A Deadly Game

by Catherine Crier

  “Yeah, I know,” McAllister shot back, patting the investigator on the arm. “Well take this message to whoever—Go fuck yourselves.”

  The battle was on.

  CHAPTER EIGHTEEN

  SUMMER 2003

  On May 4, 2003, thousands of friends and family members packed into the First Baptist Church in Modesto to bid farewell to LCI and Conner. Everyone in attendance was fully aware that it would have been Laci’s twenty-eighth birthday. Scott had requested permission to attend. Not surprisingly, he was turned down. The jail arranged to beam the services into his cell.

  As the ceremony proceeded, it was reported that Laci’s accused killer was meeting with his attorney instead of watching the services, although defense sources tried to dismiss this as just another attempt to portray Scott as a heartless killer. In fact, they said, he and his family had their own quiet service inside the jail.

  Scott’s brother, Mark, expressed a desire to attend Laci’s funeral, but was angrily admonished by his father. “We’ll disown you if you do,” Lee Peterson reportedly warned his son.

  Scott was under high security and in isolation because of rumored death threats. Stanislaus County Sheriff’s Department spokesperson Kelly Huston confirmed this on April 21. “Some of the inmates in our facility that have nothing to lose with [the) three strikes [law] in California have made some mention of ‘taking care of him,’” Huston said, venturing that some inmates “would love the notoriety of having done something or have some attachment to this case.” The fact that Scott also was charged as a “baby-killer” increased the chances that he would be the target of violence. In the prison hierarchy, those charged with crimes against children were on the lowest rung. His six-by-nine foot maximum-security cell, outfitted with nothing but a metal bed with a three-inch mattress and a stainless steel sink and toilet, would be his home for many months.

  In June 2003, Amber Frey, her lawyer, Gloria Allred, and Detective Buehler went to the Stanislaus County District Attorney’s office to meet with Deputy District Attorney Dave Harris for the first time. Harris, serving with Rick DiStaso as the trial prosecutors in the Peterson case, first showed Amber a courtroom so that it would seem familiar if she was called to testify at the upcoming preliminary hearing.

  Later in the meeting, Amber gave Buehler a photocopy of a two-page penciled letter from Scott dated April 25, in which he wrote that he would be acquitted of the charges, and that while in custody he would use the time to “do the work of the Lord.” He thanked Amber for leading him to God, and apologized for the fact that she’d become embroiled in such media frenzy. He said that he was looking forward to getting the preliminary “trial” over with, as if he believed that the proceeding would end any suspicion that he’d been involved in Laci’s death. May 4 was Laci’s birthday, and he was asking friends to fly a kite in her memory. He ended the letter by saying that children are “miracles and gifts.”

  Only a few months earlier, Scott had told his devout girlfriend that his failure to attend church could jeopardize their relationship. During their affair, however, Scott had realized how effective a dose of religion could be in manipulating Amber—and he continued to do so from his jail cell.

  Amber also gave Buehler two e-mails from Scott, whose address was now purposelife2003@yahoo.com. She’d received both of them before his arrest, but in hindsight it seems that Scott was trying to lay some “good character” groundwork. In the first, dated April 3, Scott said that he’d just flown a kite with his two nephews. In the second, received five days later, Scott explained that he was helping to rebuild a deck at a home for battered women. While there, he said, he noticed a young man staring at him, and recognized him as someone he had tutored at the St. Vincent de Paul Center for Homeless Children while he was in high school.

  On June 4, the district attorney announced that the brown van rumored to belong to the “real killers” was not connected to the Peterson murders. Several days later, a judge issued a gag order to all parties in the case, but he also unsealed the search warrants as the press had requested.

  In mid-June, district attorney investigator Kevin Bertalotto arranged to meet a man named Harvey Kemple at a McDonald’s in Modesto. Related by marriage to the Rocha family, “Uncle Harvey” was the second person who heard Scott claim he was golfing, not fishing, on Christmas Eve.

