Defendant's Motion for New Trial

Sentencing

March 16, 2005

JUDGE: And, Mr. Geragos, do you want to start?

GERAGOS: May I have just one moment, your Honor?

JUDGE: Sure. This has to do with the motion for new trial.

GERAGOS: Right. If I could have one moment.

JUDGE: Mm-hmm.

GERAGOS: The court, I think I filed also with Marylin, in connection with the motion for new trial, a declaration from Lori Friedman, which would have been from Fox News. Does the court have that?

JUDGE: Yes. You were kind enough to give me a copy before we began this morning, and I've seen that. And that also may be filed, and we'll mark that, want that marked as a defense exhibit or court exhibit? Well, why don't we mark it as part of your motion.

GERAGOS: Why don't you mark it as part of the motion.

JUDGE: We'll make this part of the motion for new trial.

GERAGOS: Okay.

JUDGE: And this will be the declaration of Lori Friedman. And I believe, Mr. Geragos, you had a disc, too.

GERAGOS: I've got two discs that I gave to the clerk.

JUDGE: All right. You gave that to the clerk. We'll make that as part of the record.

GERAGOS: I also had a declaration from Justin Falconer, which I believe I also filed with the court.

JUDGE: Yes. And I'll order that filed. You advised me of that, too.

GERAGOS: I think the two issues, I mean obviously the court's reviewed the motion. It's lengthy.

JUDGE: Yes, I have.

GERAGOS: The two issues that were brought up by the prosecution that I think need clarification. One is this issue of Aponte and Aponte's looking at or hearing this phone call and then making a phone call to Modesto PD. Mr. Harris's position in the opposition is that all they had to do was, or all we had to do out of the 10,000 tips is then contact him, that they disclosed whatever exculpatory information it is. That is not the standard, number one. Number two, the fact of the matter is, as a practical matter, we did not realize the significance of that name until probably two weeks before the end of the trial when they turned over, as the court may remember, a interview with an inmate at the Stanislaus County Jail. When they turned over the interview with the inmate, we recessed for a day, we went over, Mr. Harris went over, interviewed that gentleman, I'll just call him Mr. R., in the Stanislaus County Jail. Once we interviewed that gentleman, he's the one who told us and made the connection such that we went back and re-interviewed Lieutenant Aponte. What is not in the motion, the opposition, anywhere, is who is the detective who called Lieutenant Aponte. Where are the notes about that phone call? Where are the notes about the interview with the inmate?

This inmate is in custody, in Norco. He makes a phone call, or at first he's heard and he hears in the yard, or he's overheard in the yard, saying that, that Todd confronts Laci Peterson in regards to the burglary. He then is on a phone call and is picked up on a taped phone call. Lieutenant Aponte, who is the head of their investigation division at the Department of Corrections, thinks that that is so significant, in January, that he saves that tape and he's got a tape-recorded statement or a tape recording of the phone call that's saved somewhere. Instead, and then he makes a phone call to Modesto. He has a distinct memory of Modesto either getting that taped phone call, or calling up there and/or at the very least calling of there and interviewing this person. Interestingly, after Modesto calls up and interviewed this person, he's then heard on the phone again, a second time, calling his mother, and telling his mother tell, I won't give the exact name of the other person, but Tell X to shut the fuck up, he doesn't know who he's dealing with in regards to saying these things over the phone. He's then confronted again. Now, none of this stuff becomes, you can't connect the dots on any of this until we get Mr. R, who is in custody, who they interview, with one week left in this trial, turn over the discovery, and we run out, interview this gentleman, and find out that yes, in fact, the gentleman who's in custody, and his brother, are people who were connected to Todd, who was the burglar across the street. Now, fast-forward, it's been exactly two years. So we no longer have the tape, because they've now done, and I continually am talking,

JUDGE: The tape's gone.

