Saturday, January 15, 2011

Rocking the boat . . .

From Richard Cole's November 9, 2004 trial report.

Jurors began the day by looking at Peterson's 14-foot aluminum fishing boat, which was brought to the underground parking garage near the Redwood City courthouse.

Delucchi gave permission to some jurors to enter the vessel -- and some of them began rocking the boat back and forth on its trailer, apparently testing it's stability.

Some analysts said the judge made a serious error that could result in overturning the verdict if Peterson is convicted.

"That is an experiment, and jurors are not allowed to do experiments with the evidence," said Greta Van Susteren of Fox News. "It's definitely reversible error."

But Smith said that it would depend on whether the experiment influenced jurors to convict.

"It's much more likely in a close circumstantial case," Smith said.

Of course we know that a guilty verdict did occur. It remains to be seen whether the CA Supreme Court will rule this obvious lapse of judgment on Delucchi's part to be reversible error.

Cole also reported on other problems with the jury.

Jurors in the Peterson trial listened glumly yesterday as the judge admonished them to deliberate in good faith after disputes broke out in the jury room.

"We've been here for five and a half months," Judge Alfred Delucchi pleaded with the 12 jurors and five alternates, then reread some jury instructions.

"It is rarely helpful for a juror, on entering the jury room, to express an emphatic opinion on the case or to announce a determination to stand for a certain verdict," the judge emphasized.

Jurors, who previous smiled and joked both inside and outside of court, were grim as they filed into the courtroom to receive Delucchi's instruction.

Juror 6 -- a Half Moon Bay paramedic -- was the person cited by media organizations as the person at the center of the controversy.

Analysts said the incident did not necessarily mean a hung jury in Scott Peterson's double murder trial, but called it a bad omen.

"Anecdotally I would tell you that more often than not when a jury starts down this road, they never recover," said former San Mateo County homicide prosecutor Chuck Smith.

Yesterday's instructions were apparently the result of a complaint by the jury foreman that a juror was not deliberating in good faith. But there was no indication whether the juror favored conviction or acquittal.

The foreman, a scholarly doctor-lawyer, nodded in agreement as Delucchi reminded jurors of their duty to deliberate.

After jurors filed out of the courtroom, Delucchi told the attorneys that next time he will read the panel a special instruction given to deadlock juries.

But that wasn't necessary, as almost in the blink of an eye the doctor-attorney foreman was replaced by the paramedic and then resigned from the jury. A guilty verdict came in short order after that. I truly hope that one day an honest juror will tell us what happened in those deliberation, what really went on.

Friday, January 14, 2011

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.

Thursday, January 13, 2011

The Target Bag Timeline

April 14,2003
A Target bag was found tucked into the rocks north of Laci's body. This schematic drawn by Officer Phillips shows the location of the Target bag relative to the Hoffman Channel. The following aerial shows the location in relation to where Laci was found. Click to enlarge.

May 8-12, 2003
Criminalist Pin Kyo examined the duct tape collected with the Target Bag, comparing it to the duct tape retrieved from Laci's body. The Target Bag was not analyzed, except to take pictures of it and obtain its size.

August 3, 2004
Officers Frazier and Phillips, both with the East Bay Regional Park District Police Department, attended a routine pre-testimony briefing. In that meeting, Phillips disclosed that the Target Bag found near Laci's recovery site had the same smell of decomposition as Laci.

August 4, 2004
Bill Grogan, Investigator with the DAs office, completed a request form for DOJ forensic testing of Target bag with tape for human biological materials.

That same day, Pin Kyo was asked to stop her analysis of the Target bag until further notice.

August 5, 2004
Mark Geragos requested a delay based on this new information from Phillips:

GERAGOS: I will, your Honor. As the court is aware, there's been information, potentially exculpatory information, that's been provided within the last 48 hours. Based upon that information, there's scientific testing that needs to be done. And there's also consultation with my experts that needs to be done. And am not prepared at this point to go forward with any other fact witness, at least until the preliminary testing results come back, and I've asked the court to recess until Tuesday.

That same day, DDA Dave Harris instructed Pin Kyo to conduct a visual examination of the Target Bag.

