Peterson players promised Perry Mason prelim, but will they deliver?

Scott Peterson has waited months for his preliminary hearing, which begins Wednesday

By Harriet Ryan
Court TV
MODESTO, Calif. — On Wednesday, gavel will meet wood in Stanislaus County Superior Court, and Scott Peterson's preliminary hearing will finally get under way after months of delays.

The hearing is much anticipated because prosecutors, who have revealed little of their case so far, must lay out enough evidence against Peterson in the murder of his wife and unborn son to convince a judge to hold him for trial.

If Peterson were a run-of-the-mill murder suspect and not the sort who routinely graces the cover of People magazine, the preliminary hearing might last a morning and consist solely of the testimony of the coroner and a police detective, who would summarize the accounts of key witnesses.

But, because of the intense spotlight on the prosecution's case and the aggressiveness of Peterson's legal team, the hearing is shaping up to be less of a skirmish on the way to war than a full-scale battle. It is expected to stretch five days and include testimony from civilian witnesses and experts who would usually only take the stand at a trial.

The high-profile nature of the case doesn't change the low standard of proof the prosecutors are required to demonstrate at this stage. Unlike at trial, where evidence "beyond a reasonable doubt" is the rule, Deputy District Attorneys Rick Distaso and Dave Harris only need to show Superior Court Judge Al Girolami that there is probable cause — or facts and circumstances that would lead a reasonable person to believe a crime occurred and Peterson committed it.

But if there are low standards for evidence inside the courtroom, there may be decidedly higher ones outside. In the lead-up to this hearing, both sides have prepped the public — which, of course, includes potential jurors — for Perry Mason-moments that will leave little doubt about who killed Laci Peterson and her fetus. The district attorney has hinted at bombshell evidence, and the defense has outright promised it.

On the sunny May day he took Peterson's case, well-known criminal defense lawyer Mark Geragos stood before a bank of cameras on the courthouse steps and said his goal was not only to exonerate his client, but also to find the true perpetrators.

Perhaps that could have been dismissed as the bluster of a new attorney who had not yet reviewed a single piece of evidence, but throughout the summer, defense sources continued to mention the "real" culprits and suggest that a bloodthirsty satanic cult, men with a brown van or a serial killer were responsible.

In July, Geragos filed court papers saying the defense had acquired evidence concerning the "true killers" that "negates any possibility that Mr. Peterson committed this horrible crime." The evidence, he wrote, would come out at the preliminary hearing.

The prosecution offered its own trailer this summer when District Attorney James Brazelton told the Modesto Bee that the defense theories were "phony baloney stuff."

"By putting on a prelim, they're going to see some stuff that might open some eyes," he said.

The evidence

While neither side has any legal obligation to deliver on their predictions, failing to do so may have fallout in the potential jury pool.

Although a gag order prevents both sides from talking specifically about evidence, court filings indicate phone records, dogs and DNA will be crucial evidence at the hearing.

Scott Peterson, 31, told investigators he was fishing in the San Francisco Bay when his wife vanished last Christmas Eve morning from their home, but prosecutors contend Peterson killed her and used his boat to dispose of the body.

Police found a black hair on pliers in the boat, and prosecutors plan to call a DNA expert to testify that the hair matches Laci Peterson's. At almost eight months pregnant, they may argue, she would have no benign reason to be on a boat.

The prosecution is also expected to rely on testimony from the handlers of search dogs that tracked Laci Peterson's scent. Her husband told investigators she was going to walk their dog the morning she vanished, but police dogs indicated she left her home in a vehicle.

Prosecutors have also said they plan to introduce phone records that reportedly show Peterson was in regular contact with Amber Frey — a massage therapist with whom he had been having an affair — before and after his wife vanished.

Peterson's defense team has belittled the prosecution's evidence as "more theory than substantial facts" and said the prelim "will likewise be top-heavy with theory and lacking in facts of substance."

His lawyers plan to attack the scientific reliability of the DNA testing and the dog tracking and will argue that officers illegally tapped Peterson's phones.

It is unclear how much of its own evidence the defense will offer. Under the law, Peterson's lawyers can call a witness only if his or her testimony "would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness."

In court last week, defense lawyers said they had subpoenaed three police officers and the judge who approved the phone taps in the case.

With the low standard of proof required at a preliminary hearing, there seems little doubt the judge will hold Peterson for trial. But how the evidence plays out this week will certainly affect future strategy on both sides. Shaky witnesses may not be called back at trial, confusing evidence will have to made more presentable, and "bombshells" that never explode may be cast aside.