The Prosecution fails to make the Grade

In his trial report after the State rested, Richard Cole gave it a report card. "Using lead prosecutor Rick Distaso's four-hour opening statement as a guide, the Daily News has graded whether the government proved its case against [Scott Peterson] beyond a reasonable doubt." Cole went through 21 items, grading them according to the typical A-F school grades. It's lengthy, but well worth the time to read and ponder.

1. Blinds down: Distaso said in his opening it was unusual for the blinds to be down in the Peterson home, as they were the morning of Dec. 24, 2002, when Laci was reported missing. No witnesses testified to that, however, and the Peterson's housekeeper said the blinds were always down when she arrived to clean the house. Grade F.

2. Golfing vs. fishing: The first neighbor Scott talked to when he went looking for Laci testified that Scott told her he golfed that day. But she also said Scott was distraught and that she was firing questions at him. Laci cousin Harvey Kemple also claimed Scott said he went golfing, but Scott had already told police he was fishing before he talked to Kemple. And hours before he talked to the neighbor, police or Kemple, Scott left a message for Laci on their answering machine that he was returning from Berkeley -- not the Modesto country club the couple had just joined at a cost of $25,000. Grade F.

3. No dog walking: Her doctor and numerous of Laci's relatives and friends testified Laci was tired as her pregnancy progressed, and had suffered dizzy spells while walking. But none could say for certain she wasn't walking the dog. A neighbor who appeared neutral in this case said Laci told her in mid-December she had started walking McKenzie because she was worried about her weight. Grade F.

4. Fishy story: In his opening statement, Distaso said emphatically, "That kind of sets the scene for the entire case,this story about fishing." The first thing that made police suspicous about Scott's fishing trip was that he didn't answer directly when asked what he was fishing for the night Laci disappeared. They also thought it strange he went fishing the day before Christmas. But Scott said in his police interview that he mainly wanted to get his new boat in the water. And Laci's stepfather Ron Grantski, who became one of Scott's chief accusers, also went fishing that same day. Grade F.

5. Bucket and mop: A bucket and mop were found outside the door of the Peterson's house, with prosecutors' suggesting Scott may have tried to clean up the crime scene. But no evidence of a crime scene was found inside the home and none of the floors were wet. A state criminalist examined the mop and bucket and found no evidence of blood or tissue. Grade F.

6. The bodies and Brooks Island: The most powerful prosecution evidence is that the bodies washed up almost four months after Laci disappeared near the spot where Scott went fishing in the San Francisco Bay. But experts told police the anchors Scott allegedly used to sink the body weren't heavy enough to do the job. And the coroner indicated there was evidence Laci's body was exposed to sunlight. A tidal expert trace[d] the path of Conner's body to where Scott said he was fishing -- but said the location of Laci's body didn't fit his calculations. Grade C.

7. Dog and leash: Prosecutors suggest that leaving McKenzie outside with his leash one was a setup by Scott to blame Laci's disappearance on a stranger. But Scott took the leash off the dog before calling family, neighbors and police. Grade D.

8. No rain: Scott said he washed his clothes after fishing because it rained at the Berkeley Marina on Dec. 24, 2002. Prosecutors said both during the opening statements and in affidavits that the claim was untrue. But a marina maintenance man called by prosecutors said last week it had indeed drizzled during the day. Grade F.

9. Tiny time gap. Prosecutors used cellular tower records to show Scott made a cell phone call at or close to his home at 10:08 a.m. Neighbor Karen Servas said she found McKenzie at 10:18 a.m. That leaves only ten minutes for Laci to walk the dog and get kidnapped. But a cellular company executive called by the prosecution testified that the 10:08 a.m. call could not be used to fix Scott's location. And Servas initially said she found the dog at 10:30 a.m. Grade D.

10. Freshwater fishing pole. Distaso said during his opening statement that Scott was carrying a freshwater fishing pole instead of a saltwater rod and reel at the Berkeley Marina. But police and a sports store manager later said the pole was indeed a saltwater pole, and detectives conceded that on the witness stand. Grade F.

