Final version of the TV interviews to be presented to the Jury

Guilt Phase

July 29, 2004

JUDGE: Now we're back to the issue of these tapes. I already ruled that these tapes were going to be admissible. And the only issue, as far as the Court's concerned, is the manner in which the tapes are going to be presented to this jury. So what I want to see again is, I want to see the -- well, when we had a hearing a week or so back, I saw some of the Diane Sawyer interviews, and I made certain suggestions. For example, there was the beginning of this tape, there was a defendant that was crying, and then all of a sudden he was strictly composed, and there was no bridge between two. How it gets from A to B. And my understanding is the District Attorney now has done something about that?

DISTASO: Yeah. There was a -- like a comment by Diane Sawyer in there that kind of explained --

JUDGE: This was like the tease. Have you got the tape here now?

DISTASO: I have got -- the we can play it.

JUDGE: All right.

DISTASO: Looking for my investigator. Okay.

JUDGE: We have already marked those. I don't to confuse --

GERAGOS: Judge, on this issue, it's my intention to probably take a writ on this issue.

JUDGE: Which I shall --

GERAGOS: On the broadcast version.

JUDGE: Go ahead.

GERAGOS: So I was going to ask that I get -- if the Court could order a minute order of that ruling today.

JUDGE: So ordered. I invite you to do that, because that would he certainly clear things up here.

DISTASO: Judge, can I -- we have a bunch of these already marked and in evidence. And what -- instead of marking these, can I request just put on the record, we're playing kind of the latest version. Then when we finally get --

JUDGE: I have got so many papers up here now. I'm trying to find where the list of the prosecution exhibits are. I've got about four inches of motions here. I found it. What I have here is People's Number 131 is the fully-aired portion of the Diane Sawyer tape. 131-B is the Prime Time Live on ABC. 131-C is the DA's version, and D is the transcript of the DA version, right? So you are going to show me 131-C now in the new version? Or is this going to be -- mark this E?

DISTASO: Whatever the Court wants -- however the Court wants to mark it. It's a brand new version.

JUDGE: Let's leave it as the 131-C, which is the DA's version as edited at the Court's direction. And I also want to see --

DISTASO: But I think we're going to have to take that other one out of evidence. That's the only thing I'm worried about.

JUDGE: I see what you mean. Well, then let's mark this -- we'll make mark this E, the second redacted version. Video

Marked as Exhibit 131-E for identification.

JUDGE: See what you have done with it. (TAPE PLAYED)

DISTASO: Interrupting, judge, which is also the voiceover right here.

JUDGE: Stop it. Stop it.

DISTASO: That's the -- that's where she kind of puts it in context.

JUDGE: You are going to have to clear this up for me. Did she air this, just pictures of him crying without any introduction, nothing to -- just pictures of him sitting there crying for thirty seconds, then she says absolutely nothing?

DISTASO: That's how it starts then. And then she gives that intermittent thing. Then it goes to the questions.

JUDGE: Go back to the very beginning then. (TAPE PLAYED) That part goes out. (TAPE PLAYED) This part this too. (TAPE PLAYED) All right. The record should reflect that the Court has viewed the second redacted version of the Diane Sawyer tapes. Mr. Harris, are you going to argue this?

P. HARRIS: I am, your Honor.

JUDGE: Go ahead.

P. HARRIS: Just to clarify one thing. You said at the beginning you -- I think you said we are just going to discuss the issue of what would be taken out. It's my understanding we would be allowed to argue the motion which we actually filed the motion to exclude.

JUDGE: Yes, you can argue that.

P. HARRIS: What is strange to kind of watch, when you watch the video, and watch Diane Sawyer, Gloria Gomez interview, what strikes the defense as being rather unusual is that we all recall sitting here for, I guess it was about twelve painstaking weeks having jurors come through, 1,600 jurors, and we interviewing personally about three hundred of them. And the major topic of conversation we had with those jurors was their access to the media, what they had seen, things that were detrimental specifically to the defendant, since there has been such a high rate of people feeling he is guilty. People who then -- a number of them put on the questionnaire they had seen Diane Sawyer, these types of interviews, they felt that he was guilty. Now we're turning around, really almost an ironic twist. And just in case they didn't get a chance to see them influenced, now we're going to let them in so they can be influenced by them, we can let them see what the media is actually saying. And so now in case -- just in case, we try to pick twelve people, sixteen people who weren't influenced by it, so now we're going to make sure they get to see it.

