The Case Against Scott Peterson

Little hard evidence has been presented against Laci Petersonís husband, but the trial likely will produce some revelations

By Josh Richman, STAFF WRITER

San Mateo County Times

A YOUNG, PRETTY, PREGNANT WIFE. A husband with a secret lover. A Christmas Eve disappearance. An awful discovery on an East Bay shoreline.

The deaths of Laci Peterson and her unborn son are familiar to most people -- the Modesto homicide's unusual melodrama has drawn attention and emotion worldwide -- and soon fertilizer salesman Scott Peterson, 31, will go on trial for his life.

Prosecutors will accuse, a defense attorney will argue, the world will watch, and ultimately 12 people will decide whether he did it -- and if he did, whether he should live or die.

< Stanislaus County Superior Court Judge Aldo Girolami on Tuesday chose San Mateo County to host the trial; he'd decided earlier to grant the defense's motion for a change of venue, finding Stanislaus County's jury pool has been tainted by heavy publicity and the greater Modesto community's deep involvement in the case.

But the case that will be heard in Redwood City might sound quite different from what was heard during Peterson's preliminary hearing late last year in Modesto.

"There's probably more evidence that we have not seen than evidence we have seen," said Loyola Law School Professor Laurie Levenson. "If there isn't, then it's not going to be much of a trial."

Not much of a trial, that is, because almost all the evidence presented at Peterson's preliminary hearing -- the proceeding in which a judge decided there was enough evidence to put him on trial -- was circumstantial. There is, as far as the public knows, no crime scene, no murder weapon and no cause of death for Laci and the fetus.

Alameda County Assistant District Attorney James Anderson, one of Northern California's most seasoned death-penalty prosecutors, is confident "there's going to be other evidence" at trial that was held back from the preliminary hearing.

"Stanislaus County has done their homework, and I think they've presented a case that's going to get by an 1118 motion," he said, referring to a defense motion made at the end of the prosecution's evidence asking for acquittal if the state hasn't made an adequate case. "And day by day, little things are coming out that show more and more the motivation for Scott Peterson to want his wife dead."

The prosecution's case

In a nutshell, prosecutors say Scott Peterson murdered Laci on Dec. 23 or 24, 2002, and dumped her body into San Francisco Bay from his small fishing boat. Peterson's attorney, Mark Geragos, argues Laci was alive when Scott left early Dec. 24 to go fishing; when he returned, she was gone.

The only significant physical evidence prosecutors presented at Scott Peterson's preliminary hearing required them to fight for its admission: a 6-inch strand of dark hair on a pair of pliers police found in Scott Peterson's boat.

Mitochondrial DNA molecules -- the only kind of sample recoverable from a single strand of hair -- is rarely used in California trials because it can't specifically identify a person, as can the nuclear DNA molecules more often used in court. It can show only a statistical likelihood of identification and rule out others.

So Scott Peterson's lawyer tried to have the hair DNA evidence excluded as unreliable because the statistics used to determine a likely match are based on a faulty database. But a judge ruled prosecutors will be able to tell jurors it's likely that the mitochondrial DNA taken from the hair could be found in one out of every 112 white people.

And even if jurors believe the hair is Laci's, Levenson asked, "So what? There are so many ways that hairs get transferred, it's one of the easiest types of forensic evidence to be transferred."

For example, maybe Scott brought the pliers to the boat from his house or car, where they'd picked up a wayward strand of Laci's hair.

Then again, Anderson asked, "If it's so inconsequential, why is Geragos trying to get it suppressed?"

Among other testimony given at the preliminary hearing was that of a computer forensic investigator who said Scott Peterson on Dec. 8, 2002, had downloaded information from the Internet about Northern California bodies of water including San Francisco Bay and Modesto-area lakes. The download included data on the Bay's currents, although the investigator acknowledged it could have been linked to sport fishing Web sites Scott visited.

The other woman

Det. Al Brocchini testified Amber Frey, with whom Scott had begun an affair in November, was told by Scott on Dec. 9 that he had "lost his wife," and that 2002 would be his first holiday season without her. That same day, Scott bought his boat with 14 $100 bills, according to testimony from the seller.

Laci's sister testified that Scott said he had golf plans on Christmas Eve; he claimed he went fishing that day.

A detective testified officers found a loaded gun in Peterson's truck and that he initially denied having an extramarital affair.

Police searching the Petersons' home said the clothes Scott had worn the day Laci disappeared were found in the washing machine; he explained he'd washed his clothes and taken a shower after returning from his fishing trip.

In the boat, police found a homemade anchor made from cement put in a bucket with a hook made of reinforcing bar, Brocchini said. Another detective testified police found what seemed to be spilled cement powder and five clear patches in the Modesto warehouse Scott used for work, and where he stored his boat -- evidence that Scott might have made more of those anchors, but which were never found.

Brocchini testified that a San Diego man who sold Scott a car shortly before his arrest said Scott paid with 36 $100 bills, and used his mother's name in filling out the forms.

When the man asked Peterson about the name, "He said that was the name his parents had given him, kind of a 'Boy Named Sue' kind of thing," Brocchini testified.

