Peterson: Preliminary Trial

August 29, 2003

Peterson case foes back off charges

Prosecutors and defense attorneys agreed to drop allegations against each other that they violated the gag order imposed in Scott Peterson's double murder case, court documents filed Thursday show.

The allegations stem from two articles that appeared in The Bee after Judge Al Girolami in June muzzled attorneys, witnesses and others connected to the case.

The defense and prosecution agreed to drop the dueling allegations "without admitting any violation occurred in order to allow each side to focus on their preparations for the case," said an agreement signed by lead defense attorney Mark Geragos and Chief Deputy District Attorney Birgit Fladager.

Under the deal, each side reserves the right to bring future alleged violations before the court.

Girolami accepted the agreement Thursday but reserved the right to pursue the allegations "at any future time," the documents show.

"What the judge is clearly saying there is, 'If you don't clean up your act, you're not going to get a second strike,'" said Terry Francke, general counsel for the California First Amendment Coalition. "'Next time, I'm going to see you in contempt proceedings.'"

Girolami imposed the sweeping order in an effort to curtail massive media attention he feared would taint potential jurors.

Peterson, 30, is accused of murdering his wife, Laci, and the couple's unborn son, Conner, in a case that has been splashed across supermarket tabloids and cable news shows. Prosecutors are seeking the death penalty.

Peterson's defense had argued that District Attorney James Brazelton violated the gag order a week after Girolami issued it when he told The Bee that he favors a preliminary hearing over a closed grand jury proceeding. The open hearing, Brazelton said, would allow his prosecutors to counter misinformation with evidence that "might open some eyes."

Girolami initiated an inquiry earlier this month into whether Matt Dalton, an attorney in Geragos' Los Angeles-based law firm, violated the gag order when he laid out a defense theory involving alleged Satanists in the presence of two Bee journalists.

Prosecutors then joined the judge's inquiry.

During the incident two weeks ago, Dalton briefed members of the defense team on experiments that purportedly show Laci Peterson's body could have been placed in San Francisco Bay from a peninsula that also contains artwork Dalton described as satanic.

The artists and a ritualist crimes expert said the paintings have no connection to Satanists.

The defense team has floated theories that Laci Peterson, a 27-year-old substitute teacher who was reported missing Christmas Eve, could have been slain in a ritualistic killing by cult members.

Prosecutors contend that Scott Peterson murdered his wife and unborn child and dumped the bodies in San Francisco Bay, where he told police he went fishing Dec. 24.

A Tuesday hearing is set to discuss evidence that likely will be introduced at Peterson's preliminary hearing, slated for Sept. 9.

Preliminary hearings conclude with a judge determining whether there is enough evidence to hold a suspect for trial.

Girolami had planned to hear arguments on the alleged gag order violations at the close of the preliminary hearing.

"The thing that's interesting is how did the judge feel about this (agreement)?" said Ruth Jones, a former prosecutor and criminal law professor at McGeorge School of Law in Sacramento. "The court's issuance of the gag order is an explicit instruction about (attorneys') behavior."

If Girolami finds his order was violated, he could hold either party in contempt and levy sanctions that include a fine or jail time. But that was improbable here, legal observers said.

"It's probably unlikely that the court would proceed unless there is another perceived infraction," Jones said. "If the allegations had perhaps been different, perhaps more serious, they might have been treated differently at the beginning. When these came forward, the judge seemed reluctant to stop the proceedings to address them."

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

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