Peterson Defense Faces Emotional Hurdle

Oct. 11, 2004 — -- Defense attorney Mark Geragos' greatest hurdle to winning an acquittal for Scott Peterson in the slayings of his wife, Laci, and their unborn son may be Peterson himself.

The first defense witnesses for Peterson are scheduled to take the stand Tuesday. Prosecutors rested their case in the double murder trial last week after presenting 174 witnesses over a four-month period. Peterson faces the death penalty if convicted.

Geragos' case is not expected to be as long as the prosecution's. Sources told ABC News that the defense attorney expected to finish his case within two or three weeks and that he will focus on the themes he outlined during cross-examination of prosecution witnesses. Prosecutors have suggested that Peterson killed Laci because he was tired of his marriage, feeling pressure from her pregnancy and wanted to continue his affair with Amber Frey.

The defense has not denied the affair but Geragos has argued that someone else killed Laci, and investigators failed to follow other leads in her disappearance and slaying.

Geragos also enabled jurors to learn from his cross-examination of the lead investigator in the case, Detective Craig Grogan, that Peterson had other affairs while married to Laci. These factors, the defense could argue, show that Peterson would not have killed Laci because of a desire to continue an affair. But these revelations could also enhance jurors' dislike of Peterson and make it more difficult for Geragos to persuade the jury to focus on the lack of physical evidence.

"He [Geragos] may say something like, 'It's OK that you don't like my client. That's fine. But at the end of the day, can you honestly leave here and say the evidence shows he murdered his pregnant wife?'" said California defense attorney Steve Cron. "I guarantee you that will at least be the theme of the closing argument."

Putting the Prosecution on the Defensive

Prosecutors' case against Peterson is based on largely circumstantial evidence. They have very little physical evidence — or no physical evidence, according to the defense — linking Peterson to the killings. Early in the trial, Geragos seemed to put the prosecution on the defensive — and perhaps gave a preview of his defense — by using the state's witnesses to exploit weaknesses in the case.

Prosecutors had theorized that two hair fragments taken from pliers on Peterson's boat belonged to Laci and were the only physical evidence connecting Peterson to the slaying. Peterson said he had gone fishing alone Dec. 24, 2002, the day his wife disappeared, but investigators believed that he killed Laci and used the boat to dump her body in San Francisco Bay. Her remains — and those of her fetus — washed ashore separately in April 2003, near the area where Peterson told investigators he had fished.

In July, hair expert Rodney Oswalt disputed the prosecution theory that the two hair fragments were Laci's. Oswalt said under cross-examination that the hair came from two separate sources and that he could not decisively determine whether either hair came from Laci because the strands did not have roots. He also said the hair did not belong to Peterson.

Another prosecution mitochondrial DNA expert said tests concluded that at least one of the hair fragments belonged to Laci. But the defense disputed the validity of the tests because mitochondrial DNA analysis is less precise. Geragos also had a prosecution criminalist concede repeatedly that investigators found no blood or any other kind of physical evidence on Peterson's boat or in his home linking him to Laci's slaying.

"Prosecutors had offered a motive, that he [Peterson] was tired of this marriage, that she [Laci] became this obstacle to his continuing an affair with Amber Frey," said James Cohen, associate professor of law and director of clinical education at New York's Fordham University. "But prosecutors left their witnesses open to be used by Geragos to his advantage repeatedly, revealing loose ends in their case and having them stumble over certain points. After awhile, repeated stumbles begin to make the defense's case look more credible in the jury's eyes."

Amber Frey’s Long-Term Effect

Still, Amber Frey's testimony may have marked a turning point for the prosecution. Her testimony illustrated for jurors the depth of Peterson's deception.

From Frey's testimony and her wiretapped phone conversations with Peterson, jurors learned the fertilizer salesman told her he wanted them to be together and told elaborate lies to keep his marriage secret. During one phone conversation — which took place as investigators and volunteers were searching for Laci — Peterson told Frey he was in Paris on a business trip.