JUDGE: Can I ask you a question?

P. HARRIS: Sure.

JUDGE: Isn't all prosecution evidence intended to influence the jury?

P. HARRIS: You hit it on the exact point, though. It's interesting that we are not getting prosecution evidence here. We're getting media evidence, which is what we have had from the beginning of this case. I have got a client, I have got a family sitting back here who, for a year -- over a year and a half, would call us on pretty much a daily basis and said, did you hear what was on the news tonight? They ran such and such and such and such. That's not true. And what Mark and I would say to them on that basis is, just wait until trial. The truth will come out in trial. Ignore what the media is doing. The truth comes out at trial. You will get to see actual witnesses. You will get to see actual proof. What's funny is, what's strange, that's what's happened in this case. Once the witnesses get up, all the mounds of blood, mounds of evidence, all these crazy things that have been introduced have suddenly disappeared. So now, once again, in an attempt -- because that's the only way he can be convicted is by the media -- is to bring the media back into this case, which is what we have all tried -- at least believe tried to keep from the beginning. And just let me give you some examples, judge. When you watch that tape, if you noticed, Diane Sawyer says a neighbor says the first thing she does every morning is open the blinds. Well, guess what? The neighbor didn't testify to that. We have now got Diane Sawyer testifying to that in front of this jury. And the problem we have got, as your Honor is well aware, is the Crawford problem, because we can't cross examine on that. There is no way to.

JUDGE: Let me tell you about Crawford. This is -- this is not being offered as for the truth. This goes to the state of mind of the defendant. So that's one reason why Crawford doesn't apply; and, secondly, there has been recent cases that have come down since Crawford versus Washington in the non-testimonial evidence.

P. HARRIS: What is happening, you are getting someone making statements, you got someone who is supposedly -- I would point out ABC continues to put her on television, she has some degree of credibility. You have got someone with credibility standing up saying a neighbor says that she was -- first thing she does every morning is open the blinds. Not true. The jury now hears that. She then turns around and says, we also hear stories about that you -- there is a wet mop. Not true. Testimony came out that the mop itself wasn't wet. Once again we get something introduced in this case that's not true by the TV, by the media. We get to this whole issue of someone saw loading something into the truck. Turns out --

JUDGE: That's going out.

