Gag order stays put

06/27/2003 8:50 AM

11/20/2007 6:41 AM

A judge refused to lift a controversial gag order Thursday, saying it will help ensure a fair trial for Scott Peterson, who is charged with murdering his wife and unborn son.

Stanislaus County Superior Court Judge Al Girolami also said attorney Gloria Allred did not flout the court's authority by appearing on a television news show shortly after he issued the order two weeks ago.

But District Attorney James Brazelton, who talked to The Bee about the case last week, didn't get off so easily.

The judge agreed to hold a hearing to determine if the county's top lawyer should be held in contempt of court, as defense attorney Mark Geragos suggested, but said he would only do so after the trial has concluded.

"My intent is to bind those that are directly involved in this case," Girolami said.

Peterson, 30, is facing the death penalty; his case has been the subject of intense media scrutiny.

Laci Peterson, who was eight months pregnant and planned to name her baby boy Conner, was reported missing Christmas Eve.

The bodies of mother and fetus washed up along San Francisco Bay in mid-April. Police arrested Scott Peterson a few days later and he has been held without bail.

In other key decisions, Girolami:

Agreed to delay a preliminary hearing until Sept. 9.

Closely guarded evidence is expected to be revealed at that hearing, which previously was scheduled for July 16.

Scheduled an Aug. 14 hearing to consider possible restrictions on media coverage of the preliminary hearing. Geragos said he might request a closed proceeding, and prosecutors and Laci Peterson's family filed court papers asking the judge to bar newspaper and TV cameras.

Turned over to the defense team recordings of 176 addi-tional telephone calls inter-cepted by authorities when they tapped Scott Peterson's telephone. Authorities last week revealed they had recorded the calls without realizing it and said they had just discovered the error. They previously turned over 71 taped calls to the defense.

Refused to unseal a search warrant issued after Peterson's arrest.

Waives right to speedy trial

Peterson, dressed in a tan suit, white shirt and tie, spoke briefly at one point to waive his right to a speedy trial. He acknowledged his lawyers' need to study evidence that unidentified agencies have yet to provide the defense team.

"It is not my wish (to delay the preliminary hearing)," Peterson said in a clear voice, "but yes."

In addition to sharing evidence, lead prosecutor Rick Distaso said a "critical witness" for the prosecution would not be available for the previously scheduled July court date.

Girolami declared that the Sept. 9 date for the preliminary hearing is "set in stone."

Geragos had asked the court to sanction Allred and Brazelton, and to lift the gag order, saying it leaves the defense team powerless to counter negative comments about his client.

Attorneys for The Bee and other news agencies also asked the court to lift the order, saying reporting would continue anyway but could be limited to rehashing of old gossip and leaks.

But the judge made it clear at the outset that he had no intention of lifting the gag order.

That left the lawyers to argue over possible modifications. Geragos said he would be satisfied if he could have a "safe harbor" clause that would allow him to respond to correct inaccuracies.

Girolami kept the lid tight. He said people, including potential jurors, would make up their minds about the case before the trial if evidence that led to Peterson's arrest is released.

Before the ruling, Geragos suggested that he could subvert the gag order by following Allred's example.

Allred, a frequent commentator on TV talk shows, represents Amber Frey, who admitted having a relationship with Peterson and is a potential prosecution witness.

Geragos said he could create his own "army of lawyers" who would talk to the media as representatives of key witnesses.

"It's going to be a full employment act for lawyers," he said.

Girolami said his gag order applies to prosecutors, defense attorneys, their investigators and potential witnesses. He said he never intended to apply the order to Allred.

Allred said Geragos was looking for another way to argue against the gag order.

"What he did was try to slime me in order to get a second bite of the apple," she said. "In plain English, I can keep speaking and I will."

Late Thursday afternoon, Geragos responded to Allred's comments, saying, "Her hyperbole is only exceeded by her irrelevance."

Bradley Brunon, a Los Angeles defense attorney who is familiar with Geragos and Allred, said Geragos' threat technically is plausible.

"If someone wants to avoid the impact of a gag order," Brunon said, "using a surrogate with some ostensible connection to the case would be a way to do that. I haven't heard of anybody doing that, but likewise I've never heard of an attorney for a marginal witness taking over the spotlight."

On the hot seat

Brazelton was on the hot seat because he told The Bee he wants to take Scott Peterson's case to a preliminary hearing rather than to a grand jury where he could lay out his evidence behind closed doors.

He said the move is needed because leaks to the media and speculation on TV talk shows force prosecutors to "spend all our time running down this phoney baloney stuff they throw up."

Geragos took issue with the statements, which he interpreted as commentary on the strength of the case, and asked that Brazelton be held in contempt of court.

Birgit Fladager, chief deputy district attorney, said Brazelton had not violated the gag order because he was merely commenting on the process. "Those statements did not discuss evidence or facts in this case," Fladager said.

Also, she said the conversation between a Bee reporter and Brazelton required a correction the next day.

Fladager did not note that the correction stemmed from a story about Modesto Mayor Carmen Sabatino, not the Peterson case.

Mark Vasché, executive editor of The Bee, said the newspaper stands by its story.

"We reviewed the situation, and determined that the district attorney was not misquoted, nor were his statements taken out of context," Vasché said. "He said what he said and that is what we reported."

Geragos said he might seek to tie Brazelton's comments to his concerns about a wiretap investigation.

The defense has alleged "grave prosecutorial misconduct" in the interception of 71 phone calls, because three calls between Scott Peterson and his attorney were recorded.

Police are supposed to turn off the tape during such conversations.

Geragos said he wants to listen to the calls before he decides how to proceed.

Prosecutors agreed to that strategy, and said that they have no idea what is on the recently discovered tapes. "It could be 176 calls of dead air," Distaso said.

Girolami said he might reconsider his decision to hold Brazelton's contempt of court hearing after the trial if Geragos files a motion. If the district attorney were found to be in contempt of court, he said, the stiffest punishment would be a fine.

"We don't need a bunch of side issues generating more publicity," Girolami said.

Bee staff writer Susan Herendeen can be reached at 578-2338 or sherendeen@modbee.com.

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


THE PETERSON FILE

Thursday's developments

HEARING DELAYED -- Stanislaus County Superior Court Judge Al Girolami postponed Scott Peterson's preliminary hearing until 9:30 a.m. Sept. 9.

NO CONTEMPT -- Girolami refused to cite attorney Gloria Allred for contempt of court. Peterson defense attorney Mark Geragos claimed Allred violated Girolami's gag order. Allred is witness Amber Frey's attorney.

SIMILAR HOMICIDE CASE -- Modesto police were notified of a Nevada homicide that has some similarities to Laci Peterson's death.

Upcoming

AUG. 14 -- Hearing set on media coverage of the preliminary hearing and any potential defense request to close that hearing.

SEPT. 9 -- Preliminary hearing scheduled.

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