PreTrial

Pre-Trial & Jury Selection: Feb - May, 2004

2 Feb 2004 Trial Delayed, Cameras Banned

When asked by Delucchi, Scott agreed to the one-week delay in the trial, caused by Geragos' involvement in a Pasadena murder trial. California law required the trial to start today, unless Scott waived that right or Delucchi found good cause to delay it. Monday's hearing will focus on procedural and scheduling issues, including when to hear motions on evidence and when to distribute juror questionnaires to gauge potential bias. Delucchi will not allow cameras in the courtroom, saying "It could have a chilling effect on the testimony of witnesses."

An electronic billboard positioned outside the Redwood city courthouse tallied the "guilty" and "innocent" votes called in to the sponsoring radio station. Delucchi ordered the billboard relocated.

4 Feb 2004 Death of Vivian Mitchell

Vivian Mitchell, expected to be a Defense witness, died. Neither the Defense nor the Prosecution would say whether Mitchell was questioned under oath so her testimony would be preserved, as allowed by law when attorneys anticipate losing a key witness that is not in good health.

9 Feb 2004 Defense Motions Filed

Motion for Separate Juries

Defense filed its Motion to request separate juries to hear the guilt and penalty phases. The Motion gives three reasons why good cause exists to empanel separate juries: 1) the enormous amount of pretrial publicity adverse to Scott, 2) the unusually high number of people who have prejudged Scott guilty, and 3) the process of death qualification creates a jury that leans in favor of the prosecution and conviction. The Motion suggests that if Scott is convicted, he will challenge the "constitutional validity of death-qualifying the guilt phase jury." Motion

Motion to Sequester the Jury Motion

Motion to Exclude Media Statements

Defense filed its Motion to exclude all of Scott's statements to the media, on the grounds "that the evidence is irrelevant and that the probative value of the evidence is substantially outweighed by the probability that its admission will necessitate undue consumption of time, confuse the issues, mislead the jury, and create a substantial danger of undue prejudice to" Scott. The evidence is irrelevant because the media statements, per the prosecution's own characterization, "were limited to statements concerning the search for Laci (irrelevant to the charges of capital murder) and Mr. Peterson's admission of an adulterous relationship with Amber Frey (nondisputed issue)." Motion

Reply to Opposition to Exclude Hypnosis

Defense filed its Reply to Opposition to Motion to Exclude Testimony of Hypnotized witness Kristen Dempewolf. The Reply notes that the two police reports did not properly document her pre-hypnotic memory. LE never asked Dempewolf to read and attest to the accuracy of the two police reports or sign a written statement in which she related her full pre-hypnosis recollection of the events. Pennington's interview of Dempewolf disclosed that prior to the hypnosis, she could not recall the date of the incidents, but during the hypnotic interview he questioned her in a manner that required remembering the relevant date. Detective Stough "gave Dr. Pennington a brief on the burglary and on the reports of the suspicious van on or about the 24th of December 2002 in front of 516 Covena." After the briefing, Det. Banks took Pennington to the scene so he could view the area, raising concerns that Pennington could have unwittingly or intentionally given Dempewolf cues that would have permanently altered her recollection. Additional objections come from the videotape of the pre-hypnosis interview starts after the interview is in progress and that Pennington was not independent of law enforcement. Motion

11 Feb 2004 Judge Delucchi continues the Protective Order

Geragos asked Delucchi to add to the Protective Order a safe harbor provision, which "allows either side to respond to anything out there that is false, or is perceived to be false, so that you don't have these rumors that kind of jump from speculation to mainstream and automatically become fact by day three" (364:10-15). David Harris, for the Prosecution, remarked that a safe harbor provision would end up requiring them to spend all their time answering rumors. Delucchi tentatively agreed and said he would reserve a ruling on the safe harbor provision.

11 Feb 2004 Opposition to Separate & Sequestered Juries

DA filed its motion to oppose separate juries. Among other arguments, the motion noted:

The Legislature has clearly articulated its preference for a single jury to decide both guilt and penalty . . . and, provided the chosen procedure satisfies basic principles of fairness, we are aware of no rule requiring the Legislature to select the process psychologically designed to render jurors most favorably disposed toward a defendant. (page 3) Motion

DA also filed its motion to oppose sequestering the jury. The motion notes that sequestering is not required by law, and that doing so would place hardship on the jurors. By not sequestering, "the jurors are allowed to separate, the defendant suffers no harm and both sides are able to have a jury that concentrates on the evidence and not on when they will get to return home" (page 2). Motion

11 Feb 2004 Ted Rowland's Motion to Quash Subpoena

According to the Motion to quash the subpoena, the Subpoena did not state the purpose of Rowlands' testimony, but "in a meet and confer conversation, the District Attorney stated it is seeking to compel Mr. Rowlands' testimony to testify about conversations he had with the defendant Peterson, regarding Mr. Peterson's alleged affair with Amber Frey. Despite repeated requests by Mr. Rowlands' counsel, however, the District Attorney has declined to further specify the scope of the testimony sought or when such conversation may have been broadcast" (p 7). The motion claims Rowlands is exempt as a journalist "from the compelled disclosure of any 'unpublished information' obtained during the course of gathering and disseminating information to the public" (p 7). Motion

Rowlands' attorney filed a Support of Motion, which includes a letter to Distaso expanding on the purpose of Rowlands' testimony: "It is your position that Mr. Rowlands should be compelled to testify about conversations he had with the defendant, Scott Peterson, regarding Mr. Peterson's alleged affair with Amber Frye (sic) and his denial of that affair" (Ex. C, Declaration of Grace K. Won). Motion

