Hearing on FBI CCTV Cameras and Fresno Federal Grand Jury

Preliminary Hearing

November 6, 2003

JUDGE:  Call the matter of Scott Lee Peterson, 1056770.  Rick Distaso and David Harris appearing for the People, Mr. Mark Geragos and Kirk McAllister for the defendant.  Record reflect the defendant is present. Ready to call your next witness, Mr. Harris?

GERAGOS:  Your Honor, could I be heard just briefly prior to calling the witness? I notice on I think about a -- four or five days ago, while preparing for the doctor's testimony on the DNA, that there was a memo that's Bates number stamped 26194 which was provided, as you can tell by the Bates number stamp, relatively recently.  In there, there is a reference to the Modesto resident agency having provided considerable investigative assistance in this matter, Sacramento Division has provided the following assistance, and ERT in the search of Scott Peterson's residence a CCTV camera, under FBI authority, was placed across the street from the Peterson home. I've informally, at least through my office, requested through the discovery people at the DA's Office for anything that was -- that it refers to, because I have no record of anything regarding a closed-circuit TV, any notes of a closed-circuit TV, any tapes representing the closed-circuit TV, even any knowledge or reference in the discovery that I've seen that refers to what house or where across the street a closed-circuit TV was placed. My concern is, is that we're about to embark on Detective Brocchini and some of the other officers in this case who are going to talk about events that start on the 24th and move forward.  And we're going to be in a position, I would think, if there are tapes out there, closed-circuit tapes of some kind, that there may be a situation where we've got a Stanton nonstatutory motion to dismiss at some point because that hasn't been provided.  I don't want to get to that point, obviously.  I'd rather just have the tapes and whatever else the FBI has. I would also mention that I believe we've made repeated requests for anything that the other agencies have.  Your Honor has ordered other agencies to comply.  Detective Grogan, I think, sent out a memo to the other agencies to please turn over anything that they have. And it concerns me greatly that we're in a situation here, we're in the middle of the prelim, and apparently nobody seems to know where the CCTV was or why none of this, at least on the defense side, has been turned over to the defense, and I think that we need to get to the bottom of that prior to going much farther with police witnesses, at the very least.

MCALLISTER:  Could I add on to that, Your Honor? I had also asked for any Federal Grand Jury information previously, and we have been provided with Federal Grand Jury subpoenas and the products of those subpoenas.  A couple of days ago I was informed that there may have actually been testimony taken at a Federal Grand Jury in Fresno.  I can't represent that that's happened, but the person that I was talking to believed that there had actually been testimony taken relating to this investigation in the federal court in Fresno. So if that is so, then I would also be requesting transcripts of any of that prior testimony.  It would certainly be the same witnesses we'd be dealing with in this case, and it's the same investigation.

JUDGE:  Who's handling it over here?

DISTASO:  I will, Your Honor. Your Honor, we have -- we've made multiple requests to the FBI to turn over all of their information.  So far, this is what they've -- you know, we've turned over everything that they've given us.  I'm not really sure what else we can do in that regard. So, I mean, if the Court wants to make an order that the -- you know, the resident agency of the FBI is ordered to turn over any closed-circuit TV videos, I'm happy for the Court to do that, and if I receive them, I'm happy to turn them over to the defense.  But that's pretty much my position on this. I've made repeated requests to many, many agencies to turn over all of their information.  I've received information from many, many agencies, and I've turned all of that information over to the defense.

JUDGE:  What about the Federal Grand Jury?  What information do you have there?

DISTASO:  I have no information on that at all that anyone's testified at a Federal Grand Jury.  I can make inquiries today.  This is the first I've heard of it.  It's never been mentioned to me in any informal capacity at all. So, you know, I can have someone call today and try to call around and see if that occurred, but as I sit here today, right now, I don't know.