A forensic pathologist testified that Laci's body had been in the water for months before it was found, and that the unborn child's body probably wasn't separated from hers for more than a "couple of days." That conflicts with a theory offered earlier that perhaps Laci had been the victim of a satanic cult that had cut her unborn child from her body.

Passersby found Laci Peterson's badly decomposed body April 14 among the rocks at Point Isabel Regional Shoreline south of Richmond; missing were her head, hands, feet and part of her left leg. The baby's relatively well-preserved body had been found the day before just more than a mile north in marshy grassland, about 15 feet inland from the shoreline, authorities said.

The bodies were found a few miles from the Berkeley Marina, from which Scott said he'd gone out fishing hours before reporting his wife missing.

Police arrested Peterson on April 18 in San Diego, about 30 miles from the Mexican border -- he'd grown a beard, dyed his hair blond and had with him his brother's identification and $10,000 in cash. Police said they nabbed him hours before DNA tests confirmed the bodies' identities because they feared he would flee.

These facts and others, taken together, seem to form a pattern that's unfavorable to Scott Peterson's defense. But consider what prosecutors don't have: a crime scene, a murder weapon or a cause of death.

Any lawyer will tell you it's not easy to prove someone killed someone without knowing where or how, and a forensic pathologist has testified he found no gunshot wounds or other marks on Laci's body that would help determine the cause of her death.

There's been no testimony that the Petersons had any drug, domestic violence or financial troubles.

Possible explanations

Scott's claim that he'd been fishing in San Francisco Bay the day Laci disappeared was publicized within days; his lawyer could argue that if someone else took and killed her, the killer could have dumped the body in the Bay to cast suspicion on Scott.

Scott was arrested about 30 miles from the Mexican border, but also only about 14 miles from his parents' home in Solana Beach. And perhaps he changed his appearance in order to dodge the tireless publicity already surrounding the case.

So these and many other things can be explained away. Yet Scott so far hasn't helped himself by speaking publicly about the case, Levenson said.

"I think only Michael Jackson could give him a run for his money" in being deemed his own worst enemy, she said. "His emotional responses seemed contrived, his behavior seemed contradictory."

He's under no obligation, however, to take the witness stand in his own defense and subject himself to prosecutors' cross-examination. "I'd be fairly confident they (Peterson's attorneys) haven't made their mind up yet" about putting him on the stand, Levenson said.

"It comes down to whose credibility they (the jurors) believe, what they see as reasonable doubt," she said.

Ernest Spokes, a former Stanislaus County prosecutor now in private practice in Modesto as a criminal defense attorney, said he's struck by the fact that a cadaver dog used by police showed only "mild interest" in Scott's boat.

"That's supposed to be where she traveled the last four miles of her life, either dead or alive," he said, adding that no matter where she was killed, "you can't get around the last four miles (to the middle of the San Francisco Bay.) He couldn't have taken her out there in the truck."

Like Levenson and Anderson, Spokes believes as-yet-unseen evidence from the wiretapped conversations between Scott and Amber Frey will play a big part at the trial.

"She was on the phone with him constantly, and they've only released the one conversation, which was damaging enough to Scott -- there's got to be more in there," Spokes said. "A man in heat makes mistakes, and the odds that he slipped up are very possible.

"So I would imagine Amber will play a big part in this case, but from both sides. ... I'm aware the defense is not going to treat Ms. Frey as the gentle angel she's being presented as by Ms. (Gloria) Allred (Frey's attorney.) She's got a few skeletons in her closet, too."

Juror strategies

It could take months for attorneys to have hundreds of potential jurors from San Mateo County fill out questionnaires, question people individually and decide who they do and don't want on the panel. Both sides have hired renowned consultants to help them find jurors likely to sympathize with their arguments.

For the prosecution, it's Howard Varinsky of Emeryville, who consulted with prosecutors in the case of Oklahoma City bomber Timothy McVeigh. For Peterson, it's Jo-Ellan Dimitrius of Pasadena, who consulted with the defense attorneys for O.J. Simpson.

Sanford Marks -- a Miami-based trial consultant who worked opposite Varinsky on the McVeigh case and whose other high-profile cases include the defenses of sportscaster Marv Albert and political scion William Kennedy Smith -- said Varinsky probably will "look for people who have high morals -- let's face it, Scott Peterson is not a poster boy for marriage."

Prosecutors will want "people who are able to look at this case and possibly be swayed somewhat by the horrific nature of the alleged crime," Marks said.

The defense, on the other hand, wants people "who have the intellect to put aside emotion and decide a case based on the reasonable doubt of the evidence, because there is no evidence -- there's no gun, there's no eyewitness," he said. "Nobody knows what happened or who did it."

Defense attorney Geragos will hammer away with that reasonable doubt defense, Marks said, "and it takes a special kind of juror to understand that the guy (Peterson) is not the brightest star on the planet and he's done things that maybe they don't agree with, but nonetheless, the state didn't prove its case.

"I'm sure that Jo-Ellan is looking for people who distrust government, who are smart enough to separate reason from emotion -- and who don't go fishing," Marks quipped, adding he believes the case's extensive publicity will make it especially hard to find such jurors. "This guy (Peterson) has some serious problems, and if Jo-Ellan can pull this off with a jury, God bless her."

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