11 Feb 2004 PRE-TRIAL HEARINGS: GPS Evidence

Witness: Peter Loomis, Trimble Navigation Testimony

Defense objects to allowing the evidence at trial on the grounds the LE officers plan to invoke 1040, which involves concealing the location of the device. Delucchi responded: the location of this device, wherever it is, may affect -- it may affect its efficacy and sending out the necessary signals, and so forth, and if he's denied access to the location of this particular device, it would essentially deny him his right to cross-examination and to require sanctions striking the officer's testimony.
Peter Van Wick Loomis, Fellow Staff Scientist, Trimble Navigation Component Technologies Division (People's expert witness.) Loomis' area of expertise is grounded in the technology itself, as opposed to how it's translated into a particular device. Admittedly, he is not qualified to make a judgment on whether GPS is generally accepted in the scientific community for forensic purposes.
Trimble's sales will be adversely affected if GPS evidence not admitted into this trial. "It makes all the difference in the world to him, obviously, that this technology gets sanctioned by this court."
GPS technology is widely used by the military, aviation, shipping, agriculture, and auto navigation systems.
Orion has a communication board inside the device that takes the information from Trimble's GPS receiver and packages it into data that's sent over the air in real-time. This is called "over-the-air" download.
Specific anomalies with GPS datasets produced in this case, which Loomis said he has never seen before:

a jump of exactly one degree west for a period of about 6 minutes. One degree represents 60 miles. Loomis said he had never seen anything like this. Orion said this happens with over-the-air downloads when the antenna crosses a line of latitude or longitude. Loomis said this results from Orion's method of compressing the data, sending it over the air, and decompressing it, which was outside his expertise.
In an area just north of Fresno, the GPS actually was giving incorrect positions for a period of about 5 minutes. Loomis said he had never seen this problem before, either.
Orion's explanation for the anomalies was the antenna being hidden, not in clear view of the sky. Due to the covertness of this device, the GPS antenna often cannot be put in an optimal position for the GPS satellites to see 100 percent of the time. In these particular instances, the antennas were not put in optimal positions for GPS reception.
Errors can be generated by the geometry or angle of the satellite in the sky. These errors are multiplicative, up to 10-15 times; i.e., a 1000-meter range of error can generate a spike of 10,000-15,000 meters.
Satellites too close together will result in calculation errors, as will satellites too far apart, or those about to disappear over the horizon--all of which also are multiplicative.
Radio or radar interference can also cause multiplicative errors.
Loomis disagreed with most of the reasons Orion gave for the anomalies in the datasets. For example, Orion said one anomaly resulted when the GPS device followed a satellite over the horizon, then acquired another one and started to correct itself. Loomis says the problem resulted from radio interference, as this particular GPS device, the Lassen SK8 II, cannot follow a satellite over the horizon.
The particular device used on Scott's vehicles had a behavior defect that was corrected in 1998/1999.
The speeds calculated by the Orion software are inaccurate. On indications of no motion, the software reported various speeds. Loomis said Trimble produces a GPS speed that is much more accurate than what Orion delivered.
The Fresno dataset had speeds that start off at 62 miles an hour, spike up to 2,164 miles per hour, then decrease back down to 654 miles per hour, then to 225 miles per hour--all with no-motion indicators. Loomis said this illogical data is an Orion function.
Another dataset recorded a speed of 38,000 mph. This particular instance is an instance where it is just exactly one degree longitude. If Orion is calculating their speeds by a change in position over those five seconds, it went, oh, 60 miles or so over five seconds. And that very well might be 38,000 miles per hour.
Loomis had never tested the Orion product himself and was not aware of any control test. He did not do any tests on the Orion product after the anomalies were called to his attention, and does not know of anyone else who did. Orion did maintain that they had tested to see if they could reproduce the latitude/longitude line problem.
Modesto Police had actually done a real life test, and it had failed in a number of these controlled
situations -- the device had failed.
The device used in Scott's vehicles did not include a dead-reckoning device (DR), which is an addition of a couple of sensors to calculate positions when the GPS is not available.
Distaso's closing point: "So of that hours of data, we're talking about one six-minute block, a couple second block, and a five-minute block where you did not believe the data was accurate? For the remainder of the data, you were comfortable, and you testified here today, that that data, in your opinion, was accurate?"
Geragos' closing point: "How about, just as an expert who is sitting here testifying about the technology, who is saying that you disagree with a substantial part of the analysis that was done by your end user as to what the problems were, that you have been given only a discrete portion of information that apparently you were not told about the failure of one of these very same units on one of these cars, and that you have never seen one of these blips or unusual situations in ten years, and you didn't know, or apparently just discovered that there was a longitudinal blip that would cause a mile change in direction, when you are talking about getting those kinds of pieces of information, wouldn't you want more information rather than less?"

11 Feb 2004 PRE-TRIAL HEARINGS: Mysterious Letter

During a five minutes recess, the clerk handed the Judge a letter received 2-11-04 at 10:00 a.m. and marked: "Urgent, possible evidence Re Laci Peterson murder case." The letter was opened in the Judge's chambers, in the presence of the Prosecution, Defense, and Scott. All present agreed it had no evidentiary value. The Judge was also given a box, which was sent to be scanned. The Judge later revealed that the box contained a petition for Writ of Mandate for Prohibition or Other Appropriate Relief, contesting the fact that the Court has precluded cameras from the courtroom, filed by the television networks. Transcript

13 Feb 2004 Reply to Opposition for Separate Juries

Defense filed its Defendant's Reply to Opposition to Motion for Separate Guilt and Penalty Phase Juries. "What Mr. Peterson asks for here is not a jury 'most favorably disposed toward the defendant' but a jury that is not most favorably disposed towards the prosecution." Motion

13 Feb 2004 USA Movie: The Perfect Husband

Both the Peterson and the Rocha family criticized the movie, but obviously for opposite reasons: Petersons because it portrayed Scott as guilty, and the Rochas because it portrayed him as wrongfully accused. Lee Peterson: "It's just bull, no basis in fact. It's just someone making a pile of money off a news story." Ron Grantski: "It's all about Scott. It's not written from the victim's perspective."

