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Judge's Order for Trial, Arraignment Set
Preliminary Hearing November 18, 2003
JUDGE: You may step down. HARRIS: I'd ask that the photographs be admitted. JUDGE: Which one is that? HARRIS: Should be 147, I think it is -- or 148. JUDGE: Is that a photograph of a receipt, I think? HARRIS: Yes. JUDGE: Okay. Any objection? GERAGOS: No. (Whereupon, People's Exhibit 148 was received into evidence.) HARRIS: And the Court's already received the transcript. JUDGE: 149 is already in evidence. How about 147? Did we do that? CLERK: Yes. JUDGE: Map of Central Modesto. CLERK: Yes. JUDGE: Everything's covered. Prosecution rests, then, Mr. Distaso? DISTASO: Yes, Your Honor. GERAGOS: Could we take a brief break? JUDGE: You haven't made a decision whether to call witnesses yet? GERAGOS: I wanted to caucus, if I could. JUDGE: Let's take ten. And I wanted to look at the evidence that we've marked recently. So, Jennifer, will you bring that up? We'll take a ten-minute recess. (Recess: 10:40 - 10:55 a.m.) JUDGE: Record reflect everyone is present. People having rested, does the defense wish to offer any evidence, Mr. Geragos? GERAGOS: No, Your Honor. JUDGE: Does either party wish to be heard or do you wish to submit the matter? GERAGOS: Whatever the Court's desire from our state -- I can tell what the Court is obviously -- DISTASO: Yeah, I'm kind of similar to that, Your Honor. I'm prepared to talk about any questions maybe the Court has or anything they might want to do, but, I mean, for us to each sit and argue, it would be fairly lengthy, and the Court certainly has heard all of the evidence. JUDGE: We all know what the standard is at the preliminary hearing, so -- GERAGOS: I like to jokingly say it's, "Is my client breathing?" JUDGE: It's a little more than that. The Court has considered all of the evidence, and it appearing to me that the offenses in the within complaint have been committed, there is sufficient cause to believe the within named Scott Lee Peterson is guilty thereof. I order him to be held to answer to the same. Specifically, I find that there is sufficient evidence for the two counts of murder, that they were committed intentionally, deliberately and with premeditation, further, that as to Count One, the killing resulted in the termination of Laci Peterson's pregnancy, and, also, that, finally, there is sufficient evidence of this special allegation pursuant to Penal Code Section 190.2(a)(3) involving more than one murder. Arraignment will be in 15 days from today. I think that's December 3rd. Is that date okay, or do you prefer a Friday? December 3rd is a Wednesday. GERAGOS: Is -- could we do the pre -- is that a holiday, the previous Friday? JUDGE: Yes. I believe it's Friday -- DISTASO: That's Thanksgiving. GERAGOS: Right. Could we do the day after -- the first day back, the 1st? DISTASO: That's fine with me if that's fine with the Court. JUDGE: The only trouble is that the courthouse is rather crowded on that Monday with the jury trials starting that day. So we can leave it on the 3rd, or if you want to waive time, we can go to that Friday, if you want -- GERAGOS: No, the 3rd is okay. That's fine. JUDGE: Arraignment will be on December 3rd at 8:30, this department. I wanted to cover a couple of other items before we terminate today. There were some issues brought up originally. I assume you'll just be bringing those up later, the wiretap issues, the canine scent, and the GPS issues; is that correct? GERAGOS: That's correct, Your Honor. JUDGE: And, also, as far as the videotape, I assume if anything comes of that, there will be a formal discovery motion; is that correct? GERAGOS: That's correct. I anticipate that we'll have that filed prior to December 3rd. The wiretap motion I would like to have, if we could, since it's already been briefed, I'd like to set a date now, if we could, if that's acceptable to the Court. DISTASO: I would prefer, Your Honor -- JUDGE: I'm just wondering -- the reason I was interrupting is if you're going to make a 995, I wonder if that should just precede everything? GERAGOS: I will be making a 995. So, actually -- JUDGE: Also, if there is a 995, even though I've been assigned for all purposes, that would be assigned to another Judge by the Presiding Judge, so -- GERAGOS: I thought you were the Presiding Judge. JUDGE: No, I'm the Presiding Judge of the Criminal Unit. The Presiding Judge of the whole courthouse is Judge Vander Wall. GERAGOS: Okay. JUDGE: You made that same mistake in one of those motions. GERAGOS: I did. I apologize. I