Authorities admitted in court documents Wednesday that they may have unknowingly recorded portions of up to 176 more telephone calls to and from Scott Peterson.
Already under fire for recording portions of three calls between Peterson and his defense team, and now unsure what the new recordings might contain, investigators asked for a Stanislaus County Superior Court judge's guidance on what to do next.
The recordings, on two compact discs, are locked away in the meantime.
Two prominent attorneys recognized as wiretap experts said the startling discovery could pose big problems for prosecutors if they want to use wiretap evidence in the murder case. Peterson is charged in the slayings of his wife, Laci, and their unborn son, Conner, and could get the death penalty if found guilty.
"The defense is going to have a field day with this," said Raymond Perini, a veteran New York attorney who monitored dozens of wiretaps as a Long Island prosecutor.
Lead defense attorney Mark Geragos previously alleged "grave prosecutorial misconduct" in the interception of parts of 71 calls between Peterson and his defense team. Prosecutors claim that they inadvertently recorded portions of three of those calls, and shut off the recording as soon as they realized the nature of the calls.
According to court documents, wiretap expert Kevin Clements of Lincoln, Neb., discovered the new recordings Friday while helping an investigator "with some technical problems."
"It's a complex business," Clements said Wednesday evening in a telephone interview. Asked if authorities elsewhere have overlooked conversations recorded by wiretaps, he said, "I wouldn't say it's necessarily unique to this case. I can't cite cases for you, but it's not an uncommon thing."
Clements declined to comment further, citing a gag order in the high-profile Peterson case.
The wiretap problem arose from a "peculiarity" in AT&T Wireless technology, Clements wrote in one of the court documents. The apparent defect allows recording of calls without notifying agents who are doing the monitoring, Clements explained.
The 176 phone calls were captured in "audio buffers," Clements wrote, before Peterson's arrest.
The discovery came as Clements assisted lead wiretap investigator Steve Jacobson in determining whether Jacobson had complied with a court order on handing over other Peterson recordings. Judge Al Girolami ordered copies for attorneys on both sides.
Because the overlooked recordings might have captured only dial tones or "off-hook dead air," Clements and Jacobson listened to about 10 seconds of one randomly selected call, Jacobson wrote. They heard Peterson talking with "a person with a Southern drawl" in what appeared to be a business call, Jacobson wrote.
Peterson was a fertilizer salesman before his arrest April 18.
"Pertinent, nonpertinent and privileged information might be contained on some of the calls," District Attorney James Brazelton wrote in a request for guidance from the court.
Bradley Brunon, a Los Angeles criminal defense attorney, commented: "It's kind of hard to understand how they could not know they were intercepting the calls.
"On the surface, it seems like a significant problem," said Brunon, who has defended wiretap targets.
Judges who issue secret warrants for wiretaps lay out guidelines that agents must strictly follow, Brunon and Perini explained. When they intercept "privileged" calls between the subject and his attorney, for example, they must "minimize" the recording, or turn it off.
"Failure to minimize can be a fatal defect," said Perini, who is preparing unrelated litigation on digitized wiretap technology. In other words, he said, a judge can throw out parts of or all evidence gathered from eavesdropping.
In regard to the 176 new calls, if investigators did not know that the calls had been intercepted, then authorities could not have minimized the calls.
"If they're not (minimizing), they're not doing the basic task ordered by the court," Brunon agreed.
"The whole scheme is designed to have several layers of safeguards," Brunon continued, "and presupposes that you have a system that works. If a penalty is to be paid, you would suspect it would be on those using the technology and not those subject to it."
Authorities did the right thing by rushing to a judge for direction, Perini said. A "good-faith exception" in federal wiretap laws could apply if authorities can show that the error was inadvertent, Perini said.
Frey's lawyer resists motion over gag order
In another development Wednesday, attorney Gloria Allred vehemently resisted a motion that she be held in contempt of court for an alleged violation of the gag order.
Allred represents potential witness Amber Frey, who has acknowledged having an affair with Peterson in the weeks before his wife disappeared.
Last Friday, Geragos asked Judge Girolami to punish Allred for speaking on television about the gag order.
Allred countered in Wednesday's filing that she does not fall under the gag order because it addresses only prosecution and defense attorneys, law enforcement and potential witnesses.
Allred argued that Geragos had violated the spirit of the gag order by accusing her of ignoring it. He did so, she charged, "by filing a hopeless motion which itself has drummed up massive media attention."
Geragos' motion, she wrote, "is a transparent effort to drum up pretrial publicity with the goal of somehow discrediting Amber Frey" through an attack on Allred.
Geragos "knew that his ability to court media attention to his theories had just been cut off," Allred wrote, so he asked a judge to punish Allred simply to "cause a swarm of media attention."
Bee staff writer Garth Stapley can be reached at 578-2390 or firstname.lastname@example.org.