Diane Sawyer Interview & Modesto Bee

Guilt Phase

July 29, 2004

JUDGE: All right. This is People versus Scott Peterson. Let the record show the defendant is present with counsel, and the jury is not present for these proceedings. Today is law and motion day here. We have this many issues to deal with. I know Mr. Olson is here. I saw him in the audience. Mr. Olson, I got your letter that you sent me yesterday. And is Miss Wilcox here?

SAGER: Actually, I'm Kelli Sager. I'm here for ABC.

JUDGE: Give me your name, please. Miss Sager?

SAGER: Yes.

JUDGE: Do you want to step up, please, Mr. Olson? Mr. Geragos, I'm going to invite argument now from the media with respect to the tapes of Diane Sawyer. And I'm also going to hear from Mr. Olson with respect to the --

GERAGOS: Modesto Bee.

JUDGE: Miss Van Diepen. Also Mr. Olson was kind enough to send me a letter yesterday setting forth some ground rules with respect to jury views. And it's a point well taken, Mr. Olson. And I certainly will consider that if we have another jury view. Certainly be aware of that. Do you want to add to that while you are here?

OLSON: Just to say, your Honor, as I said in the letter, that a jury view is the taking of evidence under Penal Code Section 1119. Thus it is a substantive proceeding to which the press has a right of access under the NBC Subsidiary case. As I said in the letter, we have offered to do so by means of pool reporters, which was what was done in the Michigan versus King case which we attached to the brief. I think the presence of three pool reporters would not be in any way disruptive.

JUDGE: No, it wouldn't be. I was concerned yesterday with the jury view of the boat, because there was no testimony being taken, no questions were being asked. The jury was just filing around the boat. I don't know what value that would have. But certainly if the media is entitled to be present the next time, we'll review the accommodation, somebody is designated as the pool reporter, or whatever.

OLSON: Thank you, your Honor.

JUDGE: I'm not disputing this, but that's what happened last week, or couple days ago, when we took a look at the boat. Okay, you don't mind if we start with Miss Sager, do you?

OLSON: That's fine, your Honor.

JUDGE: Miss Sager, I have read and considered your moving papers and the ones that you filed this morning also, and all the reasons set forth. If you want to continue and argue it further, please do.

SAGER: Well, I appreciate your hearing this motion today, your Honor. I don't want to take up the Court's time, since I know you have read the papers.

JUDGE: Don't worry about it.

SAGER: Certainly. I think it boils down to a very simple issue. There is no question that the protections of the New York shield laws that we have cited apply to the information that Mr. Geragos is seeking. The only question is whether Mr. Geragos has met now his burden of overcoming those protections, and whether the Court even needs to reach the shield law. Likely that it has greater protections in California, or First Amendment constitutional protection, I think it's evidence that under the California e 24 shield law that Mr. Geragos has not met his burden. It's not enough for a defendant to come in and say there might be something in there somewhere that I find useful. And that's essentially what Mr. Geragos has done. The Sanchez case, I think, is directly on point here. It's not even discussed in the opposition, perhaps because it addresses the very issue that Mr. Geragos relies on most heavily, which is the Evidence Code provision. I'm happy to answer the Court's questions to begin with. I don't want to take up --

JUDGE: This has been exhaustively briefed. Any questions I have I think was covered by both sides. Mr. Geragos, go ahead.

GERAGOS: Judge, I don't know why there is some kind of an insinuation that the 356 argument was the main argument. It wasn't. In fact, it was dropped down in the opposition to heading number four. Clearly the three main arguments are that the uncut tape to the -- and they have possession of the uncut tape -- is the only thing that will properly put it into context. We know that the answers and the questions that were given in context will provide information that is not available on the on-air or broadcast version. A perfect example of the differences this court has seen, in living color so to speak, the Gloria Gomez edited on-air interview. And then all of a sudden the prosecution last week realized that they had the complete original interview. Once you saw the complete original interview, I submit to you it's substantially different than the on-air. The same principles apply to the Diane Sawyer interview. It was in excess of 90 minutes long. It has been cut and pasted now by ABC News into three separate entities, which are the 28th and 29th of January and the April -- the late April broadcast. The fact of the matter is that total time running is roughly one third. I know that I would be willing to, if the Court wants it, I'm willing to go ex parte in camera and make a further offer of proof as to what I believe is on the tapes, what is on the unbroadcast tapes. The fact of the matter is, the reason she doesn't want to reach the New York shield law argument, it's just plain silly. The ABC broadcast was in California. ABC did the interview in California. And they know for a fact that -- and this has been litigated before -- that the California shield law applies, especially in a criminal case. The fact of the matter is, is that this court, I believe, is compelled by the state of the law to give -- or to order the broadcast -- or the broadcast version uncut, unaired, to be turned over to the Court, to be turned over to the defense, and then to be able to have that to show the jury so that we can put in the other information. One of the other are arguments that was made -- I didn't even address it specifically in my reply -- she said, well, it's available. The information is available through the family, which is almost laughable, because the interview with my client was done with just Miss Sawyer and my client. The family was brought in afterwards. They know that. And that's what the tape would show. And this idea that somehow we can get it from another source is just plain wrong. And the fact of the matter is that the Court -- and the California Supreme Court has ruled, and we met the -- more than met the burden -- that this material must come in. There isn't anything -- there isn't any argument that they have made, nor case that they have pointed to that, in any way, shape, or form says that this court is precluded from turning -- asking that it be turned over, ordering it be turned over. In fact, the fact of the matter is, is that the Supreme Court has very well clearly announced that this court should do that, because we have met the burden. If the Court does not feel we have met the burden, I'd go in camera ex parte, I'll give you the information as to what I think is there.

