CHAPTER NINETEEN
THE TRIAL
“Scott thought he was smart enough to fool us, but there were many crucial little clues he left,” said Juror Number 7, Richelle Nice. “One turning point for me was the photo of the bed in Laci’s room. It shows that the comforter was just thrown on the bed. That’s the way Scott told cops Laci left the room before she vanished.
“But anyone who knows Laci knows she wouldn’t have sloppily tossed the comforter. Then there were the statements Scott made about what his wife was wearing when he last saw her, which turned out to be different from what was on her corpse. Kidnappers would not have taken her home to change her clothes. Also, consider that Scott ordered hardcore-porn channels on his TV after Laci disappeared. That was a big sign to us that he knew his wife wasn’t coming home.
“For me, Scott convicted himself with his lies. The case did not have much to do with the prosecution or Amber.”
— as told to New York Post correspondent Howard Brewer
The trial started amid a swarm of media attention that recalled the Simpson trial. In the four-month period that began when this attractive young expectant mother disappeared, and ended when her good-looking, seemingly Ail-American, middle-class white husband was arrested for her murder, people had become vested in the story’s outcome. They grieved with Sharon Rocha as she pleaded for Laci’s safe return. And they became fascinated with Scott’s quixotic behavior—his infidelity with a likeable young woman, his improbable fishing trip taken within a mile of where the bodies were found, and the break for the border he may have been planning be-fore his arrest.
In our television age, the real-life drama we can watch on camera in the courtroom, or through real-time updates from just outside, rivals any soap opera. And the juxtaposition of personalities in the Peterson case was perfect: the staid, bookish prosecutor, Rick DiStaso, and his government team, versus the flashy defense attorney “Hollywood” Mark Geragos. Geragos was already well known to court watchers through his representation of celebrity clients—including Congressman Gary Condit, who along with murdered Washington intern Chandra Levy, also hailed from Modesto.
Less familiar to the public was the judge selected to preside over the Peterson case. When the trial was moved, Geragos wanted to keep Stanislaus County Superior Court Judge Al Girolami on the case, but Girolami made it clear he would not follow the case to Red-wood. The first choice to replace him was retired Contra Costa County Superior Court Judge Richard Arnason, but when Geragos objected, the trial stalled for a week while the search continued. Ultimately the job went to another respected retiree—Alameda County Judge Alfred Delucchi.
Delucchi had been in retirement since 1998 when he was tapped by California Chief Justice Ronald George to take charge of the Peterson trial. During his tenure the seventy-two-year-old jurist had presided over a number of high-profile cases, most notably the 1991 trial of Huey Newton, who murdered Black Panther co-founder Tyrone Robinson. Even in retirement Delucchi continued to hear East Bay murder cases, sentencing Giles Albert Nadey Jr. to death in 2000 for the sexually motivated murder of a minister’s wife. When Delucchi’s name was suggested, both the prosecutors and the defense attorneys hailed him as an “ideal fit” for the case.
Delucchi had rejected Court TV’s request to televise the trial of Newton, and he did the same in the Peterson case, much to the dis-appointment of the press. The decision pleased Sharon Rocha, who felt that what went on inside the courtroom was “personal.” With a gag order imposed on attorneys and witnesses alike, it was the marvel of electronic messaging from our reporters, such as Beth Karas, that kept Court TV and the public informed of the day’s events.
With the judge in place, jury selection began in San Mateo County Superior Court on March 4. One woman who was not chosen on the panel stopped on the courthouse steps and told reporters that she had no idea that Scott would be “so charismatic.” Nearly three months later, on May 27, a jury of twelve citizens and six alternates was sworn in. The makeup was split evenly along gender lines. The majority of the twelve-person panel was Caucasian. One African American woman had been selected, along with two men in their forties—a retired police officer and a high school sports coach. Other panelists included a male firefighter and paramedic, a union worker who had once been charged with violating a restraining order, and a woman whose husband was killed while serving a prison term for murder. Another man, a devout Christian in his mid-sixties, asked permission to consult with his priest before taking a place on the jury of the capital murder case. The six alternates were also divided evenly between men and women. Three of the alternates later joined the panel.