  Kemple remembered remarking to his wife, “What was Scott doing golfing on Christmas Eve?” His wife, Gwen replied, “Scott told me he went fishing.” Later, the couple’s daughter overheard them discussing the discrepancy, and mentioned that Scott told her he’d been at work that day.

  A colorful character, Kemple became one of the better-known witnesses during the trial when he related a story about Scott burning the chicken he was barbecuing at a July 4 pool party. “Scott was more upset over burning the damn chicken than finding LCI,” Kemple griped.

  On June 26, 2003, Judge Girolami ordered that 176 recently dis-covered wire taps of Scott Peterson’s phone calls be handed over to the defense as part of discovery. The recordings turned up on a computer hard drive on June 13, 2003. Five days later, prosecutors revealed their existence when they asked the court to review them for relevance. Prosecutors maintained that no one—not even the investi-gator in charge of the wiretaps—had listened to the recordings. Ultimately, the judge denied the defense’s request to throw out those and nearly three thousand other secretly recorded conversations. On March 3, 2004, Delucchi ruled that the tapes would be admissible at trial. That same day, Delucchi also ruled to exclude the dog-tracking evidence gathered around the couple’s home and inside Scott’s ware-house, striking a partial blow to the prosecution’s case. Despite calling it “at best iffy,” the judge did allow the trailing dog evidence from the Berkeley Marina search.

  The ruling was a partial victory for Geragos, who had argued that the dog-gathering evidence was “complete voodoo” and “utter nonsense.”

  In late September, investigators returned to the San Francisco Bay to continue their search for additional evidence. In particular, they were looking for other body parts and concrete anchors.

  After countless delays, the preliminary hearing in the Stanislaus County Courthouse got underway on October 29, 2003.

  As expected, it was a huge media event. It was the first time the public and the press got a firsthand look at many of the people they had been hearing about for months: Scott and Laci’s friends and family members, detectives, forensics experts, even the couple’s housekeeper.

  Among those who garnered extraordinary attention was Scott’s high-profile trial lawyer, Mark Geragos. Known as Susan McDougal’s attorney during President Clinton’s travails, he also handled Winona Ryder’s shoplifting case. Ironically, Geragos represented Gary Condit during the investigation into Modesto resident Chandra Levy’s disappearance and murder in Washington, D.C. Perhaps his most notorious client was pop star Michael Jackson. Geragos had been the first attorney to represent the singer in his 2003 child abuse investigation, although Jackson would soon dismiss him, reportedly because of the attention he was giving the Peterson case.

  Before Scott hired Geragos, the attorney had appeared regularly on Larry King Live to talk about the case. While he now took the role of defense attorney on the shows, Geragos still made note of critical evidence such as the computer tidal charts, the cell phone records, and, of course, what he called the “enormous coincidence” that “the very place that he put himself, the very alibi, if you will, turns out to be the exact place where the body is recovered. That is either an incredible coincidence or damning piece of evidence.”

  “Is it a slam dunk?” King asked his guest Mark Geragos.

  Geragos didn’t sound terribly bullish. “Even though it’s a circumstantial evidence case, the most damning piece of circumstantial evidence comes out of his own mouth and his own hands, when he hands the police that receipt from the very location where, two miles away, she’s found,” Geragos said. “I mean, that is just a devastating thing.
. . .

  “If Scott Peterson did this crime,” he went on, “and everybody’s, you know, innocent until proven guilty, and as I’ve said, it’s a damning, circumstantial case—the man is a sociopath if he did this crime. I mean, there’s no other way to put it,” Geragos told King. “This is his wife, his unborn baby boy. If he’s the one who took the two of them up there and put concrete around them and threw them into the ocean and concocted this story and went out onto Diane Sawyer and gave that impassioned plea with the tears—I mean, that’s not somebody that generally you’re going to want to give a manslaughter [conviction] to.”

  Even though the case had first broken nearly a year earlier, public interest was escalating rather than fading. The initial fascination was understandable. The Christmas Eve disappearance of a beautiful young mother-to-be, the family’s heartbreaking pleas for help, and the reticent husband with a dubious alibi all made good copy for the press. While most were skeptical of Scott’s story, he was still a good-looking, white, middle-class suburban husband who’d seemed to have a wonderful marriage and a happy life.