17 Feb 2004 GPS Testimony In, Hypnosis Testimony Out

Witness: Hugh Roddis, President Orion Electronics Limited Testimony

Background
- President, Orion Electronics Limited.
- Orion’s unit consists of the GPS receiver, produced by Trimble, and the Orion part of the unit which takes the information out of the Trimble unit, stores it, processes it, and handles the other operations that go on.
  - The Orion unit used does not have a Wide Area Orientation System (WAOS) or Nationwide Differential GPS (NDGPS).
    - The increased accuracy of WAOS is necessary in aviation, but not in this kind of tracking.
    - NDGPS is no longer necessary because President Clinton discontinued selective availability, which produced a jitter or noise, which then caused substantial errors. NDGPS was used to correct those errors.
  - Vehicle speed is not determined by the speedometer, but is determined by latitude/ longitude – how long it takes to go from A to B.
  - The motion/no motion action is not derived from the GPS. It’s a vibration sensor in the unit itself. If a moving car is not experiencing any vibration (Cadillac-on-a-freeway effect, speed will be registered, but no motion.
- By looking at the data generated by a unit, Roddis can tell if the antenna was properly placed, because of the consistency of the fixes. However, Roddis was given only a portion of the tracks to review.
- A covert placement of the antenna can result in Positional Dilution of Precision (PDOP), which simply means the device cannot compute the precise location to the GPS receiver due to bad geometry. The unit does not record PDOP, but does it as part of the internal workings.
- Roddis was not told that the Modesto Police Department did their own test on an Orion unit, using an unmarked police car. The driver was instructed to go to three separate points. The unit produced "sporadic communications" and there was some interference in the area which is the subject of one of the tracks of the Berkeley Marina used in this case (Exhibit 1).
Problems with the unit installed on the Land Rover
- Problem: the Orion brand GPS data logging system installed on the Land Rover was unable to maintain a track, or retrieve data information due to equipment problems, from January 3rd to January 21st. There were two reasons:
  - a problem with the cell phone connection, which was resolved
  - one of the components, a microprocessor, had a bad connection between one of its pins on this computer chip and the rest of the circuitry, which caused the malfunction of the unit.
- During the week of January 21st, 03, Scott returned the Land Rover to the Modesto Police Department to replace of the headliner that was partially removed during the search for evidence.
- On Jan 24, the same unit in the Rover is producing data, but Roddis could not account for who repaired the unit in those 3 days, from the 21st to the 24th, when the unit was supposedly sent back to headquarters in Canada for repair. During the break, he was told by Distaso that someone at the MPD decided to fix the problem.
- Clarified that one of the problems was not that the antenna tracked a satellite over the horizon, but "it held on too long to a satellite, perhaps due to antenna placement, which just went over the horizon" (609:20-22).
Specific problems with the datasets
- Problem: one degree of offset occurred on the Jan 8 data for a period of 6 minutes.
  In this particular instance, the Trimble unit had a very -- had a firmware problem in it which only occurred when the unit crossed over from one line of latitude or longitude on the zero -- exactly 61 degrees. Say, for example, when it crossed over from 60.9999 to 61, just momentarily, the output would be wrong. Our unit interpreted that as one degree offset error. (574:14-22)
- Two more instances of 1-degree offset in the datasets.
- Spike in Fresno data, took 5 minutes to correct, most likely due to interference with the GPS receiver, as there is no other way to explain it. The spike "is like a flash of interference on a TV set. You see a good program and a burst of interference, but the program before and afterwards is fine" (622:4-6).
- For bitmap four, all of Orion's experts agreed that the portion of that track is not valid and "we do rarely see unexpected GPS positions" (635:5)
  - Orion suspects airport interference caused the problem.
The July 9, 2003 letter from Orion to Trimble
- The analysis of the bitmap one track for the Dakota and the bitmap three track for the S-10 was only "partially correct."
  - At that time, Orion believed "that when crossing the line of latitude or longitude, the GPS receiver occasionally does not update all decimal places of the longitude." (627:13-16)
  - Orion "later discovered through more experiments and more -- the problem with the Trimble receiver, which is actually triggering this issue. It is a compression problem with the download, but it would have been triggered off by the Trimble issue that we didn't discover until after this letter was written." (627:21-628:1)
- Orion explained The number two track for the Rover on January 3 as a problem with data from the Census Bureau for Modesto. When Orion changed to a map with better data, the errors went away.
- Orion stated that "the error in the data increases the further away you get from your chosen datum; towards the western edge of the county, the error is much less." (633:20-23).

Delucchi heard arguments on GPS and then ruled to admit the evidence. Arguments & Ruling on GPS

18 Feb 2004 Delucchi ordered DA to turn over evidence

Geragos complained that he has just received thousands of pages of discovery on test results which could clear Scott. He referred specifically to the test results of the hair on the tape found on Laci's remains, which exclude Scott, as well as identities of several potential witnesses, some who said they were responsible for Laci's disappearance. He said receiving discovery at this late stage makes it impossible for his defense team to digest everything. Delucchi ordered the Prosecution to turn over all discovery immediately, and if they did not do so to Geragos' satisfaction, the evidence could not be presented at the trial. Delucchi: "I was under the impression that this case was ready for trial . . . You're going to have to get these guys on the ball and get that stuff to Mr. Geragos."

18 Feb 2004 New discovery from DA, new witness added

Geragos complained to the Judge about receiving on the 17th two new batches of discovery, including 809 pieces of exculpatory Brady material and an updated witness list.

The exculpatory material
- stains in the boat thought to be human blood were not
- a string (excludes Scott)
- hair samples taken from the duct tape on Laci's remains with pages and pages of test results that exclude Scott at every point
- the hair sample tests identify what those hairs are, and where they speculate they came from
- a report of an extensive investigation surrounding four people, one of which claims someone has taken responsibility for Laci's murder
- a series of seven witnesses that all have a separate connection to the case and who claim that they have information
- Geragos argued that the Prosecution saying they turn it over as soon as they get it from the various Agencies isn't good enough, and cited Court decisions that impute responsibility to the Prosecution.
- Geragos demanded to receive all 2003 discover by Friday, Feb. 20
The new witness added
- Doctor Devore, a perinatologist from Pasadena, CA
- to be an expert witness for the People to counter Defense claims of Conner's age
- He will testify regarding a comparison of the sonogram measurements and the autopsy measurements and what they mean
- Harris argued that the witness was added to the list within 30 days of when the issue of Conner's age was brought up at the 995.
- Geragos argues that under 1054, the Prosecution did not notify Defense of this witness in time
- Geragos further argued that the Prosecution didn't meet the 995 deadline because the CV was buried at page 37,000 and the Doctors name was an addition to a 400-witness list.

