The Scott Peterson Trial:
Can Prosecutors Win the Case? And If So, How?

By JULIE HILDEN
julhil@aol.com
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Tuesday, Jul. 20, 2004

So far, the prosecution's case against Scott Peterson, in his ongoing California murder trial, has been unimpressive. The prosecution's opening was unconvincing - relying heavily on weak circumstantial evidence that could have an innocent interpretation.

For instance, prosecutors pointed out that (in a wiretapped call) Scott Peterson gave a whistle of relief when an object found on the floor of San Francisco Bay was an anchor, not his wife Laci's body. But so what? Maybe he was relieved because this meant she might still be alive. Is it really evidence suggesting Peterson murdered his wife, if he was happy that an object found was not his wife's body?

To take another example, prosecutors noted in their opening that the jewelry Laci wore every day was still in her bedroom when she disappeared. They imply that therefore she never left the house, and Scott must have killed her there.

But would Laci necessarily have worn her diamond earrings and sapphire ring to walk the dog - which is what the defense, supported by three witnesses, will maintain that she was doing when she disappeared? It wouldn't have been very surprising, especially given that she was eight months pregnant, if she'd walked the dog in her pajamas.

In the last few weeks, as the prosecution's case has unfolded with witness testimony and other evidence, it hasn't improved much. As a result, commentators have been almost universally harsh in their condemnation of the prosecution's effort.

Meanwhile -- as I noted in an earlier column -- Justin Falconer, the juror who was recently dismissed, was adamantly anti-prosecution. . If even one remaining juror feels as strongly as Falconer, the prosecution is in serious trouble.

But granted, prosecutors are not done with presenting their case yet. Star witness Amber Frey -- who says she believed Peterson was single when they had a "romantic relationship" -- has yet to testify. And wiretaps of Frey's conversations with Peterson have yet to be introduced.

Could prosecutors use this type of evidence to turn things around for themselves? It's possible, but unlikely.

A Paucity of Physical and Forensic Evidence

Potentially damning physical or forensic evidence is scant in the Peterson case. Scott's attorney, Mark Geragos disparaged it as "zero, zip, nada, nothing." That's not quite accurate - but it's close.

Prosecutors do point to a hair identified as being Laci's (or very similar to Laci's; the mitochondrial DNA evidence was not as definitive as other DNA evidence would have been). This hair was found in pliers that were apparently on Scott's boat the morning Laci disappeared.

The prosecution has made a great deal of this hair. Specifically, the prosecution suggested that since Laci, while alive, had never seen Scott's boat, the hair must have come from her dead body - which, they say, Scott carried in the boat so he could later dump it in the San Francisco Bay.

The problem with this argument, however, is that its premise is false. Shortly before she disappeared, Laci had in fact been to the warehouse where Scott kept his boat. A disinterested witness at the warehouse identified her as having asked to use the bathroom there.

Doubtless, Laci would have seen the boat during that visit. So the presence of her hair in the pliers on the boat, while still significant, is hardly overwhelming evidence of Scott's guilt.

Besides the hair, there is the tiny amount of blood in the form of spots found on the couple's comforter. But these spots, it seems, were Scott's blood, not Laci's. And that could be consistent with Scott's claim that he'd cut his knuckle.

More importantly, the prosecution cannot explain the disappearance of the copious amount of blood that should have been everywhere, had Scott really killed Laci in their own house, as the prosecution maintains. For Scott to have cleaned the house that immaculately, he would probably have had to be a professional killer or "fixer." In fact, he was a fertilizer salesman.

Nor can the prosecution explain the total lack of any scratches or bruises on Scott (except for that one cut). And that's a problem, given that if Scott had tried to kill Laci in their house, she would doubtless have fought fiercely against him -- not only for her own life, but for the life of her unborn son as well.

There are a few items of physical evidence, however, that do help the prosecution's case. One is the tarpaulin that was used to cover Scott's boat. By the time police found it in the warehouse, after Laci had disappeared, it was soaked in gasoline.

That could have been done purposefully, if Scott had used the tarp to wrap Laci's body and knew gasoline got rid of trace evidence. But it could also have been done accidentally - apparently, there was a leaf blower atop the tarp that might have been leaking gas.