JUDGE: Then we have to go into chambers ex parte again. I was trying to avoid that if I could.

GERAGOS: We can avoid it by saying we have met the burden, because I believe we have.

JUDGE: Now --

GERAGOS: It's the easiest way to do it.

JUDGE: I don't think that the media agrees with you. Go ahead, Miss Sager.

SAGER: Your Honor, it is not appropriate at all to have an additional showing in camera by Mr. Geragos. He had an opportunity to make his showing. He filed an opposition that has zero evidence in it. There is nothing in a showing that he would make to this court that is secret or confidential from his client's perspective, because the information has already been shared with the media, ABC. So there is no reason why he would need an in camera showing in order to explain to the Court what he thinks is in the outtakes that has not been presented in his papers or presented in open court that would materially assist his client's defense. That's the standard material assistance. And all you have heard from Mr. Geragos is, we think there is something in there that puts it in context, any time you have unpublished information that may add to the context of the discussion. But what you haven't heard from Mr. Geragos is that there is any question on the broadcast tape that was not a question asked by Diane Sawyer, or there is any answer given by Mr. Peterson on the broadcast tape that was not an answer given by Mr. Peterson. In the Sanchez case, the criminal defendant actually said he needed the information from the outtakes, because he didn't say some of the things that were published, and that there were inconsistent statements that he gave to the press, only some of which were published. And even in that case, the California Supreme Court said that was not a sufficient showing, that it was merely speculative for the criminal defendant to state unpublished information might reflect those things. Mr. Geragos hasn't even said that. This is not a case where he's saying the clip says, I killed Laci Peterson and we took out it out -- or I did not -- we put the other stuff in the broadcast. That's not this case.

GERAGOS: You know what the problem --

SAGER: Mr. Geragos, I'm not finished.

JUDGE: She was not done. Go ahead.

SAGER: He has complete access to the information that's on the outtakes. His client was there during the interviews. So if there is information that Mr. Geragos has to present to the Court, he would have that to present. The family members of Mr. Peterson were present at the interview. Now, Mr. Geragos has told the Court they weren't always in the same room with Mr. Peterson. But what he doesn't tell the Court is that they were in the adjoining room observing the interview on a monitor for part of it; and for the rest of it, they were in the room even when they were not on camera. So they saw the interview take place. The fact they don't have the tape does not mean they could not present to the Court or to the jury if there is something inconsistent or something additional that had to be presented. Now, as to the New York law, which Mr. Geragos says is silly, the cases that we cite to the Court -- I think there were five of them -- have applied to states where the privilege law exists to other states' jurisdictions. And the test that the California courts apply is whether the other state, the foreign state, it would further the interest of the foreign state to apply their privilege law. The only case cited by Mr. Geragos, the Cetita (phonetic spelling) case, actually supports our position. Because the language in that case, the courts in California said they would apply California law when the trial was happening in California to a reporter who happened to reside in and live in New York, because New York had no shield law at that time. And the California court said this is an important public policy. A decision has been made this evidence is not obtainable, so even though New York has not yet recognized the privilege, the existence of that recognition in California is sufficient for us to assert the privilege and recognize it in this state. So that actually supports the position that we're offering to the Court. Now, finally, as to whether Mr. Geragos has met his other standards, the threshold test, before the Court even has to reach any kind of balance, is whether the information that he's seeking would materially assist. There is nothing that's been offered to the Court that even meets the threshold. But even assuming that Mr. Geragos had been able to meet that threshold, then the Court goes on to the balancing test. There is nothing that has been presented by the defendant that would weigh the balance in favor of Mr. Geragos' client. It's simply a fishing expedition, your Honor. He's either hoping that the Court will change its mind and not let the prosecution use the broadcast tapes. But his client, voluntarily, with advise of counsel, chose to give interviews to the public and to the press. He wants that out, or he wants to have it at a point later when he can say, I didn't get this information, I'm going to use that on appeal. There is nothing been shown to the Court that would justify overcoming what is, in this state, a strong public policy that's been elevated, constitutionally, or in New York an even stronger public policy where they said, if you can't show that this is essentially going to rise -- your case rises and falls on this information, you don't get the information. And Mr. Geragos doesn't even attempt to claim that he can meet that standard, because he knows he cannot.

