He walks into court each morning wearing his familiar nonchalant grin, as seemingly carefree as a man strolling to the first tee for a round of golf. But whether Scott Peterson is simply confident in the outcome of his murder trial—or perhaps just disconnected from the possible death sentence that hangs over him—is unclear. Certainly his family, who sit behind the defense table at every session, is not immune to the pressure. “I can’t speak for Scott,” says his sister-in-law Janey Peterson, “but we’re all feeling anxieties now.” In a show of solidarity the Peterson clan wear a blue and yellow ribbon pin. “We won’t take it off,” says Janey, “until we find out who killed Laci.”
With the Peterson trial entering its endgame in Redwood City, Calif., that hour may be drawing near. After four months of the prosecution presenting its case, defense attorney Mark Geragos is about to get his turn to sow more reasonable doubt that Scott murdered his wife, Laci, and their unborn son. So far, though, Peterson’s breathtaking pattern of deceit and sleazy behavior—his infidelities, his fuzzy alibi, his lies to cops and loved ones alike—remains the most powerful evidence against him, if not the only evidence. On Sept. 27 lead detective Craig Grogan disclosed that Peterson had had two affairs before Amber Frey during his five-year marriage. “There are going to be some battles in that jury room,” says Stan Goldman of Loyola Law School in L.A. “Some people are going to see this guy as obviously guilty, and some are going to see this as a case in which the prosecution has put on nothing that really connects him to it.”
The prosecution—which has been widely criticized for being lackluster and meandering—got a badly needed boost in the final weeks of its presentation with the arrival of the crisp and forceful chief deputy D.A. Birgit Fladager. “I call her Hurricane Birgit,” says Bay Area defense attorney Daniel Horowitz. “She came into the courtroom and woke it right up.” The prosecution declined to talk about the switch, but there seemed little doubt that the government had at last found its voice. “It’s about her passion,” says one source who sees Fladager on a daily basis. “If you ever talk to her she is soft-spoken but mesmerizing—that’s just how she comes across.”
Fladager’s debut also coincided with the appearance of one of the prosecution’s strongest witnesses, Detective Grogan. Grogan was the one who at last connected the dots in the government’s case against Peterson. After weeks of Geragos suggesting that investigators had ignored other leads in their rush to blame Scott for the murders, Grogan tallied what he said were the 41 clues that led police to suspect Peterson: “Mr. Peterson was the closest person to Laci Peterson. He discovered her missing. He was the last to see her alive. It didn’t appear that he had an alibi. He was by himself when she disappeared. He didn’t call the police,” Grogan said. At another point he related how, after the bodies that turned out to be Laci’s and Conner’s washed ashore near the Berkeley marina in mid-April 2003, Scott, who was arrested a few days later, never even bothered to call to see if they had been identified.
Under Fladager’s questioning, Grogan also adroitly led the jury through the strange saga of the missing concrete. He explained that Scott had acknowledged making a single 8-lb. concrete anchor for his boat, but that it was discovered he had purchased an 80-lb. bag of the mix and that the remainder could not be accounted for. That seemed to dovetail with the prosecution assertion that residue at Scott’s warehouse showed that he made five anchors—and that he had used the four others to weight down his wife’s body. “It’s very possible that some jurors might latch onto that as the missing link in terms of needing one more bit of real evidence to finger Scott,” says Goldman.
Geragos, however, got Grogan to acknowledge that Scott had begun to cry when told in January ’03 that the chances of finding Laci alive were beginning to look bleak, thus undercutting a bit the image of Scott as the indifferent husband. (When autopsy photos of Laci and Conner, the couple’s unborn son, were recently shown in court Peterson also teared up.) Grogan conceded as well that, for all the supposed thoroughness of their investigation, the police had not even dusted the Peterson home for fingerprints. Meanwhile, the three prosecution experts who were supposed to show that Conner had died on or about Dec. 24 actually left the door open for some doubt. Two of them agreed it was at least possible that he had lived longer, which would fit the defense contention that Laci was abducted by someone other than Scott and killed later.
As Geragos begins his defense, the one thing that seems virtually certain is that the jury won’t be hearing from Peterson himself. His presence on the stand would give the prosecution free rein to focus on their favorite topic: his character. The betting is that Geragos will shrink his presentation down to a few key points. One of the most important: the prosecution’s time line the day Laci went missing. Cell phone records show that Scott was in the vicinity of his home at 10:08 a.m. A prosecution witness, Peterson neighbor Karen Servas, originally told police that she found the couple’s dog McKenzie running loose at 10:35 a.m. In that time frame it was at least plausible to believe, as the defense argues, that Laci could have been abducted by someone after Scott had left.
But when Servas checked the time-stamped receipt from a local store where she had been that morning she concluded that she had actually gotten home earlier than she had first thought. In court she testified that she had come upon McKenzie no later than 10:18. Suddenly the window of possibility had narrowed to a slit, since it was hard to see how Laci could have gone to walk the dog, been kidnapped and have the dog found, all in 10 minutes. But according to Goldman it now appears that defense team investigators have indications that the store’s time stamps are not necessarily accurate, which could give Geragos the chance to argue that 10:35 is closer to the truth after all.
