Scott Peterson's attorneys on Tuesday took the extraordinary step of serving a Stanislaus County Superior Court judge with a subpoena, seeking testimony about wiretaps used in the investigation of Laci Peterson's death.
Court Executive Officer Mike Tozzi said he accepted the subpoena on Judge Wray Ladine's behalf, then gave Ladine a copy. The judge likely will rely on legal advice from the state Administrative Office of the Courts, Tozzi said.
With Ladine's approval, authorities secretly intercepted the calls of the slain woman's husband, Scott Peterson, from Jan. 10 to April 18, when he was arrested in the deaths of his wife and unborn son. He faces the death penalty if convicted and has pleaded not guilty.
Peterson's attorneys want Ladine to testify about meetings with a prosecutor and an investigator, co-defense counsel Kirk McAllister said.
The meetings took place every three days as authorities monitored the phone calls, according to prosecution documents.
Defense attorneys were left with little choice but to sub-poena Ladine because a court reporter was not present at the conferences, McAllister said.
State laws require a court reporter to be present during all proceedings in a death penalty case so the record is preserved for appeal.
Prosecutors maintain that a case does not start until a criminal complaint is filed or a grand jury is convened. Neither of those had happened when the wiretap meetings took place.
Defense attorneys contend, though, that a court reporter should have been present during the meetings.
"In the spirit of the law, if not the letter, it seems consistent," McAllister said. "Everybody knew that at the conclusion this was going to be a death penalty investigation."
Ladine indicated at a Jan. 17 meeting that he was not comfortable with investigators spot-checking some calls between Peterson and his attorney, according to an affidavit filed by Steve Jacobson, the investigator who supervised the wiretaps.
Defense attorneys contend that prosecutors acted improp-erly when they monitored a call between Peterson and a private investigator and portions of two conversations between Peterson and McAllister.
Prosecutors said the three calls were recorded inadvert-ently. They maintain that investigators followed state and fed- eral law.
Judge Al Girolami, who is presiding over the criminal case against Peterson, has scheduled a June 26 hearing on the issue.
Lead defense counsel Mark Geragos said he wants to question Jacobson and prosecutor Rick Distaso under oath about the wiretaps.
The subpoena is not a public document until it is introduced into evidence at a future proceeding, Tozzi said.
State office now used
Although the Stanislaus county counsel's office used to represent judges caught up in legal wrangling, local courts about a year ago made a change in favor of using the state Administrative Office of the Courts, County Counsel Mick Krausnick said.
The Administrative Office of the Courts "will work with me providing legal representation to Judge Ladine," Tozzi said.
San Francisco Assistant District Attorney James Hammer, who has experience issuing subpoenas to judges, said the judge hearing the primary case often decides that another judge's testimony is not relevant to the central issue.
Hammer said seeking a wiretap is similar to seeking a search warrant: Investigators submit an affidavit laying out probable cause and then the judge approves it or not.
"You look at the paper, and say, 'In this piece of paper is there probable cause and did they follow this piece of paper and execute it?'" Hammer said. "When you think about that, it's irrelevant what the judge was thinking."
Other experts said that judges aren't served subpoenas every day.
Ruth Jones, a former prosecutor and criminal law professor at McGeorge School of Law in Sacramento: "It's very unusual."
Stephen Lubet of the Northwestern University School of Law in Chicago: "That's extremely unusual -- and very aggressive."
Tozzi said judges have received subpoenas "once or twice" in his 20 years at the helm of local courts.
Jones and Lubet agreed that pulling the district attorney's office off the case would be extraordinary -- even if the judge determines that authorities mishandled the wiretap issue. A more likely solution would be to quash, or exclude, whatever evidence might exist in the recordings.
The fact that McAllister took the unusual step of demanding to question a judge might be telling, Lubet said. "Someone might intimate that the defense is worried about the product of the wiretaps," Lubet speculated.
Jockeying for position
Jones is more inclined to believe that the defense camp is simply trying to gain any advantage, however slight.
"Both sides are posturing at this stage," she said.
Rory Little, a professor at Hastings College of the Law in San Francisco and a former federal prosecutor, said the subpoena is part of a larger defense strategy to influence public opinion.
"It's clear that they're trying to create the public perception that there has been some sort of governmental misconduct here," Little said.
Little characterized the move as an attempt to rehabilitate Scott Peterson's image by manipulating media coverage.
"It's a battle to try and even the score, to try and get Scott Peterson back up to a neutral position in the minds of the public," he said. "I think it was unfair the government leaked so much information in the beginning. But none of this governmental conduct goes to the issue of who killed Laci Peterson."
Bee staff writer John Coté can be reached at 578-2330 or email@example.com.
Bee staff writer Garth Stapley can be reached at 578-2390 or firstname.lastname@example.org.
THE PETERSON FILE
SUBPOENA SERVED -- Defense attorneys serve Stanislaus County Superior Court Judge Wray Ladine with a subpoena, seeking testimony about wiretaps used in the investigation of Laci Peterson's death.
JULY 9 -- Hearing is set on media coverage of the preliminary hearing and any potential defense request to close that hearing.
JULY 16 -- Preliminary hearing is scheduled.
LACI PETERSON TRIBUTE SONGS