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CNN LIVE EVENT/SPECIAL

Laci Peterson Case: Judge Hears Motions

Aired May 5, 2003 - 12:23   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

WOLF BLITZER, CNN ANCHOR: To Modesto, California, where hearings today could determine who presides over Scott Peterson's capital murder trial, as well as the amount of detail that's made public about the case before the first juror is seated.
Let's bring in our CNN legal analyst, Jeffrey Toobin. He is joining us now live from New York.

Jeffrey -- what exactly is unfolding in the courtroom today in Modesto?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, the big issue today, Wolf, is whether the applications for the search warrants will be disclosed. That means, will we know what the government's evidence is in a level of detail that we have not come close to knowing before? Because when the government asks for a search warrant, they say, we know the following four things. That's why we need to search the Peterson house again. None of that has been made public. That's what the stakes are today principally.

BLITZER: So, the new lawyer, Mark Geragos, the new criminal defense attorney for Scott Peterson, he wants as much information as he possibly can get. And he wants that documentation for the search warrant. Is that the -- that's the (UNINTELLIGIBLE).

TOOBIN: Well, he wants it, but he wants it to keep sealed. He will get access to it easily. There is no question about that. But he wants to keep it sealed, because of the risk of pretrial publicity. This case has already gotten enormous amounts of publicity. He's concerned about the ability of his client to get a fair trial. The issue of where he gets a trial will soon come up in the case.

But I believe he is going to be arguing, keep it sealed, there's no reason for more prejudicial evidence to be out there about Scott Peterson.

BLITZER: And so, the judge will determine that.

Now, there's another issue involved: Who is going to be the judge in this trial?

TOOBIN: You know, I have to say, Wolf, I am less familiar about that. Not much has been disclosed. What's happened so far is there have been a few very initial court proceedings regarding whether there should be public access to these documents -- there Scott Peterson is walking into the courtroom right now. The -- who will preside? Those issues have come up so far. I don't understand why that would justify a change of venue -- here comes the judge.

(JOINED IN PROGRESS)

UNIDENTIFIED MALE: The Honorable Judge Al Girolami, the judge presiding. Be seated, please.

JUDGE AL GIROLAMI, STAINLAUS COUNTY SUPERIOR COURT: Good morning.

UNIDENTIFIED MALE: Good morning, your honor.

UNIDENTIFIED MALE: Good morning.

BLITZER: You know, Jeffrey, as we look at these pictures we see Scott Peterson dressed in civilian clothes, not in that jumpsuit. That was an important issue for Mark Geragos at the last hearing late last week.

TOOBIN: Anyone who saw O.J. Simpson in those beautiful, buttery zania (ph) suits that he wore all during the trial, that makes a big difference, compared to whether you are a -- and wearing a prison jumpsuit. And his family has made sure he's looking a lot better today.

BLITZER: And so, he's going to be walking in suits and not looking, giving the impression that he's already a convicted criminal. Obviously, you come in shackled with handcuffs, you wear that orange jumpsuit, half the job is already done, you look convicted.

TOOBIN: It really...

BLITZER: That was a huge issue for Mark Geragos.

TOOBIN: It was a huge issue, and the whole issue of whether you look like you're guilty is always an issue. And he fought hard to get the right to wear his own clothes, and he won that. It's a long way from winning the case, but it is important.

BLITZER: All right, Jeffrey. This was taped minutes ago inside the courtroom. I want to briefly listen to what was going on, get a little flavor of this preliminary hearing.

(BEGIN VIDEOTAPE)

GIROLAMI: Comments regarding the transcript of May 2, we can certify that today?

UNIDENTIFIED MALE: Just subject to the two, I think, corrections on the first page, I believe that the attorney's transcript was accurate and certified.

UNIDENTIFIED MALE: Your honor, yes, we had two corrections on page -- the first page and on page 6 of this transcript.

GIROLAMI: Yes, let's do that once since you brought it up. Which one? UNIDENTIFIED MALE: It was line 7, were announcing in the court, it says Kent Faulkner (ph) and Richard Basar (ph), and it was clearly Tim Basar (ph).

GIROLAMI: It was, but I said, "Richard."

UNIDENTIFIED MALE: Oh, OK. And...

GIROLAMI: And so, the record should stay that way, unless you want to just change it to it as actually a fact, it's OK with me.