GERAGOS: The tape's gone. They can't find it at Norco and they don't know what happened to it. We don't have any evidence of it, and I've got Aponte who still has a distinct memory of this happening, of hearing it, a trained law enforcement officer who is their head of investigations who thought it was significant enough that he kept calling Modesto to say Look, you've got to do something, or somebody needs to do something. We don't have the tape now. We've got, and mind you, I don't get into the case until May, some four months later, so I've got no way at the time to say Give me a copy of that tape. Aponte's memory is that Modesto does have a copy of the tape, that they came up and got it. Nothing, absolutely nothing in the opposition to the motion to dismiss discloses who the detective was, where his notes are, and why nowhere in the 43000 pages of discovery any of this about further investigation is recorded. That is under that component of 1118, or 1181. Secondly, as to the boat, the, what the,

JUDGE: The experiment with the boat, or the alleged experiment with the boat,

GERAGOS: Yes.

JUDGE: or the, or the,

GERAGOS: Well, it's, I'll just,

JUDGE: not permitting, not permitting your experiment in.

GERAGOS: Exactly. The two flip sides. The, the issue, significantly, is that the court did not permit our experiment into evidence. Three separate witnesses, the court did permit this jury, and most of this jury is here, to hear from a manufacturer who got in, who came out here, who had never tested the boat. When I asked him specifically, in front of this jury here, Did you ever or could you put 400 pounds on the side to see if that, the boat would hold up, he said No, we haven't tested that. I said Do you have an opinion as to whether it would? He said he wasn't sure. He couldn't conclusively state. I specifically asked Dodge Hendee, in front of this jury who is sitting here, Did you go out and do this experiment? Dodge Hendee said We discussed it. In fact, I think his exact words are Well, I said when are we going to do it? Never, never, they never did it. We asked Detective Grogan, Did you ever do an experiment with the boat? Never, he says We discussed it; they never did it. We went out and did the experiment with the boat. We have that experiment. We could have shown it to this jury. The, you excluded it for reasons that I think are infirm, because I believe that all of the grounds that you stated go to weight as opposed to admissibility. But that error is compounded clearly when the jury asked for another view, because when they asked for another view, and that was why I've now got the declaration of the custodian of records from Fox News, that it was clear that an experiment was done. You said at the time, I objected immediately. Mr. Harris, who was standing next to you, objected immediately when this was going on. I believe his exact words to you in the underground garage is You can't let this happen. I turned to my client immediately and said I'm going over to the judge, I don't understand what's going on here. I run over, tell you, You cannot let this experiment go on. You make a, do an admonition. I don't think the admonition is good enough, but clearly, from a statement of the juror, that has now been supplied to the court, there was an experiment that was conducted in that boat. You give an admonition. The admonition's not good enough. We've got an experiment. There's a case right on point where the prosecution was allowed to put in an experiment. The same arguments that were made by the prosecution here in opposition to allowing in the boat experiment are the exact same arguments that the defense made in that case in opposition to the prosecution putting in their boat experiment. The court of appeal ruled no, that should come in. That, that issue alone is significant enough to give this court the power and the, I believe compel this court to grant the motion for new trial. Those two issues, taken in combination, notwithstanding any of the other juror issues, but just the boat issue alone, is significant enough for this court, or some higher court, to, to, court of review, to grant a new trial in this matter. I urge this court to do it. I don't think that there's any reason, when you take the information of Aponte, when you combine it with the boat experiment, when you combine it with the experiment that was conducted by the jury, by the exclusion of our evidence, you put all those together, I think that that compels a motion for new trials. I'll submit it.

JUDGE: Okay. What about all these other grounds that you have submitted? You want to submit that on,

GERAGOS: I'll submit it on those grounds.

JUDGE: Okay. Do you want to be heard on those issues? The particular issues that have been brought up by Mr. Geragos. Let's start out with this information that was developed from the inmate at the Department of Corrections.

