A Deadly Game (49 page)

Many observers still asserted that the evidence was insufficient to produce a conviction. The prosecution had no DNA, no confession, and precious little crime scene forensics to work with. The preliminary hearing would be the first chance for the prosecutors to lay out their findings. It would also be the first time Mark Geragos could ask the judge to dismiss the case for lack of evidence.

The hearing lasted eleven days. Prosecutors announced that they would not introduce GPS or wire tap evidence during the preliminary hearing, but did not exclude the possibility that they would offer this at trial. Nor, at this stage, did they intend to call Amber Frey.

Geragos wanted Amber's attorney, Gloria Allred, barred from the proceedings. Nothing if not feisty, Allred was not about to be removed without a fight. Judge Girolami overruled Geragos's motion, but instructed Allred not to discuss any testimony with her client. Geragos also attempted to have Allred placed under the same gag order that applied to the principal attorneys and witnesses, but to his dismay the judge refused. On television and in print, Allred would lash out at Geragos and his client throughout the trial proceedings.

The prosecutors' first witness was a DNA expert. Dr. Constance Fisher, an FBI forensic analyst, testified about the hair clasped in a pair of pliers in Scott's boat. Speaking in broad terms, Fisher explained that the DNA recovered from a hair with no root attached was mitochondrial, meaning that the information from this analysis would not as precise as if it had been obtained from nuclear DNA. Yet important findings would still emerge from the genetic material. Comparing it with hairs from Laci's brush and DNA from her mother, the experts established probability about the source of the hair-roughly one in 112 individuals in the Modesto area would have possessed the DNA profile of the hair in question and Laci could not be excluded as a contributor. One person who was clearly eliminated as a match was Scott.

Before she could testify about those findings, the defense team challenged the science in a three-pronged attack. Geragos attacked first the validity of the testing and then the database from which the information was drawn. Finally, he asserted that the sample was contaminated. Fisher insisted there had been no contamination during her tests and maintained that her conclusions were accurate. The judge finally ruled that the expert's testimony was admissible and permitted her to state her conclusions.

The defense called its own DNA expert to rebut Dr. Fisher's findings. Dr. William Shields, a professor at the State University of New York's College of Environmental Forestry, testified that one in every thirty-three samples of DNA could give a false exclusion or match. According to the current FBI database of 5,071 samples, this shared genetic sequence is found in less than 1 percent of Caucasians. While Fisher concluded that the DNA from the hair sample could be found in 1 out of 112 Caucasians, Shields estimated the sequence could be found in as many as 1 in 9. Detectives Buehler, Owen, Hendee, and Evers were the police witnesses. Hendee testified about collecting the hair from the pliers, but on cross-examination Geragos tore into him, suggesting that sloppy police work or something more insidious had conspired to create "additional" evidence in the form of a "second" piece of hair. Yet it was again established to the court's satisfaction that the hair may have simply broken in two after it was removed from the pliers and placed in the evidence bag.

At one point during the cross examination, when Harris objected to a question from Geragos as "double speculation," Geragos retorted, "Like this entire case."

The primary detective on the case, Al Brocchini, spent the better part of three days on the stand. After outlining the investigation time line from December 24 forward, he responded to a line of accusatory questions posed by defense lawyer Kirk McAllister, who had not yet left Scott's defense team. Trying to establish that Brocchini had rushed to judgment about Scott, he argued that Brocchini and other police officers didn't pursue leads that might have exonerated the defendant.

Outside the courtroom, Lee and Jackie Peterson expressed their feelings about the police-in particular, their distaste for Detective Brocchini.

"You should be ashamed," Jackie shouted when the detective passed.

"I've seen bums before," Lee Peterson chimed in.

The couple's aggression toward officers wasn't limited to the preliminary hearing. Even before Scott's arrest, police overheard Jackie Peterson making derogatory remarks about Al Brocchini in taped phone conversations with her son. In one conversation, she got very personal, impugning Brocchini's family, even his mother, in her comments.

