A Deadly Game

by Catherine Crier

  It was not until Day 13, when Detective Allen Brocchini took the stand, that real sparks began to fly. Brocchini testified about his Christmas morning interview with Scott, and the jury listened as portions of their interchange were played in open court. This was the first time they heard Scott in conversation, and the first time the jury got a thorough overview of the police investigation. Brocchini discussed the evidence collected during searches of Scott’s home, vehicle, and warehouse. But his testimony—and, more important, his videotaped interview with Scott—were all but lost on the jury. Ironically, jurors would later report that it was Brocchini’s taped interview with Scott Peterson at headquarters that first night that was the first topic that came up when they kicked off their deliberations. While the jurors didn’t understand its significance when it was played in court, that interview became key evidence during deliberations, as the panelists were able to see Scott’s early lies for themselves.

  “We were looking for inconsistencies,” Juror Steve Cardosi later reported. And there were plenty. During his testimony, Brocchini explained that the lures Scott claimed to have used on his fishing trip were still in their package, unopened, and the tan-colored tarp found rolled up in the rear of his pickup had been moved to a shed behind the Peterson house. Saturated with gasoline, the tarp had to be aired out for several days before it was logged into evidence lest the overwhelming fumes mask or destroy forensic evidence.

  Brocchini went on to detail his first meeting with Amber Frey, during which she agreed to record her telephone conversations with Scott to assist the investigation. He also testified that in an attempt to corroborate Scott’s story about watching Martha Stewart with Laci, he reviewed tapes of the shows that aired on December 23 and 24. Brocchini initially contended that while the December 23 show discussed the subject, he thought the December 24 show had no reference to meringue. Perhaps because of Geragos’s opening statement to the contrary, Brocchini admitted that he later watched the show a second time and discovered that the word “meringue” was mentioned at 9:48.

  If Scott actually saw this segment, as he’d told the detectives, then under the defense’s abduction theory Laci had only twenty minutes to finish mopping the floor, load the breakfast dishes, make the bed, use her curling iron, change clothes, don her sneakers, take the dog to the park, and be abducted. Suddenly, Scott’s story was looking less plausible.

  The next morning, “Juror 5-Gate,” as it was dubbed in the press, erupted when the heavyset airport security screener, whose name was Justin Falconer, was ousted from the jury. Minutes later, Falconer stood before a bank of microphones. “I’m a distraction to the jury,” he conceded, admitting that he’d listened to friends discussing the press coverage of his interaction with Brent Rocha, which led to his dismissal.

  Falconer said that he agreed with the judge’s decision to remove him from the panel. But then he launched into a tirade, attacking the prosecution’s case as thin and boring, “It was driving me nuts,” he railed from behind dark sunglasses. “He’s innocent.” Falconer, who was on disability leave from his job, told the crush of journalists that he had not heard any evidence that would prove Scott guilty of murder. He excused Scott’s affair, calling it “his little side thing,” and sneered at the prosecution’s claim that Amber was the motive for the double murders. “If they try to say that Amber is a motive for this after four dates, then ... ” he paused, shaking his head from side to side in disgust.

  “Honestly, guys say pretty stupid stuff to get a girl,” he said about Scott’s remarks to Frey that he “lost” his wife. Acknowledging that he was a father himself, he stated that “pregnant women are crazy,” complaining of exhaustion one day and “running a marathon” the next. He also balked at yoga instructor Debra Wolski’s testimony that Laci was “too exhausted” to walk McKenzie on Christmas Eve.

  “I didn’t believe two words of that woman,” he sneered.

  When reporters asked about Scott’s cool demeanor, Falconer said, “I can kinda understand where he’s coming from,” and admitted, “I’m not a very emotional person, either.”

  Falconer’s remarks sparked a flurry of speculation and additional criticism about the State’s case. If this was the best the district attorney had, many critics sniped, Peterson would walk.