UNIDENTIFIED MALE: Well, I would actually prefer that the record reflect that it was Tim Basar (ph) who was actually present. So, if all counsel agrees, I'd like to change it.

MARK GERAGOS, DEFENSE COUNSEL: Well, I think that accurately what you need to do is what the court has suggested. We keep it as Richard Basar (ph). This record today will reflect that both parties agree that it was actually Mr. Tim Basar (ph), and the court's statement that it just misspoke I think is the accurate way to handle it.

UNIDENTIFIED MALE: That's fine.

GIROLAMI: OK, so noted. Any other item?

UNIDENTIFIED MALE: Well, I believe in line nine, Mr. Basar (ph), I think he said the full name, Maureen (ph). And I thought he (UNINTELLIGIBLE) said Maureen Keller (ph). And it looks like only half of M-A-U-R got on the transcript.

GIROLAMI: I don't recall if I cut him off or not at that point in time. But again, we'll leave it alone. I'm satisfied that he didn't get the full statement out. But it was Maureen Kelly (ph) that was present.

UNIDENTIFIED MALE: That's all I had, your honor.

GIROLAMI: How about you, Mr. Geragos?

GERAGOS: Yes, your honor.

GIROLAMI: Do you have other changes?

GERAGOS: No, that's it, your honor.

GIROLAMI: The record transcript of May 2 will be certified as noted by today's comments.

One thing before we get into argument regarding the 17.6 issue, some note was made by Mr. Geragos in his brief that the same file number is being utilized in this case as in "The Mercury News" case. And I think -- correct me if I'm wrong -- but in Exhibit 8 that was filed with Mr. Geragos' papers for today that the D.A.'s office did indicate the same file number as today. I didn't check the calendar to see what's across the hall, but I assume it's a different number. At the time I was involved in it, it did have a different number, and that was 1045098.

UNIDENTIFIED MALE: I can address that particular point. What happened was the San Jose "Mercury News" in Contra Costa did originally file their -- this new motion to unseal under the criminal case number, but they have been notified by the court, and they have sent an amended motion to unseal, and pursuant to the letter that they sent to us, they were directed by the court to revise the caption and assign a different case number. So, their amended notice and motion includes now the prior civil case number, which is the one that's before the fifth. That's 1045188. So, I have copies of those if counsel wants to look at them.

GIROLAMI: You can share those if you wish, but my recollection of the history is that it was first filed by the "Modesto Bee," and then subsequent to that after I was off the case, we had this second action, that Exhibit A, that's part of that that was filed by the San Jose "Mercury News."

Any comments regarding that issue, Mr. Geragos?

GERAGOS: Well, I do not believe, Judge, that it changes our position (UNINTELLIGIBLE), as the court has indicated, the Exhibit A shows that it does have the same case number. I believe even if they wanted to re-amend the notice later on, the fact that it now captures the arrest warrant records, and I don't want to get ahead of myself in terms of the argument, but I think that the newest case clearly talks about a distinction between an action and a proceeding, a special proceeding, where an accusatory proceeding, if you will, is what is defined as a criminal action.

Here we have a mention to unseal the arrest warrant records. If that's the case that's the initiation of an accusatory proceeding as defined, or as the courts have defined a criminal action.

If that's the case, and I think rightly so, they have filed it and the D.A. himself, as the court has indicated in Exhibit A, tied with this case number. The problem, and I get into just a little more of it, wasn't in the (UNINTELLIGIBLE).

The problem is we're between a rock and a hard place. It's not that we necessarily want to lose you, so to speak, as the judge in this matter. The problem is, is what I articulated last time, what I put into the paperwork, we have a situation where this court I think would recognize that this case in terms of the publicity and notoriety is the singular, probably would be the singular case that I can think of in terms of saturation and media coverage.

We now have a situation where this court had confessed to basically having its hands tied last time in terms of dealing with these issues on the arrest warrant and on the search warrant, and if the court can not deal with that.

Since I filed this yesterday, I went back and took a look at the U.S. Supreme Court case of Shepherd v. Maxwell, which is at 384 US 333. The publicity in Shepherd v. Maxwell, in which the granting of a writ of habeas corpus was directed down to the District Court, the publicity in that case pales by comparison to the publicity in this case, yet the Supreme Court took it upon themselves to reverse and make a finding in order that a new trial be given precisely because the trial judge was unable or unwilling to take control of the situation and the court went through all kinds of examples as to what the trial portion had done.