GERAGOS: No, I know I can't. She's just basically undercut her entire argument. It's no longer shield -- she just said that the information was broadcast on a monitor was shown to people who were not newspapermen, and end of story. It's not covered by the shield law any more. Her admission that it was on a monitor, that it was viewed by others, means that it no longer falls under the shield law. Thank you, very much, Miss Sager. I'd like to quote the Delaney versus Superior Court. Even if she had not said that, the showing -- and this is the California Supreme Court -- need not be detailed or specific, but it must rest on more than mere speculation. This court has been sitting here for ten weeks. We have spent probably five of those weeks talking about my client's attitude, about my client's state of mind, about my client's emotion or lack of emotion. It's been compared to burnt chicken. We have had witness after witness after witness come up here and been asked what my client's emotion was at certain points. To now say that my showing for 90 minutes, which, in context, will show what the answers are, what his -- the questions are the range of emotion that he dispays is not relevant, when the prosecution has had basically a free rein in terms of their theory of the case as to show those factors, and that that is not relevant I believe would be a manifest injustice. I don't understand at this point, when she is saying now that the material was watched by others who were not part of the news organization, and that's her statement, that means that the shield law just disappeared. There is no shield.

JUDGE: Well, I don't believe Miss Sager is saying that because family members viewed it on a closed circuit TV that it's been made public.

SAGER: That's correct. Mr. Geragos' argument makes no sense. If the people being interviewed at the present time somehow makes it public, then there could never be a situation where the outtakes aren't unpublished information, because the people who are in the process of being interviewed are always going to know what's being asked of them and what's being said. The whole family is on the broadcast tape, because members of the family were all interviewed.

JUDGE: I saw that on the tape.

GERAGOS: Except she is wrong. There were people present who were not being interviewed, who watched it on the monitors. Which means that it was a public showing. Which means that they did not preserve their rights under the shield law, which means it has to be turned over to the defense. There is no ability at that point to invoke the shield law. So there is -- we don't even need to get to the Delaney factors. We have more than met the Delaney factors

line 25 based upon the prosecution's theory of the case, based upon the admission of the evidence that has come in to this trial over the last ten weeks. It's not mere speculation. I'm telling you that my client showed a range of emotion that was not displayed in the edited broadcast version. I'm telling you that there were questions in the unaired version that had to do with his son, that had to do with Laci going missing that were not shown, that were cut, that were spliced. And that's all that I have to do under Delaney. And I don't even then we get to Delaney, now that it's been established that they broadcast it through the monitor to people that were not interviewed.

JUDGE: Miss Sager, do you want to address that point?

SAGER: I'm not aware of anyone that was not part of the interview process that was in that room. Mr. Geragos hasn't presented anything to this court that suggests that anybody in the public was part of the monitoring. I'm not aware of anybody that was there other than members of the family who were asked to come because Diane Sawyer was going to be interviewing family members of Mr. Peterson. As to the range of emotions argument that Mr. Geragos has presented, the broadcast tape shows Mr. Peterson being very emotional at certain points.

JUDGE: It shows at the beginning, shows him crying, yes.

SAGER: It shows where he's simply talking to the camera, and not showing -- it shows a range emotions. What Mr. Geragos wants the Court to apply is the test that says if they use anything that's not broadcast, then we're allowed to have that, because that shows that there is things that weren't broadcast. That kind of circular reasoning makes no sense. He hasn't given the Court any examples of any question and answer that was not included in the broadcast that would materially assist his defense. Yes, there were questions and answers that were not included; but how could they materially assist the defense in responding to what the prosecution is going to show? There may be things that the prosecution is not showing to the jury. I don't know what the Court and counsel have agreed upon, what portions of the broadcast tape. Mr. Geragos can show other portions of the broadcast tape if he feels that's necessary, and the Court agrees. There has been a lot of things shown in this broadcast tape, and it was -- there were additional things shown in subsequent broadcasts. So the idea there is some hidden question and answer that he thinks changes things, without presenting that to the Court, does not meet his burden. line JUDGE: Last go-round.