D. HARRIS: As to the newly discovered evidence, first of all, as we pointed out in our particular motion, the defense has presented no evidence to the court on that. There's a declaration from counsel which talks about what they did to go talk to the intimate in Modesto, which then references reports from an individual that's perfectly capable of testifying and writing a declaration, but chose not to. And there's possibly a reason for that, based on his testimony during trial. What we have is we have the lieutenant who does submit a declaration that's been provided to the court, and that's the only evidence before the court on that particular issue. And he says that MPD, as far as he can recall, does not have that particular tape. And he says that MPD called the inmate who said he didn't have any information.

So counsel keeps referring to outside kind of rumors and innuendoes, as we pointed out, which doesn't have anything to do with the facts. The rumors and innuendoes are what they're guessing, but the facts are what the court has before it with the lieutenant's declaration. The inmate told the detective who called there that there was, he had no information. So the fact that he said he has no information means there's nothing, that there's nothing there. Again, counsel wants to say that Well, MPD had this information, the prosecution had this information and we didn't know about it until before; but, again, that's somewhat disingenuous because if you look at the exact tip, it specifically mentions Mr. Todd, the burglar of the Medina house. And as the court will go back and recall, Mrs. Medina testified, and during her cross-examination we started getting into the burglary and about what the burglars were doing. We heard from a number of witnesses about Mr. Todd throughout the trial. So this other name of this third party, as counsel refers to him as X, Todd was there. That was the focus that they argued to the jury, that he was somehow involved with this. His name was in that tip when it was provided to them in 2003. As we pointed out, we're in the constitutionally or statutorily required to go through the discovery, find things that might be helpful to them in whatever theory that they might come up with and say Here, try this. We turned it over to them. That's the end of our obligation. Period. And that's the law. The facts speak for itself as to that particular point. Now, the second issue that he's talking about is the boat. I think the court again, going through that he's saying there's a flip side about the jury's view of the boat and their experiment; two separate completely different issues. As the court is aware from our response, the court had ruled based on that plywood platform that was put in the boat that raised the stability. It changed the boat. So it was not the same boat. It wasn't even substantially similar, when you change, had that modification for no reason. Which was never explained. So the court did not err in keeping out that particular demonstration, because it would have just misled the jury. It should be excluded under 352 because it wasn't substantially similar. Counsel keeps wanting to refer to the jury view as being an experiment. Even if we were to assume or concede, which we don't, that it was an experiment, as case law says, there's nothing wrong with that as long as it's within what the fields of evidence was that the jury had before them. Counsel submits a declaration from someone from Fox. We haven't had a chance to look at that. We didn't get a chance to look at the videos, but I'm assuming that it deals with the, the part of the transcript that they had attached from, from whatever the Fox show was with the juror.

GERAGOS: It does.

D. HARRIS: So assuming,

GERAGOS: The DVD that was filed with this court is the video portion of the transcript that's previously been filed.

D. HARRIS: So assuming that that is, and we'll accept counsel's representation, as we pointed out in our response again, the Evidence Code prohibits that kind of third-hand attack on a jury's mental state for evidence. And it ignores the law. Because the law says that they have a chance to manipulate and use, to examine pieces of evidence that are admitted. And there's no dispute the boat was admitted into evidence. There is no dispute the jury view was authorized and agreed to. So since it was in evidence, if we think about it this way, if that was a really big gun from another murder case, nobody would ever say they're not allowed to pick up the gun. This is a big boat. They're allowed to use that boat in the fields of evidence that were presented in the court. And counsel indicated, we had the boat engineer come and talk about it, the tests that they performed on it. He didn't mention the previous boat owner, but we did in our response, who specifically testified about two people getting in the boat and being able to walk to one side of the boat. So what the jurors did is nothing different than the evidence that they heard in this case. And he also failed to address the two court, two cases that this court had used before to rule on why there was no problem. And again, it hasn't been addressed because there is no way to address it because the law allows what happened. So even with the arguments that counsel makes today, there's no change from our position what's in the paperwork. We would ask the Court to deny each and every one of these parts of the motion.

GERAGOS: Judge, can I respond to the one issue?

