Parents may not attend hearing

08/17/2003 7:05 AM

11/19/2007 1:40 PM

Subpoena power can order you to come to court, and the same power can keep you out.

That is the situation that Scott Peterson's parents find themselves in just over three weeks from the scheduled start of their son's preliminary hearing on murder charges.

Thursday, when Lee and Jackie Peterson went to Stanislaus County Superior Court for another hearing in their son's case, the district attorney's office served both with subpoenas, advising the Petersons that they might be called as witnesses for the preliminary hearing.

Often, lawyers ask judges -- and judges usually agree -- to bar potential witnesses from the courtroom, except when testifying, so that their testimony cannot tainted by what other witnesses say.

Peterson's preliminary hearing is scheduled for Sept. 9. The purpose is to let Judge Al Giro- lami decide whether there is enough evidence to order a trial.

Peterson, a 30-year-old fertil-izer salesman from Modesto, is charged with two counts of murder in the deaths of his wife, Laci, 27, and the couple's unborn son, Conner.

Lee Peterson characterized the subpoenas as an attempt by prosecutors and police to prevent him and his wife from defending their son in comments to the media.

"They don't like us saying our son is innocent," Lee Peterson said Thursday outside the courthouse. "Is this still the United States? It's still the United States, isn't it?"

A gag order put in place by the judge prevents potential wit-nesses, attorneys and others from speaking publicly about evidence and other key issues.

But the subpoenas also present the likelihood of keeping the Petersons out of the courtroom when prosecutors unveil closely guarded evidence against their son.

In criminal cases, it is standard practice at hearings and trials for an attorney from either side to ask a judge to exclude witnesses from the proceedings, legal observers said. Those motions are routinely granted. Such a move prevents witnesses from changing their testimony after hearing what other wit-nesses say.

"It's standard that (a motion to exclude witnesses) is made; it's also standard that it's granted," said Professor George Bisharat, a specialist in criminal procedure at Hastings College of the Law in San Francisco.

"The likelihood is that (Peterson's parents) would be ex-cluded from attending the hearing and they would likely be admonished not to discuss their testimony with any other witness," Bisharat said. "That would mean the husband and wife, technically, would not be able to discuss each other's testimony between the two of them."

There are exceptions

Exceptions can be granted, with potential witnesses allowed to remain in court, observers said. Also, after witnesses give their testimony, the party that subpoenaed them can excuse them from the subpoenas, allowing the witnesses to stay for the rest of the proceeding.

While state law grants a privilege that prevents spouses from being compelled to testify against one another, no such privilege exists for parent and child. Refusing to testify can result in witnesses being jailed for contempt of court.

Because so little is known about the prosecution's case, it is impossible to tell why Peterson's parents might be called to testify, Bisharat said. He suggested that they could be asked to provide information about their son's whereabouts and emotional state.

He was arrested near Torrey Pines Golf Course in La Jolla on April 18, nearly four months after his pregnant wife was reported missing.

His parents live about 12 miles north in Solana Beach, also in San Diego County.

Prosecution and defense attorneys often cast a wide net with subpoenas, because hearings and trials are inherently unpredictable, Bisharat said.

Calls to the district attorney's office seeking comment for this story were not returned.

It was unclear whether any members of Laci Peterson's fam-ily might be called as witnesses at the preliminary hearing.

Her mother, Sharon Rocha, appears to have been the last known person to speak with her daughter besides Scott Peterson before she was reported missing Christmas Eve.

She might not necessarily be called to the witness stand. In preliminary hearings, state law allows investigators to testify in place of people whom they have interviewed.

Police have said that Rocha talked with her daughter by phone until about 8:30 p.m. on Dec. 23.

Rocha could not be reached for comment.

Lee Peterson suggested outside the courthouse that the subpoenas were issued for a purpose other than to produce testimony.

"We're not witnesses. There's no way we're witnesses," he said. "They made us a witness with this little green subpoena."

Bisharat said he would be cautious "in imputing bad motives to the prosecutor in this circumstance."

Using subpoenas for purposes other than to elicit testimony would open an attorney to harsh sanctions by a judge, he said.

"That would really be misconduct," Bisharat said. "It would be stupid, honestly."

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

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