Here, we have a more anomalous situation in that even if you were to take the roadmap, so to speak, that the U.S. Supreme Court has given trial court judges and what they're supposed to do in terms of controlling media leaks, any kind of fair trial and the defendant's right to a fair trial, we can't do that because of the kind of enormous box that's been opened up by a 170 Supp. 6 (b) file, the D.A. having a situation where they're taking the position that we can not deal with the arrest warrant or the search warrant and we have a situation where some other judge is going to be running this trial by proxy in your courtroom, and I think that's precisely what the problem is.

It appears to me to be on its face a due process violation, both federal and state of Mr. Peterson's right to a fair trial because any trial judge needs to obviously, and by all accounts your reputation is such that you ought to realize the (UNINTELLIGIBLE) in doing such, take control of the proceedings and take control of everything surrounding the proceedings.

Here, by law, the position that you've been put in is that you can not do that. You're foreclosed from that. There are other issues that I could get into in terms of both positive, if you will, other examples of where this will reek havoc or mischief in the proceedings, but I don't think I need to belabor it because it appears to me that the only thing that can be done here is to for the court to recuse itself most regrettably because, as I said, we don't want to lose you as the trial judge in this matter.

But given the state of affairs here, if this court can not make decisions as to the sealing or unsealing of records which obviously are going to be covered wall-to-wall, 24/7, in the media and I haven't seen these records yet, we have a kind of an anomalous situation where the plight of Mr. McAllister and myself, and Mr. McAllister's been involved in this case for a lot longer than I have, are going to be unable to address this court, deal with all of what we consider to be the misinformation that has been bandied about about Mr. Peterson, and have this court fashion some kind of remedy because this court is by law not allowed to.

And, I just can't imagine that that's the state of law. I think the Lewis (ph) case is clear here, that it's one continuous proceeding. I think all the other cases that have been cited are distinguishable and really not apropos, and I think the court would probably agree.

There isn't any of the cases that have been presented by either side would have ever been presented with this situation. It appears to be, at least based on my research, a case of first impression in the sense that we've never had this typical fact situation. Based upon that and because it is a death penalty case, I would ask the court to exercise the greatest degree of caution in proceeding.

GIROLAMI: Let me ask you one question, Mr. Geragos, regarding the Shepherd case and the cases that follow. Do you really think the whole in this the particular judge is the one that has to take control versus the court itself? Because what we have here, we have a separation of these duties. We'll have the court that will be looking out for those interests and not necessarily this judge.

GERAGOS: Well, and in the Shepherd case is specific. You read it this morning. The U.S. Supreme Court goes to great pains to admonish the trial judge for everything that he did not do, for all of the for instance, when there was intrusion by the news media upon jurors or him not taking further steps or when he did at least a facial inquiry into whether or not somebody had heard some misinformation that had been bandied about in the media or not taking further steps.

For the court, actually the Supreme Court admonished the trial judge for not doing something in terms of the defense and when the defense was taking a sample for a change of venue and there was all kinds of media reports of that and he did not control the situation there, there was never any mention in a generic sense of the courts. It was always the trial judge and the complete focus was that the trial judge, in fact, was admonished again when defense counsel in the Shepherd case had made a motion for a continuance and the judge without any kind of a substantive hearing, if you will, just dismissed it out of hand without seeing if there was, or having a hearing as to whether or not he could obtain some kind of a relief.

But when there was release of the jurors' addresses, names, and information, into the public and published in the Cleveland newspaper, which I think was then the (UNINTELLIGIBLE) and the judge did nothing to either call (UNINTELLIGIBLE) or anything else, they also kind of chose it off, if you will, in that opinion. So, I think it is instructive in the sense that in a general sense to all the courts, but this is what you do in a case like this.

But specifically, they did, I think, go through and find that this was structural error of the kind that the trial judge could have prevented, and that's the problem we have here. I can't make an argument. I can't put forward any kind of a hearing to Your Honor to say look, judge, we need to have the hearing before something gets unsealed here that could be grossly detrimental.