P. HARRIS: All of this would go out. But it's the same thing, your Honor. It's no different, the mop, the curtains. It's the same thing as the loading things in the truck. These are things that are coming in as evidence. They are being introduced through media tapes. It's a backdoor attempt to put in what can't be testified to at the trial. And I do disagree with your Honor as far as the state of mind. What we're having is a direct Crawford violation, because we have had no way -- how do we argue with this? Who do we confront on this? You can't call Diane Sawyer, because the first thing she says is, I just heard it, it's hearsay. Or I have got media sources, I can't reveal them. We have no way of being able to confront this. We have no way of cross examining on this. And that's exactly what Crawford goes to directly. Then we get into the whole issue of the editing, and the fact of how this is edited, the fact it's even edited in the first place. And I guess I'm at a disadvantage in the beginning, because when you deal with the -- you have already ruled that we cannot get the entire Diane Sawyer tapes. So here is what we're stuck with. We're stuck with a jury essentially hearing -- and I think your Honor is clear on this -- we have got a six-minute segment of Good Morning America. We have got another six minute segment of Good Morning America. We have twelve total minutes. Then a few months later Prime Time Live basically reruns the Good Morning America segments, adding a couple of extra minutes. But, for the most part, it's just a rerun of what they have already put on. So not only is the jury going to get to see this once, they are going to see it twice. They get a double shot at it. Now we have 12 total minutes on an interview that lasted over 90 minutes long. And it's picked and chosen the way that the media in this case chose to deliver it. So now we have got the situation where not only we have the twelve minutes they want, then we let the prosecution come in and take out what they want. And let me just point out two things they have taken out. First of all, there is -- as your Honor recalls, there is the statement where he says -- he tells the police right after, that he actually notifies the police about the Amber affair thing that night. What has been taken out of this, what was in the original Prime Time interview, is that Diane Sawyer says this wasn't true. And Scott Peterson called us after the interview to set the record straight. He said he never told the police about his affair with Amber Frey, but claims he did tell his wife. That's been excised from this tape. Why? Because that would be helpful for the defendant. That is not a cut that Prime Time Live made. That's a cut the prosecution made. There is also a cut where his father is interviewed, and his father says -- goes through this part where he's talking about Scott. And he says there is no way he could have done it. He's the kindest, gentlest person I have ever known. That got excised not from Prime Time Live, but from the prosecution's cut. So now, not only do we have over 90 minutes edited down the to twelve, but then we get to take the prosecution and edits it further down. I'm suggesting to you we are setting an extremely dangerous precedent here. If you think about this, this is a very -- we know exactly what happened in this case. This is a very easy thing for a police department to being into a symbiotic relationship with a reporter, leak information to that reporter, have the reporter get off and do an interview where they spread out these rumors. They throw out things that are absolute rumors, absolutely not the truth, in an interview. Then when the person is charged, we get to bring the interview in and show it. And that's a very, very dangerous precedent to be setting. And unedited -- excuse me, edited versions, not the unedited version, the entire interview -- I think your Honor got to see the Gloria Gomez tape, the full version. And I would hope that that would have a dramatic effect, because the difference between the edited version of what the Gloria Gomez tape was and the unedited where dramatic. Numerous things positive to Scott Peterson were edited out. An entire fifteen to twenty minute section where he discusses why he chose not to go on TV, which is one of the issues in this case, edited out. So now we can get to see just what it's like to see an entire interview versus the edited interview. These are things we cannot -- we cannot overcome. And it's absolutely unfair to put us in this position. I just would basically end by saying -- and I understand the Court is already at a point where the Court feels like it's -- the desire is just to edited a little more, take a couple of things out. But having gone through jury selection, your Honor, and having gone through the entire twelve weeks that we went through, avoiding everything media-related, trying to keep everything media-related out, I think is the height of absurdity to now put in interviews from the media so these people can be exposed to the very nature of the publicity that we try to keep out in the first place, and that the Court and prosecution, everyone tried to keep out in the first place. And now we're not only subjected to it, we're having it brought in as prosecution evidence.

JUDGE: All right. Thank you. Mr. Distaso.

DISTASO: Judge, just a couple of comments. First of all, Crawford doesn't apply. These are admissions of the defendant. Crawford doesn't apply to admissions of the defendant.

JUDGE: That's not -- it's not testimonial.

GERAGOS: It's not testimony. It's not Diane Sawyer's testimony. It's the defendant.

JUDGE: Crawford does not apply in this. Go ahead.

DISTASO: The other issue, the only thing counsel seems to be talking about are, we did the Court has seen whole broadcast. The Court knows what was in there. We did take out the statements of the family members, including the defendant's father. That's pure hearsay. That's not admission of the defendant. That doesn't have anything to do with this case. Secondly, where the defendant called Diane Sawyer -- I was just saying the defendant called and set the record straight, or what not. Again, that's just pure hearsay from Diane Sawyer. If he wants to get up on stand and say it, that's fine. That's exactly what's supposed to happen. And, secondly, the -- regarding the neighbor's statements, he says, oh, there is no evidence of that. That's not true. Well, he's calling his own client a liar then, because Diane Sawyer asked him, there had been a neighbor said that she put the blinds up -- I'm sorry, put the blinds up every day. And the defendant himself says, yeah, she would do that every day in the summer, but she didn't do it in the winter because of the draft. Secondly, she says, oh, there is this report that there was some mopping going on. The defendant says, "Yeah, she was mopping the floor when I left, and when I came back I took the bucket out." So basically what they are trying to say is, yeah, my client is a liar, judge, so you shouldn't allow that into evidence. All these arguments they are making are just ridiculous. The Court has already ruled on that. I think the Court made some mention while we were watching the tape to Lieutenant Smith to take out that one section where it says the neighbor reported that you carried something out.

JUDGE: I read the briefs on that, and I know you are objecting. That's what Miss Dempewolf assumes. It's so closely connected, I think out of an abundance of caution, I think that should be left out. The part where she said, "Did you load something in the truck?" That can still go in, because that's just a direct question.

