Prosecutors defended their use of two wiretaps as they investigated Scott Peterson, saying in court documents filed Wednesday that "agents acted completely properly throughout the course of both wiretaps."
The documents were part of a raft of filings Wednesday ahead of a Friday hearing.
Defense, prosecution, witness and media attorneys filed more than 100 pages of documents in the run-up to a hearing that also will cover intercepted calls between Peterson and journalists and a potential gag order in the case.
Defense attorneys contend that the wiretaps amounted to "grave prosecutorial misconduct" because investigators monitored calls between Peterson and members of his defense team.
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Peterson is accused of murdering his wife, Laci, and their unborn son, Conner. He could face the death penalty if convicted.
The defense wants a judge to consider a range of sanctions, including removing the Stanislaus County district attorney's office from the case, according to documents filed in court Monday.
Investigators intercepted 69 calls between Peterson and Modesto attorney Kirk McAllister. They also intercepted two calls between Peterson and a private investigator working for McAllister.
Investigators said they inadvertently listened to or recorded three of those calls.
Prosecutors said they have not listened to the calls.
One of the calls was monitored for 18 seconds, another consisted of the investigator informing Peterson that the media were outside his home, according to documents filed Wednesday.
"Over the course of approximately 30 days, through the conduct of two wiretaps and 3,858 intercepted phone calls, the defense can only argue over three," prosecutor Rick Distaso wrote in Wednesday's filings. "That fact alone should tell the court that the agents acted completely properly through the course of both wiretaps."
The original recordings are being kept under seal by the court. An investigator with the district attorney's office who supervised the wiretaps also has a copy, court documents show.
Lead defense attorney Mark Geragos argues that calls between Peterson and his defense team are "clearly and totally privileged under the law."
Prosecutors contend that the only "appropriate remedy" is to not allow the three calls to be entered into evidence. And the prosecution does not intend to introduce any evidence from those calls, according to the documents.
Prosecutors do, however, assert that conversations between reporters and Peterson could be introduced as evidence in the case, other documents filed Wednesday show.
Twenty-two journalists, including four from The Bee, have asked to review their calls monitored during the wiretaps, court documents show.
Twenty of those journalists have requested that the calls be withheld from prosecutors, saying they are privileged communication protected by state and federal law.
Prosecutors said they do not oppose allowing journalists to listen to their own calls, but said the calls are "legally seized evidence" that could be introduced at trial.
Prosecutors also came out in favor of a "limited" gag order in the case, a move opposed by defense attorneys as well as lawyers for the the media and Fresno massage therapist Amber Frey.
Judge Al Girolami indicated that he is considering imposing a gag order in the case, which has drawn intense media interest and seen sealed information leaked to the media.
Prosecutors said they favor an order that extends the professional responsibility rules that govern attorneys to investigators and "others working on the case."
The rules forbid attorneys from making public statements that have a "substantial likelihood of materially prejudicing" a legal proceeding.
Peterson's attorneys argued stridently against a gag order in court documents filed Wednesday. They said a gag order would:
Attorney Gloria Allred, who is representing Frey, also filed documents opposing a gag order in the case.
Frey has acknowledged a relationship with Peterson, saying she didn't know he was married.
She also could be a key prosecution witness. Police said Frey cooperated with their investigation, and court documents show that officers monitored a call between her and Peterson almost a month after Laci Peterson was reported missing.
"She has a right to free speech," Allred said. "That has to be balanced against his right to a fair trial -- but she doesn't present a danger to that. She has demonstrated that by her conduct."
Allred noted Frey's consistent refusal to speak with the media, except for two brief press conferences. In the first, she revealed the affair with Scott Peterson. The second was called to announce that Frey had hired Allred.
Jury consultant Jo-Ellan Dimitrius said a gag order might not stem the flow of information -- and misinformation.
"If anything, it could make it more pronounced," said Dimitrius, who has worked on the trials of O.J. Simpson and Rodney King.
"Leaks are still going to be there; information is still going to come out," she said."I've heard these conversations. Someone says, 'It would be nice if that information got out there, but I don't want to hear how.' And I've heard it from both prosecutors and defense attorneys."