18 Feb 2004 Wiretap Testimony

Witness: Steven Jacobson, Stanislaus County DA Office Testimony

Background
- Geragos had no objection to the instructions given to Jacobson by Distaso.
- Jacobson is with the Stanislaus County District Attorney's office and in his 13th year in law enforcement.
- Currently on the major narcotics task force
- Formal training through classroom instruction from CA AG's office through the CA DOJ
- Has been involved in wiretaps on the Federal level
- Delucchi sealed the 10 reports generated by Jacobson -- 9 for wiretap number 2 and 1 for wiretap number 3
Mechanics of a wiretap operation
- A wire room is the designated place for listening to wire intercepts
- Only monitors and supervisors have access to the wire room
- Monitors report to a supervisor, and the supervisors to the case agent
- Jacobson had 10-15 monitors and 4 supervisors for each of these wiretaps (wiretap 2 and wiretap 3)
- When a call comes in, data is received through one channel, and audio through another. The collection server marries the data and audio together and sends it to a monitor.
- Minimize a call means the monitor goes offline, is no longer hearing the audio but is still receiving data.
- A pertinent call is one the monitor believes will have evidentiary value; a non-pertinent call is one that will not.
  - California law requires that non-pertinent calls be minimized.
  - Federal standards for minimizing times are used because California does not have standards
  - Go offline for 30 seconds, come back on-line for up to 2 minutes to determine the nature of the call, go offline for 30 seconds, and so forth until the call ends or the monitor concludes the call is non-pertinent.
- A privileged call is with a lawyer, parishioner, clergy--as identified in 629.80 of CA Penal Code.
Wiretap Number 2
- Authorized Jan 20, 2003
- Terminated Feb 4, 2003 because Jacobson felt Scott would no longer be discussing evidentiary information over either phone
- Placed on 2 of Scott's phones: 209-499-8427 and 209-505-0337.
- Judge Ladine required Jacobson to report every 72 hours, though CA statute required once in every 6 days
- Ladine also had Jacobson meet with him personally, which is not required by statute
- Jacobson's meetings with Ladine were not stenographically recorded
- Two privileged calls came in while they were following the the procedure outlined in 629.80
- Ladine said he did not think it was appropriate for the monitors to do any spot checking when they recognized the call was a privileged call, they should just get off the line.
- 69 calls were intercepted between Scott and McAllister.
  - The majority of these were monitored and then immediately minimized once McAllister was recognized
  - None of these calls were listened to in their entirety
  - Two of the calls were monitored during the spot-checking time.
  - One was monitored by Agent Steve Hoek on Jan 14, 1003. The call lasted for 4m28s, and approximately 85s were monitored.
  - The other was monitored by Agent Tovar on Jan 15. The call lasted for 2m25s, and approximately 18s were monitored.
- 4 calls were intercepted between Scott and Gary Ermoian, McAllister's private investigator.
  - Only one was monitored, before the monitor realized Ermoian worked for McAllister.
  - The duration of the call was 1m28s, and was monitored by Jacobson and Detective Dale Lingerfelt.
Wiretap Number 3
- Authorized Apr 15, 2003
- Terminated Apr 18, 2003, after Scott was taken into custody (also the phone was in the custody)
- Placed on 2 phones: Scott's 209-505-0337 and 858-232-2203
- Did not monitor the 858 number when they realized there was no activity on that number

18 Feb 2004 Judge Delucchi listened to privileged calls

Judge Delucchi, Jacobson, Scott, and the Defense attorneys went into the jury assembly room to listen to the privileged calls that were monitored.

18 Feb 2004 Police questioned Atwater woman

The 30-year old unidentified woman told the Modesto Bee that Modesto police Detective Ray Coyle asked her where she was on Dec. 31, 2002. She said Coyle told her she was one of 300 he had to check out. She produced pay stubs to show she was working in Texas at that time. Coyle asked her to take a polygraph, she consented, but none was arranged.

19 Feb 2004 Closed-Door Discussions on Wiretaps continue

The Defense met privately with Delucchi for about 45 minutes, before prosecutors were invited to join. Steve Jacobson, who managed the wiretaps, spent a 4-hour closed-door session with Delucchi and defense attorneys, with prosecution attorneys occasionally joining.

23 Feb 2004 Ladine's Motion to Quash Subpoena

Judge Ladine filed a motion to quash the Defense subpoena, which says:

Judge Ladine is disqualified from testifying as to events and his thought processes related to this matter, as the Legislature has mandated that judges are statutorily incompetent to testify as witnesses, a prohibition which is not subject to waiver. In addition, Judge Ladine cannot be called to testify in the absence of compelling reasons and an inability to obtain identical testimony and evidence from other sources which do not intrude upon the offices of high government officials, and as a matter of public policy, failure to quash the subpoena will subject judges throughout the state to unreasonable and oppressive demands for testimony to the detriment of the conduct of judicial business, and allow parties to circumvent the standards for recusal of a judicial officer. (page 2)

Geragos subpoenaed Ladine to "attend and participate as a witness . . . when motions in limine are argued related to evidence obtained from wiretaps authorized by a Court Order by Judge Ladine" (page 3). Motion

23 Feb 2004 Opposition to suppress Scott's media statements

DA filed its Opposition to the Defendant's Motion Re: Statements to the media. The Opposition justifies the media statements as evidence:

Here, some parts of the People's case is circumstantial. Therefore, each piece of evidence is important in order for the People to present their case. In his various statements to media personnel, the defendant gives statements that conflict with those he told the police, initially lies about his relationship with Amber Frey, lies about his relationship with his wife, lies about the information he told Amber Frey, and makes numerous admissions that evidence his guilt. (page 3) Motion

The media statements to be used are:

Diane Sawyer interview aired January 28 & 29, 2003, and April 24, 2003
Gloria Gomez interview aired on January 29, 2003
Jodie Hernandez interview aired on January 29, 2003
Ted Rowlands interview on January 29, 2003

The document provides insight into some of the Prosecution's case:

The People will present evidence that Laci had stopped walking the dog around the first week in November.
The defendant had at least one other affair with a woman early in his and Laci's marriage.
Scott denied his relationship with Amber to LE on December 30, 2002.
A petrographer will testify that the cement rings found at the warehouse do not match cement samples taken from the Covena home.
Scott's statements concerning Amber support motive for murder.
Scott's statements regarding carrying out a large item covered in a blue tarp support how he covered up the murder.

24 Feb 2004 Geragos accused Distaso of headlining & corrupting the jury pool

The morning session began with Geragos accusing the DA of filing its Opposition to Suppress Scott's Media Statements the day before solely for the purpose of getting headlines and to pollute the jury pool.