GERAGOS: Giving you a list of parties who were present who were not interviewed. Tonia -- T-o-n-a -- M-a-n-y-a-n. And -- T-o-n-i-a. And Tom Katsis, K-a-t-s-i-s. I believe Kimberly Culp. Is she in the room? Kimberly Culp here? But I believe Kimberly Culp, who was the producer, if called would testify those two people were there, two people were not in the interview. Those two people are members of the public. There is no right to invoke the shield privilege, period, end of story. If they did not broadcast that, or allow that out, it's no different than an attorney-client privilege, which is held in great -- has a great sanctity in this state. If the attorney allows even one person to be present when the client is there, and during that conversation, there is no privilege.

JUDGE: What about the Delaney test that says, if there is -- if there are alternative sources, that you should exhaust those first before you even get into piercing -- attempting to pierce the shield law. If those people were present, then why don't -- why can't you just call them then?

GERAGOS: Because people that are present, I can't call them to show exactly how he looked. This whole case --

JUDGE: I thought you said they saw it on TV.

GERAGOS: What is going to be the best evidence of that? Somebody who comes in and says, "I saw him"?

JUDGE: Delaney doesn't talk about the best evidence. Delaney talks about alternate sources.

GERAGOS: Delaney -- we don't get to Delaney if there is two people from the public who were there.

JUDGE: Assuming, arguendo, that you got over the threshold? That's one of the four tests. Let me hear from Miss Sager, then we're going to go on to some other subject.

SAGER: I'll be brief, your Honor. As to other people being present, these aren't people who wandered in from the street. There were family members brought there for the interview of Mr. Peterson. The fact that someone else may have been present then not asked a question is not different than Delaney where there is people around. But the information in the possession of the journalists, their information that was not shared with anybody else. The outtakes, which is what Mr. Geragos is trying to get, the outtakes, have not been shared with anyone outside of ABC. There is no evidence in the record to the contrary. It happens other people who saw Mr. Peterson being interviewed -- and we know there are at least some of them because they are on the broadcast tape -- those people can all testify as to how he looked, whether he cried or didn't cry, whether he got angry, whether there were questions asked that are not on the broadcast tape. At least six people that we know of. There is no excuse for him trying to invade the shield law.

JUDGE: The Court will take this issue under submission. I'm going to hear now from Mr. Olson. I have heard enough arguments. I have read this stuff. I have read this stuff ad nauseam. Mr. Olson, you are next. Now, this has to do now -- let me get my place here, because we got all kinds of motions here this morning. This has to do now with the motion to squash (sic) the subpoena from the Modesto Bee librarian, Melissa Van Diepen, correct?

OLSON: That's correct, your Honor.

JUDGE: Go ahead. Of course -- and this was -- now, let's see if I can put this in context. The District Attorney has subpoenaed this lady allegedly to lay some foundation for admissibility of this photograph, correct?

OLSON: That's correct, your Honor. The District Attorney -- the District Attorney had earlier subpoenaed the photographer. I thought that they no longer wanted the photographer. They issued another subpoena to the photographer, care of me, last week. So the issues are pretty much the same. At the outset, I agree with Mr. Geragos on one point, and that is, at Page 2, Line 27, and Page 3, Line 21 of his opposition to my motion, he asserts that this is irrelevant and prejudicial under 352. I agree that it's irrelevant, and I agree that 352 applies.

JUDGE: I haven't got to that yet. I have got -- I want -- I'm going to ask the District Attorney about that. I just want to know why I should squash (sic) the subpoena.

OLSON: The subpoena should be quashed because there are numerous alternative sources both for the prosecution and for the defense. There were hundreds of people at the vigil. There is a photograph that was taken at the vigil on New Year's Eve 2002-2003, at the vigil -- candlelight vigil for Laci Peterson. There were hundreds of people there. And what this evidence partly would be proffered for by the prosecution would be to show that Mr. Peterson was smiling. There are hundreds of alternative sources that don't have constitutional protection under the California shield law that could -- that could testify that Mr. Peterson was smiling.