August 9, 2004
Pin Kyo began a visual examination of the Target Bag.

August 17, 2004
Pin Kyo wrote a report on her visual examination of the Target Bag

September 13-14, 2004
Pin Kyo testified. In her testimony about the Target Bag, Kyo said she did not write anything in her first report about the bag having a decomposition smell, and she would have if she had noticed any, therefore there was no unusual smell at that time. In her second report, she specifically said there was no decomposition smell. However, she also testified that there were short fine hairs on the Target Bag that were never analyzed.

GERAGOS: Okay. And what I'm asking you is on the duct tape, when you examined it, you saw that there were hairs on there; is that correct? Short, fine hairs?
KYO: This is not on the duct tape.
GERAGOS: What is it on?
KYO: This is on the TARGET bag.
GERAGOS: On the TARGET bag itself there is short, fine hairs?
KYO: That’s correct.
GERAGOS: That's correct. And did you save those hairs?
KYO: That would be in that particular item with -- together with the TARGET bag.
GERGAOS: And that's what I'm asking. Did you save that as trace evidence?
KYO: No, I didn't.
GERAGOS: What did you do with that?
KYO: It's still in the item. Together with the item.

September 20, 2004
Office Ian Frazier called to testify.

GERAGOS: And at that time, Officer Phillips and yourself noticed that there was a smell or an odor coming from this bag; isn't that correct?
HARRIS: Objection, facts not in evidence.
JUDGE: Overruled.
GERAGOS: I'm going, I'm asking, There is a smell coming from this bag. There is an odor, you noticed that the odor appeared to be the same kind of odor of decomposition that was coming from the remains of Laci; isn't that correct?
FRAZER: It was much more an odor of something that had been in the water for a long time.
GERAGOS: Officer Phillips spontaneously stated that he believed it was the same odor of decomposition, didn't he?
HARRIS: Objection. Hearsay.
JUDGE: Sustained.
GERAGOS: Spontaneous statement.
JUDGE: I don't think so. Overruled.
GERAGOS: Well, did Officer Phillips state something in your presence?
HARRIS: Objection. Hearsay. He can ask if he stated something. Not what he said.
JUDGE: Did he say to something in your presence? Just yes or no.
FRAZER: Not that I recall.
GERAGOS: Do you remember having a conversation with me upstairs a couple of weeks ago with you and Officer Phillips?
GERAGOS: And we did that in the DA office, correct?
FRAZER: That’s correct.
GERAGOS: Okay. Now, apparently you were supposed to have been testifying here about a month ago; is that correct?
FRAZER: That’s correct yes.
GERAGOS: When you came here, you came here with Officer Phillips, is that right, to testify?
FRAZER: We came separately. But, yes.
GERAGOS: Two of you were subpoenaed to testify on a certain day about a month ago?
FRAZER: Yes, we were.
GERAGOS: When you got here, you related to the District Attorney that you, in fact, had smelled an odor from this bag; isn't that correct?
FRAZER: That’s correct.
GERAGOS: Didn't Officer Phillips also make the same observation, sir?
HARRIS: Objection. Speculation.
GERAGOS: Through the District Attorney.
HARRIS: Speculation and hearsay.
JUDGE: Did you talk to the DA about that?
FRAZER: I believe he did, yes.
GERAGOS: Okay. Then I was able to question you the next day, correct?
FRAZER: Correct.
GERAGOS: Now, when I questioned you the next day, I specifically asked if you had told this information to anybody from Modesto PD; is that correct?
FRAZER: I recall you asking me that question, yes.
GERAGOS: Do you remember saying that, yes, that I believe that were two officer or two detectives from Modesto PD who had been given this information?
FRAZER: There were at least two detectives from Modesto who were present at the Coroner's Office. Whether they were in the area where the tarp was, or in the autopsy room, I cannot recall.
GERAGOS: Okay. Do you remember, or has anybody showed you any reports whatsoever from Modesto PD which would indicate that this observation about the smell was noted by anybody from Modesto PD?
FRAZER: No. The only ones I saw are the ones prepared by my agency.
GERAGOS: Now, Officer Phillips, who was with you when I questioned the two of you, had a distinct memory of making statements to officers, detectives from Modesto PD; isn't that correct?
HARRIS: Objection. Assumes facts not in evidence.
JUDGE: No. Sustained. You are asking for his distinct memory, that he had a distinct memory. How would he know?
GERAGOS: I'm asking if Officer Phillips made a statement.
JUDGE: You can ask if he made any statements whether he had the distinct recollection of memory. You are asking for him to tell us what his state of mind was.
GERAGOS: Okay. Did Officer Phillips make those statements?
HARRIS: That's an objection. Hearsay.
JUDGE: Overruled.
HARRIS: He is asking for the content, Judge.
JUDGE: Did he make, no. Overruled. Go ahead.
FRAZER: He may have. Again, I don't recall whether he made the statements to Modesto officers when he made them to Coroner's personnel.
GERAGOS: Okay. And when this took place, that would have been on the day that the autopsy was done of Laci Peterson, correct?
FRAZER: That’s correct.
GERAGOS: Okay. So this would have been done shortly after her remains were found, right?
FRAZER: It was several hours.
GERAGOS: And, specifically, this bag was found within several hours of Laci Peterson's remains being found on the rip-rap, correct?
FRAZER: That is correct.
GERAGOS: And any statements that Officer Phillips made, and any statements that you would have made about this bag would have been within hours of Laci Peterson's remains being found, correct?
FRAZER: Correct.
GERAGOS: And that would have been in the presence of Coroner's personnel, correct?
GERAGOS: In the presence of at least two Modesto detectives, correct?
FRAZER: As I said, it's possible.
GERAGOS: Was it Detective Owen and Detective Hendee?
FRAZER: Yes. They were present at the Coroner's Office.
GERAGOS: They were present for the autopsy, correct?
FRAZER: That’s correct.