  Falconer maintained that several jury members felt the way he did. He implied that he was a good friend of Juror #6, the firefighting paramedic, who eventually became the foreman. Other jurors later bolstered Falconer’s claim by revealing that in the first weeks, they too thought the case was flimsy—nothing more than a botched police investigation.

  However, there were several jurors who did not seem the type to fold easily. The union worker, Juror #8, was not responding to Geragos’s theories. Juror #11, the African American woman, had a close relative in the Sheriff’s Department. She was pegged as pro-prosecution as well. Television panelists thought the State’s best-case scenario was not a conviction, but a hung jury, and the opportunity to try Scott a second time. One local paper came out with a painful headline, misspelling Rick DiStaso’s name so that it read “Disasto.”

  At the time, I couldn’t help agreeing with the pundits. While I thought the prosecution had a strong circumstantial case, the many delays, the disorganized presentation of witnesses, and Geragos’s dominance in the courtroom seemed to spell trouble. Additionally, Judge Delucchi had taken to chastising the prosecutors in open court. The jury had to think DiStaso and Harris were engaged in stalling tactics—or, worse yet, were trying to hide things from the defense.

  When court finally reconvened, Judge Delucchi addressed the jury. “You have all been questioned individually by the Court, and I want to reaffirm, and to strike home, or emphasize as much as I can, that you are not to listen to, read, or watch any media reports of this trial, nor discuss it with any representatives of the media or their agents.”

  “So what we’re going to do now, we’re going to seat the first alternate as Juror Number 5.” That first alternate was both a doctor and a lawyer. Those of us covering the case were stunned that this man had not been struck by either side during jury selection. It is very rare that a legal professional becomes a juror in a case of this sort. This man was not a criminal attorney, but his specialized knowledge in the fields of law and medicine could have posed a problem. How could he ignore his own technical experience as he evaluated the witnesses? Could he keep this information to himself or would he inject what was essentially new evidence by sharing his professional opinions in the jury room?

  The defense saw its opening.

  “I would like to move for a mistrial,” Geragos barked. Furious, he argued that the media attention had resulted in the “choosing off of jurors.” He insisted the press “had insinuated itself in the case in a way that is unprecedented.”

  “I think this is an outrage,” Geragos roared as he paced the courtroom. Referring to nicknames certain jurors were given by a TV commentator, Geragos said, “I do not believe that the jurors should be called names on TV. I don’t believe that the jurors should be interrogated and cross-examined. .. . I have a client who is on trial for his life. But these people have given up their life. They shouldn’t have to be subjected to this . . .”

  “All right. The motion for mistrial is denied,” Delucchi ruled. “We have to live with the media. They do what they do. We have to do what we have to do. So that’s the way it is.” And with that he called Detective Brocchini back to the stand for cross-examination.

  From the outset, Brocchini and Geragos were posturing, verbally circling one another as questions and answers volleyed back and forth. Some trial watchers speculated that Geragos was purposely exhibiting disdain for the police, to reinforce his theory of their rush to judgment.

  At one point, Geragos sarcastically asked the detective if he’d used his professional training to determine whether or not Scott’s clothes had been run through the washing machine.

  Sensing that tempers were hot, the judge call
ed for an early recess.

  That afternoon, Geragos was back on the offensive. Again, he pointed to Brocchini’s conclusion in regard to the Martha Stewart tapes.

  “Well, let’s take a look at your report .. . on the twenty-first [of January]. Specifically you say you reviewed the 12/24/2002 from the beginning including commercials; is that correct?”

  “Yes.”

  “There was no mention of meringue during any of this show, correct?”

  “That’s what I wrote.”

  “Okay, then several times during the show, Martha Stewart commented on it being Christmas Eve, right?”

  “Yes.”

  “Okay. Now, that information, yeah, that information was known to you, or you thought it was very significant, correct? That’s why you wrote it in the report, right?”

  “It was an important piece of the puzzle.”