I mean I can give you a couple of examples off the top of my head. In going through the discovery of this matter, there is it is ripe with inadmissible, voodoo type investigation. I mean we have psychics. We have the Institute of (UNINTELLIGIBLE) Research studying micro expressions of people's faces. We have voice stress analyzers, all of which are totally inadmissible.

However, and I don't know because I haven't seen it, if any of these things make their way into applications for either search warrants or arrest warrants, that kind of information then gets disseminated. It then gets the kind of moniker, if you will, where the judicial imprint that it's good information, that it's good investigative information, the cat's out of the bag so in speaking there's no way for this court to control that.

I can't see that and the court can't read that. The court can't do anything to try to herd those cats that are already out of the bag and that's the problem with this situation. We don't know what it is. This court is literally hog tied in trying to enforce some kind of control of the situation.

And, once again, I would just emphasize or ask the court to look, and I apologize for not citing it in the paperwork because it occurred to me this morning, take a look at Shepherd and...

GIROLAMI: I'm familiar with Shepherd.

GERAGOS: OK. When you take a look at the kinds of things, the publicity that they're talking about in Shepherd, this case is in the stratosphere compared to Shepherd. Shepherd was something that was just a near blip on the screen compared to the kind of saturation coverage we have here, and when given that kind of a situation and when you know that the minute that somebody unseals a warrant or some kind of an application, and here we have a minimum of eight sealed warrants and then a ninth which would be the arrest warrant, and who knows what's contained in those, we certainly don't at the defense end of the table, and if that happens there may be no turning back in terms of what the court can do.

GIROLAMI: As a practical matter I'm going to be bound by the appellate court.

(END VIDEOTAPE)

BLITZER: All right, Mark Geragos, the attorney for Scott Peterson in this murder trial that's just beginning.

This was videotape that we've been watching, videotape done earlier today in Modesto, California, Stanislaus, California.

Mark Geragos is now live in front of the court. Let's listen in.

GERAGOS: ...yesterday for Laci and for Connor. I want to remind people that Lee and Jackie, that was their grandson, Connor, and Laci was as much a daughter to them as their own daughters, and obviously they didn't they wanted to add dignity to that and they did not want it to become a distraction by having their presence yesterday.

They're here today in support of Scott. In terms of what happened in court today, we're as pleased as we can be. We don't want to lose Judge Girolami, obviously, but we do have an issue as to whether or not one judge can put his arms around, so to speak, the entire case.

Judge Boshane (ph) I think made the right decision in not doing anything on this case until we get up to the Fifth District so that the Fifth District can sort this out, and we're very happy with that. Other than that, I don't have any further comments but I think Lee and Jackie wanted to say a couple of things and then we're going to retreat back into the building. JACKIE PETERSON, MOTHER OF SCOTT PETERSON: I wanted to thank you for being so respectful to us and (UNINTELLIGIBLE), and our son is innocent and we once again feel that the truth will come out and we have faith in the legal system, and we appreciate you helping us.

Every day is just a day to try to get through. It has been since Christmas Eve. It's a very long time to be besieged like this just for the truth and to find Laci, bring her home.

One day at a time, lots of people are praying for us and many people support us.

UNIDENTIFIED MALE: Can you talk about the decision to hire Mr. Geragos, how you came to that decision?

J. PETERSON: We got lucky. We are grateful that he wanted to take our case when we approached him and we're just thankful. God sent him our way.

GERAGOS: Hold on for one second. The other thing I wanted to say today is some of you might have noticed that Mr. McAllister here has joined the team. I wanted to introduce him to those of you who don't know Kirk McAllister. He was Scott's lawyer for going on a good four months. He's graciously agreed to join the team to disabuse anybody of any notions that he ever fired Scott or that he Scott couldn't afford him or anything else. He's here. He's 110 percent behind him?

KIRK MCALLISTER: At least.

GERAGOS: At least and we both, along with the entire family here want to tell you that we're going to find out. I know that, you know, criminal defense lawyers are supposed to just go out and create reasonable doubt, if you will, or argue reasonable doubt.

We're not into arguing reasonable doubt in this case. We've set the bar extremely high and that's to prove that Scott is not only factually innocent but to figure out exactly who it is did this horrible thing to Scott's wife and to Scott's son and to their grandson and that was their mantra to me when they came into the office.