11. Problems in the marriage: The first detective who interviewed Scott asked f there were any problems in his marriage. A state Department of Justice official later asked if there were "third parties." Scott denied it both times, indicating he was lying about Amber Frey. He was later recorded apologizing to detectives for lying to them about Frey. Other witnesses have testified that Scott had at least two previous affairs, and Laci had clearly forgiven him. But Scott continued to call Amber, even minutes before a candlelight vigil for Laci. Grade B.

12. Black pants: Scott told police he had left Laci wearing a white shirt and black pants, but she was found in beige pants. Prosecutors have never explained why Scott would lie about the color of the clothes. Even Frey's pro-prosecution attorney Gloria Allred conceded Scott just may have been mistaken. Prosecutors tried to show that when Laci died, she was wearing the same clothes she had on the previous evening. But her sister Amy Rocha found the blouse Laci was wearing during a search of the Peterson's home. And she said the pants she had seen on Laci were not those found on her body. Grade F.

13. The baby's age: Distaso said a bone-growth expert would show Conner died Dec. 23 or 24. But the expert initially told police Dec. 25, which would have cleared Scott. And all but one of his estimates had Conner dying too early. Grade D.

14. "I lost my wife." Amber Frey and her friend Shawn Sibley testified Scott told them he cried and said he had "lost" his wife weeks before Laci disappeared. Sibley also indicated she was unsure if Scott meant his wife had died or divorced him. And Scott had told at least one previous lover he was divorced. Grade B.

15. Scott's mystery boat: "Not a soul knew he had bought a boat," Distaso claimed in his opening statement. But police have conceded that witnesses place Laci at the warehouse where the boat was kept a few days before she disappeared. And Scott had put his correct name and address on the pink slip, which the boat's previous owner sent in to the Department of Motor Vehicles. Grade F.

16. Not my photo: Scott looked at a faxed copy of a photo showing him and Amber together and falsely claimed to police it was a composite. The defense raised questions about the quality of the fax. Grade B.

17. Gasoline and fertilizer: Police found Scott's boat cover with gasoline dripping on it in one shed, and found fertilizer spilled on his tarpaulin in another shed. Both materials could destroy forensic evidence, although prosecutors have not explained why he would not simply have thrown them away. Grade D.

18. Hair in the boat: A hair that may have been Laci's was found in Scott's boat in his warehouse. But witnesses have her visiting the warehouse days before. And the detective who spotted the hair had just searched Laci's car before arriving at the warehouse and examining the boat. Tracking dogs had also been put in the boat before the hair was found. And the pliers the hair was found entwined in had not been used for some time, a state lab expert said. Grade F.

19. Meringue boomerang: The prosecution's worst moment. Distaso said in his opening statement that, contrary to what Scott claimed, meringue was never mentioned in the Dec. 24, 2002 Martha Stewart Living television show he and Laci supposedly watched. But the defense then played a clip from that show, and meringue was indeed mentioned. Later Detective Al Brocchini, who had reviewed the tape, admitted on the witness stand that he didn't know meringue was mentioned until the defense played the clip during its opening statement. Grade F.

20. Scott's pilgrimages to the marina: Scott visited the Berkeley Marina several times after Laci disappeared, and prosecutor suggest he may have been remorseful or fearful the bodies would surface. But each of those visits apparently coincided with either calls from the police or newspaper stories about police searches of the San Francisco Bay waters. The defense also showed visited other site that were searched by police, were identified in telephone tips, or were mentioned as possible search sites in the newspaper. Grade D.

21. Heading for the border: Scott was arrested n the San Diego area with his brother's identification, $15,000 cash and a car full of camping equipment, suggesting he was about to flee. His brown hair was blond and he was wearing a goatee. Prior to his arrest he had led police undercover cars on a four-hour roundabout journey, seeking to evade them several times. But the arrest took place at a golf course where Scott was scheduled to meet his family. And Scott had bought most of the camping equipment months earlier. And Scott had started growing the goatee when he was still in Modesto, where it is visible in television video. Grade C.