Under re-cross examination:

GERAGOS: Were you present at the time that the body was recovered, when he brought the bag in?
FRAZER: I was present when the bag was brought in to the sally port of the garage area of the Coroner's Office.
GERAGOS: Did you hear Officer Phillips give a statement about the smell of the bag at that point?
FRAZER: I don't recall hearing him make that statement at that point.
GERAGOS: When you were upstairs and I was interviewing you, didn't you say that you did recall that at that point that he had made that observation? Isn't that what you told me when I asked you?
JUDGE: If you recall, Officer Frazer.
FRAZER: It's possible. I don't recall specifically.

Officer Phillips was not called to testify by the State.

October 19-20, 2004
Officer Timothy Phillips called to testify for the Defense.

GERAGOS: Just put TARGET bag. And this bag, I'm sorry, I didn't mean to get in your way. This bag that was found here, and you marked, once again, this riprap, that's the broken concrete, right?
PHILLIPS: Yes, sir.
GERAGOS: Now, when you find the bag, D 8 M 13 resembles how you found it?
PHILLIPS: Yes, sir.
GERAGOS: And that silver substance appears to be duct tape?
PHILLIPS: That’s correct.
GERAGOS: Okay. And then this is the riprap there, is that correct?
PHILLIPS: Yes, sir. Primarily broken pieces of concrete.
GERAGOS: Okay. Same with D 8 M 12, that's how you found it on that day?
PHILLIPS: Yes, sir.
GERAGOS: Okay. And D 8 M 17, the picture of how you found it?
PHILLIPS: Yes, sir.
GERAGOS: D 8 M 16?
PHILLIPS: That’s correct.
GERAGOS: Okay. And D 8 M 15, is that same thing? You've got a picture of the bottom of the bag?
PHILLIPS: Yes, sir.
GERAGOS: Okay. And D 8 M 14, is that also the, another view of the bag?
PHILLIPS: Yes, sir.
GERAGOS: Okay. Now, when you took the, you collected the bag at the scene, what did you do with it?
PHILLIPS: I placed it in the back of my Ford Expedition, and I was directed by Sergeant Iverson to take it directly to the Contra Costa County crime lab.
GERAGOS: Okay. And when you found the bag, did you believe that it was significant for a reason?
PHILLIPS: Yes, sir.
GERAGOS: And what was that?
PHILLIPS: Well, due to the circumstances in which it was reported to me by a citizen, as I got in close proximity to the bag I noticed, I stopped to take a look and examine it further, and I did notice an odor about it.
GERAGOS: And was that, was there something about that odor that was distinctive?
PHILLIPS: To me the odor was similar to the odor of the remains that were recovered earlier.
GERAGOS: Okay. When you got it back over to the Coroner's Office, did you still, did you still smell that same smell that you smelled that was similar to that of the remains?
PHILLIPS: Yes, sir.
GERAGOS: Okay. Did you comment on it at that point?
PHILLIPS: Yes, sir.
GERAGOS: Okay. I assume, you've worked for East Bay Regional for how long?
PHILLIPS: I've been with East Bay Regional Parks for two and a half years,and I've been in law enforcement for going on 19.
GERAGOS: 19 years?
GERAGOS: And you've been in that area surrounding the Bay for approximately how long?
PHILLIPS: A good portion of the two and a half years, that's my primary beat that I worked.
GERAGOS: I assume the smell that you smelled was different than the just normal smell of things that would have been in the Bay?