That filing was replete with what I consider to be out-and-out falsehoods. It was either done in bad faith, or whoever wrote it doesn't know their case and does not know -- and was not at the preliminary hearing and did not read the discovery in this case. It was designed, I think, so that he could get headlines in the San Francisco Chronicle and the San Mateo -- (1277:26-1278:6)

Even after Distaso's assertion that the document was filed in good faith, Geragos continued with his accusation:

I'm saying he did it in bad faith, and I will prove during the course of this trial that he did it in bad faith. And when we do it, he can either stand up and admit it or I'll file for the appropriate sanctions at that point. (1280:10-14)

24 Feb 2004 Distaso withdrew Ted Rowlands subpoena

Distaso told the Judge that he has withdrawn the subpoena of Ted Rowlands.

24 Feb 2004 Dog Tracking Evidence Testimony

Witness: Cindy Valentin, Merlin's handler Testimony

Background
- Trainer for Applegate School for Dogs, reserve lieutenant and training dog handler for the Contra Costa County Sheriff's Department, CARDA certified.
- Valentin's trailer dog is Merlin, a 5-year old registered purebred bloodhound, CARDA certified as a trailing dog on July 21, 2002. Merlin is the only dog Valentin has used in the trailing discipline.
- The dogs want to find, want to pick up the freshest scent that's out there. So if a person laid a track that was seven days old, and then laid another track that was an hour old, the dog would want to try to go for the freshest scent.
- Merlin was able to find what he was looking for on 2 searches, and unable to find on searches in the teens.
- Merlin's training in vehicle-trailing involved cars with the windows down.
December 26, 2002 : Called to assist in the search for Laci
- At 1:00 pm Valentin received a call from Lt. Slaviero, asking her to put together a response team.
- Arrived at the house at 3:00 p.m.
December 26, 2002 : Collecting the scent articles
- Valentin was not told to gather any scent items for Scott.
- Valentin collected 4 items to use for scenting: a pink slipper, sunglasses & case (from Laci's purse), a brown slipper from in front of the dresser, and a hairbrush from the bathroom.
- Valentin could not remember changing gloves after handling each item.
- Scott was in the kitchen with the detectives while the items were being collected.
- Scott told Valentin the brown slipper was his.
- Valentin said Scott had an objectionable tone about the brown slipper; he seemed concerned that she had it.
- Valentin interpreted Scott's "tone" like he didn't want to do everything to find Laci. Her statement was struck from the record.
- Valentin gave the scent articles to Brocchini, who kept them when they were not being used for searches.
December 26, 2002 : 1st Trail by Valentin & Merlin--starting at 523 Covena:
- She scented Merlin using the sunglasses & case.
- From the southern edge of the property at 523 Covena Avenue he headed immediately north on Covena, turned west on Highland Drive, went into a house on 1326 Highland Drive (which is catty-corner and behind the property at 523 Covena Avenue), down driveway and into the backyard, circled the backyard, back through the gate, continued on west on Highland Drive to Santa Barbara Avenue, several areas past that, turned back and headed south on Santa Barbara Avenue, crossed several intersections to the intersection of San Barbara Avenue and La Loma Avenue, southeast on La Loma Avenue to the intersection of La Loma and Yosemite Boulevard, turned west and continued to Santa Rosa Avenue, turned south and headed down Santa Rosa Avenue.
- Valentin explained Merlin's interest in the Highland Drive backyard as there likely being a scent pool because of its being catty-corner to the Peterson house.
- All the way to and down La Loma, Merlin was going into the middle of the street and checking the bott dotts. He was going back and forth between the yards and the middle of the street.
- On Yosemite, Merlin worked up against the buildings. Scent along the sides of buildings can come from a person riding in a car.
- Merlin was pulling hard on Yosemite, but LE did not shut it down to traffic so Valentin could see if Merlin would trail down the middle of the street.
- Merlin went into a parking lot on the west side of Santa Rosa, did not go into the middle of the street, even though the street had no traffic, but in and out of parking lots.
- Valentin stopped him inside of the Gallo property at the end of Santa Rosa Avenue because he wasn't showing all the signs of being on trail, and they hit the dead end into the Gallo property.
- Merlin stopped giving a strong pull on the harness at Yosemite Boulevard and Santa Rosa Avenue.
- Valentin said other things could have been done to continue the search:
  - They could have gone into the Gallo property to check for an in-and-out trail
  - They could have gone back to Yosemite to see if there was scent that continued there
  - They could have gone back to other intersections
- Valentin told the Detectives at command center that Merlin indicated Laci left in a vehicle, not on foot, because Merlin was pretty dedicated to always going back and checking those Bott Dots as they traveled through the neighborhood.
- Valentin was not asked to take Merlin to the park to trail for Laci's scent.
- From the conversations among the detectives, Valentin concluded that they suspected Scott of being responsible for Laci's disappearance.