The trial began on Tuesday, June 1 in Superior Courtroom 2M of the Redwood City Courthouse. Stanislaus County Prosecutors Rick DiStaso and Dave Harris appeared for the prosecution. At the defense table were Mark Geragos and his co-counsel Pat Harris, who was sitting second chair. Scott’s attorney, Kirk McAllister, had faded into the background.
The court case was expected to last at least four or five months, and from the start pundits were asking whether DiStaso and Harris were up to the task. DiStaso, the small-town Modesto district attorney, had relatively little experience in capital cases. His profile contrasted sharply with the big-gun lead defense counsel, who swaggered into court behind sunglasses even on cloudy days, telephone always at ear, surrounded by his personal fan club. As the case began to unfold, onlookers wondered whether the two dedicated civil servants could hold their own against the showy, seasoned Geragos.
Seated on opposing sides of the brightly lit courtroom, its walls papered to look like wood, were the families of Laci and Scott. Journalists crowded the middle rows of the gallery, and the back was filled with trial watchers who lined up each day for the remaining seats.
DiStaso delivered his opening remarks in a low-key, nontheatrical style. As sunlight streamed through the bank of windows just beside the jury box, the slender, boyish prosecutor outlined his case over the clicking of reporters typing into their laptop computers. He spent his time covering the details of that December 24, laying out the elements of Scott’s early behavior that had raised the suspicions of the police. He told jurors that he would prove the defendant did not leave for the Berkeley Marina at 9:30 A.M. because Scott’s cell phone records would show he was close to home at 10:08. He also accused Scott of lying about watching Martha Stewart with Laci on the morning she vanished—a declaration that would be viewed as a monumental blunder the next day, when Geragos delivered his opening statement to the jury.
Commenting on the case that first afternoon, one onlooker, local defense attorney Jeffery Boyarski, warned that Geragos better be able to back up any claims he makes to jurors in the opening statement. “The first rule is, if you’re not sure you can prove something you better not even say it,” he said.
Yet the next morning, with dramatic flourish, Geragos aimed for the bleachers. He promised not only that he would refute the State’s case, but that he would prove his client was “stone cold innocent.” He conceded that Scott was guilty of exceptionally bad behavior— freely referring to him as a cad—but he insisted that this bad behavior did not make him a murderer.
“You want to say his behavior is boorish, we are not going to dispute that,” the defense lawyer told jurors. “But the fact is, this is a murder case and there has to be evidence in a murder case.”
Geragos insisted that Scott Peterson loved Laci, and that he’d been anxiously anticipating fatherhood when his wife disappeared. Despite Scott’s infidelity, he told jurors that his client was not about “to chuck this entire life he had” for a woman he had dated just four times.
Geragos controlled the courtroom as he delivered an overview of the evidence he said would exonerate his client. There were witnesses who saw Laci walking her dog after the time police believed she was killed, and a defense expert to testify that Laci had carried her fetus to term, all disputing the prosecution’s time line. He also insisted that the hair that p
olice recovered from Scott’s boat had been left there when Laci visited the warehouse with her husband on December 20, not after Laci’s death.
At the close of his statement, Geragos swooped in for the kill. Standing with a wide grin in front of two large flat screen monitors located directly across from the jury box, the lawyer aired the Martha Stewart tape from December 24, 2002. There it was— footage of Stewart discussing meringue cookies with a guest on her Christmas Eve show. Either Brocchini had missed the reference when he reviewed the tape at headquarters that previous spring, or he had misrepresented the evidence during his investigation. Geragos’s decision to play the tape was the opening volley in an aggressive play to paint the investigation as sloppy and improper. And Geragos delighted in turning the knife, by rolling the tape a second time.
“I played it twice, just in case the Modesto PD couldn’t hear it,” he remarked sarcastically as the courtroom erupted in laughter.