  Interest surged when the affair with Amber Frey was revealed, and again when the breaking news reports announced that two bodies had washed up along the shoreline. When LCI and Conner were identified, rumors began to circulate that Scott had slipped away from the police; his dramatic pursuit and arrest on April 18, 2003, closed one phase of the case and opened another.

  Despite what even Geragos acknowledged—that Scott had all but hanged himself in the court of public opinion—the State was nevertheless saddled with an almost purely circumstantial case. Many observers still asserted that the evidence was insufficient to produce a conviction. The prosecution had no DNA, no confession, and precious little crime scene forensics to work with. The prelimi-nary hearing would be the first chance for the prosecuters to lay out their findings. It would also be the first time Mark Geragos could ask the judge to dismiss the case for lack of evidence.

  The hearing lasted eleven days. Prosecutors announced that they would not introduce GPS or wire tap evidence during the preliminary hearing, but did not exclude the possibility that they would offer this at trial. Nor, at this stage, did they intend to call Amber Frey.

  Geragos wanted Amber’s attorney, Gloria Allred, barred from the proceedings. Nothing if not feisty, Allred was not about to be re-moved without a fight. Judge Girolami overruled Geragos’s motion, but instructed Allred not to discuss any testimony with her client. Geragos also attempted to have Allred placed under the same gag order that applied to the principal attorneys and witnesses, but to his dismay the judge refused. On television and in print, Allred would lash out at Geragos and his client throughout the trial proceedings.

  The prosecutors’ first witness was a DNA expert. Dr. Constance Fisher, an FBI forensic analyst, testified about the hair clasped in a pair of pliers in Scott’s boat. Speaking in broad terms, Fisher explained that the DNA recovered from a hair with no root attached was mitochondrial, meaning that the information from this analysis would not as precise as if it had been obtained from nuclear DNA. Yet important findings would still emerge from the genetic material. Comparing it with hairs from Laci’s brush and DNA from her mother, the experts established probability about the source of the hair—roughly one in 112 individuals in the Modesto area would have possessed the DNA profile of the hair in question and LCI could not be excluded as a contributor. One person who was clearly eliminated as a match was Scott.

  Before she could testify about those findings, the defense team challenged the science in a three-pronged attack. Geragos attacked first the validity of the testing and then the database from which the information was drawn. Finally, he asserted that the sample was contaminated. Fisher insisted there had been no contamination during her tests and maintained that her conclusions were accurate. The judge finally ruled that the expert’s testimony was admissible and permitted her to state her conclusions.

  The defense called its own DNA expert to rebut Dr. Fisher’s findings. Dr. William Shields, a professor at the State University of New York’s College of Environmental Forestry, testified that one in every thirty-three samples of DNA could give a false exclusion or match. According to the current FBI database of 5,071 samples, this shared genetic sequence is found in less than 1 percent of Caucasians. While Fisher concluded that the DNA from the hair sample could be found in 1 out of 112 Caucasians, Shields estimated the sequence could be found in as many as 1 in 9. Detectives Buehler, Owen, Hendee, and Evers were the police witnesses. Hendee testified about collecting the hair from the pliers, but on cross-examination Geragos tore into him, suggesting that sloppy police work or something more insidious had conspired to create “additional” evidence in the form of a “second” piece of hair. Yet it was again established to the court’s satisfaction that the hair may have simply broken in two after it was removed from the pliers and placed in the evidence bag.

  At one point during the cross examination, when Harris objected to a question from Geragos as “double speculation,” Geragos retorted, “Like this entire case.”

  The primary detective on the case, Al Brocchini, spent the better part of three days on the stand. After outlining the investigation time line from December 24 forward, he responded to a line of accusa-tory questions posed by defense lawyer Kirk McAllister, who had not yet left Scott’s defense team. Trying to establish that Brocchini had rushed to judgment about Scott, he argued that Brocchini and other police officers didn’t pursue leads that might have exonerated the defendant.

