A Deadly Game (50 page)

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 police 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.

A
 
DEADLY
 
GAME

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 police 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 because 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 pawnbroker, who recounted Scott and Laci's two visits to his shop. He reported that the couple sold him several pieces, including gold chains, 1 rings, and a charm.

Geragos used this occasion to create 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 11, 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.)

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 called 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."