Ultimately, however, Geragos’s bold move would be transformed into a stunning coup for the State. The mention of meringue occurred at 9:48 A.M.—at least eighteen minutes after Scott claimed he had left the residence. This narrowed the window of time during which Laci went missing. Rather than leaving her at 9:30, Scott must have been in the house until at least 9:50. Since McKenzie was found dragging his leash at 10:18, the time that elapsed while she was alone had now shrunk to only twenty-eight minutes. It is hard to imagine how the defense team could have missed the significance of the timing. Perhaps their arrogance blinded them to how this new timeline would help the prosecution.
In my years as a trial lawyer, I followed many long-standing techniques of presenting a case to a jury. One such tactic, known formally as “primacy and recency,” is more popularly called “start strong and end strong.” Jurors tend to remember best what they hear first and last in a presentation. Material in the middle, consequently, can get lost. It’s in the litigator’s best interest to grab the jury’s attention early, to get them vested in the story.
Prosecutor Rick DiStaso went in a very different direction. Rather than beginning with a dramatic witness, such as Amber Frey, the medical examiner, or one of the lead investigators, the State called the Petersons’ housekeeper, Margarita Nava.
With a thick Spanish accent, Nava testified that she had cleaned the Petersons’ house on December 23. She left a single mop outside and dirty rags inside a bucket atop the washing machine. When they conducted the preliminary search that first evening, however, the police had discovered two mops and an empty pail outside. Nava’s testimony was the first step in what would become a painstaking recitation of each fact in the case. The prosecutors were not sensational, but they were certainly meticulous. Their strategy was to cover all the bases, leaving Geragos little room to poke holes in their arguments.
Geragos had quite a talent for cross-examination. From the very beginning, he used the State’s witnesses to make his own case. Laci’s own sister, Amy Rocha, admitted to him that she had vehemently insisted that Scott “was the last person who would hurt anyone.” He got Sharon Rocha to say that if Laci knew that Scott was having an affair with Amber, she would have told her mother—but then forced her to concede that Laci hadn’t told her about Scott’s 1998 affair with Janet Use. More important, Sharon admitted she hadn’t told po-lice that Scott had used the phrase “Laci’s missing” in his initial call on Christmas Eve until Amber Frey went public. She testified that the significance of those words had not been clear until she learned about Scott’s infidelity.
The cross-examination of Ron Grantski was another coup for Geragos. When Grantski referred to Scott’s “fishy story,” claiming that the mysterious trip occurred too late in the day, Geragos elicited that Grantski himself had gone fishing in the late morning that very day. And, like Scott, he hadn’t mentioned the trip to any family members.
Brent Rocha’s wife, Rosemarie, also fell victim to Geragos’s skill. In her testimony, she mentioned that Scott had once commented that he “was kind of hoping for infertility.” Under cross-examination, though, she admitted that she did not tell police about the incriminating remark until Amber Frey surfaced.
As each new State witness was damaged by the defense team, many trial watchers were highly critical of the prosecution, wondering aloud when—or even if—the case would begin to take shape. Many people voiced concern about the prosecution’s slow pace and lackluster presentation. Yet the parade of witnesses continued.
Peterson family friend “Uncle” Harvey Kemple provided some levity with his animated delivery on the stand. First, he established that Scott had claimed to be golfing on Christmas Eve. Then he recalled a family barbeque where Scott had burned the chicken he was cooking and told the jury that Scott showed more emotion then than at any time during the search for Laci. Kemple also revealed that in early January he followed Scott from the Command Center at the Red Lion to a local mall, where Scott said he planned to hang flyers. Instead Scott sat idly in his car for nearly an hour, never hanging a single poster. On another morning he followed Scott from the Command Center to the Del Rio Country Club, where Scott allegedly played golf.
On cross-examination, Geragos’s cocounsel, Pat Harris, questioned Kemple’s spy tactics, implying that tailing someone without their knowledge seemed an immature action for an adult male. Jurors chuckled aloud. At one point the judge sarcastically joined in, asking the defense counselor if he had any more questions about “the chicken.”
