Prosecutors offered Scott Peterson a deal to spare his life within weeks of his wife's disappearance -- if he led them to her body, they would not seek the death penalty against him.
"Mr. Peterson, of course, did not accept the offer because he is factually innocent and did not know the location of his wife," attorney Mark Ger-agos wrote in a motion filed late Tuesday in Stanislaus County Superior Court.
The offer is one element in a range of legal issues raised in a 20-page defense motion to prevent wiretap evidence from being presented at Peterson's trial.
Prosecutors allegedly made the offer within weeks of Laci Peterson's disappearance, when police were publicly refusing to name her husband as a suspect or to rule him out. Peterson was not charged until April.
"The prosecution was so intent on moving forward with a death penalty case that an offer was made to Mr. Peterson through his lawyer in Jan-uary in which the prosecution indi-cated it would not seek the death penalty if Mr. Peterson would provide the location of Laci Peterson's body," read documents filed late Tuesday by Geragos and fellow defense attorney Kirk McAllister.
Black lines were drawn through much of the documents, which appear to quote extensively from affidavits by Steve Jacobson, the district attorney's investigator who supervised the wiretaps.
The affidavits outline investigators' reasons for seeking the wiretaps, and they have been sealed along with the bulk of the police documents.
Prosecutors could not be reached for comment. They are under a court-imposed gag order forbidding them to discuss the investigation.
Peterson, a 30-year-old fertilizer salesman, is charged with murder in the deaths of his wife and the couple's unborn son, Conner. He could receive the death penalty if convicted on both counts.
Laci Peterson, 27, was almost eight months pregnant when she was reported missing Christmas Eve.
Her body and that of her unborn son were found in April along the east shore of San Francisco Bay, within four miles of the spot where Scott Peterson said he launched his boat Dec. 24 for a solo fishing trip.
Peterson was arrested near Torrey Pines Golf Course in La Jolla on April 18, the day DNA testing identified the bodies.
Defense plots its strategy
The defense contends that the January offer was an indication prosecutors "treated this as a death penalty case virtually from the moment of Laci Peterson's disappearance."
State laws require a court reporter to be present during all proceedings in a death penalty case so the record is preserved for appeal.
But a court reporter was not present when prosecutors and a defense investigator asked Judge Wray Ladine to approve the wiretaps or during subsequent meetings about their progress, court documents show.
Prosecutors maintain that it was not necessary to have a court reporter because a case does not start until a criminal complaint is filed or a grand jury is convened. Neither of those had happened when the wiretap meetings took place.
Mill Valley attorney Eric Multhaup, an appellate specialist who handles capital murder
cases, called the defense argument "plausible" but untried.
"There's always going to be some number of arguments that makes the case law to support it, so this might be one," Multhaup said.
Prosecutors maintain that they strictly followed state and federal law while operating two wiretaps on Peterson's phone that captured thousands of calls.
Earlier this week, the defense took aim at the state law prosecutors relied on, saying it violates the state constitution because it allowed investigators to listen to parts of calls between Peterson and his attorney.
California statute identifies certain communications, such as between a person and a priest or an attorney, as privileged.
In the motion filed Tuesday, the defense contends that the law prosecutors relied on also violated Peterson's federal constitutional right to due process.
Raising the federal issue opens the door for a potential appeal in federal court if Peterson is convicted and his appeals in state court are exhausted, said Diane Amann, professor of constitutional law and criminal procedure at the University of California at Davis.
"If one invokes federal law, in particular federal constitutional law, then there is still room for review before federal courts," she said.
Attempt to 'tickle' Peterson?
But the death penalty offer may be the most intriguing element in the documents, some observers said.
"If this is true, I've never heard of case where prosecutors offered a plea deal to a suspect before he's even been arrested or charged," Assistant San Francisco District Attorney James Hammer said. "Usually before any plea agreement is done, it suggests an investigation is
pretty well complete. And then it's unusual that he would be allowed to walk free for three months."
But in this case, Hammer said, prosecutors could have made the offer to induce Peterson into making damaging statements that would be picked up on the wiretaps.
"(Prosecutors) are going to dangle the death penalty and see if he gets scared enough to say stupid things," Hammer said. "It's called tickling."
Girolami is to hear arguments about the wiretaps Sept. 9, the date set for Peterson's preliminary hearing.
Bee staff writer John Coté can be reached at 578-2394 or firstname.lastname@example.org.