A judge on Wednesday refused to dismiss the double-murder charges against Scott Peterson, upholding the ruling from Peterson's preliminary hearing that ordered him held for trial.
Legal experts widely viewed the defense motion to dismiss the charges on insufficient evidence as a long shot.
But the hearing in Stanislaus County Superior Court allowed the prosecution and defense to indicate what direction their cases might take at trial.
Defense attorney Mark Geragos called the case against his client a "prosecution without a theory." Senior Deputy District Attorney Rick Distaso said evidence does not bear out Peterson's description of what happened Dec. 24, 2002.
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The primary judge in the case, Al Girolami, considered Professor Stephen
Schoenthaler's survey in his decision last week to move the trial because of massive publicity.
Amid allegations that some students falsified survey results, prosecutors could ask Girolami to revisit his decision to move the trial.
Peterson, 31, is charged with murdering his wife, Laci, and their unborn son, Conner, late Dec. 23 or early Dec. 24, 2002. Prosecutors are seeking the death penalty.
The prosecution presented some of its evidence during the 12-day preliminary hearing that concluded Nov. 18, and the defense challenged Girolami's decision to send the case to trial. The Superior Court assigned Judge Marie Silveira to hear the motion.
The defense contends that the prosecution failed to show that there was reasonable cause to believe that Peterson killed his wife.
Wednesday, Geragos said evidence pointed an abduction of Laci Peterson after her husband left on a fishing trip the morning of Christmas Eve. He told police that he could not find his wife when he returned home later that day.
"The most likely thing is she was ab-ducted, and she was abducted by someone other than my client, and she was abducted while walking her dog," Geragos said. He did not mention an early defense theory that satanic cult members were involved in the disappearance.
Witnesses' statements cited
Geragos recounted witnesses' statements about seeing suspicious figures in Dry Creek Regional Park the morning of Dec. 24, and another witness' statement about seeing a pregnant woman matching Peterson's description walking a dog with two men in the park after her husband said he left to go fishing.
That argument appeared to show that the defense had altered its tack somewhat from an assertion that prosecutors had failed to show that Peterson's death involved a crime.
The defense made the assertion in documents filed in court. The papers also contended that the evidence only showed that Peterson was an unfaithful husband who made a snap decision to go fishing, not that he was a murderer.
Geragos argued in court Wednesday that the physical evidence showed that Laci Peterson's fetus continued to develop for three to seven weeks, during which time Scott Peterson was under intense police surveillance. The medical examiner who performed the autopsy testified that he could not rule out Conner's being born alive.
Geragos suggested that the condition of Conner's body indicated that he had been thrown into San Francisco Bay separately from his mother.
He said plastic tape looped and knotted around Conner's neck likely was used to secure the body inside a plastic bag. He said such a bag was found near where the body washed ashore.
The knot and positioning indicate that the tape was not ocean debris that became wrapped around the body, Geragos said.
Geragos said the prosecution, at the preliminary hearing, did not specify the time when Peterson is alleged to have killed his wife, or the manner or exact location of her death.
The lawyer challenged the prosecution analysis that Peterson's body could have been in the bay only if she was murdered, committed suicide or died in an accident, with Deputy District Attorney Distaso calling the latter two options "ludicrous."
"What you can boil this down to is it's a prosecution without a theory," Geragos said.
Distaso noted the testimony of a neighbor who said she put the Petersons' golden retriever in their back yard at 10:18 a.m., after finding the dog in the street, trailing a dirty leash. But it was after this time that a witness claims to have seen Peterson walking in the park with a golden retriever, accompanied by two men.
Distaso hammered on Peterson's statement that he decided Christmas Eve morning to drive more than an hour and a half to go fishing on the windswept bay because it was too cold to play golf.
"Who in their right mind does that?" Distaso asked.
The prosecution analysis of phone records, testimony and Peterson's alibi provides only 10 minutes for Laci Peterson to have finished mopping the floor, change her clothes, walk the dog and be abducted before the dog appeared back at the couple's Mo- desto home.
"All these things are impossible," Distaso said. "If those things are impossible, then this man murdered Laci Peterson."
Observers expect trial delay
The trial is set to start Jan. 26, but logistics involved in moving the case could push that back, prosecutors and legal observers have said. Geragos has said in court that he has a trial scheduled to start in Orange County that day.
The state Administrative Office of the Courts has designated Santa Clara, Ala- meda, San Mateo and Orange counties as potential sites.
The defense and prosecution are expected to submit their preferences to the court in the next two days, Geragos said outside court.
After Wednesday's ruling, Joe Peterson said his brother Scott and family had held out hope for a dismissal.
"We always do," Peterson said. "We didn't expect her to rule differently, but, you know, that was our hope."
Peterson said he and his brother did not discuss whether Scott was frustrated by the legal proceedings.
"We don't go into that," he said. "The truth will come out, and it's just a matter of time."
Bee staff writer John Coté can be reached at 578-2394 or firstname.lastname@example.org.