"New evidence" demands that convicted killer Scott Peterson receive a new trial, his attorney argues as a judge prepares to announce whether the Modesto man should be executed.
Prosecutors disagree with the new trial argument, saying Peterson's defense team didn't bother to check out the "new evidence" when presented in May 2003 more than a year before his trial began under a media microscope.
His attorneys indicate in court papers that they didn't notice "a small notation" among hundreds of pages of police tips after pregnant Laci Peterson vanished just before Christmas 2002. The tip suggested she had interrupted a burglary.
Scott Peterson's formal sentencing is scheduled for Wednesday morning in Redwood City, where the trial was moved because of heavy publicity around Modesto. Jurors in December recommended a lethal injection, and Judge Alfred Delucchi is empowered to deliver that verdict or impose a life sentence without parole.
First, Delucchi is expected to rule on the 122-page new-trial motion filed by defense attorney Mark Geragos as well as prosecutors' 50-page response. Both were released Monday.
In addition to the "new evidence," Geragos' motion contends that the judge and jurors committed several errors that should result in a new trial.
The disputed tip: Adam Tenbrink told his brother, inmate Shawn Tenbrink, that burglar Steven Wayne Todd "verbally threatened" Laci Peterson while he was looting her neighbor's house on Christmas Eve 2002.
"If the evidence were presented at a retrial, it is highly probably a different result would have occurred," Geragos wrote. "The recently uncovered evidence points to the conclusion that Laci was alive after Scott had left for the day. It also presents a plausible explanation as to who could have murdered Laci Peterson."
But prosecutor Dave Harris replied that she had disappeared by the time Todd broke in, according to trial evidence. Harris noted that Adam Tenbrink refused to talk with Geragos' team and speculated that Tenbrink "exaggerated his knowledge to gain some importance for his incarcerated brother."
Neither of the brothers could legally have offered their "fourth-hand hearsay" as testimony at trial, Harris wrote. And, "the prosecutor has no obligation to seek out information from other agencies or sources for the benefit of the defense."
In his lengthy motion, Geragos also accused Delucchi of acting illegally by:
Letting jurors hear recordings of Scott Peterson's phone calls to Amber Frey, the Fresno woman he romanced before and after his wife went missing.
"(Peterson's) evasions and ambiguous statements to the mistress were statements that an unfaithful husband might be expected to make to maintain an affair," Geragos wrote. "The statements were not proof of murder; they were proof of adultery and no more."
Allowing jurors to learn that Peterson ordered pornography cable channels two weeks after his pregnant wife disappeared.
"The prejudicial nature of this evidence is obvious; it was intended to outrage the jurors," Geragos wrote.
Removing two jurors during the trial.
Delucchi "never articulated legal cause for those jurors' re-moval but instead characterized each of them as a 'cancer' which needed to be removed," Geragos' motion contends. "Metaphor is no substitute for valid legal grounds."
Last week, juror John Guinasso told The Bee that he tattled on former juror Justin Falconer for talking about the case to others on the panel. Geragos said other jurors didn't back that up, but Harris pointed to transcripts of private meetings with the judge that suggest they did.
Allowing evidence suggesting that a trained dog followed Laci Peterson's scent to the end of a pier.
Letting prosecutors introduce evidence collected from tapping Peterson's phone.
"A phone call where he lies to his mother about his location, although having nothing to do with whether he committed the crime, became evidence that he is a murderer," Geragos wrote.
Excluding a defense video suggesting that Peterson's boat would capsize if a pregnant woman were tossed out.
"The disposal of the body from the boat was the crux of the prosecutor's case and the defendant should have been allowed to present evidence to refute that allegation," Geragos wrote.
Harris argued in his brief that the boat used in Peterson's video "had a plywood platform that raised the center of balance and affected its stability."
Delucchi offered to let Geragos take Peterson's boat not a replica and do another simulation, but Geragos didn't take him up on it, Harris wrote.
Allowing jurors to climb in and rock the trailered boat without giving the defense team a chance to counter the "unauthorized experiment."
Refusing to move the trial to Los Angeles County.
Geragos said moving from Stanislaus County to San Mateo County was like sweeping dirt from one spot to another "without ever really attempting to clean up the mess." He said people in the Bay Area were every bit as biased against his client as Stanislaus County's residents were.
Bee staff writer Garth Stapley can be reached at 578-2390 or firstname.lastname@example.org.