In the end, we'll never really know how much gas was on the tarp, for police were reportedly foolish enough to air it out after they found it. And that fact limits the tarp's value as evidence.

Another helpful item of physical evidence for the prosecution is the homemade cement boat anchor found in the warehouse. Apparently, Scott Peterson has conceded that several such anchors existed, and circles in the dust on the warehouse floor indicate there may have been as many as five such anchors. (Although, of course, one anchor could have made multiple circles at different times.) Now, only one anchor exists.

Did the other anchors go into San Francisco Bay with Laci's body when - according to the prosecution - Scott dumped the body there? Scott says the anchors are gone because he used the cement from them to patch his driveway. But it has yet to be seen whether the evidence bears out this explanation.

In sum, there is some physical and forensic evidence that favors the prosecution - but not anywhere near as much as one might expect, if the prosecution is correct that Scott murdered Laci in the house they shared, loaded her body into the toolbox of his truck, took her out on his boat, and dumped her body in the Bay. Not only is the house free of damning evidence, but so are his truck and his boat - except for that one hair.

The Defense Has Contemporaneous Eyewitnesses; the Prosecution Does Not

Meanwhile, another blow for the prosecution comes from the fact that, in this case, it is going to be the defense - not the prosecution - calling contemporaneous eyewitnesses to the stand.

In his opening, defense attorney Mark Geragos promised to call three witnesses who each saw a very pregnant woman fitting Laci's description walking her dog in her neighborhood the day after prosecutors claim she was murdered - and during a time Scott Peterson can offer a strong alibi as to his own whereabouts.

If even one of these witnesses is believable, his or her testimony may raise the necessary reasonable doubt. It would do so by suggesting that the defense's version of events - that Laci was abducted after Scott left to go fishing - could well be true, and that therefore, Scott could well be innocent.

The Evidence to Come: Amber Frey May Play a Pivotal Role at Trial

In light of all these blows to the prosecution's case - and these are far from the only ones that have been struck in defense cross-examination so far - can prosecutors possibly win this case?

I think it's possible, but it will be very, very difficult. If there is strong evidence of Scott's guilt in the wiretapped conversations between him and Amber Frey, that might be enough. But the evidence would have to consist of a remark by him that was close to a confession. And if that kind of admission exists, I think it would have leaked by now - and would also have been featured in the prosecutors' opening. That's not the case.

Testimony that Scott told Amber (or the friend who introduced them) that he was a widower before Laci died could also be powerful evidence for the prosecution. But I do think the jurors will prove more than able to separate evidence about Scott's admitted infidelity - and all the various lies and multiple cellphone calls that accompanied it - from evidence as to the key question of whether he murdered Laci.

Married men tell all kinds of lies to get women to sleep with them, and jurors will doubtless be aware of that. That Scott first claimed he was a widower, then later actually became one, may be more a sick coincidence than a self-fulfilling prophecy.

The Crucial Concrete Anchors: Could They Win the Case For Prosecutors?

In the end, the case may come down to those missing concrete anchors. Scott says he used the concrete from them on his driveway, and thus they no longer exist. But when did this driveway-patching project occur? Did he talk to anyone about it? Were there any witnesses to his work - work that he would have done outside his house, in full view of neighbors? And what about the handles for the anchors - which seem (from the one anchor that survives) to be made of pipe, not concrete? Where are they?

If Scott Peterson, or his defense attorney, cannot account for the whereabouts of those extra anchors, then they may be in real trouble - for jurors may conclude the anchors are just where the prosecution believes them to be: at the bottom of San Francisco Bay.

Granted, the anchors haven't been discovered there. But the area where they might be is huge - as big as numerous football fields - and concrete anchors can sink into sand at the bottom, and get buried there as tides shift.

If Scott can't account for the anchors, he may be doomed. But if he can convincingly explain where the concrete and the anchor handles disappeared to, he may end up with a "Not Guilty" verdict, after all.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She clerked for then-Judge Breyer when he was on the U.S. Court of Appeals for the First Circuit. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.

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