DISTASO: Actually, judge, I hate to interrupt his argument; but what we're getting to, the point where counsel seems to be implying that these pictures were not published. And, in fact, they were not only published. They were sold to us as published photographs. So I want the

26 Court to be clear that we're not trying to get unpublished information here. So when he's making these arguments, there is other sources, this is published information.

JUDGE: Okay. Let me just ask one other question. According to the Evidence Code 645.1, the authentication -- that is authentication that is available under that particular code section, that is not to lay a foundation that the photo truly and accurately represents the defendant at the night of the vigil, but that photo was, in fact, published in the Modesto Bee under 645.1. That's the only foundation that this lady could lay is that this photograph was, in fact, published in the Modesto Bee, period.

OLSON: It's self-authenticating essentially under 645.1, so they don't need it. They can show the picture that was published to any number of people that were at the vigil, and they can say, well, you were there, you know, is that Peterson? So it's self-authenticating. They don't need the custodian of the records, and they don't need the photographer. As to Mr. Geragos' assertions that he would need the unpublished photos; again, if it's self-authenticating, or if it doesn't come in at all, you don't have to go on this constitutional collision course. And, of course, the Court should always strive to avoid going on a constitutional collision course. But Mr. Geragos has numerous alternative sources for this information. The two journalists were not the only disinterested witnesses. There were hundreds of people at the vigil, any number of whom could testify as to -- in the words of the prior motion -- the range of emotions of Mr. Peterson at that vigil. So he absolutely does not need the attendance of the Modesto Bee witnesses. And he absolutely does not need unpublished photos to introduce something about Mr. Peterson's range of emotions, and as to whether, throughout most of the vigil, he was somber, as opposed to being smiling at one point during that vigil. Under 1986.1 of the Code of Civil Procedure, which was recently enacted, applies both in victim and criminal cases, the Court would have to make a finding, quote, alternate sources of the information are not sufficient to satisfy the defendant's rights to a fair trial. I would submit that no such finding can be made in this case, that there are plenty of alternatives for Mr. Geragos. There is no need -- absolutely no need for anyone from the Modesto Bee to appear at this trial. And it's worthy of note that in the Miller case -- and Mr. Geragos minimizes the importance of the shield law in this case. But in the Miller case, 21 Cal.4th at 898, the Supreme Court, quote, A comprehensive reporter's immunity provision, in addition to protecting confidential or sensitive sources, has the effect of safeguarding the autonomy of the press. The threat to press autonomy is particularly clear in light of the press's unique role in society as the institution that gathers and disseminates information. Journalists often serve as the eyes and ears of the public, and because they not only gather a great deal of information, but publicly identify themself as possessing it, they are especially prone to being called on by litigants seeking to minimize the costs of obtaining information. So that emphasizes the importance of the shield law, not just confidential sources, but also as to unpublished information.

JUDGE: All right. District Attorney want to be heard on that particular issue?

DISTASO: You know, judge, I'm not sure there is a whole lot for me to say. Counsel -- they published the information. So this whole argument that Mr. Geragos is having with them over unpublished information and ABC News, it's like I don't have a dog in that fight. There is nothing for me to say about it regarding --

JUDGE: What about Evidence Code 645.1? Just -- it's self-authenticating that the photograph was, in fact, published in the Modesto Bee? And --

DISTASO: That might be for the custodian -- the records person. But my argument is, is I should be allowed to call the photographer if I so choose, because once they publish that information, they have waived any possible privilege. So the photographer can't take a picture and then put it in the paper, then say, oh, it's privileged. It's not privileged any more.

JUDGE: That's right. But what is the photographer going to testify to? Is he going to --

DISTASO: He can testify to the demeanor of the defendant as he observed it in that photograph. And the thing is, just to put it in the context, this is a vigil for the defendant's wife. It's a picture of the family members, the defendant's picture. We want to show a couple of others. Got a big smile on his face, like he was happy as can be. And to put it even further in context, he was on the phone with his girlfriend claiming he was in Brussels, or Paris, or somewhere -- I don't remember that particular phone call -- about an hour before the vigil. So all of that is clearly relevant to this case. We have spent time going over this. His demeanor is relevant. The defense is trying to claim that he was missing his wife, and he was hysterical, he was upset about it, and all that. We're entitled to show that's clearly not the case. This photograph shows that, and I should be allowed to put the photographer on who took it to give his exact impressions as to what was going on when he snapped that photograph. Once they publish it, the privilege is waived, and that photographer is a witness just like anybody else. That's just the way it goes.

JUDGE: Do you want to be heard on that, Mr. Olson? What about the fact that this has, indeed, been published in the newspaper? Doesn't that waive the shield law?