  “Okay. Also on that date there was, you had already interviewed, or somebody from the Modesto PD had interviewed a witness at Scott’s warehouse; isn’t that correct?” Geragos was referring to Scott’s warehouse neighbor, Ron Prater. “Didn’t that witness tell you that Scott was at the warehouse on the twenty-third?”

  “Yeah, but he wasn’t positive it was the twenty-third or the twenty-fourth.”

  “And did you see a TV when you were in the warehouse?”

  “No, I didn’t.”

  “Okay. So you were aware on the twenty-third, or by the time you wrote this report, that Scott was apparently not at home, according to Margarita Nava, on the twenty-third? All right, so [on] 12/28, within three days of you being assigned to this case, you had a statement from Prater who said that he saw Scott and his truck was parked out front, and he was already there by eight-thirty or nine o’clock, correct?”

  “Not correct. He wasn’t sure if it was the twenty-third or the twenty-fourth.”

  “.. . Now, after you prepared this report here on January twenty-first, you then wrote in the same report: I find it highly suspicious that Scott Peterson would claim to be watching Martha Stewart with Laci on 12/24 while Martha was baking with meringue.”

  “And then your conclusion is there is no meringue mentioned on the show on 12/24, correct?”

  “That’s what I wrote. But I was wrong.” Brocchini conceded. Adding to the tension, Geragos then played the December 24 Martha Stewart show on the courtroom’s large video screen for a third time—just to force the issue regarding Brocchini’s negligence. “Now, apparently when you watched this video, you missed that?” Geragos asked.

  “I missed it.”

  “Okay. . . . The absence of that was something you thought was suspicious, and part of the . . . the ‘puzzle’ is the way you said it?”

  “Objection, your Honor,” Prosecutor DiStaso said, rising from his chair.

  “No, overruled,” Delucchi ordered. “He can answer that. You can answer that, detective.”

  “Well, I thought it was suspicious that it wasn’t in there, but I also think it’s better that it is,” Brocchini replied, keeping an even tone.

  “Now, I’m still on the same interview, the one that we played for the jury yesterday, the next portion of that, you have that in front of you?”

  “I have it here. I don’t know what the next portion is that you’re going to talk about.”

  “I just want to make sure you’ve got it there to refresh your recollection.”

  “I do.”

  “Okay. Then you asked him, ‘When did you realize you were going to go fishing?’ Is that correct?”

  “Yes.”

  “And he said. ‘Well, that was a morning decision.’ It’s either— and then going on to the next page—That’s a morning decision is what you said, correct?”

  “Yes.”

  “Go play golf at the club or go fishing, right?”

  “Right.”

  “Now, at any point did you know that Ron Grantski had gone fishing that same day?”

  “Objection, your Honor. Relevance?” DiStaso said, jumping up for a second time.

  “Overruled,” the judge declared.

  “Maybe I’ll ask it better,” Geragos began again. “I assume you know now Ron Grantski went fishing virtually the exact same time.”

  “I do know now.”

  “Okay. When did you learn that?”

  “After this trial started.”

  The barrage of questions continued, as Geragos hammered away at the obvious discrepancies between Brocchini’s testimony and actual police reports. The defense attorney cited Brocchini’s earlier testimony that he had not seen a pair of white sneakers Scott claimed he’d pulled from a duffel bag and placed on the dining room wet bar the day Laci went missing. Waving a police photograph, Geragos pointed out that members of the Modesto Crime Scene unit had in fact, captured the tennis shoes on film.

  Geragos effectively demonstrated the detective had made numerous errors in his investigation. As Brocchini’s second day of cross-examination progressed, Geragos interrogated him about a witness statement that had been expunged from his police report. Brocchini had to admit that he had removed a statement by a woman named Peggy O’Donnell, whose company, Adventures in Advertising, was located near Scott’s in the same industrial park.

  “Did you go out and interview Peggy O’Donnell?”

  “No. Somebody else did, though.”

  “Did you follow-up to see what the information was?”

  “No, but I .. . it was done.”