was giving you a promotion. If the -- I think that makes more sense. I would plan on, my guess is, within two weeks of the December 3rd date I can have a 995 on file. So -- and then I assume they're going to want some period of time to respond. So why don't we just come up with -- I'll talk to Mr. Distaso, and we'll come up with some mutually agreeable dates and then check them with your Clerk. JUDGE: The other thing I wanted to bring up is, obviously, the issue of a change of venue has been discussed or talked about previously. If such a motion is going to be made, that should be done fairly early also, just so to avoid a lengthy trial setting. GERAGOS: I have a change of venue motion that's already written. Does the Court want me to file that on the date of the 3rd, and then we can also -- I'll see if Mr. Distaso and I can work out some dates on that as well? DISTASO: Yeah, that's my preference. I mean, that would help our schedule. JUDGE: That will probably work. We can do that pretty close in time to the 995, I'm sure. GERAGOS: Okay. JUDGE: Also, regarding the change of venue motion, though, I'd want both parties to explore the feasibility of utilizing a San Joaquin jury if a change of venue motion were granted. We've done that before, where we selected a jury in San Joaquin County, went over there to do that, and then come back here and try the case. So that's a possibility. I don't know if those things are still available through the Judicial Council or not, but both parties should explore that. DISTASO: That's fine, Your Honor. GERAGOS: If the Court -- when the Court does that, does the Court sequester the San Joaquin County jury? JUDGE: No. What they have done is they pick them up in San Joaquin County at 8:00 in the morning, they get here by 9:30, then they get back by 5:00 by bus. That's the way they've done it. Last one was probably about five years ago. That's one of the options to consider, if the motion is granted. The other thing I wanted to do on the 3rd, do you think you could read all the transcripts and do the certification of the record of the preliminary hearing? And, also, we have one other date to do. I think it's -- anyway, one of the last appearances we made before the preliminary hearing was not certified. DISTASO: I don't think that would be a problem, unless -- if Counsel has an issue with that, I don't mind putting it off either. JUDGE: You just have some reading to do over the holidays. I've read all the ones regarding the four days' worth involving DNA, but there's still considerable amount of reading left to do. GERAGOS: My guess is, because I'm going to want to file a couple of things on the 3rd, that but my preference would be to work on those items so that I can file them when I come in on the 3rd, and then ask the Court to maybe defer the certification until some other day. JUDGE: Well, I'll be prepared for it on the 3rd, and I'll have it on the agenda. Hopefully we can get some of those out of the way. So -- GERAGOS: Would the Court -- would the Court -- I've previously asked the DA, and I haven't gotten -- well, I think I've met with a negative. There's been mention of $15,000 in cash today by Detective Buehler, as well as they've got the Ford 150 pickup truck. And I've asked for both of those things informally to be returned, and neither one has, I guess, been acquiesced to. I don't see any reason why -- we haven't made any 987 applications of any kind in this case so far. And, obviously, it's a expensive task for the family to fund this, and it's not going to get any less expensive. And I don't see any reason in the world why they need to hold on to the cash, number one, and, number two, the truck, which the Petersons are making payments on while it sits there, and I do not believe that there's any evidence whatsoever connected to the truck at this point. They've had it for going on, I don't know, since January or December. So I'd ask that both of those things, both the items be returned. I don't see any reason that I can think of for them to keep the cash. I've already offered to stipulate they can copy the cash, and I'll stipulate that at the time of trial, if they want to introduce it, that those are -- that's as good as the real thing, so to speak. And I don't see any need for the truck, and I'll stipulate to whatever chain of custody issues for the truck. There are payments that are being made on it, and so far I've advised them to make the payments, but it's getting to the point where it doesn't make any sense anymore to make the payment. JUDGE: I'm not going to make