OLSON: It does not waive the shield law as to unpublished information. That is specifically what the Miller case says. And that is specifically what Code of Civil Procedure 1986.1 says, that published information does not waive the shield law as to unpublished information. And that's not what the shield law said, then it would be turned on its head, the --

JUDGE: I don't understand that. I'm not arguing with you that it would apply to the unpublished information. But what about the fact that you are telling me that since it was published in the Modesto Bee, and that it was actually sold to the prosecution, that somehow the shield law still applies to that particular photograph?

OLSON: Not to the published photograph, but the --

JUDGE: I'm just talking about the published one right now. So you are with saying the shield law doesn't apply to the published photograph?

OLSON: That is correct. It does not apply to published information.

JUDGE: All right.

OLSON: But the District Attorney here is talking about calling the photographer to show the demeanor of the defendant. And that's unpublished information. Those are impressions. And that's what the Miller case specifically says the people cannot have. And that's what both Miller and Delaney says you cannot have -- neither party can have unless there is no alternative source. And we have already established that there were hundreds of people there that can talk about whether Mr. Peterson was happy or sad. And as to the published photograph, again, I think the Court has correctly hit upon the fact that it's self-authenticating under Evidence Code Section 645.1. The prosecution does not have the burden of producing evidence on that. The prosecution does not need the photographer, and the prosecution does not need the custodian of records. And this court does not need to go on a constitutional collision course when it doesn't have to.

JUDGE: All right. Before we proceed, I just want to notify the audience. If you don't want to have your picture, then -- there is a possibility you are going to be in the video here. So if you have some reluctance to have your photograph taken, you might as well leave the courtroom. Welcome to remain, but it's your choice. If you are here you are liable to be on TV. This is only going to be just to bring things up to date. The old films they have are sort of outdated. They are going to bring things up to date. Mr. Geragos has stood up. I guess he has something to add, Mr. Olson.

GERAGOS: I have got a lot to add. I'm trying to locate the last brief.

JUDGE: I'm not going to preclude you from arguing further. I want to hear what he was got to say.

GERAGOS: There is two issues that have been brought up -- we filed the opposition. Number one, Mr. Olson and I obviously both agree that the picture itself under 352 should be inadmissible. However, he also hits on what I wanted to stress on the fourth Delaney factor, which is that this information, whether you have the journalist from ABC, or whether you have the tape itself at ABC, what Mr. Olson said, those are the disinterested parties or the objective record. If I call you -- say you want to call -- you can call other people. There are either family members or friends for support. They get up there, that's the first thing they are going to be impeached with. If you have the disinterested party, either the journalist who was asking the questions or the tape itself, that's why the fourth Delaney factor weighs heavily in favor of a capital defendant. In the case of the photos, I think that Mr. Olson also hits the nail on the head when he talks about the fact that you have a series of photos. These shots are snapped. Obviously any good photographer -- I'm sure the Modesto Bee photographer is -- is taking a series of photographs on multiple rolls of film. And, obviously, if there is a range of emotions, and somber at one point, as opposed to smiling when his nephew, who is sitting next to him, says something at that particular point, or when somebody is saying something on the stage at a certain point. And there was, out of those hundreds of people, as Mr. Distaso says -- unfortunately he wasn't there, didn't talk to people who were. There were many people there who smiled over things that were said or that were done in reference to Laci. And the fact of the matter is, is that probably there are at least forty other photos of him in a somber fashion, or in a serious fashion at the appropriate time. God forbid we get to a point where we're going to be able to pick and choose out the one published photo in the Modesto Bee. One reason this case is sitting here in San Mateo as opposed to Modesto is because Judge Girolami found that much of what was being published in the Modesto Bee had poisoned the jury pool there. So now what we're going to be doing here is infecting part of that poison, or injecting part of that poison into this jury venire right here without allowing us to see all of the photos. And I don't necessarily want to go down that road as well, because I don't believe that, in the first place, that the photo itself should come in, because I don't think that you can ever provide an appropriate context. I think that's why Mr. Distaso wants to call the photographer, because we know that when you just show a photo, that doesn't give you any kind of context whatsoever. He wants to get the photographer in here, make him into a fact-witness. I also would agree with Mr. Olson. I don't see how you go down that road. I think that we saw in -- probably just excluding the photo in the first place. If he wants to bring in a real witness who saw something, then bring in the real witness and talk about alternative sources. That's the way to go. But in terms of the fourth factor of Delaney, you couldn't get any closer to weighing heavily in the defendant's favor than the fact that the only disinterested piece of evidence is the tape itself.