Under cross-examination by Geragos, Frey admitted that Peterson never told her that he loved her, which may suggest that he wasn't so obsessed with their relationship that he was willing to commit murder. But Frey's mostly unwavering testimony on the stand may leave a vital impression on jurors when they consider Peterson's guilt.

"The jury's verdict will tell us how helpful her testimony was to the prosecution," said Beth Karas, Court TV reporter and legal analyst who has covered the Peterson case. "I don't see how Amber Frey's testimony hurt the prosecution. She stood up very well to cross-examination by Geragos."

The Tunnel Vision Defense

During the prosecution's case, Geragos suggested through cross-examination that investigators focused primarily on Peterson in his wife's disappearance and neglected other leads and theories.

Early in the trial, Modesto Detective Ray Coyle told jurors that investigators tried to locate more than 300 registered sex offenders and parolees who lived near the Petersons at the time of Laci's disappearance. But Geragos noted that detectives closed several investigations after only one interview or without locating their subjects. Geragos also used Grogan to point out that police failed to follow up on a number of reported sightings of Laci the day she vanished.

Geragos may also use the debate over when the fetus died to try to prove Peterson's innocence. Prosecutors believe Peterson killed Laci on either Dec. 23 or Dec. 24 and dumped her body in the San Francisco Bay, using concrete anchors to sink the body. They believe the fetus, a boy the couple had named Conner, was expelled from Laci's body after her death, explaining why the bodies washed ashore separately.

However, prosecutors are unable to describe how Laci was killed and their current and tidal expert was unable to give a precise trajectory path for the remains. He could only estimate that Laci and her unborn son were dumped near the area Peterson said he was fishing.

Peterson's defense believes Laci was kidnapped and that the baby could have been born alive after Dec. 24 and killed, and then dumped in the bay. This, Geragos argues, would prove that Peterson could not have killed his wife and child because he was under too much scrutiny by the media and police after he reported her missing. Peterson's defense could call its own tidal expert to dispute the prosecution's witness and its own maternal fetal expert to explain the fetus could have died after Dec. 24.

"He [Peterson] looks bad. He sounds bad. He certainly didn't play the role of grieving husband," Cron continued. "That'll be the hard part for Geragos, getting jurors to put aside their dislike of Peterson and make a decision based on the law and not their emotions."

Peterson: Mastermind or Bad Liar?

Still, Geragos may have to persuade jurors not to focus on Peterson's behavior just before his arrest — or at least try to use it to his advantage.

Peterson, police detectives testified, looked like someone who was trying to elude authorities. He purchased a car under his mother's name, changed his appearance and had $15,000 cash at the time of his arrest. Modesto Detective John Buehler testified that when Peterson was arrested, he had a large backpack and an overnight bag stuffed with hunting knives, a water purifier, snorkeling and fishing equipment, a shovel, and duct tape. Peterson also had several changes of clothes, four cell phones, two driver's licenses and six credit cards.

Peterson has had an explanation for all the apparently suspicious behavior. Geragos has argued that his client was trying to evade the media and normally traveled with camping equipment. Peterson said his hair changed color after he swam in his friend's pool. But the friend testified that Peterson had never been at his pool.

Peterson told repeated lies and his alibi the day Laci disappeared — that he had fished near the Berkeley Marina — placed him near the area where the bodies washed ashore.

Peterson's lies and fumbles may seem laughable and appear to suggest his guilt, some experts say. But there is still very little physical evidence linking him to the slayings. His behavior seemed hardly characteristic of someone who could cover up the physical evidence of a murder almost perfectly.

"What you may hear the defense say is that the prosecution can't have it both ways," said Cron. "He's either this mastermind murderer who has planned the crime without leaving any traces of evidence anywhere and if that's the case, then why does he sound like such a dumb idiot when talking to his mistress on the phone, to police, to reporters? … It's hard to reconcile this perfectly planned crime with the Scott Peterson everyone's been exposed to."