Geragos will also hammer away at the so-called dog-walking witnesses. In his opening statement the attorney promised to produce someone who saw Laci walking the dog that day, which would show, he declared, that Laci “was alive when Scott went to the marina” and thus prove that his client is “stone-cold innocent.” But does he have the goods? Geragos has at least several people who will say that they saw someone they thought was Laci after Scott left. If just one of them is convincing, experts believe, it could be game over. “No matter how strong the prosecution’s case,” says Goldman, “one credible witness, whether right or wrong in reality, unshaken by the government, would be enough to raise reasonable doubt.”
Meanwhile, for the two families at the center of the case, the Petersons and the Rochas, the grief over Laci and the months of legal maneuvering have created an emotional tinderbox. The feud between the two camps has been simmering for some time. According to a Rocha family friend, Scott’s parents, Lee and Jackie, strongly objected when Laci’s mother and father, Sharon and Dennis Rocha (the couple are now divorced), removed various items, including the crib intended for Conner, from the Peterson residence in Modesto several months after Laci’s disappearance. By that time Scott had been arrested. For Lee and Jackie, says the source, “it was like, ‘How dare you go into our son’s house.'” According to the friend, the Rochas have no problem with the fact that the Petersons have stood by Scott: “They’re both big enough people to understand” parents’ loyalty to their son. But they do object to what they perceive as Lee and Jackie’s insensitivity. “It really hurts them when they see the Petersons joking around and sharing a laugh with Geragos,” says the source. “They see no humor in that at all.”
Through the early stages of the trial the two sides maintained an icy detente, never exchanging words or making eye contact but clearly taking care to avoid confrontation. Then, in early September, things began to boil over when Sharon Rocha’s live-in companion, Ron Grantski, and Lee looked like they might come to blows. After Lee challenged Grantski to say where he had gone fishing on Christmas Eve, apparently insinuating that perhaps Grantski had something to do with Laci’s murder, Grantski angrily fired back, “You come down here and I’ll tell you where I went fishing!” The next day, Laci’s brother Brent Rocha exchanged angry words with Lee Peterson outside the courtroom as they both tried to get through a security checkpoint. After that court officials moved the Petersons from their seats behind the defense table, across from the Rochas, to the back of the court. They were later allowed to move back up front after the two families agreed to cool it. “There was a lot of back and forth between them,” says one court official, “and we were concerned the jury might see it.”
So how might the jury begin to sift through the mountain of evidence? If Geragos has one clear edge it is California’s rules for jury instruction in such cases, which gives the defense almost every benefit of the doubt. The rule is that if jurors are presented with a piece of evidence that can be reasonably interpreted in two ways—one that points to guilt and one that tilts toward innocence—they are obliged to accept the argument for innocence. That holds true, says Goldman, “even if the one pointing to guilt is far more reasonable and probable and likely.” During his cross-examinations of prosecution witnesses, Geragos did an impressive job of punching holes, even if they were often small ones, in the government’s scenarios. “But the biggest challenge for the defense,” says Prof. Ruth Jones of McGeorge School of Law in Sacramento, “will be that at some point the jury will say, ‘Yeah, you can explain away a few of these things, but there are just so many little things that don’t make sense.'”
That raises what is perhaps a deeper issue for the defense: the Scott problem. All along public opinion polls have shown that an overwhelming majority of those surveyed believe that Peterson killed his wife. If the jurors share this opinion, the issue is whether they will let their gut feelings carry them over the hump of reasonable doubt to a guilty verdict. As the analysts are quick to point out, “beyond a reasonable doubt” doesn’t mean no doubt at all. “It leaves open the possibility that someone else could have done it,” says Alamo, Calif., jury consultant Dr. Joseph Rice. “But the evidence doesn’t point to anyone but the defendant, so therefore it’s unreasonable to think somebody else did do it.”
But here again the defense may have caught a break. Courtroom observers believe that the two jurors most likely to be tapped as the foreperson of the panel are juror No. 5, who is both a lawyer and a doctor, and juror No. 11, who is a corporate accountant. Because their professions put a premium on rational judgment and attention to detail, they are also the two who appear most likely to weigh the evidence methodically, strictly applying the legal standards that will have been set out for them. “People reach decisions in very different ways, and some people who are more intuitive in their decision making could well see everything they need to convict here,” says trial consultant Richard Matthews. “But your more analytical types, no way. I just don’t see it.”
Goldman, for one, predicts a hung jury. And that could suddenly turn into a winning situation for the prosecution. The reasoning goes something like this: The prosecution would learn from its mistakes and put on a much more polished case, probably with Fladager taking a more active role from the start; meanwhile, Geragos, who has other paying clients with trials pending, might be forced to leave the defense in other, less capable hands. “If the jury doesn’t reach a verdict,” says Goldman, “I believe eventually Scott Peterson will be retried and convicted.”
That possibility is a long way off. In the meantime the weary families are each hoping for some measure of closure. “We’re all hanging in,” says Janey Peterson, “because in the end, all we want is justice.”
Bill Hewitt. Lyndon Stambler, Ron Arias, Vickie Bane, Johnny Dodd, Champ Clark and Frank Swertlow in Redwood City