In court, Dr. Brian Peterson, the coroner who performed both autopsies, delivered his findings. Laci's family chose to leave the courtroom during his testimony, fearing that it would be too difficult to hear. Through co-prosecutor Dave Harris's questioning, Dr. Peterson argued that Conner had not been born alive, as the defense would argue. He testified that Laci's uterus had been intact when her body was submerged in the bay, and that the condition of the two bodies was dramatically different, leading Peterson to conclude that Conner had been sheltered in her womb until just before he was found.

Under cross-examination, Geragos tried to elicit testimony that Conner was born alive and had taken a breath. Dr. Peterson responded that he could not rule out that possibility, but said it was unlikely based on his findings.

While being held in jail, Scott was reportedly shown the autopsy photos of Laci and Conner. "She's got no fucking head!" he reportedly cried out, breaking down in sobs.

The revelation that Laci's body had trace amounts of caffeine also upset Scott, prompting him to exclaim, "They tortured her!"

On November 18, Judge Girolami ruled that there was enough evidence to bind Scott over for trial. He was formally arraigned on December 3, 2003. His plea of not guilty came as no surprise, but Geragos's request for a trial date of January 26, 2004, less than two months away, came as a shock.

On December 12, 2003, the defense filed a motion for a change of venue. Scott could not receive a fair trial in his wife's hometown of Modesto, they contended, because of all the pretrial publicity-including eight thousand articles published worldwide and about one hundred and fifty stories in the local papers. On January 8, the change of venue was granted.

Girolami ruled that a jury could be found in one of fifteen adjacent larger counties. While Geragos fought hard to move the trial to his home turf in Los Angeles, the case was finally sent to Redwood City in neighboring San Mateo County.

In the weeks before the preliminary hearing, Geragos nearly lost control of the case. Scott was reportedly dissatisfied with his high-priced defense attorney, expressing frustration that Geragos wasn't visiting him in jail, and claiming that his questions weren't being addressed. Scott's parents had reportedly forked over the hefty $1 million retainer, and Scott wanted some pampering. In mid-to-late September, Scott went to the extent of signing a substitution agreement with another firm. The firm reportedly agreed to take Scott's case because the partners believed there was a viable defense-and because "it was winnable."

When Geragos learned of the agreement, a member of the inner circle later revealed, he went to the jail to confront Scott in person. He reportedly told Scott he would "fry" if he made the switch. He also guaranteed Scott a victory-and according to sources, got Scott to sign another retainer agreement.

In the months ahead, Lee and Jackie Peterson solicited funds from friends and family to help offset the cost of Scott's defense. The million-dollar retainer had wiped them out, and Geragos would come back to them mid-trial asking for more money. While several of Scott's siblings reached into their pockets to help, reportedly there was one family member who did not participate. While Scott's half sister, Susan Caudillo, regularly went before the cameras defending her brother, she reportedly did not contribute to his defense fund. In another of the odd coincidences surrounding this case, I later learned that Caudillo was constructing an in-ground "infinity pool" in the backyard of her new home. Like Scott himself, she had failed to give to others while quietly arranging to sink her money into a lavish swimming pool-dumping tens of thousands of dollars into its construction. As Scott sat in jail, Susan threw a big party to unveil her brand new pool.

CHAPTER NINETEEN

THE TRIAL

"Scott thought he was smart enough to fool us, but there were many crucial little clues he left," said Juror Number 7, Richelle Nice. "One turning point for me was the photo of the bed in Laci's room. It shows that the comforter was just thrown on the bed. That's the way Scott told cops Laci left the room before she vanished.

"But anyone who knows Laci knows she wouldn't have sloppily tossed the comforter. Then there were the statements Scott made about what his wife was wearing when he last saw her, which turned out to be different from what was on her corpse. Kidnappers would not have taken her home to change her clothes. Also, consider that Scott ordered hardcore-porn channels on his TV after Laci disappeared. That was a big sign to us that he knew his wife wasn't coming home.

"For me, Scott convicted himself with his lies. The case did not have much to do with the prosecution or Amber."

