Peterson's lawyers claim open court would hurt evidence of 'true killers'

07/23/2003 10:00 AM

11/19/2007 1:38 PM

Scott Peterson's defense attorney wants the public kept out of his preliminary hearing, saying an open proceeding would endanger a fair trial and damage new evidence that points to the "true killers."

In documents filed Tuesday in Stanislaus County Superior Court, Mark Geragos said prosecution evidence turned over to the defense last week "totally exonerates" Peterson and will tip off the true killers if made public.

The 10-page brief does not indicate what type of evidence was turned over or whom it may implicate.

The defense also is "particularly concerned with the danger that this prosecution team will attempt to utilize the preliminary hearing to disseminate bogus 'evidence' and theories that will not be admissible at trial," Geragos wrote.

Chief Deputy District Attorney John Goold said a gag order in the case prevents him from commenting on those contentions.

"We're reviewing what they filed to see if we need to file anything in response," Goold said. "I'm unaware of a (preliminary hearing) ever being closed in this county. But I guess never say never."

Peterson is charged with murdering his 27-year-old wife, Laci, and their unborn son, Conner. The 30-year-old fertilizer salesman could receive the death penalty if convicted on both counts.

Geragos and co-defense counsel Kirk McAllister repeatedly have said police ignored compelling leads, instead targeting Peterson almost immediately after his wife was reported missing Christmas Eve.

Investigators tapped Peterson's phone and tracked his movements while refusing to rule him in or out as a suspect.

The defense has floated theories that include a mystery woman, a suspicious van and satanic cults.

District Attorney James Brazelton told The Bee in June that he wanted to conduct a preliminary hearing in the case --rather than indict Peterson through a closed grand jury proceeding -- to counter misinformation.

Most documents sealed

Most of the normally public documents in the case, including autopsy reports, search warrants and the arrest warrant affidavit, have been sealed.

Prosecutors are expected to lay out some of the evidence against Peterson at the preliminary hearing, scheduled for Sept. 9. The defense also will have an opportunity to call witnesses and present evidence.

At the hearing's close, Judge Al Girolami will decide if there is enough evidence to proceed to trial.

According to the defense brief, the "exonerating evidence" will "likely" be introduced at the preliminary hearing.

If that information is made public, it will damage the ability to identify the "actual perpetrator" or perpetrators, Geragos wrote.

Some legal observers said it is unlikely that the defense has evidence that would lead the judge to dismiss the charges.

"If you really have evidence that clearly exonerates him, you show that evidence to the prosecution and they drop the case," said Ruth Jones of McGeorge School of Law, a former prosecutor.

"I'm sure they do have evidence that they think leads to someone else," Jones said, "but it's not the open-and-shut-type evidence that makes them go, 'Oh, I'm sorry, we've got the wrong guy.'"

San Francisco Assistant District Attorney James Hammer said the defense move could be an effort to head off a damaging preliminary hearing.

"It sounds to me like the defense is trying to spin what is likely to be in many ways a devastating presentation against Scott Peterson," Hammer said. "If they were so concerned about the prelim showing him to be innocent, they would want it to be public."

The filing was not the first time the defense has sought to present evidence about other suspects behind closed doors.

The defense requested a closed hearing in June before Judge Roger M. Beauchesne to present its argument against unsealing eight search warrants issued before Peterson was arrested.

In ruling that the warrants should be unsealed, Beauchesne wrote: "No evidence on the investigation of 'other suspects' was presented" at that hearing.

The defense has asked the 5th District Court of Appeal in Fresno to reverse Beauchesne's decision, saying in its request that the judge's ruling contained "misstatements highly prejudicial to Mr. Peterson."

The warrants remain sealed pending that court's decision.

Rights threatened, defense says

In the paperwork filed Tuesday, the defense contends that besides compromising new evidence, an open preliminary hearing would jeopardize Peterson's right to a fair trial.

Geragos -- referring to Giro-lami's earlier ruling imposing the gag order -- said "unprecedented" media attention could allow information to be widely disseminated among potential jurors.

He also cited Brazelton's comment to The Bee that the preliminary hearing might "open some eyes" as an indication that prosecutors could put on "bogus" evidence at the preliminary hearing.

But none of the defense concerns requires closing the hearing, Jones said.

"There are other remedies," she said, noting that the defense will have the opportunity to object to potentially inadmissable evidence and request that some testimony be presented in chambers.

"The fact that there is a gag order, that's not a bar to an open proceeding," Jones said. "What the gag is trying to do is restrict the discussion to legitimate evidence. That's what gets presented at a prelim."

Jones also said that open court proceedings are an integral part of the legal system.

Prosecutors are opposed to allowing cameras in the courtroom for the hearing, saying the glare of the media spotlight could intimidate witnesses and turn them into potential targets.

Attorney Gloria Allred, who is representing potential prosecution witness Amber Frey, filed a brief Tuesday saying Frey objects to live televised coverage of her testimony at the preliminary hearing.

Frey told police she had an affair with Peterson, not knowing he was married.

Laci Peterson's mother and stepfather, Sharon Rocha and Ron Grantski, previously wrote Girolami opposing cameras in court.

"We can only hope that we will not be forced to relive the ugliness of the trial and forced to endure the relentless hour-after-hour, day-after-day, play-by-play broadcasts on television," they wrote.

Girolami is slated to hear arguments Aug. 14 on how to proceed.

Bee staff writer John Coté can be reached at 578-2394 or

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