December 26, 2002 : Trails to and from the Warehouse
- One of the detectives asked Valentin to see if Merlin would do a trail to Scott's warehouse.
  - Valentin told the detective to take her and Merlin somewhere near the warehouse and she would see if Merlin picked up a trail that led to a warehouse. She did not want to know where the warehouse was located.
  - Valentin and Merlin were taken to the intersection of Kansas and North Emerald.
  - Merlin picked up the trail and headed southbound on North Emerald Ave, in the opposite direction of the warehouse.
- Detective Brocchini asked Valentin to stop the trail and to start from the warehouse
  - Valentin started Merlin at the B1 door of the warehouse,
  - Merlin went out of the warehouse to the street, North Emerald Ave,
  - turned south onto North Emerald Ave,
  - continued on North Emerald across Kansas Ave to Maize Blvd,
  - turned onto Maize Blvd and headed west
  - Detective Brocchini stopped Valentin after they had gone about a quarter mile down Maize Blvd, even though Merlin was pulling hard. Valentin made no objection to the search being called off.
  - Valentin told detectives this was a vehicle trail because Merlin was constantly checking the Bott Dots in the middle of the street.
January 4, 2003 : drop trail along Hyw 132
- Valentin was asked to start where she left off on Dec. 26, on Maize Blvd/Hwy 132 and do a drop trail to Hwy 580, to check for Laci's scent at key intersections along the way.
  - Drop trailing is used to cover long distances along highways or freeways. Once the trail is established, the dog is moved by vehicle to the next intersection in the highway, then scented again and asked to find the scent and follow it. The process is repeated as long as the dog continues to pick up and follow a scent at each drop.
  - The dog is scented before each intersection. If the dog doesn't pick up a trail, the handler does a four-cornering, taking the dog to each of the 4 corners of the intersection to see if he picks up a scent and follows it. That is how direction of travel is determined.
  - With each scent picked up, the handler lets the dog follow the trail for 100-200 yards before being picked up and taken to the next intersection.
- Valentin scented Merlin with the sunglasses.
  - Merlin ended up at the intersection of Hwy 132 and 580.
  - Merlin took the ramp to 580 and was pulling hard.
  - They went to the point where vehicles could no longer merge in.
  - Valentin did not continue along 580 because the traffic could not be controlled.
  - Valentin told the detectives that Merlin followed Laci's scent along Hwy 132 and onto 580, which means that Laci could have been alive or recently deceased.
- Valentin also had her cadaver dog, Anne, on this search.
  - Cadaver dogs don't move, they search a particular area for any cadaver part that's in the area.
  - Valentin did not work Anne because she was too busy with Merlin. She was never asked to work Anne along Hwy 132.
- Eloise Anderson was also using her dog, Trimble, to trail Scott's scent along Hwy. 132. Anderson scented Trimble with the brown slipper.
- Chris Boyer video-filmed portions of this search, using a digital camera.
General information
- Though she would do so on trailing exercises, Valentin did not note any environmental conditions that may have affected the searches in her reports.
- All of the environmental conditions on December 26 and January 4 were within Merlin's training parameters.
- Tracking is when the dog follows a trail footstep by footstep. Trailing is when the dog follows a scent.
- Trailing dogs are trained to track the freshest scent, but there is no way to know how old that scent is.

Witness: Eloise Anderson, Trimble's handler Testimony

Background
- Started working professionally with training dogs in 1982.
- In 1990, started training dogs for search and rescue.
- A dog handler in cadaver and trailing for the Contra Costa County Sheriff's Department.
- Twist is a cadaver dog, and Trimble is a trailing dog. Both are Labrador Retrievers.
- Both are certified with CARDA.
  - Twist began as a search area dog, with specific sign-off requirements, then advanced to cadaver dog, with additional sign-offs required, including being able to remain undistracted by animal remains.
  - Trimble completed 48-, 72-, and 96-hour sign-offs for CARDA certification.
- She is a training advisor for CARDA, and has administered over 100 certification tests.

25 Feb 2004 All Discovery turned over; Jury Selection slated to begin

All People's discovery has been turned over to Defense, and DOJ has completed all its scientific investigation and turned over all discovery to Defense. Judge ordered ongoing discovery. Jury selection will begin March 4. Each day 100 potential witnesses will be brought in at 9:30 and another 100 at 1:30. Trial expected to last 5 months.

25 Feb 2004 Dog Tracking Evidence Testimony continued

Witness: Eloise Anderson, Trimble's handler Testimony

Background

When my dog is on a trail, she does what I call lining out. She's at the end of her line, she has a steady pull on the line, her head is level. Her whole body, her whole top line is level, and she's driving straightforward into the harness. (1494:8-12)

December 26, 2002 : Search for Laci
- Anderson admitted that Valentin's handling of Scott's slipper and Laci's sunglass case while wearing the same gloves could have transferred Scott's scent to the sunglasses, and the dogs were actually following his scent, not Laci's.
- Anderson said that if Merlin had picked up Scott's scent instead of Laci's, he would have alerted to Scott, who was then present in the house.
- Anderson did not know whose decision it was to collect Scott's slipper, since the purpose of the dogs was to trail Laci.
- Anderson assisted Valentin with Merlin, as a runner to watch for traffic and other hazards.
December 27, 2002, Anderson working with cadaver dog Twist
- First search on the 27th was in La Loma Park. No alert.
- Second search was at 523 Covena, in the shed in the backyard.
  - Twist crawled over a blue tarp on the lawnmower and alerted.
  - She then hit a container that appeared to have fertilizer in it.
  - Anderson removed the container because fertilizer is outside Trimble's training parameters.
  - Twist went back and alerted on the blue tarp over the lawnmower.
  - The tarp had a brown liquid on it, so Anderson removed it from the shed.
  - Anderson did not check to see if the brown liquid on the tarp was of the same type in the fertilizer container, but she did assume it was liquid fertilizer.
  - Twist went back into the shed, went up on her hind legs and sniffed along some shelves, and alerted.
  - On the shelves were a chain saw, pruning shears, and other gardening materials.
  - Anderson could not confirm to the Detectives that she was not alerting to the fertilizer in the shed.
  - Anderson did not request to return to the shed after a few days of having the tarp/container out of it.
- The third search was at Scott's warehouse.
  - The strong chemical smell from the fertilizer was outside Twist's training parameters.
  - When Anderson put Twist in the boat, she showed mild interest, and dropped her head, and then tried to get out of the boat, which was quite unusual for her.
  - Twist turned and ran her nose along the top railing of the boat on the starboard side of the bow, turned around and worked three boxes that were under a small workbench there, came back around to the boat, and went into an alert, and then barking in frustration, because she could not pinpoint any kind of particular source.
  - Anderson told Det. Hendee that she believed Twist was alerting in that particular area, but she could not give him a definitive point.
December 28, 2002, working with Trimble to run a scent on Laci at the Berkeley Marina.
- Trimble was 5 years old and CARDA certified as a trailing dog for one year when she participated in the search for Laci.
- Prior to her work on this case, Anderson had Trimble attempt two vehicle trail runs: one was successful and one was not.
- Anderson used Laci's sunglasses to scent Trimble. She did not inquire as to whether Scott had handled the sunglasses, even though she knew he had handled Laci's purse.
- When a contaminated scent article must be used, the handler has the dog check the non-subject person(s) so the dog can differentiate which scent to trail. Anderson did not have Trimble check Scott.
- Anderson scented Trimble at each of the two entrances to the Marina launch area, which consists of 3 piers that run north to south, where people can back trailers into the water.
- First entrance tested was the area north and east of the launch area. Trimble gave a "no trail" indication.
- Second entrance tested was the northwest side of the launch area.
  - Trimble initially headed to the north and then returned and proceeded south towards the launch area.
  - Of the three piers in the launch area, Trimble went to the westernmost pier, stopped at a pylon and gave an end of trail alert.
  - After a momentary pause, Trimble went along and down the width of one boat, then returned to the pylon.
  - The pylon is attached to the pier, and where somebody could tie up a boat.
  - Trimble then indicated end of trail.
  - Anderson said this was a non-contact trail, meaning Laci was in some kind of vehicle.
- Anderson admitted that the winds from the ocean would probably have blown Laci's scent eastward, away from this westernmost pier.
- Anderson said that even if Laci was already deceased, she could have still been giving off live scent.
- The only time Trimble makes eye contact with Anderson, while trailing, is when there is no trail there.
- Anderson was not asked to use Twist at the Berkeley Marina.
January 4, 2003, working with Trimble to run scent on Scott along Hwy 132
- Anderson started Trimble at the location at Hwy 132, the point Merlin had trailed Laci's scent to on December 26, 2002.
- Anderson did a drop trail with Trimble along Hwy 132.
- Trimble made a sudden turn onto the Hwy 33 ramp, where the police had a roadblock. Police told Anderson they had just turned Scott away from the roadblock.
- Anderson brought Trimble back to Hwy 132 and re-scented; Trimble continued west on 132.
- At one point along Hwy 132, Trimble ran down to the river there and went for 30-40 yards westbound along the riverbanks. Vehicular traffic can push the scent to the side.
- Trimble was not going from side to side looking for scent, but on a steady pull, level head, indicating she was on a trail.
- Anderson worked Twist, the cadaver dog, only twice along Hwy 132: at the intersection of Paradise Road & 132, along the riverbank to the south of 132; and under the Hwy 132 bridge. Twist did not alert either time.
Geragos accused David Harris of prosecutorial misconduct for soliciting testimony from Anderson materially different from what was included in discovery. Judge Delucchi disagreed.