- as told to New York Post correspondent Howard Brewer

The trial started amid a swarm of media attention that recalled the Simpson trial. In the four-month period that began when this attractive young expectant mother disappeared, and ended when her good-looking, seemingly All-American, middle-class white husband was arrested for her murder, people had become vested in the story's outcome. They grieved with Sharon Rocha as she pleaded for Laci's safe return. And they became fascinated with Scott's quixotic behavior-his infidelity with a likeable young woman, his improbable fishing trip taken within a mile of where the bodies were found, and the break for the border he may have been planning before his arrest.

In our television age, the real-life drama we can watch on camera in the courtroom, or through real-time updates from just outside, rivals any soap opera. And the juxtaposition of personalities in the Peterson case was perfect: the staid, bookish prosecutor, Rick DiStaso, and his government team, versus the flashy defense attorney "Hollywood" Mark Geragos. Geragos was already well known to court watchers through his representation of celebrity clients-including Congressman Gary Condit, who along with murdered Washington intern Chandra Levy, also hailed from Modesto.

Less familiar to the public was the judge selected to preside over the Peterson case. When the trial was moved, Geragos wanted to keep Stanislaus County Superior Court Judge Al Girolami on the case, but Girolami made it clear he would not follow the case to Redwood. The first choice to replace him was retired Contra Costa County Superior Court Judge Richard Arnason, but when Geragos objected, the trial stalled for a week while the search continued. Ultimately the job went to another respected retiree-Alameda County Judge Alfred Delucchi.

Delucchi had been in retirement since 1998 when he was tapped by California Chief Justice Ronald George to take charge of the Peterson trial. During his tenure the seventy-two-year-old jurist had presided over a number of high-profile cases, most notably the 1991 trial of Huey Newton, who murdered Black Panther co-founder Tyrone Robinson. Even in retirement Delucchi continued to hear East Bay murder cases, sentencing Giles Albert Nadey Jr. to death in 2000 for the sexually motivated murder of a minister's wife. When Delucchi's name was suggested, both the prosecutors and the defense attorneys hailed him as an "ideal fit" for the case.

Delucchi had rejected Court TV's request to televise the trial of Newton, and he did the same in the Peterson case, much to the disappointment of the press. The decision pleased Sharon Rocha, who felt that what went on inside the courtroom was "personal." With a gag order imposed on attorneys and witnesses alike, it was the marvel of electronic messaging from our reporters, such as Beth Karas, that kept Court TV and the public informed of the day's events.

With the judge in place, jury selection began in San Mateo County Superior Court on March 4. One woman who was not chosen on the panel stopped on the courthouse steps and told reporters that she had no idea that Scott would be "so charismatic." Nearly three months later, on May 27, a jury of twelve citizens and six alternates was sworn in. The makeup was split evenly along gender lines. The majority of the twelve-person panel was Caucasian. One African American woman had been selected, along with two men in their forties-a retired police officer and a high school sports coach. Other panelists included a male firefighter and paramedic, a union worker who had once been charged with violating a restraining order, and a woman whose husband was killed while serving a prison term for murder. Another man, a devout Christian in his mid-sixties, asked permission to consult with his priest before taking a place on the jury of the capital murder case. The six alternates were also divided evenly between men and women. Three of the alternates later joined the panel.

The trial began on Tuesday, June 1 in Superior Courtroom 2M of the Redwood City Courthouse. Stanislaus County Prosecutors Rick DiStaso and Dave Harris appeared for the prosecution. At the defense table were Mark Geragos and his co-counsel Pat Harris, who was sitting second chair. Scott's attorney, Kirk McAllister, had faded into the background.

The court case was expected to last at least four or five months, and from the start pundits were asking whether DiStaso and Harris were up to the task. DiStaso, the small-town Modesto district attorney, had relatively little experience in capital cases. His profile contrasted sharply with the big-gun lead defense counsel, who swaggered into court behind sunglasses even on cloudy days, telephone always at ear, surrounded by his personal fan club. As the case began to unfold, onlookers wondered whether the two dedicated civil servants could hold their own against the showy, seasoned Geragos.