GERAGOS:  Could I just briefly respond? What I see as the problem here, in a nutshell, is you have a -- both the -- I think it's the US Supreme Court case Kyles versus Whitley, which was I think a 1998 case, I believe that was by Justice Souter, and in that case, Justice Souter said, it was a case that had arisen out of Illinois, specifically the idea that the DA does not have it in their possession, the information that is potentially exculpatory does not relieve the prosecutor from the burden of obtaining it from the agency. That doctrine, if you will, was incorporated in California in the year 2000 in a case called In re:  Brown, in which Justice Brown in a case that arose out of Orange County, held and reversed a capital murder conviction because the -- there was some information I believe in the possession of the coroner's office which the DA did not have and the -- it turned out later to be exculpatory. The DA's position and the AG's position in that case, in the Brown case, was, "Well, we've tried everything we can, the agency didn't turn it over, we didn't have it, so, therefore, there was nothing for us to turn over." Here, my fear is to what's going on, because I've had this situation before with state prosecutions that involve task forces, if you will, that involve the Feds, is that the Feds say, basically, "We don't have to listen to any stinkin' state court Judge, and we'll turn over whatever we see deemed fit."  I know that's what's gonna happen on the Grand Jury transcripts.  They're gonna hide behind Rule 6(e) in the federal court and say that the Grand Jury transcripts are sealed, and we're not gonna get them. Although, I will tell you that in every case I've ever been involved in, if the prosecutor asks for the transcripts, the US Attorney runs right in, gets an order from the duty Judge and gets those transcripts unsealed and gets them over, once there's some heat put on the prosecutor. In this case, I don't think that we rely on or need to rely on Mr. Distaso having to plead with the FBI.  I think we have the -- or the Court has the authority to have Mr. Distaso order I believe his name is Terry Scott into this courtroom, and either we -- the Court signs an order shortening time, because I have prepared numerous SDT's covering all of the things that I believe are there, and orders him to return forthwith with every single scrap of document that the FBI has in connection with this case, especially if there are surveillance tapes. And I want the surveillance logs.  I know what the Feds have to go through in terms of setting up a surveillance or anything else.  They've got a double-blind system in which they set up logs in which they have people briefed and which they make reports, there are FBI 302 reports that are prepared in connection with that.  All of these things -- or none of these things, I should say, have been turned over. I believe that the only way to get this done is to have Terry Scott brought over here, if he's still the resident agent in charge in Modesto, and have the Court order him forthwith to turn over all of these things.  If he wants to then assert some kind of a federal preemption or doctrine, let them do it, or let the Attorney General or the US Attorney run in here. But other than that, short of that, we're entitled to it, and I think it sets up a situation where if we don't have that material, any proceeding here is going to be suspect under the doctrine of Kyles v. Whitley and In re:  Brown.

JUDGE:  If the Bureau's not cooperating with the prosecution, why don't we just send them the subpoena duces tecum?  I think that's your responsibility at this stage.

GERAGOS:  I can do -- well, it is mine to be an effective assistance -- or to provide effective assistance of counsel.  I believe it's the prosecution's duty to provide anything, even if it's an agency -- as long as it's an investigating agency.  They clearly have stated in the record that I just read on page 26194 that they provided substantial assistance.  That would make them or deem them to be a part of the investigative team, deem them to fall under Kyles and In re:  Brown.  If that's the case, I believe the prosecution does have a duty to get them in here. I have the SDT's.  I will serve the SDT's.  I'd request a order shortening time of some time, or, in the alternative, that Mr. Distaso call Agent Scott, have him come over to this courtroom as soon as possible so that we can order him and personally serve him.