JUDGE: Go ahead. Go ahead.

GERAGOS: How, I'm at a loss, how do we know that this gentleman who was interviewed, the one that Aponte refers to, how do we know that there was no information? Because there's nothing about it. They have not identified who the detective was. They haven't identified what the conversation was, when it was, or anything else. So how do we know that there's no information?   All there is is the tip. The declaration by Grogan doesn't inform us as to who or what it was. In fact, they never mentioned it. So the idea that somehow we called; there was no information. They're, they're saying that that's from Aponte. They can't identify, and for whatever reasons have never identified, who it is from Modesto that made that call, or from the DA's office.

JUDGE: Neither can Aponte.

GERAGOS: Mm-hmm?

JUDGE: Neither can Aponte.

D. HARRIS: Judge, briefly to respond to that.

JUDGE: Yes.

D. HARRIS: If the court reads through Aponte's declaration, he specifically said he monitored that phone call between that inmate and that detective.

JUDGE: Yes, that's what he said.

D. HARRIS: So the evidence before the court is there is nothing.

GERAGOS: Where is the detective's notes?

JUDGE: All right. Is there anything else that counsel for either side wants to comment? Because when I begin making my ruling, I'm not going to invite comments from either side because it's a lengthy process here. Is the matter submitted now,

GERAGOS: Submitted.

JUDGE: so I can rule accordingly?

GERAGOS: Submitted.

D. HARRIS: Submitted.

JUDGE: Okay. First of all, on the issue of the exculpatory evidence, there's a real issue whether or not this fact was newly discovered evidence, as far as I can tell. Apparently there is an affidavit showing that, by one of the representatives of the district attorney's office that said that that information was turned over and it was Bates stamped number 15311 and it was provided to the defense on May 14, 2003. So the argument can certainly be made that the, this information was, indeed, turned over to the defense. It may not have become significant until later on in the trial, however, it was apparently in the possession of the defense. This, so the court is going to be, taking the position that this was, indeed, turned over. Now, let's, assuming arguendo that the, that this is newly discovered evidence. Let's assuming that that's the case. What we've here is this conversation of, of this inmate, I'm not going to identify who it is, that somebody told him, and they believed this Todd had told him, that he had confronted, or Laci Peterson had confronted these burglars during the course of this burglary that took place at the Medina residence. The court's not too impressed by that evidence. I don't think it has much credibility or value to it. And the reason being is that there is evidence in this trial that the dog, McKenzie, was recovered at 10:14 or 10:18, I don't remember exactly what happened, and the Medinas didn't leave until after 10:30 in the morning. So the burglary must have occurred after the Medinas left their residence, and by that time Laci Peterson, under one interpretation of the evidence, was already missing. So the court is of the opinion, and also when, when this particular informant, I'll call him, was approached, from reading these affidavits, he, all of a sudden he decided he wasn't going to cooperate.

And you have to understand where this place is coming from. This is an inmate at the Department of Corrections, and the, we have a real issue there about the trustworthiness. So I don't think that, that information, even if it's newly discovered, is not worthy of belief. And I don't think it would affect the outcome of this trial. At all. Because, for the reasons I already stated. One other thing. The court, in making this ruling, the court can only base its decision on evidence before the court, not what might have developed. The only evidence that's before the court is what has been repeated by both sides, that, that Laci Peterson had confronted these burglars, period. So for the reasons I've stated, as far as I'm concerned, that, a different result would not have been probable in this case because the court is of the opinion that that information is basically untrustworthy.

