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LIVE FROM THE HEADLINES

Judge Orders Peterson's Prosecutors to Turn Over Wiretaps to Defense

Aired May 27, 2003 - 20:09   ET

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

ANDERSON COOPER, CNN ANCHOR: There were new developments today in the Laci Peterson murder case. A judge has ordered the prosecution to turn over wiretap records to Scott Peterson's lawyers. David Mattingly joins us from Modesto, California, with the latest -- David.
DAVID MATTINGLY, CNN CORRESPONDENT: Anderson, an attorney representing five California newspapers pushed very hard in court today for the release of some important documents related to the autopsy of Laci Peterson, as well as some search warrants that have been issued in this case, but they're probably not going to get those, at least not now while the court pursues some other important issues.

(BEGIN VIDEOTAPE)

MATTINGLY (voice-over): Five months and two days since the murder of Laci Peterson, defense attorneys for Scott Peterson are focused on 69 calls, phone calls between Scott and his attorney and investigators that were intercepted in police wiretaps.

UNIDENTIFIED MALE: Sixty-nine calls were intercepted. I don't believe 69 calls were monitored. So there's a difference in wiretap when all the calls are intercepted versus what's actually monitored.

MATTINGLY: A California judge ruled that prosecutors have to turn over all information from those calls so the defense can decide for themselves if Peterson's rights have been violated.

MARK GERAGOS, SCOTT PETERSON'S DEFENSE ATTORNEY: Once we've seen exactly what was taped, then we'll file whatever appropriate motion. Until we see what's there, we really don't know what we're going to do.

MATTINGLY: Scott Peterson appeared in court in a coat and tie, not the bright red jump-suit he wears in jail. The blond highlights he had at the time of his arrest now gone, thanks to a fresh hair cut.

Outside, there were dozens of cameras and reporters from across the country, and the abundance of national pre-trial publicity is clearly a concern, with both sides arguing against making public arrest warrants and autopsy results.

GERAGOS: We're pleased. We think that the judge protected the integrity of the investigation, and that's what we're looking to do.

MATTINGLY: The judge in the case raised the possibility of a gag order on all participants. Also an issue, the courtroom camera, will it be allowed to stay for Peterson's preliminary hearing?

(END VIDEOTAPE)

MATTINGLY: That hearing now a month and a half away, as the investigation continues, Anderson, on both sides.

COOPER: All right, David, thanks very much for that report.

Joining our discussion of the Peterson case are Court TV's Lisa Bloom and CNN legal analyst Jeffrey Toobin. I appreciate you guys being here.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi, Anderson.

COOPER: All right. Jeffrey, I know you've been talking about this all day.

TOOBIN: I know, just getting started.

COOPER: Sixty-nine phone calls. What happened? Why did the judge rule the way he did?

TOOBIN: It's really not terribly significant. What happens is in any sort of criminal case, the discovery process is the defense gets access to any statements that the defendant might have made. These are wiretaps where his voice was recorded, that the defense gets that more or less as a matter of course.

The interesting twist here is that there is a possibility that some of these tapes might have recorded Scott Peterson talking to his lawyers, which would be improper to be used against him, so the judge will review, and any...

COOPER: Now, is it improper to have those even recorded? Because I know the police are only supposed to listen to I guess the beginning of it, and then when they decide that it's something that they're not supposed to be hearing, they're supposed to not monitor it, is that correct?

TOOBIN: There's a process called minimization that the cops are supposed to do. They're supposed to hear what's going on and then stop listening. It works imperfectly at best, but the important thing is that no leads are taken from these tapes. I mean, obviously, the cops have to listen to know who's even in the conversation, but there has to be some proof that these conversations have been used against Scott Peterson to see if anything untoward has happened.

COOPER: Lisa, what do you think -- and we should also just point out your mom is defending Amber Frey, just for full disclosure here. What do you think the defense is going to be listening for in those recorded phone calls?

LISA BLOOM, COURT TV: Well, the defense wants to know if attorney-client privilege communications were recorded. That would clearly be a no-no. There is a big difference between interception and recording. What the police are supposed to do when they see an attorney's number has been dialed is turn off the recording, and that's what we suspect probably happened in this case. If indeed they listened in and recorded attorney-client privilege communication, that would be a big problem for the prosecution.

COOPER: Now, why hasn't the judge ruled on the autopsy report, whether or not that would be released?