D. HARRIS:  Your Honor, if I can address some of these points. First of all, I think the argument of Counsel kind of undercuts itself.  They're looking at an FBI document to tell the Court that they don't have any FBI documents.  The prosecution has provided hundreds, if not thousands, of pages of reports and documents and notes from the FBI.  So it's not a case of -- that we're not providing things from the FBI. In terms of -- as Mr. McAllister said, the FBI did have Grand Jury subpoenas that were going out, there were documents that were produced.  Those were some of the earliest discovery that was going out. Additionally, there was some notes or some reports in that that indicated that the agent in charge, Terry Scott, did have to go before the court in Fresno to get an order to release this information because it was part of the Federal Grand Jury. So if that's the testimony that they're referring to, that's not something that's going to be of any exculpatory nature to the defense.  It's not something that we're -- other than the fact that he had to go to court to say there are Federal Grand Jury subpoenas, we want this information released to the prosecution and to the defense. Agent Terry Scott, I understand, has been either promoted or transferred, so he's not the resident agent of Modesto anymore.  His reports are included in all of the discovery, his notes are included in all of the discovery, all of the information that he's generated and other agents that have worked on this case, including tips that the FBI has received, letters that the FBI has received, all of that stuff has been provided to the defense. So I think it's -- again, the defense is trying to put the cart before the horse in saying we have to provide them with things because we haven't provided them with things, when in fact we have.  And that's a discovery issue.  That's not something that should delay us at this point in time, and we should proceed with the witnesses.

JUDGE:  Well, it seems logical, if there is a videotape, why hasn't that been obtained by the prosecution and then provided to the defense?

D. HARRIS:  Well, there are DVD's in which there have been copies of tapes, I don't know if they're the tapes that they're referring to, but DVD's of FBI material that has been provided to the defense.  Now, these particular -- I don't know if it's the same ones.  I can't say that. It's -- so that's something I can't represent to the Court at this point in time.

GERAGOS:  Could I also indicate that 26194, the page of the discovery that I was reading from, was not something that was turned over as being the FBI report. That was an internal memorandum from the FBI to Dr. Constance Fisher basically saying, "This is what the results of the investigation are so far."  That's the only reference anywhere in the 27,000 some odd pages that I've seen, and I've run a search of that database numerous occasions, of anything relating to a CCTV. And I would also state to Mr. Harris that I've reviewed every tape.  There is nothing -- and every DVD.  There's nothing that purports to be the tapes of a surveillance of my client's house or Miss Peterson's house. There also is absolutely nothing in any of those 27,000 pages that purports to be a log, a surveillance log or anything else of the comings and goings out of that house. One of the reasons that this becomes enormously significant is that there is a issue as to whether or not there was a burglary across the street and whether that burglary took place on the 24th or the 26th. If the FBI had their surveillance cameras set up, and I don't know where they were set up, and I defy anybody in the prosecution team to tell me if they have surveillance cameras, I would think that if I were investigating this case, the first thing I'd want to know is, well, what house is it that they're using to surveil the location. And they plan on putting on civilian witnesses, including two neighbors.  I think, at the very least, wouldn't I want to know, wouldn't they want to know if one of those two neighbors who they're gonna put on at the same time had the FBI hanging out in their house using surveillance cameras?  I don't have any of that information. If the surveillance cameras were placed prior to the 26th, and it turns out that the burglary across the street didn't take place on the 26th, that would tend to undercut some of the clearance, if you will, of the burglars across the street on that day. At the very least, at a bare minimum, I would think that an investigator in this case would want to know where that information is, why they haven't been provided it, and certainly from the defense standpoint, I want to know why we don't have it.

JUDGE:  Mr. Harris, your response?

D. HARRIS:  In response, I think Counsel are trying to assist us with how to prosecute the case, but he hasn't indicated anything that would show that there is any exculpatory nature of that material. The two witnesses the prosecution intends to call would be testifying to events that happened on the 24th.  And I don't think anyone under any scope of the imagination would believe that the FBI was clairvoyant and had a surveillance camera up prior to events coming to law enforcement's attention. So, again, I would just indicate to the Court that this is a discovery issue, it's not something that should delay us at this point in time.

JUDGE:  I'm not going to take any more time on this issue.  Let's get with the witnesses. In the meantime, if you have a subpoena duces tecum you can proceed on, handle it that way. Hopefully, informally the prosecution can implore the Bureau to provide that tape, if there is one, to them. Obviously, it looks like from the information you have, there is one, unless they've destroyed it or it could have been a continuous tape that gets destroyed and is no longer there.  But we should have a report on that.  Otherwise, down the line, that will be one of the issues on a 995, I'm sure.

GERAGOS:  Thank you, Your Honor.