  Outside the courtroom, Lee and Jackie Peterson expressed their feelings about the police—in particular, their distaste for Detective Brocchini.

  “You should be ashamed,” Jackie shouted when the detective passed.

  “I’ve seen bums before,” Lee Peterson chimed in.

  The couple’s aggression toward officers wasn’t limited to the preliminary hearing. Even before Scott’s arrest, police overheard Jackie Peterson making derogatory remarks about Al Brocchini in taped phone conversations with her son. In one conversation, she got very personal, impugning Brocchini’s family, even his mother, in her comments.

  In court, Dr. Brian Peterson, the coroner who performed both autopsies, delivered his findings. Laci’s family chose to leave the courtroom during his testimony, fearing that it would be too difficult to hear. Through co-prosecutor Dave Harris’s questioning, Dr. Peterson argued that Conner had not been born alive, as the defense would argue. He testified that Laci’s uterus had been intact when her body was submerged in the bay, and that the condition of the two bodies was dramatically different, leading Peterson to conclude that Conner had been sheltered in her womb until just before he was found.

  Under cross-examination, Geragos tried to elicit testimony that Conner was born alive and had taken a breath. Dr. Peterson responded that he could not rule out that possibility, but said it was unlikely based on his findings.

  While being held in jail, Scott was reportedly shown the autopsy photos of Laci and Conner. “She’s got no fucking head!” he reportedly cried out, breaking down in sobs.

  The revelation that Laci’s body had trace amounts of caffeine also upset Scott, prompting him to exclaim, “They tortured her!”

  On November 18, Judge Girolami ruled that there was enough evidence to bind Scott over for trial. He was formally arraigned on December 3, 2003. His plea of not guilty came as no surprise, but Geragos’s request for a trial date of January 26, 2004, less than two months away, came as a shock.

  On December 12, 2003, the defense filed a motion for a change of venue. Scott could not receive a fair trial in his wife’s hometown of Modesto, they contended, because of all the pretrial publicity—including eight thousand articles published worldwide and about one hundred and fifty stories in the local papers. On January 8, the change of venue was granted.

  Girolami ruled that a jury could be found in one of fifteen adjacent larger counties. While Geragos fought hard to move the trial to his h
ome turf in Los Angeles, the case was finally sent to Redwood City in neighboring San Mateo County.

  In the weeks before the preliminary hearing, Geragos nearly lost control of the case. Scott was reportedly dissatisfied with his high-priced defense attorney, expressing frustration that Geragos wasn’t visiting him in jail, and claiming that his questions weren’t being ad-dressed. Scott’s parents had reportedly forked over the hefty $1 mil-lion retainer, and Scott wanted some pampering. In mid-to-late September, Scott went to the extent of signing a substitution agreement with another firm. The firm reportedly agreed to take Scott’s case because the partners believed there was a viable defense—and because “it was winnable.”

  When Geragos learned of the agreement, a member of the inner circle later revealed, he went to the jail to confront Scott in person. He reportedly told Scott he would “fry” if he made the switch. He also guaranteed Scott a victory—and according to sources, got Scott to sign another retainer agreement.

  In the months ahead, Lee and Jackie Peterson solicited funds from friends and family to help offset the cost of Scott’s defense. The million-dollar retainer had wiped them out, and Geragos would come back to them mid-trial asking for more money. While several of Scott’s siblings reached into their pockets to help, reportedly there was one family member who did not participate. While Scott’s half sister, Susan Caudillo, regularly went before the cameras defending her brother, she reportedly did not contribute to his defense fund. In another of the odd coincidences surrounding this case, I later learned that Caudillo was constructing an in-ground “infinity pool” in the backyard of her new home. Like Scott himself, she had failed to give to others while quietly arranging to sink her money into a lavish swimming pool—dumping tens of thousands of dollars into its construction. As Scott sat in jail, Susan threw a big party to unveil her brand new pool.