There is the, I'm going to just touch on some of these things. The, there was the issue that was raised about whether the denial of the second change of venue was proper. The court's already ruled on that. And the record's replete with the court's reasons for that. The removal of Jason (sic) Falconer, again that's also, there is a, the court's relying on the record. That sets forth court's reasons for removing Mr. Falconer. The court feels that at that time the court was indeed justified in removing Mr. Falconer from the jury. With respect to the doctor who was removed from the, from the jury, the record is clear that, and it took place in chambers. I've reviewed the record, and the doctor did represent to the court that he could no longer be a fair and impartial juror, and he said he could not follow the court's instructions. For whatever reason. I believe probably his motivation was he was sick, he wanted, he was sick and tired of serving on this jury and wanted to get off this jury. There certainly is good cause to remove the doctor as the foreperson during the deliberations. And I might also point out during the time that no vote had been taken. They had been in there three or four or five days, whatever it is, and there hadn't even been a vote taken. So the court cannot be accused of trying to job this jury because I don't know if it was eleven to one, ten to two, whatever it was, because no votes had been taken.

This issue about the boat. The, as pointed out, the, David Weber of Lowell Aluminum Boat Group testified about the boat's stability. Bruce Peterson, the former owner of the boat, testified about being able to have two adults stand on one side without capsizing the goings, and Angelo Cuanang, a professional fisherman, testified that a hundred fifty pound fish with weights attached could be dumped out of a small boat without capsizing it. The general rule is that jurors may engage in experiments which amount to no more than a careful examination of the evidence which was presented to the court. The jury had this information in front of them when they went down to examine this boat. I like to use the example of supposing that boat was in the jury room. The boat was in evidence. There's no reason, there's no, there would be no way of telling if the jurors decided to get in the boat, rock it back and forth. And what's further significant in this case is that the boat was on a trailer and it was not on the water, so any significance or any experiment or any conclusions that could have been reached would have been minuscule compared to the evidence that this jury had already heard. And I'm of the opinion that, based upon what happened there, that that was not, indeed, an, an experiment. Okay.

And then there is an issue about the jury's finding of guilt, whether or not that was appropriate. The jury has found, the court is of the opinion that the jury's finding was supported by credible evidence. Getting back to this experiment for just, not the experiment but the, the court's refusal to permit the experiment proposed by Mr. Geragos about the boat. At the time, and the record is clear on this, I looked at the experiment of the, of Raffi in this boat, attempting to dispose of this hundred fifty pound weight, and I did point out that this boat had this plywood in the bottom of it. And I don't know how that would affect the stability of the boat, but there was plywood. Mr. Geragos was prepared to present to the court the testimony that, on that particular date that that's, the place where the experiment was conducted was in the general area where there was some testimony where the body would have been dumped in order to cover that particular part. You can't, you couldn't recreate the way the Bay was on December the 24th. So there was these issues here about, and the other thing is it's, it's, well, it's, it should be common sense that you don't stand up in a boat with a hundred and fifty pound weight and put your legs astride the boat and attempt to dump the weight over the side. You just don't do that in a boat because the boat's, boats are not that stable. And so that's not the way you would do it. And, in any event, I was of the opinion that, based upon what I saw, that this boat experiment that Mr. Geragos was proposing would have misled the jury, and I was of the opinion, and it's in the record, that there wasn't a significant foundation for the admission of that experiment and give that to the jury. There is the issue here about instructing on second degree murder. The court will rely on the law on that issue. I've already given, gave my, I already gave my reasoning as to excluding the boat experiment.

The issue with the wiretap, there's, the record is replete with the reasons and why that was admitted. And also, I believe the Amber Frey tapes were properly admitted.

The dog track evidence I believe was properly admitted also. I gave the reasons. I referred to the Malgren case and all the other cases that were represented. There was some testimony that was raised by Mr. Geragos about Ms. Anderson, whether or not she was certified, and whatever weight the jury wanted to put on that testimony. The adult programming, as I pointed out, was not to show the defendant was had bad character and didn't expect to have his wife come back and that's why he subscribed to adult programs. And in denying the death, a non-death qualified jury, the law is clear on that. So, for all those reasons, I think that the court relied on the record, and the court will go with the record in this case.

So the court's going to deny the motion for a new trial for the reasons I stated. Now, in this matter, then, the court has read and considered the defense motion for a new trial. I considered the oral arguments, and, as I indicated, the motion for new trial will be, will be denied.