Defense broaches sighting at park

11/15/2003 11:00 AM

11/19/2007 2:21 PM

Scott Peterson's defense attorney raised the prospect Friday that Conner Peterson was born alive. The attorney, Mark Geragos, also questioned a detective about witnesses who reportedly saw suspicious men in Dry Creek Regional Park the day Laci Peterson was reported missing.

The defense contentions emerged in day 10 of Peterson's preliminary hearing on double-murder charges; testimony also raised questions about a single hair found attached to pliers in Peterson's fishing boat and about red paint scuffs on the boat.

The day was capped by the unlikely possibility that Geragos would subpoena Fresno massage therapist Amber Frey to tes-tify at the preliminary hearing.

Frey, who was Peterson's girlfriend when his wife disappeared and who taped his phone calls for police, is widely considered a key prosecution witness.

"Mr. Geragos has indicated to me that a final determination has not been made," Frey's attorney, Gloria Allred, said outside Stanislaus County Superior Court at the close of Friday's proceedings.

Geragos' ambiguous answer to Allred could simply be legal gamesmanship. The two have sparred repeat- edly in court and in comments to the media.

The defense only could call Frey as a witness if attorneys can demonstrate to Judge Al Girolami that her testi- mony could help the defense, legal observers said.

Geragos has subpoenaed Frey's phone records, Allred said Friday, suggesting that the move could be an attempt to harass her client.

The suggestion Friday that Laci Peterson's baby was born alive could provide insight into the line of questioning the defense will pursue if prosecutors call the medical examiner who performed the autopsy when the preliminary hearing resumes Monday.

Laci Peterson was about 32 weeks pregnant when she last was examined by an obstetrician on Dec. 23 -- the day before she was reported missing. Authorities have said they believe her husband killed her that night or the next morning.

Geragos used phrases such as "full-term infant" and "speculation that the baby was 38 to 39 weeks old" while questioning Mo- desto police Detective Phil Owen, who interviewed Laci Peterson's doctors and attended two autopsies of her remains.

Geragos called Owen as a defense witness to question him about the witnesses who reported seeing at least two suspicious men in Dry Creek Regional Park the morning of Dec. 24, the day Laci Peterson was reported missing.

Scott Peterson told police his wife was preparing to walk their golden retriever, McKenzie, in the park when he left that morning to go fishing in San Francisco Bay. Detective Al Brocchini testified earlier that Scott Peterson said his wife was mopping when he left about 9:30 a.m.

Peterson, 31, is charged with murdering his wife and their unborn son. Prosecutors are seeking the death penalty.

Their remains were found in April along the bay's eastern shore, a few miles from the spot were Peterson said he went fishing Dec. 24.

Owen acknowledged that he interviewed three people Dec. 27 with stories that Geragos said could "negate an element of the crime."

John and Karma Souza told the detective they saw a suspicious man in a puffy jacket and blue jeans who "popped out of bushes" as they jogged on a trail in East La Loma Park early that morning.

About 10:45 a.m. Dec. 24, Diana Campos, an employee of a nearby hospital, saw a pregnant woman walking a golden retriever with two men along a path in the park, Owen said. Campos described the woman as six to seven months pregnant with straight, shoulder-length hair, and the men as extremely dirty.

Campos told Owen one of the men used an expletive when telling the woman to quiet the dog, Owen testified.

Campos saw a flier on Dec. 26 about Laci Peterson's disappearance and called police the next day. "She said to herself, 'I know that girl,' and realized it was the same subject she saw walking through the park," Geragos said.

Owen agreed, but said he thought the witness had seen media reports on the disappearance. "I felt she was giving me information that was not going in the right direction," he testified.

The alleged sighting could be crucial because Scott Peterson came under tight police surveillance after Christmas Eve.

But the timeline didn't square with testimony from neighbor Karen Servas, who said she found McKenzie standing in the middle of the street with a dirty leash at 10:18 a.m. Dec. 24.

Geragos suggested that Campos initially told Owen the sighting was at 9:45 a.m., but after checking an audiotape of the interview during a break in court proceedings, Owen said Campos twice said it was 10:45 a.m.

Owen acknowledged having scraped paint from a red buoy in the bay to compare with red paint that showed up on the trim of Peterson's 14-foot aluminum fishing boat. Geragos argued that police theorized that the defendant tied his boat to the buoy to keep it from capsizing when he dumped his wife's body -- but the paint samples didn't match.

Owen said he was not sure whether the samples matched.

Geragos also suggested that the paint transfer may have occurred when police bumped the boat against a red dolly when removing it from Peterson's warehouse or a red object at the police storage area that wasn't described.

"Did you ever consider that it was Modesto police that cause the paint transfer?" Geragos asked.

Owen said he wasn't aware there was a red dolly at the warehouse.

The defense also attacked the prosecution's explanation that a single hair found attached to pliers in Scott Peterson's boat broke apart in an evidence envelope.

Two fragments that prosecutors contend came from a single hair are different shades of brown, said Rodney Oswalt, a criminalist at the state Department of Justice who examined the hair fragments.

Oswalt also said he never indicated in any of his reports that the "mashed or splayed" ends of the two hair fragments matched.

The pliers appeared rusted when examined at the Justice lab in Ripon, and there was no indication they had been used recently, according to sections of a lab report read in court Friday.

Oswalt also said tools can rust quickly if exposed to salt water, and the items hadn't been examined until February.

The hair is potentially key physical evidence that could link Laci Peterson to her husband's fishing boat.

Peterson's defense attorneys are trying to get the hair fragments excluded from court, arguing that the chain of custody was broken and that a DNA test performed on the hair is unreliable.

Girolami heard arguments on the disputed DNA technique late Friday and indicated that he was leaning toward allowing the evidence. He could issue a ruling on that matter Monday.

The DNA test showed the hair could not have come from Scott Peterson, but may have come from his wife, Laci Peterson, FBI expert Constance L. Fisher testified earlier.

Prosecutors maintain that the hair was not mishandled, and that a single strand, roughly 6 inches in length, found in the pliers simply broke in an evidence envelope.

When the evidence arrived at the Ripon lab, there were two hair fragments, one 4 3/8 inches, the other 1 5/8 inches, Oswalt said.

He called it "entirely possible" the damage at one end of each hair could have been caused after being clamped in pliers and then breaking later.

He also said both hair fragments "could" have come from the same source as hair found in Laci Peterson's hairbrush.

There was some type of "vegetative mater-ial" attached to the long fragment, and an undetermined "translucent material" attached to the shorter fragment, Oswalt said.

Geragos suggested that prosecutors are now contending that the one hair broke because he filed a motion saying the hair was mishandled while in police possession.

He also raised questions about how the hair got into the boat, saying a police ca- daver dog placed in the boat Dec. 27 could have transferred the hair after coming from the Petersons' Covena Avenue home.

Bee staff writer John Coté can be reached at 578-2394 or jcote@modbee.com.

Bee staff writer Garth Stapley can be reached at 578-2390 or gstapley@modbee.com.

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