DISTASO: That's fine, your Honor.

P. HARRIS: I want to respond quickly to the accusation where I'm calling him a liar. The actual -- if he would look very carefully at the transcript, what happens is, she tells him the people are telling her the mop is wet. My guy at this point isn't talking to the police. He hasn't been told about this supposed evidence of the mop. He's -- all he does is respond and say exactly what he's said from day one. "She was mopping when I left." Not only is it not a lie, it has been a consistent truth throughout this. And as far as the curtains, exactly, he responds truthfully what he said from the beginning, and what exactly is the truth. And it's not been brought into evidence, because they know they can't prove it, because it was absolutely shown to be false at the preliminary hearing.

JUDGE: Okay. Let's talk about the mop for a second. We spent days here talking about the mop. This jury has heard all kind of evidence about this mop. There has been direct evidence, cross examination, that there was no -- that the mops were tested. There was no evidence of evidentiary value. So I don't know that can be at all prejudicial to the defendant. If that's the statement that's made by him in this the tape, jury has already heard a lot of this evidence already. So we're rehashing the same thing as far as the Court's concerned, with the exception of that portion of the tape that makes reference to the neighbor saying they saw you loading something into the truck. That part is going to go out for the reason I already stated, because I think that's too closely connected with the information provided by the witness that it was -- that was hypnotized. And the Court's already ruled that out. The Court is satisfied that this tape has not been so spliced as to be completely distorted. I think it's good evidence for the prosecution. Any evidence that's -- any evidence for the prosecution is going to be prejudicial. It's the whole point of the prosecution evidence is to influence the jury. That's what the trial is all about. And so as far as the Court's concerned, as soon as that portion is edited out, the second redacted version may be shown to this jury at the appropriate time. Now, I don't have to see the Gloria Gomez tape gain, since it's my understanding -- you guys can correct me if I'm wrong -- the Gloria Gomez tape, the original tape of Gloria Gomez was actually put on the internet. Is that right or wrong?

P. HARRIS: That's correct.

DISTASO: That's my understanding.

JUDGE: That's correct. That been actually published.

DISTASO: Yes.

JUDGE: As far as I'm concerned, the original tape of Gloria Gomez can also be shown for the same reasons, with the one exception is that part where the reference to the lie detector test is going to have to go out.

DISTASO: That's fine. We don't have any objection to that.

P. HARRIS: No objection.

JUDGE: As far as, if you want to show the original tape of Gloria -- the fact, the phone rings, he gets up and gets the phone, that can come in. And if the defense is satisfied a, lot of that information is favorable for the defense, so be it. If you want to show the original tape by Gloria Gomez, that's fine. That can come in also, because, for the same reason I already stated, with the exception of that any reference to the lie detector has to be redacted out of that. And then we have the interview with Ted Rowlands. I don't see any problem with that. The one that was aired in January, 2003. How much time is left on that one? How much time does that take?

DISTASO: About seven minutes.

JUDGE: Have you got it here?

DISTASO: There was some changes you told us to make.

JUDGE: There was some changes? That one -- I want to see that one.

DISTASO: I have that here.

JUDGE: This is 137-A, right?

DISTASO: Yes. (TAPE PLAYED)

JUDGE: What happened?

DISTASO: The reason it goes blank is, the problem is, this was when they were showing a picture of Amber. And the Court told us to take the picture out. So we're stuck with just the audio.

JUDGE: That's fine. Because I am going to tell the jury that part of these tapes have been edited. (TAPE PLAYED)

JUDGE: Okay. Then for the record, the Court has viewed -- more to it. Okay. (TAPE PLAYED)

JUDGE: Okay. There is reference in this one too to the neighbor. That has to go out because. Again, that's too closely related to the Dempewolf testimony. That part should go out. And with that exception then, this will also come in also.

P. HARRIS: Renew our motion.

JUDGE: For the record, you are objecting, as you state, for the record?

P. HARRIS: Yes.

JUDGE: They all come in under 1553 of the Evidence Code. The Court is also satisfied they have not been so spliced as to completely distort. The only other issue that we have haven't resolved this morning is the dog. We are going to continue that to some other day?

P. HARRIS: Until we get the records.

JUDGE: We have got everything else ruled on this morning that we had on the record?

DISTASO: I think so, your Honor.