JUDGE: Mr. Olson.

DISTASO: Let me just make one comment on that. There was actually about five or six photographs that were published. All five or six we have bought. I intend to actually put all of them in. And the defense has all those five or six photographs. So I'm not culling out one particular photograph. I'm going to put all of them in, let the jury decide what they want. As far as other people, there were some other people who are present. They didn't snap this particular photograph. That's why I think the photographer who took those photographs is the appropriate witness for that.

OLSON: Your Honor, if there were five or six published photographs, they can be introduced without the presence of the photographer under 645.1. Nothing else comes in. The photographs, impressions, or mental impressions.

JUDGE: That's all argumentative. That's all argumentative.

OLSON: That cannot come in under the shield law. And it should be excluded in any event under 352. I agree with Mr. Geragos, that even the published photos should be excluded so that we don't have to go down the road that nobody wants to go down, where there is a collision -- a potential collision between our constitutional rights under Article One, Section 2(b) of the California Constitution, and Mr. Peterson's fair trial rights. Mr. Geragos has essentially admitted that there are plenty of alternative sources. There were hundreds of people at the vigil. But there is only one has a constitutional right not to testify, and that's the Modesto Bee photographer. There are hundreds of people that can talk about the range of emotions. And the other argument that Mr. Geragos makes, he makes two competing arguments. One is that, well, the photographer is the only disinterested witness that will have credibility. That's why I need to call him, as opposed to some of the hundreds of people at the vigil. Then he says the Modesto Bee has poisoned the jury pool and, therefore, I guess is somehow not disinterested. We can't have it both ways.

GERAGOS: Sure you can. You have got an editor.

JUDGE: You are both talking at the same time.

GERAGOS: You have an editor, a photographer.

OLSON: If I may finish.

JUDGE: Let Mr. Olson finish.

OLSON: The photos should be excluded. In the alternative, the published photos can come in without the presence of the Modesto Bee's witnesses under Evidence Code Section 645.1.

JUDGE: Mr. Geragos.

GERAGOS: Judge, the idea that somehow the photographer is the one who is making the decisions as to what to publish in the paper is ludicrous. The editor makes that decision. It's not the photographer. The photographer probably, if he had his druthers, would have all of his pictures published, because that's what photographers like to do is to have their work shown. So this idea somehow that the photographer is disinterested, and that it's competing arguments with the paper, the paper has got an editorial policy. The paper has got a policy to sell papers, and ne 3 that's what they were doing. At that particular point, the greatest thing in the world for the Modesto Bee was to make Scott Peterson into the bogeyman. And the way to make him into the bogeyman was to take a picture, show that picture -- I stand corrected. It was his nieces were next to him, not his nephew. The fact of the matter is that, under 352, none of this should come in in the first place. The idea of taking a photo -- and you heard what the theory of the prosecution is here. The idea of that theory being proposed, and the linchpin of that being the photo itself, I can't imagine a situation that doesn't fall more under the strict construction of 352. If the Court is going to allow this in, then I think we have got to then get into the balancing test as to whether or not the other unpublished photos can come in. Once again, if the argument is that the photographer is not going to testify because of the shield law, well, then, the alternative source of information are the unpublished photos. If they want to sell them, I'm happy to write a check to get the photos, the unpublished photos.

JUDGE: Do you have the money to do that?

GERAGOS: I don't know. We'll wait and see. The question remains, do we allow the photos in? You know. I remind the Court again -- or Mr. Olson, I should say, it is a capital case. Much of what is in evidence or what Delaney has said, can come in under the factors, clearly would be met -- and I can represent to the Court that the other photos, the unpublished photos would not be of him laughing. Would not be of him smiling. And that the only way that we can get at them is through the Modesto Bee.

DISTASO: I have to say one other thing.

JUDGE: I'm going rule here in about two e 11 minutes. Go ahead.

DISTASO: I don't know when the Modesto Bee became an advocate for the defendant. Apparently that's what's going on here, because Mr. Olson is making a 352 argument that, of course, is for Mr. Geragos to make, not for him. The other thing I wanted to say is that these photographs are absolutely relevant. There is no 352 issue here. It's the defendant's conduct that's very important in this case. The Court knows that. The Court has heard evidence about that. He's allowed the defense to question witnesses about that. The people are allowed to put on evidence. Simply because that evidence came from the Modesto Bee, they published it, there is no shield law. The people are entitled to put evidence on in this case. Now they want to come here and suppress the people's evidence and somehow insert themselves into this case as an advocate for the defendant, and it's not proper. And with that I'll submit it.