And, I've said before to all of the people who had doubts about this, that, or the other things in terms of comments that were being made, the people who know him best are standing behind him and standing behind me today 100 percent because they believe totally, unequivocally in this young man's innocence and they've turned my head around and I think it's only a matter of time before we're able to turn America's head around. Thank you very much.

BLITZER: And so, there you have it from Mark Geragos, the high profile criminal defense attorney for Scott Peterson, saying not only will they try to raise a reasonable doubt in the minds of some jury, but also to go forward and actually find the person he says is responsible for the murder of Laci Peterson, and their 8-month-old son. Let's bring in our legal analyst, Jeffrey Toobin. He's been watching all of this with us. Jeffrey, first let's talk a little bit about the hearing that unfolded in that courtroom, ostensibly designed to unseal the search warrants that have been sealed, that have been held confidential right now but that raises the possibility of a new judge in this case. Based on what you heard, explain to our viewers some of the legal aspects, what we just saw.

JEFFREY TOOBIN, CNN LEGAL ANALYST: This is an unusual situation where you have the criminal court presiding over the trial of Scott Peterson. You have the issue of the newspapers trying to get access to the underlying court documents before a different judge, and the defense, Mark Geragos, is saying look you can't deal with these questions separately. You have to deal with them in the same place, in the same setting, so that his right to a fair trial is protected.

What the judge said in court was well isn't the real goal the protection of both sides' fair trial rights, not necessarily who presides, trying to preserve the option of two judges or one judge handling the issues. What appears to have happened based on what Mark Geragos said in the press conference is that an appeals court might settle the issue, which seems like an appropriate question, of just who's presiding.

But I think just to give you a sense of what's ahead, this is a fairly narrow, fairly technical issue. It may go to the Court of Appeals. This shows how long this case is likely to be before it gets to trial, before it's resolved. California cases tend not to move slowly. I don't think this one will. This one will move very fast.

BLITZER: And he did say the Fifth District would be reviewing this matter. Mark Geragos obviously very pleased that it's going to be reviewed by this appeal process.

You also saw him bring in Kirk McAllister, the former attorney for Scott Peterson, working now. He says the family wants them not only to raise a reasonable doubt but actually find the person they say is responsible for the murder of Laci Peterson. This is an unusual strategy on the part of Mark Geragos to put it mildly.

TOOBIN: It's certainly true. I started almost to laugh when I heard him say that. It's not as if he has a tough enough job finding some reasonable doubt here. That's too easy for Mark Geragos apparently. He's got to solve the crime as well.

I think what he's doing is dealing sort of with the real life implications of this case. Scott Peterson's big problem is, the question on everyone's mind is if he didn't do it, who did? There is no other suspect as far as we know. There's no other person with even a slight motive in this case. He is dealing with a jury pool, a country that seems to think, well, just even if there isn't an eyewitness, even if there isn't direct evidence, who else could possibly have done this?

So, he is, at least in public, attempting to take that question on and say, OK, well we'll try to solve. We'll try to tell you. We'll try to answer that question. We'll see whether he comes up with any evidence to back up his noted bravado.

BLITZER: To put it mildly. Jeffrey, one final question, bringing the parents, Lee and Jackie Peterson, out in front of the court and making them very visible explaining that they are totally behind their son, they believe in his innocence, it seems that Mark Geragos almost wants this trial, this procedure to be before the American public as much as it is in the courtroom.

TOOBIN: You know, one of the sayings among defense lawyers is that for better or worse it can be seen as cynical. Trials aren't about victims. They're about defendants. You have got to make your defendant a personality, make your defendant someone that people might have some sympathy for.

You know this crime is so awful. The accusations are so horrible that he has a long way to go to make Scott Peterson into a human being that the jurors might relate to. By putting him in street clothes, in nice-looking clothes, by getting his parents in front, by having them stand by him, appealing people that they are, those are all parts of his effort to make Scott Peterson seem like a human being not the perpetrator of this monstrous crime.

BLITZER: All right, Jeffrey Toobin, we're going to be talking to you a lot, I take it, in the coming days, weeks, months, and probably years that this trial continues to unfold.

TOOBIN: It could be.

BLITZER: It's only beginning and this very, very early preliminary hearing we heard a lot of legal talk about unsealing these search warrants. We'll see what the Fifth Circuit Court of Appeals finally decides on this legal issue. We'll continue to monitor this high-profile case. Jeffrey Toobin thanks very much.

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