Witness: Christopher Boyer, Captain of the Search and Rescue Team Testimony

Expertise
- Started with Search and Rescue Team in 1995, became Reserve Deputy in 1997.
- Owns a Labrador Retriever cadaver dog, certified with the Office of Emergency Services.
- Teaches a 40-hour course in search and rescue management for the OES.
- Teaches scent theory for dog handlers for the OES, which is part of their certification.
- Taught seminars for the National Search and Rescue Organization, the Washoe County Sheriff's Dept. seminars, and the Desert Rescue Squad of San Bernardino CA.
- Trained the FEMA; worked with the FBI in their Evidence Response Teams.
Scent Theory
- How scent is produced from different articles that you are looking for, depending upon whether you are looking for live humans, human remains, whether you are looking for a victim of an avalanche, or if you are looking for a body underwater.
- It includes how the dog detects the scent, how the environment affects the scent, and how to manage your dog and work you dog so that you put it in a better position to find those things and work through any problems that you might have in the environment.
- It is possible for a person to have both a cadaver scent and a live scent.
  - A living person with certain medical conditions can have a cadaver scent.
December 26, 2002 Dog Team Search Supervisor
- Conducted a short missing-person interview with Scott
- Supervised Cindee Valentin and Merlin and also provided security
- Present at the track away from 523 Covena
- Present at the trail from the warehouse to where it ended on Hwy 132
December 28, 2002 Dog Team Search Sup
- Supervised Anderson and Trimble at the Berkeley Marina

26 Feb 2004 Judge Delucchi ruled to seat only one, non-sequestered jury

Geragos' argument for 2 juries:

An estimated 40% of the potential jurors will be eliminated because of pre-judgment, and another 40% because they oppose the death penalty, leaving a very sparse jury pool to select from if a single jury is used.
A death-qualified jury is more prone to side with the prosecution and not the defense, and a single jury must be death-qualified.

I'm just trying to level the playing field here. I'm not even asking for a level playing field. I just want to get on the teeter-totter. And all I'm asking for is give us a fair trial. Give this -- this gentleman who is sitting next to me the ability to fight with only one hand tied behind our back. (Geragos, 1659:9-14)

Judge Delucchi's argument for seating a single jury:

The prejudgment rate in the second jury would be just as much as it would be in the first jury, although it would be compounded by the fact that the defendant would have already been found guilty or else they wouldn't be in a penalty phase and all that entails. (Delucchi, 1663:21-26)
There is no empirical evidence that a death-qualified jury would be less able to give a defendant a fair trial.

Geragos' argument for sequestering the jury:

Within 72 hours the jurors's names will be on the Internet. . . . not only will their names be on the Internet . . . they'll have a complete listing -- some very clever person on the Internet will have a complete listing of those particular jurors's occupations, their marital status, their judgments, their tax status, everything else will be available and will be there. (Geragos, 1667:16-26)

I guarantee you, some radio station with some disk jockey with some bullhorn standing outside when they leave hassling them or expressing their belief in my client's guilt. (Geragos, 1661:1-4)

And there will be people who will make attempts to contact them, and there is going to be crazies who are going to do that, and there's going to be other fringe members of media who will do that. There will be people who will be paying them for their stories or trying to attempt to pay them for their stories during the course of this trial. (Geragos, 1668:26-1669:1-6)

Delucchi's agreed in substance with Geragos' argument, but declined to sequester the jury for these reasons:

Many potential jurors will decline serving because they don't want to be "locked up for five months."
Some jurors might resent being sequestered, and might blame Scott, which would not be in his best interest.

Witness: Christopher Boyer, Captain of the Search and Rescue Team (Day 2) Testimony

Live scent and Dead scent

Live scent is externally generated from skin and hair (called skin rafts) and includes scents from things we use and touch. They degrade over time and disappear. Some environmental conditions, such as sunlight and temperature, affect their degradation speed. Other environmental factors, such as wind and heavy traffic, affect their relocation.
Dead scent is internally generated, from a process called autolysis, when the heart stops pumping and the internal cellular structure begins to heat up. Dead scent is emitted through the alimentary canal or the rectal cavity. The cooler the environment, the less dead scent there will be.
A dead person continues to give off skin rafts, and can continue to produce a very strong live scent for a long time, especially in cool environments.
Any search, cadaver or trail, is conditioned upon what has happened in the environment in the recent past.
If the tracking dog does not come up with the subject at the end of the trail, there is no scientific way of knowing if the dog picked up the scent.
This is an art based on the handler's interpretation of the dog's behavior.