the order without the District Attorney agreeing to it, otherwise, you'll have to make a formal motion. But is there any objection to -- DISTASO: There is -- JUDGE: -- returning the cash at this time and also the pickup truck? DISTASO: There is, Your Honor. I understand that, in my opinion, both are evidence used in these crimes, and I intend to introduce both at the trial. And so without a formal motion, you know, that's really all I'm going to say about it this morning. JUDGE: Why don't you do a formal motion. But to save you another trip up here, keep costs down, I think we can hear that on the 3rd. Do you have any problem with that, Mr. Distaso? DISTASO: I don't have any problem, but I'd ask that his -- I'd like at least a week to respond myself. So he's going to need to get it to me a week in advance of that, whatever day that would be. JUDGE: How about filing it by the 25th? DISTASO: That's fine. JUDGE: Mr. -- GERAGOS: I can do that. JUDGE: -- Geragos? That way he's got a week to answer. GERAGOS: Yes. JUDGE: The other item I'm going to cover on the arraignment on December 3rd is the particular items that were sealed, that's 131 and 130, DD, EE, FF and GG. Those are all sealed conditionally. And so the notice is being given, so if anyone wants to try to unseal those, that can be heard on December 3rd at 8:30. Also, I believe the tape is -- falls in the same cat -- well, it doesn't fall in the same category, as it's not in evidence. I'm not reviewing it. DISTASO: And, Your Honor, I guess one way to maybe handle some of these exhibits, I don't know if there's going to be a motion to -- or stipulation to return the exhibits. That's typically done, even in a death penalty case. And so I'm not opposed to that, if each side wants to retain their own exhibits. GERAGOS: That's fine with me. I'll stipulate to the return of the exhibits. JUDGE: I know there was some request by the media to look at them. I was not going to let them photograph them at all. But if they're returned, obviously, they won't have that opportunity. But since it is a public hearing, I think they're entitled to see them. So before I return them to them, we probably ought to have a showing, allow them to see it. Mr. Tozzi was going to arrange for a set time that they can go in and look at them, not photograph them, but get an opportunity to see them close up. DISTASO: And I just -- Mr. Harris just said something, which does make sense. Since there will be a 995 filed in this case, another Judge is going to have to review them, and I guess that would actually probably foreclose returning them at this point. JUDGE: Yeah, probably would be simpler if -- even though they're voluminous and large, probably would be better for the Court to take care of them anyway. So as far as the public being allowed to see them, the media especially, they'll make arrangements with Mike Tozzi sometime this week, and then after that, they'll be locked up. We can't just bring them out. It will just be one showing at one time. GERAGOS: My memory also is that when the Court issued the protective order, that you had included in that protective order some dates for revisiting it that I think were in conjunction with the arraignment, was it not? JUDGE: I'd have to pull it out. I can't remember if I said at the conclusion of the preliminary hearing or at least through -- GERAGOS: I thought it was five days before the arraignment post-prelim -- preliminary hearing, but I haven't looked at it recently. JUDGE: Why don't we continue the order until December 3rd, and we'll visit it. That will be on the agenda on December 3rd, discussing the continuance of the protective order. DISTASO: That's fine, Your Honor. JUDGE: So both parties are still -- all parties are still bound by that order between now and December 3rd. Any other loose ends? DISTASO: I don't have any. GERAGOS: I have nothing further. Thank you, Your Honor. JUDGE: One thing that I wanted to tell the people, I don't know if Lyn Yard, the Court Reporter, has discussed it with you, but I've had available to me, and I think she'll make it available to you, is the daily transcript is on CD with a search engine which makes it very easy to track down things. I'm able to review matters rather quickly by just using that search engine. So if you want that available to you, check with Lyn Yard. GERAGOS: Thank you, Your Honor. DISTASO: Thank you. JUDGE: Okay. Defendant's remanded. No bail is set. Be back in court December 3rd, 8:30. GERAGOS: Okay. Thank you, Your Honor. DISTASO: Thank you, Judge. (Proceedings concluded: 11:10 a.m.) |