One of Scott Peterson's attorneys said Monday that he has subpoenaed a Superior Court judge to get information about wiretaps used by investigators probing the disappearance of Laci Peterson.
The move comes after it was revealed Friday that no court reporter was present during meetings between Judge Wray Ladine, a prosecutor and an investigator about the wiretaps.
"I don't know how else you get that information other than doing it this way," defense attorney Kirk McAllister said.
District Attorney James Brazelton is seeking the death penalty against Peterson, 30, for allegedly killing his wife and unborn son, Conner.
The absence of a court reporter at the meetings also raises legal questions about the wiretaps, several defense attorneys not affiliated with the case said.
Senior deputy district attorneys Dave Harris and Rick Distaso, who are prosecuting Peterson, were involved in a previous death penalty case where the indictment was thrown out by an appeals court because no court reporter was present during a grand jury hearing.
They say this issue is different.
State law requires a court reporter to be present during all court proceedings in capital cases. Prosecutors contend the law applies only to proceedings that take place after a criminal complaint is filed or a grand jury is convened for an indictment. That hadn't occurred when the wiretap meetings took place.
McAllister said he issued the subpoena Monday and that it likely would be served today.
Defense attorneys also have asked to question Distaso and the lead wiretap investigator, Steve Jacobson.
Ladine, contacted by phone Monday night, said he was unaware of a subpoena and forbidden by judicial rules from commenting.
Peterson was arrested April 18. He has pleaded not guilty, and the defense has vowed to find the "real killers."
Lead defense attorney Mark Geragos is alleging that the Stanislaus County district attorney's office engaged in "grave prosecutorial misconduct" after authorities intercepted 71 calls between Peterson and McAllister or his investigator.
The defense might seek to have the district attorney's office removed from the case over the wiretap issue, according to documents they filed in court.
Prosecutors maintain that investigators listened to less than two minutes of total calls and that the wiretaps were consistent with state and federal law.
The wiretap meetings among the judge, prosecutor and investigator took place every three days during the first wiretap, which ran from Jan. 10 to Feb. 4, according to prosecution documents.
Ladine indicated at a Jan. 17 meeting that some of the techniques used in the wiretaps were "inappropriate" and "could cause problems," according to an affidavit filed by Jacobson.
"Judge Ladine was concerned about the district attorneys' office using a wiretap to obtain statements from a suspect who had counsel and had already expressed to police that he didn't wish to make any statements," Jacobson wrote.
At the meeting, Ladine instructed investigators to halt spot checks of calls between Peterson and his attorney.
State law allows for 30-second spot checks of privileged communications, but defense attorneys maintain that attorney-client calls are "totally privileged under the law."
Several defense attorneys said the absence of a court reporter raises serious legal questions about the wiretaps, while prosecutors maintain there was no impropriety.
California law requires that in any death penalty case "all proceedings conducted in the Superior Court, including all conferences and proceedings, whether in open court, in conference in the courtroom, or in chambers, shall be conducted on the record with a court reporter present."
The reason, according to a July 2002 decision from the Fifth District Court of Appeal in Fresno, is because "the death penalty is qualitatively different, even when compared to a life sentence."
The court threw out the indictment against Terry Dale Dustin of Gustine because Distaso had instructed the court reporter to leave during part of the grand jury proceeding. Distaso and Dave Harris also handled Dustin's grand jury indictment.
Prosecutors had initially sought the death penalty against Dustin for the 1999 stabbing death of Santiago Garcia of Gustine, who was killed in southwestern Stanislaus County. Dustin pleaded guilty last month to second-degree murder and first-degree burglary, court records show. He is scheduled to be sentenced later this month.
Martha Carlton, the deputy public defender who represented Dustin, said the appeals court ruling in Dustin applies to the wiretap conferences in the Peterson case.
"Once you do decide you're going to proceed criminally, anything you did before has to be recorded," Carlton said. "Especially after Dustin, in an abundance of caution, I would have brought a court reporter in.
"When you decide to ride on the cutting edge, sometimes you get cut," Carlton added.
But prosecutors in Stanislaus County and elsewhere said the court reporter question was not an issue.
The argument is simply a defense tactic, Assistant San Francisco District Attorney James Hammer said.
"By implication, that would mean that a court reporter would have had to have been there (when police requested) search warrants," Hammer said.
Bee staff writer John Coté can be reached at 578-2394 or email@example.com