Peterson side loses witness

02/05/2004 9:00 AM

11/19/2007 2:41 PM

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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