Peterson side loses witness

February 5, 2004 

  • REDWOOD CITY -- Scott Peterson's double-murder trial could get under way sooner than anticipated, thanks to changes in other trials involving his high-profile attorney.

    "The defense is ready," Mark Geragos declared Wednesday. Starting full-bore next week would be "fine and dandy," he said.

    Judge Alfred Delucchi this week had set a Monday hearing in the Peterson case to discuss scheduling and the order for hearing evidentiary motions. That was the only court date expected next week after Geragos said he had been ordered to start a murder trial in Pasadena.

    But Tuesday, two of Geragos' trials -- the Pasa-dena one, the other in Orange County -- were delayed.

    "I'm available," Geragos said Wednesday after the delay in the Pasadena case. But for how long remains an open question.

    Michael Jackson's preliminary is Feb. 13

    Pop star Michael Jackson, another high-profile Geragos client, is set to appear in a Santa Barbara County court Feb. 13 to discuss setting a date for his preliminary hearing on child molestation charges.

    Another attorney could make that appearance for Geragos, legal observers said, but other questions about timing in the Peterson case remain.

    Prosecutors "will be ready to go" if Delucchi decides Monday to commence the next day with motions about what evidence will be allowed -- often the opening phase of trial -- Chief Deputy District Attorney John Goold said.

    "If we need to start doing motions on Tuesday, we're going to be able to do those motions," Goold said.

    Both the prosecution and defense last week had suggested starting the motions Feb. 17, according to documents filed in San Mateo County Superior Court.

    It was unclear Wednesday whether Delucchi would seek to forge ahead quickly.

    Judy Lucier, a San Mateo County court official, said the court had not been officially notified about delays in Geragos' other trials.

    "Until we're officially notified, we're not notified," Lucier said.

    Judge could not be reached

    Delucchi, who made his first appearance in the Peterson case Monday after the trial was ordered moved from Stanislaus County because of extensive publicity, could not be reached for comment.

    Questions also swirled on whether the case would remain in San Mateo County. Geragos in court Monday said San Mateo may be a "way station."

    The defense could seek to move the trial again, arguing that publicity in the Bay Area, like the San Joaquin Valley, endangers Peterson's ability to get a fair and impartial jury.

    The 31-year-old Modesto man is charged with murdering his wife, Laci, and unborn son, Conner, in a case that has drawn international attention.

    Geragos has made no secret for his desire to try the case in Los Angeles, where his office is. But a January report by the Administrative Office of the Courts, the state body that looked into possible locations for the trial, said Los Angeles could not accommodate the case at that time without "undue burden."

    Of the four counties able to take the case, Geragos lobbied for Orange County.

    Goold declined to comment on whether prosecutors, who opposed relocating the trial initially, would welcome another move.

    "We'll try this case wherever a judge decides it needs to be tried," Goold said.

    He also said prosecutors had not received official confirmation that the defense was surveying San Mateo County residents to gauge potential bias toward Peterson, a typical step taken when seeking to move a trial.

    "We've been told by media outlets that they're doing another survey," Goold said. "We've not seen the survey. We've not seen the results of the survey."

    News reports Wednesday indicated that Paul Strand, a political science professor at San Diego State University, was polling residents about their attitudes in the case.

    Strand could not be reached for comment. He conducted one of two surveys the defense introduced in court in its initial bid to move the trial.

    Bee staff writer John Coté can be reached at 578-2394 or jcote@modbee.com.

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


A potential witness for Scott Peterson's defense died Wednesday.

Whether the death of 80-year-old Vivian Mitchell could affect the double-murder trial remained unclear.

"She was a sharp woman, very engaging," said Peterson's defense attorney Mark Geragos of Los Angeles. Citing a court-imposed gag order, he refused to say whether her death deals a blow to his client's case.

Prosecutors say they believe Peterson, 31, killed his pregnant wife, Laci, on Dec. 23 or Dec. 24, 2002. They are seeking the death penalty.

In May, Mitchell described looking out the window in her La Loma neighborhood home Christmas Eve morning and seeing Laci Peterson walking her dog. She described the woman as "magnetic" and "pretty."

Scott Peterson, who says he fished alone in San Francisco Bay that day, had told police that his wife had planned to walk their dog that morning. An eyewitness confirmation presumably would bolster Geragos' theory that someone other than his client snatched and killed Laci Peterson.

Another man, Homer Maldo- nado, also said he saw Laci Peterson walking a dog that morning, about three-quarters of a mile from the Mitchell home.

But Karen Servas, a neighbor of the Petersons who said she put the dog in their back yard that morning, cast doubt on the Maldonado and Mitchell sightings.

Modesto police Detective Al Brocchini testified at Scott Peterson's preliminary hearing that he never tried to contact Mitchell or Maldonado.

Some legal experts said it's doubtful Mitchell's account will be allowed at Peterson's trial. Testimony that doesn't come from an actual witness amounts to hearsay -- and nearly always is inadmissible, because the other side has no opportunity for cross- examination.

"That could be a major setback," said Professor Michael Vitiello of McGeorge School of Law in Sacramento.

Attorneys who anticipate losing a key witness can ask a judge to preserve his or her testimony by questioning the witness under oath and taping the event. Attorneys from the other side would be allowed to cross-examine, similar to a deposition in a civil case.

"As soon as I get a whiff that they're not in the best of health," said Sacramento defense attorney John Virga, "I petition the court for a conditional examination."

A member of Mitchell's family said she fell ill Sunday. Her son, Steve Gould, confirmed that she died Wednesday but declined to say whether she had provided testimony under oath.

Mitchell's account would have been preserved for trial if she had testified at Peterson's preliminary hearing. But defense attorneys commonly call no witnesses at such hearings; Geragos called none.

Geragos and John Goold, chief deputy district attorney, refused to say whether Mitchell had been questioned under oath at any point.

Just last year, a federal per- jury case against Sacramento Kings basketball star Chris Webber unraveled after a key witness died. Webber's attorneys, aware of the witness's failing health, had asked a judge to question him under oath -- but the request was denied. The man, Ed Martin, allegedly had given cash to many high school and college athletes, including Webber.

Martin had testified before a grand jury, but, because he hadn't been cross-examined at the time, that testimony couldn't be admitted at trial.

Webber wound up pleading guilty, but to a lesser charge of criminal contempt.

Some legal scholars said there are exceptions to hearsay rules. But none contacted Wednesday could think of one that would allow Geragos to present Mitchell's account at Peterson's trial.

"Sometimes you lose a key witness," Virga said. "You know what? That's life."

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

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