructions improperly authorized the investigators to monitor totally privileged attorney-client communications.

3. Penal Code Section 629.80 Does Not Authorize the Monitoring of Totally Privileged Attorney-Client Communications

The defense has previously established that Section 629.80, on its face, does not apply when there is no possibility that the communication is not privileged. In light of the clear law and the prosecution's implicit admission that there was no possibility the

9

communications were not privileged, Section 629.80 provides no refuge for the prosecution.

IV. FEDERAL SEARCH WARRANT PRINCIPLES
ARE PREMATURE AT THIS POINT

The prosecutor's 4-page dissertation on federal search warrant principles is premature. Until Mr. Peterson receives the affidavits he is not challenging the warrants so the prosecution's lengthy analysis is entirely premature.¹

V. FEDERAL WIRETAP MINIMIZATION RULES
ARE INAPPLICABLE TO THIS CASE

In a further attempt to subvert California law, the prosecution claims that federal wiretap rules are controlling, There is no basis for this contention in light of the well-established California law, recognized by Judge Ladine, that no monitoring of totally privileged attorney-client communications is permitted. As such, this Court need not, and in fact, must not, consider federal law in ruling on this matter.

1. Even Under an Objective Reasonableness Standard, the Monitoring Was Improper

The prosecution knew McAllister was Mr. Peterson's attorney at the time of the illegal monitoring. The prosecution knew Peterson's and McAllister's phone numbers at the time of the illegal monitoring. The prosecution knew California law at the time of the illegal monitoring. The prosecution knew, from the instant of interception of a call, the telephone numbers from which the monitored calls originated. in light of these facts, any contention that the repeated monitoring of totally privileged communications was

____________________

¹Mr. Peterson has not contested the warrants, in part, because the defense has yet to be provided with the underlying affidavits.

10

permissible is patently absurd.

2. The Appropriate Remedy for Violations of Minimization Rules

Mr. Peterson's Motion sets forth the law governing the appropriate remedy(ies) for the prosecution's orchestration of the eavesdropping. These remedies range from exclusion to recusal to dismissal. Mr. Peterson first however needs to examine the affidavits, conduct a hearing and then brief the imposition of any and all potential requests for sanctions. The prosecution's lengthy explication of various federal cases must be disregarded pursuant to Proposition 8, and because the United States Supreme Court and the courts of California have clearly and specifically addressed the range of sanctions for the type of prosecutorial misconduct which has occurred herein.

3. The Three Specific Calls

As Mr. Peterson has requested, the appropriate mariner in which the Court should deal with the calls is to hold an in camera hearing during which the people who monitored. the calls can be questioned under oath. However, as we previously noted, this hearing must be preceded by the release of the affidavits and all intercepts.

VI. THE DEFENSE HAS HEREIN REQUESTED A HEARING ON SANCTIONS, NOT THE IMPOSITION OF SANCTIONS

As noted previously, Mr. Peterson has requested a hearing - not the imposition of sanctions. Only after such a hearing can this Court properly evaluate the degree of prosecutorial misconduct and the magnitude of the prejudice inflicted upon Mr. Peterson. As such, the prosecution's argument as to appropriate sanctions is premature and should not be considered at this time.

///

///

///

11

VII. CONCLUSION

Counsel for Mr. Peterson respectfully requests that the Court order disclosure under seal of the affidavits and all intercepts pursuant to the wiretaps in this matter and set a date for an in camera hearing as well as an appropriate briefing schedule.

Respectfully submitted,

GERAGOS & GERAGOS

BY [signature]

MARK J. GERAGOS

Attorney for Defendant

SCOTT LEE PETERSON

DATED: June 5, 2003

12

PROOF OF SERVICE BY FAX
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 350 S. Grand Avenue, 39th Floor, Los Angeles, California 90071.

On execution date set forth below, I served the following

DOCUMENTS OR DOCUMENTS DESCRIBED AS:

REPLY TO OPPOSITION TO MOTION FOR HEARING RE SANCTIONS AND REQUEST FOR DISCLOSURE OF THE AFFIDAVITS AND ALL INTERCEPTED COMMUNICATIONS

_______ placing a true copy thereof enclosed in scaled envelopes with postage thereon fully prepaid, to the attorneys and their perspective addresses listed below, in the United States Mail at Los Angeles, California.

X______ transmitting by facsimile transmission the above document to the attorneys listed Row at their receiving facsimile telephone numbers. The sending facsimile machine I used, with telephone number (213) 625-1600, complied with. C.R.C. Rule 2003(3). The transmission was reported as complete and without error.

_______ personally delivering the documents) listed above to the party or parties listed below, or to their respective agents or employees.

PARTIES SERVED BY FAX:

Hon. Al Girolarni
Fax. No.: 209-525-6385

Rick Disatso, DDA

David P. Harris, DDA

Fax No.: 209-525-5545

Executed on June 5, 2003 , at Los Angeles, California.
I declare under penalty of perjury that the above is true and correct.

[signature]

JOSLIN RUDD

06/05/2003 16:44 2136251600 GERAGOS&GERAGOS PAGE 15/16

TRANSMISSION VERIFICATION REPORT

TIME: 1 06/05/2003 16:31

NAME : GERAGOS&GERAGOS
FAX : 2136251600
TEL : 2136253900

SERA : BROL2J654125

DATE, TIME FAX 06/05 16:29

NO./NAME 12095256385

DURATION 00: 02: 35 15

PAGE(S) RESULT 0K
MODE STANDARD ECM

 

GERAGOS GERAGOS
LAWYERS
39" FLOOR
350 S. GRAND AVENUE
LOS ANGELES, CA 90071 -3480
TEL: (2 3) 625-3900

FAX: (213) 625- 1600

FAX COVER SHEET

From: Joslin Rudd for Mark J. Geragos
Client/Matter: People v. Peterson
Date: June 5, 2003
Pages: 12 (INCLUDING COVER)

RECIPIENT
Hon. Al Girolami 209-525-6385

FACSIMILE NUMBER

209-525-6385

06/05/2003 16:44 2136251600 GERAGOS&GERAGOS PAGE 16/16

TRANSMISSION VERIFICATION REPORT

TIME : 06/05/2003 16:42

NAME : GERAGOS&GERAGOS
FAX : 2136251600
TEL : 2136253900 SER.# :

BROL2J654125

DATE,TIME 0E/05 16:40
FAX NO./NAME 12095255545
DURATION 00:02031
RAGE(S) 14
RESULT OK
MODE STANDARD ECM

GERAGOS GERAGOS

LAWYERS
39Th FLOOR
350 S. GRAND AVENUE
LOS ANGELES, CA 90071 -3460
TEL.: (2 I 3) 625-3900
FAX: (2 I 3) 625- 1600

FAX COVER SHEET

From: Joslin Rudd for Mark J. Geragos
Client/Matter: People vs. Peterson
Date: June 5, 2003
Pages: 12 (INCLUDING COVER)

RECIPIENT

Deputy District Attorneys Rick Distaso or David P. Harris

FACSIMILE NUMBER (209) 525-5545

Transcribed by: HM