JUDGE: Okay. Go ahead, Mr. Olson. I have a question for the prosecution. Go ahead.

OLSON: Your Honor, in response to Mr. Geragos' point that he would like to buy the unpublished photographs, our --

JUDGE: They are not for sale.

OLSON: Our constitutional rights are not for sale.

GERAGOS: Just their paper.

OLSON: With respect to the prosecution's argument that we are somehow now on Mr. Peterson's side, we're not on anyone's side. We're on the side of protecting our constitutional rights under the shield law. And we are on the side -- as I think the Court should be too -- of avoiding any potential collision between our constitutional rights under the shield law and Mr. Peterson's rights to a fair trial. And the Court can avoid that collision by saying that if the photos come in, they are self-authenticating under 645.1, and that the presence of the Modesto Bee witnesses is not needed. And unpublished photos cannot come in, because there are hundreds of alternative sources that can say that Mr. Peterson was not smiling at some point during that vigil.

JUDGE: That's the question I have for the District Attorney. Mr. Distaso, aren't there any witnesses to what took place? Rather than using these photographs, aren't there people there that could be subpoenaed and testify as to the defendant's demeanor, rather than the problem I have with the photographs, what context they are in, and whether or not it gives a false impression to the jury? Somebody could have been talking to Scott Peterson maybe about Laci Peterson and he smiled; or maybe his niece could have said something funny to him and he smiled; or maybe there was an exchange with somebody that was there at the vigil that caused him to smile. We don't know what caused him to smile. And unless it was just a photograph without any explanation sort of leaves things up in the air. That's what troubles me about this is the contextual concept. Is this going to lead to a false impression? And the alternative is, why don't we have a witness who was present, who is -- who can testify, that could be subject to cross examination?

DISTASO: Your Honor, number one, it's not going to leave a false impression. Number two, there is a witness who is going to testify they sat -- stood three or four people behind the defendant, and saw him. He didn't seem upset at all during the entire time. At the end of the vigil he went down in front of the stage when his picture was taken and he was smiling like nothing was going on. He was talking to a couple people during that time. In fact, when I asked her, well, can you -- and I laid out the pictures from the Modesto Bee. There is a couple of them, kind of a half-smile on his face how. There is one with him by some children with some candles. Kind of one with this big kind of happy grin on his face. And I said, which one of these best describes how you saw him? And she said, "This one right here," and pointed to the one with the big happy grin on his face.

JUDGE: Is this witness going to be called to testify so he is subject to cross examination?

DISTASO: Yes. But I should be allowed to put that photograph in through her, and then they can cross examine.

JUDGE: You heard what the Court's issue is, is the -- in context. How is it viewed in context with these other photographs? If you have a witness that observed this demeanor, then she is subject to cross examination by Mr. Geragos and that's a different story. But just to slap these pictures in without any explanation is a real problem with the Court. Okay? All right. I'm going to take care of the press so I can get you out of here. Let's deal with your issues first, Mr. Olson. As far as motion to quash the subpoena for the Modesto Bee librarian, Melissa Van Diepen, I'm going to grant the motion to quash. I'm going to grant the motion to quash the subpoena for the photographer. These photographs are self-authenticating under Evidence Code Section 645.1. The Court is going to rule that the unpublished -- the unpublished photographs are not coming in, that they are protected under the shield law. And these photographs, if they are going to come in, they are going to have to come in, and there is going to have to be a foundation laid, not for their admissibility, but only if there is somebody here that's going to testify as to the defendant's demeanor. If there is not going to be somebody here to testify as to the defendant's demeanor, what she saw, then the Court's intention is to exclude these photographs, because then there is going to be an issue as to in what context that these photographs were taken. And this gives Mr. Geragos an opportunity to cross examine this witness to decide whether or not his niece was sitting on his lap, if there was some sort of conversation between the two, and so forth. So that's the ruling with respect to the Modesto Bee librarian and these other photographs. Now, with respect to these other -- the other -- the admissibility of the attempts to get the tape of the outtakes of Diane Sawyer's interview of the defendant, the Court has read and considered these memoranda. The Court has read and considered the points and authorities and the moving papers. It's been exhaustively briefed. I'm satisfied that there has been an insufficient showing to pierce the shield law, so I'm going to grant the motion to suppress the subpoena of the outtakes and the original tape of the interview with Diane Sawyer for a lot of the reasons stated by Miss Sager. That will be the Court's ruling.