DA calls for public hearing

June 20, 2003 

A longing to reveal closely guarded evidence against Scott Peterson, and to debunk rumors and wild speculation, helped prosecutors decide to start the case with a public preliminary hearing instead of meeting in secret with a grand jury to ask for an indictment, Stanislaus County District Attorney James Brazelton said Thursday.

But both sides of the double-murder case are likely to ask for a delay in the public hearing, possibly until September, sources close to the case said Thursday. The hearing is now set for July 16 in Superior Court.

"The longer this drags on, the more stories get bandied about out there," Brazelton said, "and about 95 percent is pure fiction and fabrication. By putting on a prelim, they're going to see some stuff that might open some eyes."

The defense, however, could file a motion to close the preliminary hearing from public view.

Brazelton's office is seeking the death penalty against Peterson, 30, who is accused of murdering his wife, Laci, and their unborn son, Conner. Peterson has pleaded not guilty.

The case has played out on national television since the 27-year-old substitute teacher with the broad smile was reported missing Christmas Eve from her Modesto home. Rumors discussed on television shows, in news articles and in tabloids across North America include satanic cults, infidelity, date-rape drugs and mystery witnesses.

During a preliminary hearing, the prosecution presents at least some of its evidence in trying to persuade a judge that a full trial is warranted. The district attorney's decision to opt for a preliminary hearing instead of a grand jury indictment is one of dozens of frequently discussed topics.

Some legal analysts have questioned the preliminary hearing route, noting that grand jury proceedings would keep prosecutors' evidence under wraps until the trial. That could take two years or more.

"We are criticized by some talking heads for not doing a grand jury," Brazelton said Thursday. "Too bad. They can handle their cases. We'll handle ours."

Laying cards on the table to counter inaccurate reporting "was one of the factors" playing a part in the decision to go the public route, Brazelton said.

"We spend all our time running down this phoney baloney stuff they throw up," he said.

Another, more tactical factor concerns witness testimony, he said.

Witnesses at preliminary hearings are cross-examined under oath by opposing attorneys. If a witness changes his or her testimony at the trial -- "We call it 'going sideways,'" Brazelton said -- he or she could face perjury penalties.

Defense attorneys are not allowed to attend grand jury proceedings. Testimony there, without being exposed to questioning by the other side, has less weight than at a preliminary hearing, Brazelton said.

Brazelton refused to discuss the evidence "that might open some eyes," citing a gag order imposed by Judge Al Girolami.

The judge last week muzzled attorneys, investigators, judicial officers, court employees, law enforcement officers and potential witnesses. He provided exceptions for existing public records and "communications heretofore disseminated to the public."

Brazelton's office favored the gag order, while Peterson's defense team and media lawyers argued stridently to keep communications open. Defense attorney Mark Geragos had argued that a gag order would prevent him from correcting inaccurate reports.

Girolami also has sealed autopsy reports, wiretap recordings and related documents.

Bee staff writer Garth Stapley can be reached at 578-2390 or gstapley@modbee.com.

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