The next group of witnesses testified about Scott’s activities on the morning that Laci disappeared. They included neighbors Amie Krigbaum, Tara Venable, and Karen Servas, who had discovered McKenzie dragging a dirty leash at 10:18 A.M. that day.
When Servas explained how she’d retraced her steps to the store and bank to arrive at the exact time she discovered McKenzie, Geragos challenged the accuracy of the timestamp on her store receipt. He later showed that the store’s cash register was off by ten minutes when his team checked it in 2004.
After Servas, a litany of witnesses, including nine police officers, testified about their involvement in the case. Among them were responding officers Derrick Letsinger, Matt Spurlock, and Jon Evers.
As he had before, Geragos elicited responses from the witnesses that further diluted the case against Scott. In my opinion, Judge Delucchi gave the defense counselor enormous latitude with his questioning. He permitted a lot of hearsay evidence—statements the cops heard from third parties—under the “state of mind” exception. What the officers heard from others, in other words, was allowed be-cause it might have shaped their attitudes, or state of mind, about Scott early in the investigation.
As the prosecution laid out its case, word began to surface that some jurors seemed bored; there was even some yawning reported during the testimony. All that changed on day eleven, however, when a pool cameraman videotaped Juror #5 conversing with Laci’s brother, Brent, as the two walked through the courthouse metal detector. The juror was heard on the tape saying “. . . lose today . . .” before both men parted, smiling.
The media exploded. TV commentators spent endless airtime analyzing what the two men had been saying, and what impact it would have on the trial. The judge and attorneys were all made aware of the situation, yet the uproar failed to derail the trial.
That afternoon jurors heard from Laci’s gynecologist, Dr. Tina Endraki. One of the key issues in the case was Laci’s due date and the gestational age of the fetus. Endraki’s testimony helped the prosecution establish that Laci’s February 10 due date was accurate. Her testimony was bolstered by Laci’s medical records, which noted the baby’s gestational age at thirty-two weeks on December 23, Laci’s last office visit.
Other witnesses were called to testify about the jewelry Laci had been wearing when she disappeared. Among them was a pawn-broker, who recounted Scott and Laci’s two visits to his shop. He re-ported that the couple sold him several pieces, including gold chains, rings, and a charm.
Geragos used this occasion to cre
ate doubt in the jurors’ mind by discussing one of Laci’s watches, a Croton timepiece that had been missing since she disappeared. She had never been seen wearing the watch, and a videotape made to accompany its listing on eBay showed that its battery was dead. However, Geragos produced a receipt for a Croton watch similar in description that was pawned in Modesto on December 31. Could Laci have been wearing this watch when she was abducted by strangers? Is that why it had never been located? The prosecutor objected, the judge sustained the objection, and no further discussion ensued.
The next day, Juror #5 was in the news again. The judge cleared both Brent and the juror of any misconduct and stated that the media had misinterpreted what transpired at the metal detector. But he also implemented a new arrival procedure to prevent jurors and witnesses from interacting. Geragos’s response was to demand tighter controls on the press.
When court resumed on Day 1 1, jurors heard from Laci’s yoga instructor, Debra, who recalled that Laci was in pain and needed help to her car after her December 20 yoga session. She also recalled a statement that Laci reportedly made to her: “The dog probably thinks I’m mad at him, because I never walk him anymore.”
The statement brought Geragos to his feet. No such comment was ever reported to the police, he argued, and he wanted the testimony stricken from the record. Wolski then denied telling police that Laci’s only exercise was walking the dog, even though police recorded the comment in her official statement. She also denied telling officers that Scott was “excited” about the baby.
Laci’s three best friends, Stacey Boyers, Renee Tomlinson, and Lori Ellsworth also took the witness stand that day. Jurors heard them express doubts that a fatigued Laci would have walked McKenzie that morning. While they believed the Peterson marriage was good, all three women had grown suspicious of Scott as the search dragged on. Stacey described Scott vacuuming around the washer/dryer area in the den on Christmas Day. (An expert later testified that no DNA evidence linking Scott to Laci’s murder was recovered from the vacuum.)
A Deadly Game Page 40