Tracking with contaminated scent

The dogs are trained to work with the predominant scent.

Boyer's responsibilities as Training Supervisor for Contra Costa County

Boyer supervises 5 teams, which include Valentin and Anderson.
Boyer was unable to answer specific questions about Valentin's and Anderson's training, saying he did not have their logs in front of him and did not have them memorized. He admitted he did not recall ever discussing their success with vehicle trailing.
Boyer concluded they could successfully do vehicle trailing based on their CARDA certification, but admitted CARDA did not require vehicle trailing for certification.
Boyer reported on a vehicle trailing exercise he oversaw with Valentin. The subject was in the trunk of the car. The training notes specifically mentioned the windows being down, but Boyer said that would not have made any difference. Under cross examination, however, Valentin's reports did not indicate any vehicle trailing exercise where the subject was in the trunk, and the exercises were often conducted with one or more windows down.
Boyer had never witnessed any of Anderson's certification tests.

December 26, 2002 Search Effort at the house and warehouse

Sergeant Cloward was in charge of the search effort, and Boyer was in charge of the trailing team--Valentin and Merlin. Anderson was also present. Besides Scott, Lee Peterson was present, as was a Mr. Lee, an attorney.
Boyer specifically asked for an article of clothing belonging to Scott. Scott consented to the items being taken, and participated by identifying Laci's hairbrush and which slippers belonged to him.
Boyer said both he and Valentin wore rubber gloves, that he changed his gloves after handling each item, but did not recall seeing Valentin change gloves.
Boyer and Valentin handled various items from Laci's purse. Valentin testified that she collected the brown slipper belonging to Scott before getting the sunglasses; Boyer said he remembered collecting the brown slipper last. All the items except the sunglasses were given to Brocchini.
Valentin decided to use the sunglasses to scent Merlin.
During the trailing, Boyer performed safety precautions, directing traffic and being alert for any danger to Valentin or Merlin.
On the first trail, which ended at the Gallo winery, Valentin told Boyer Merlin was showing mild interest at the winery.
Boyer admitted that the trail Merlin followed would not be the route Scott would take to the warehouse.
At the command center, Valentin told Brocchini and the other detectives that Merlin had picked up a scent and that Merlin's behavior indicated a vehicle exit trail. Boyer expressed confidence in Valentin's judgment.
Boyer said Merlin was not taken back to the house to do a second trail because the dogs are trained to always pick up the freshest scent and because Valentin had worked Merlin in a choke point across the yard. Choke point is to look for the places the subject would have to have traveled or transited.
Brocchini did not ask Boyer to take Valentin and Merlin to the park to see if Merlin could pick up a scent trail.
Brocchini did not ask Boyer to scent Merlin with the brown slipper to see if Merlin would trail Scott from the Covena home to the warehouse.
Valentin and Merlin were taken to the intersection of Kansas & Emerald, to see if Merlin would trail to the warehouse. Merlin went in the opposite direction.
Merlin's trail went out from the warehouse through the parking lot to Emerald, then southbound on North Emerald Avenue.

December 27, 2002 Search Effort at the house, Park, and warehouse

Brocchini asked Boyer to provide cadaver dogs to search the house and yard, Rock Creek park, and the warehouse.
Boyer did not witness Twist's behavior in the shed, nor did he remember hearing Anderson tell the detectives in the debriefing that Twist did a solid alert directed towards a chemical sprayer that smelled like fish emulsion.
Boyer, Anderson, and Twist searched the park for about 90 minutes, focusing on the perimeters and walking areas. Anderson did not say Twist alerted at any time in the park.
Twist was at the warehouse about 45-60 minutes, off-leash. Anderson is who debriefed the Detectives after the search. Boyer did not remember Anderson telling the Detectives that Twist had made an alert, had hit three separate times, or alerted three times. He did not remember Anderson ever saying that Twist alerted in the warehouse. Boyer did not see Twist alert at the warehouse, but he was not in visual contact with Twist most of the time.

December 28, 2002 Search Effort at the Berkeley Marina

Brocchini asked Boyer to provide dogs that could detect human remains in water, as well as trailing teams.
Boyer asked Ron Seitz and his dog to search the entrance to the Berkeley Marina. The dog was scented with Laci's pink slipper. Seitz verbally reported to Boyer that he had searched one side near the bathrooms and his dog had shown no indication of a trail.
Boyer said that Seitz reported to CARDA not to him, and if the Modesto PD wanted a report from CARDA, they would have to request it from CARDA. Boyer never requested a report from CARDA.
Anderson worked two vehicle choke points to the parking lot.

January 4, 2003 Search Effort at other bodies of water

Various water dog units were taken to different lakes and bodies of water to search for human remains.
Boyer was not aware that several dogs alerted at a lake north of the Bay, but a search of the area did not produce human remains.

Searches not requested

Brocchini never asked Boyer to use a cadaver dog in Scott's truck.
Boyer never asked to have the boat removed from the warehouse to remove the chemical smells, and then use a cadaver dog to search it again.

Testimony of Officer Rick Applegate, Modesto Police Department Testimony

January 4, 2003

Assisted in blocking traffic from coming onto Hwy 132 as the trailing dogs were working.
At 2:30 p.m., while blocking traffic from coming off Hwy 33 onto the Hwy 132 on-ramp, Applegate observed Scott approach the roadblock in the Rover.
Scott ignored Applegate's motions to turn around. Applegate got out of his car and went up to Scott and told him the highway was closed.
Scott did not identify himself or ask what the dogs were doing. He did ask for the quickest way to get back to Modesto.
Scott made a U-turn and drove away.
About 10-15 minutes later, the dogs approached the on-ramp. Anderson's dogs led her to where the Rover had been.
Applegate did not call Scott by name, or acknowledge that the road was closed in an effort to find Scott's wife.
Applegate thought Anderson's dog was following Scott's scent, not Laci's.

1 Mar 2004 Motions