BLOOM: Well, the judge has given a tentative ruling, which is typical in California, probably will be followed up by a formal ruling later in the week, which will say essentially, no, the press, you and I cannot have access to this information, it's going remain confidential and private at least until the preliminary hearing in July, and then all the information presumably will be made public.

COOPER: But, Jeff, why is -- I mean, I know, but why is the press arguing that they should have access to these autopsy reports?

TOOBIN: Well, there is, under California law, a presumption, an understanding that when that that affidavit supports the search warrants, the autopsies, these documents become public. There has to be some countervailing, some reason to keep them private. And it's just not something that is between the prosecution and defense. The public has an interest here, too. And the lawyer for the newspapers, I thought, made a very good case that it's not up to just the prosecution and the defense, the public has an interest here as well.

COOPER: But what's interesting, though, is both the defense and prosecution were arguing tat they did not want these things to be made public, the autopsy reports, the search warrants and the like, the arrest warrant. But yet, you do hear a lot of leaking coming from somewhere that seems to indicate they want this thing to be in the public eye. So on the one hand they are arguing publicly in court, no, we don't want any of this information released, but clearly they want some of it out there.

BLOOM: It's a new level of defense slickness in this case to be both leaking information to the press on a regular basis, salacious information like satanic cults being involved, carving up of victims, and at the same time, arguing with the straight face in court, as Mark Geragos does, this information should not be made public, because it contains facts, and those facts could prevent my client from getting a fair trial. I don't think the defense can have it both ways.

TOOBIN: Well, what I thought was particularly sort of, I guess, I don't want to be too cynical, but sort of funny about ...

COOPER: You?

TOOBIN: No, I have refused to be accused of cynicism. No. That the reason that Geragos was saying, well, the reason we don't want any investigation disclosed is because we're conducting our own investigation, and we believe the investigation should be ongoing, you know, this search for the real killer, that is the theme of his defense. You know, whether you believe that or not, I don't know.

COOPER: Which side has more to lose by this information being released?

BLOOM: Well, it depends on what the information is, doesn't it? And of course, we don't know that, because both sides have joined together against the big bad media to say this information should not be made public. It will be made public eventually, there is no question about that. In the Westerfield case, it all came out after the conviction, it's just a question of when. The prelim is coming up in a month or two. Why does everyone want this information to be secret? I think because there's some very important information there they don't want us to know about.

TOOBIN: Do you really believe that the prelim is going to happen in July? I mean, don't you think it's going to be delayed?

BLOOM: Well, you know what I thought was interesting, is Mark Geragos standing before the cameras today and saying with a straight face, my client wants to go forth immediately...

TOOBIN: He wants today.

BLOOM: ... but I, the attorney, am going to take the fall. I'm the one who's causing the delay. You know, there's been six motions that have either happened so far in this case or on calendar, all of them related to media issues, none of them related to bail, suppression of evidence, things that we would expect to be happening at this stage of the case. It's all about the media, and the only thing that Geragos really said today in front of the media was, this is probably the last time I am going to address you directly, because of the gag order.

TOOBIN: And if you believe that, I've got a bridge in Brooklyn to sell you.

(CROSSTALK)

TOOBIN: But it is, the way California law works, I mean, the rule is, why do today what can you do three weeks from now? It is a slow system. July would actually be a fairly prompt preliminary hearing, given the complexity of this case, given the fact that they're still investigating. I mean, they were (UNINTELLIGIBLE) San Francisco Bay this weekend.

COOPER: And even if there was a change of venue, that wouldn't affect this preliminary hearing?

TOOBIN: Probably not. I mean, Geragos may argue to move even the preliminary hearing. I don't think he has any chance there, because there's no jury involved, there's no question of tainting the jury pool. But I actually don't think that this prelim will go forward in July. I think it's in Geragos' interests to delay this thing as long as possible.

BLOOM: Look what he did in the Winona Ryder case, he delayed, delayed, delayed, delayed, trying to distract and obfuscate, and ultimately his client lost.

COOPER: We're going to have to leave it there.

TOOBIN: Could happen.

COOPER: I'm sure we'll talk about this at some point in the future.

TOOBIN: It may come up again. I don't know.

COOPER: Once or twice, yes. I'm sure it will. Lisa Bloom, appreciate you joining us; Jeff Toobin, good to talk to you.

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