Peterson defense alleges police violated gag order

01/11/2004 6:55 AM

11/19/2007 2:37 PM

Scott Peterson's attorney contends that police violated a judge's order and leaked documents to a tabloid magazine, part of an "orchestrated campaign to publicly convict" Peterson.

The allegation, filed in court Thursday, is the latest salvo in a case in which each side blames the other for fueling news coverage that was a primary factor in moving the double-murder trial.

"Both sides leak to impact the jury pool and public perception," said Laurie Levenson, a law professor and director of Loyola Law School's Center for Ethical Advocacy.

How effective such attempts are is hard to tell, legal observers said.

"It's almost impossible to know because jurors themselves may not know," Levenson said. "The impact is on their subconscious."

Judge Al Girolami last week ordered Peterson's trial moved, saying "the nature and extent of the publicity this case has received has rendered Stanislaus County an inappropriate venue."

A destination could be determined at a Jan. 20 hearing.

The case has saturated the media since a pregnant and photogenic Laci Peterson was re-ported missing on Christmas Eve 2002. Prosecutors say they intend to introduce TV interviews as evidence, and among their list of 400 witnesses are at least three media representatives who had contact with Scott Peterson.

In an effort to stem the media tide early in the case, Girolami issued a sweeping gag order, sealed normally public documents and forbade the release of documents or photographs that could be introduced in court.

The defense contends that prosecutors violated that order within the past two weeks by leaking a transcript of Peterson's police interview conducted early Dec. 25, 2002.

Peterson, 31, is charged with murdering his wife and their unborn son. Prosecutors are seeking the death penalty.

They have suggested that the defense could have sold the interview transcript to The National Enquirer to help pay for Peterson's defense.

Senior Deputy District Attorney Dave Harris noted in court documents that the Enquirer showed two photographs of the document, "both of which clearly hide the lower right-hand corner of the document -- the place where the traditional discovery stamp is placed on documents released to the defense."

Geragos said in court Thursday that photographs of the documents indicate that police leaked them.

"What Mr. Harris doesn't realize is that the lower right-hand corner on my defense discovery doesn't have anything in it," Geragos said. "In fact, the reason I know that this is a police leak is because the numbering system that is released to the defense is not on the top. I know that that came -- for a fact that that came -- from the police. And the police have done this week in, week out."

Chief Deputy District Attorney John Goold said the photos did not indicate where the documents came from.

"I don't see how you can draw any conclusions from anything that's put in The National Enquirer," Goold said.

He said the gag order pre-vented him from commenting on whether prosecutors or police were leaking documents and misinformation about Peterson.

"I would love to reply to that, but I think the protective order stops me from doing so," Goold said.

Enquirer isn't telling

Charlie Montgomery, an Enquirer editor who worked on the story, refused to say who pro- vided the transcript but dismissed the suggestion that the defense sold the documents.

"That seems kind of absurd to me," Montgomery said. "For something like that, they would want extremely big money, and I don't think we'd be paying that money for something they'd want."

He also rebutted the defense argument that police had routinely leaked documents to the tabloid.

"I've been dealing with a number of people on this, and we have not gotten any leaks directly or indirectly from any police authorities," Montgomery said.

Montgomery said there are "an awful lot of people who would have copies of that," including clerks and other personnel in the district attorney's office, Police Department and "then there's the defense people."

The judge could hold either side in contempt of court if he determines who leaked the documents.

The leak is not the first. Prosecutors in May sought to have

Girolami unseal Conner Peterson's autopsy report after a portion of it was leaked to MSNBC. Prosecutors argued that the information leaked had been "skewed in favor of the defense."

In court documents, prosecutors also blame Peterson for fueling publicity in his case by going before TV cameras to "make pleas for the safe return of his wife and unborn child."

"The defense makes much of the fact that the media has referred to the defendant as an adulterer, but it was the defendant who admitted it on national television," Harris wrote.

He did not address the fact that Peterson made the admission after his affair had been reported in The Bee, and his lover had held a news conference at the Modesto Police Department.

Harris also did not note that Laci Peterson's family held multiple news conferences and conducted TV interviews after her disappearance to generate interest in the case. Police also have held several news conferences.

Prosecutors refused in April to agree to a gag order proposed by the public defender then representing Peterson, according to an e-mail obtained by The Bee.

"Per our boss, we can't stipulate to a 'gag' order because it creates more problems then it seems to solve," Harris wrote. "If we cut off access to the media they will then start searching for leaks and/or making it up, I mean, speculating about the facts. I think we can all agree that we will need to control the media in the courtroom."

The media "gets used by both sides in all sorts of ways and this case is no different," said Levenson, a former federal prosecutor in Los Angeles.

Levenson said in general, "when there are leaks in the case, they are usually coming from the prosecution. I know that from my experience as a prosecutor."

Attorneys on both sides will use the media to find witnesses or evidence, float theories, flesh out angles that could be used to discredit witnesses, get a trial moved or as a source of income, she said.

She cited the child molestation case recently brought against pop star Michael Jackson, also represented by Geragos.

Jackson granted an interview for the CBS news program "60 Minutes" after reportedly receiving $1 million for an entertainment special that aired on the network. A spokesman for "60 Minutes" has denied that there was any payment for the interview.

Peter Benekos, a professor in the School of Justice Studies at Roger Williams University in Rhode Island, said attorneys on both sides have an "orchestrated routine" to keep their adversary off balance with deceptive public comments.

Added Levenson, "It's not all bad. Let's not forget how this thing began, which was using the media to find the victim, to try to save people."

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

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