Peterson Prosecution Gets Mixed Reviews

Oct. 7, 2004 — -- Prosecutors took four months to make their case for murder against Scott Peterson, but they may have made his case for acquittal.

It has been a roller coaster ride for prosecutors seeking to convict Peterson in the disappearance and slayings of his wife, Laci, and their unborn son. They 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. Peterson's defense has not denied the affair but insists Peterson did not kill his wife. Defense attorney Mark Geragos has argued that someone else killed Laci, and investigators failed to follow other leads in her disappearance and slaying. Peterson faces the death penalty if convicted of double murder.

With the prosecution resting Tuesday and Geragos expected to begin his defense Oct. 12, courtroom observers agree that prosecutors may have a compelling circumstantial murder case. But after hearing from 174 witnesses over a 19-week period, jurors may be overwhelmed — or confused — by the mountain of evidence they have seen.

"It does seem like the prosecution has maybe put the jury to sleep. They put on so much evidence, much of it of marginal relevance to the case, that I think strategically, they didn't handle it well," said California defense attorney Steve Cron. "They anticipated what the defense would be in some areas and attempted to rebut it before the defense presented it to jurors. The textbook way of doing it is you put on your case, the defense puts on their case and then if there's something you like to challenge you do it on rebuttal. But they [Peterson prosecutors] did this during their case in chief, perhaps to their disadvantage."

Defense Uses Prosecution Witnesses

Scott 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.

Geragos tried to deflate the prosecution by using their witnesses for his case's advantage. Prosecutors suffered a setback in July when hair expert Rodney Oswalt disputed their theory that two hair fragments taken from pliers on Peterson's boat, the only physical evidence connecting Peterson to the slaying, 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.

"It's struck me how prosecutors have allowed themselves to be taken advantage of by Geragos, how Geragos has used their own witnesses against them," said James Cohen, associate professor of law and director of clinical education at New York's Fordham University.

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. He also put prosecutors on the defensive with allegations 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.

Turn in Momentum

Geragos' ability to turn the opposition's witnesses into his own and stress the lack of physical evidence linking Peterson to the slayings sparked early criticism that prosecutors had blown the case. However, some courtroom observers believed the criticism was premature — and perhaps unfair.

"The initial criticism prosecutors faced was maybe unfair. They have a complicated circumstantial case and it is a case that has to be evaluated as a whole as opposed to its individual parts," said Beth Karas, Court TV reporter and legal analyst who has covered the Peterson case. "These prosecutors are less experienced than Mark Geragos. Mark Geragos also loves dealing with the press and is good at using [the opposition's] witnesses to his advantage."

The prosecution's case gained some momentum when Frey took the stand. From her 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 — Scott Peterson told Frey he was in Paris on a business trip.

"With the Amber Frey tapes, they [prosecutors] were able to paint Peterson as such a despicable guy, that that may have turned the corner for them," said Cron.

In recent weeks, courtroom observers say, Detective Craig Grogan, the lead investigator in the case, boosted the prosecution by giving jurors the first detailed narrative that stitched together the many circumstances that led police to believe Peterson was involved in the killing.

Geragos used Grogan to point out that police failed to follow up on a number of reported sightings of Laci the day she vanished. Still, through Grogan's testimony, the prosecution was able to focus on Peterson's behavior just before his arrest.

Appearance of Guilt?

Peterson's purchase of a car under his mother's name, change in appearance, repeated lies and the $15,000 cash he had when he was arrested suggest guilt, prosecutors intimated. Peterson, police detectives testified, looked like someone who was trying to elude authorities.

At the end of the prosecution's case, 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.

Some critics believe that prosecutors should have used Grogan as their last witness to emphasize and weave together the strongest points of the case. But the prosecution will have another chance to summarize the case in closing arguments.

"The case, instead of ending with a bang — which you want to do as a prosecutor — just petered out into minor points," said former prosecutor Dean Johnson. "The evidence is there, and you have to work for it and you have to look for it."

Reconciling the Two Scott Petersons

Peterson's deception could work to his advantage. He 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. His alibi the day Laci disappeared — that he had fished near the Berkeley Marina — placed him near the area where she and the remains of the boy they planned to name Conner washed ashore.

Peterson's apparent fumbles, especially in the days before his arrest, and his lies to Frey, some experts say, seem laughable and hardly reflective of someone who could leave no traces of physical evidence of a murder. Prosecutors, some observers say, will have to reconcile these two Scott Petersons.

"The bottom line is that there isn't much physical evidence at all connecting Scott Peterson to this case," Cron said. "What you may hear the defense say is that the prosecution can't have it both ways. 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."

Emotional Hurdle for Peterson Defense

Peterson's case is not expected to be as long as the prosecution's. Sources told ABC News that Geragos expected to finish his case within two or three weeks.

Geragos is expected to stress these main arguments: that someone else could have abducted and killed Laci; no physical evidence links his client to the killings; and Peterson's adulterous ways do not make him a murderer.

Under cross-examination by Geragos, Frey admitted that Peterson never told her that he loved her. In addition, jurors learned from Geragos' cross-examination of 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.

"He [Peterson] looks bad. He sounds bad. He certainly didn't play the role of grieving husband," Cron said. '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."