  “Okay. Now, specifically one of the things that you thought—I think you told the jury yesterday it was an exciting moment for you, if I’m not mistaken—is when you found the hair in the pliers; is that correct?”

  “Yes.”

  “Okay, did you think it was significant or would be important in-formation to your report to have people know that Peggy O’Donnell saw Laci at the warehouse on 12/23? Did you think that’s something that would be significant since there was a hair that got you excited on a pliers at the warehouse on 12 . . . what was the date that the pliers was recovered?”

  “12/27. The date I saw it was February 11. . . . And that was important information. I didn’t know it was Peggy McDonald [sic] but I did know we had to send somebody out there to interview Peggy, and it was done.”

  “Oh, so after you got this information you sent somebody to interview Peggy?”

  “No, I don’t know when. I just know she was interviewed.”

  “You don’t know when it was done because, until I brought it up, you didn’t realize that you had excised it and somebody would catch it; isn’t that correct?” Geragos asked accusingly.

  “I don’t know.”

  “Can you tell me how that particular piece of information got excised out of your police report?”

  “I excised it.”

  “You did it?”

  “Yes, I did, if it’s not in there ... ”

  In the report, O’Donnell claimed that Laci visited the warehouse complex on either December 20 or December 23, and asked to use her bathroom. O’Donnell’s testimony was important to the defense because it was evidence that Laci had been to Scott’s office after he bought the boat. This visit might account for the hair found inside the craft.

  Brocchini did not think much of O’Donnell’s report. He had been inside the warehouse on December 24, and again on December 27, and was certain that a woman in Laci’s condition could not have climbed over the pallets stacked floor to ceiling to get to the bathroom in the rear of the storage space. In fact, based on the cluttered condition of the warehouse, he was confident that Laci had not gone inside that day. She might never have seen the boat.

  Brocchini knew that O’Donnell never saw Laci inside Scott’s warehouse. He also knew that another officer had followed up on the tip and logged the interview with O’Donnell into his report. Yet Geragos was insinuating that the detective had done something sinister. Brocchini did not interview the woman, so he did not leave the information in his own report, but the other officer’s report
was al-ways available.

  I later learned that Detective Brocchini was quite concerned about the way he was portrayed in the press. He feared for his job— as did his mother, who became the target of nasty comments by friends at the beauty parlor and her bingo game.

  Before convening court the next day. Judge Delucchi angrily reprimanded the Modesto Police Department for violating his gag order. A department spokesman had commented on the Peggy O’Donnell controversy, apparently telling an AP reporter that the report was not hidden or expunged, but was available in another officer’s report. The judge was furious.

  Later that morning, Brocchini again fell under attack. Geragos began by quizzing the detective about Scott’s neighbor Kim McGregor and her role in the burglary of the Peterson home. He pressed for details about McGregor’s alibi for December 23 and 24, and then waited to pounce as the detective explained that she had visited an ex-boyfriend and his two Hawaiian roommates on the twenty-third. Producing a flier about the burglary across the street at the Medina residence, Geragos noted that police were looking for three dark-skinned, non-African American men. The lawyer drove the point home when he got Brocchini to confirm that he had not investigated McGregor’s Hawaiian friends. Brocchini insisted that McGregor was investigated, and that police had eliminated her as a suspect. Nevertheless, the attack continued.

  Geragos finally wrapped up his cross-examination by criticizing the detective for not following up on three witness accounts that might have placed Laci in the park on the morning of December 24. He referred to a woman named Victoria Pouches, who claimed to have seen a woman walking a dog that was barking furiously, and a man named Chris Van Zandt, who also claimed to have seen a pregnant woman walking one of the park trails.

  Geragos pointed out that the detective never brought Van Zandt to the park to show officers where he made the sighting. “Wouldn’t it have been the prudent thing to do, when you got forty or fifty officers out there looking in the park, to have actually driven to the guy’s house and shown him a picture of Laci, shown him a picture of McKenzie and say, ‘Hey, is that the dog?’ So you can eliminate that lead?”