PHILLIPS: It was distinctive enough that it's almost, I can almost say it's indescribable. It was distinctive enough, both the odor from the remains and the bag, or the tarp, to me were similar.
GERAGOS: Okay. I assume, so that I've got this situation down, when you first get called out you go to the area that I had already marked on the exhibit as to where the remains were, correct?
PHILLIPS: Yes, sir.
GERAGOS: Okay. And I assume that you had noticed the same odor there, is that correct?
PHILLIPS: Yes, sir.
GERAGOS: And then when you went over to the area where this woman, approximately how long were you there before this woman came up and kind of tried, before she got impatient and left, told you there was something she thought was important?
PHILLIPS: She brought it to my attention or, somewhere around 8:00 o'clock, 8:15 in the evening.
GERAGOS: Okay. What time did you arrive there?
PHILLIPS: I got to the scene about 12, I believe it was around 12:45.
GERAGOS: About 12:45. And this was 500 and some-odd feet away, the bag was?
PHILLIPS: The bag itself would have been probably closer to 800 to a thousand feet north.
GERAGOS: 800 to a thousand feet north. So the distance obviously from where the bag was, or where the remains were there to the bag here, is that what we're talking about?
PHILLIPS: Yes, sir.
GERAGOS: Okay. Did you notice this what you described as a, I guess a not susceptible or indescribable odor on any of the other items that you collected, any of the other fabric items?
PHILLIPS: No, sir.
GERAGOS: Okay. The cadaver dog, you had a cadaver dog that was out there being worked on by who, or who was the handler?
PHILLIPS: Ms. Christine Crawford.
GERAGOS: And did she take the dog over to the bag?
PHILLIPS: Yes, sir. With Officer Breed.
GERAGOS: Okay. Who did you tell about or who did you comment on this smell that you thought was similar between the bag and the remains?
PHILLIPS: I believe I mentioned it to Sergeant Iverson. And upon my arrival at the Coroner's Office. Captain Dean from the Contra Costa County sheriff's office also had, prior to my mentioning it had made a comment that the odors seemed similar.
GERAGOS: Captain Dean is a person who works there in the Contra Costa Coroner's Office?
PHILLIPS: Yes, sir. She works for the Contra Costa County Sheriff's Office.
GERAGOS: Okay. Now, the, when you came back and were, was actually at the Coroner's Office, did you ever encounter any Modesto Police Department personnel?
PHILLIPS: There were some members of the Modesto Police Department present, yes, sir.
GERAGOS: Do you know who was present?
PHILLIPS: Primarily their investigators that were involved by name, I don't recall the actual names.
GERAGOS: Do you remember what they looked like?
PHILLIPS: Yes, sir.
GERAGOS: What did they look like?
PHILLIPS: One a detective, an older gentleman who had taken some photographs at the scene. Another detective who was a little bit smaller in stature, somewhat stocky.
GERAGOS: Did you mention, did you mention the fact that the bag and the remains seemed to have the same odor to the two of them?
PHILLIPS: I believe I did.

Evidence preserved by Google
Since we are on the subject of that area of the dog park, I thought it might be good to share an aerial from Google Earth's historical image collection. This aerial shows a vehicle in the dog park on the north side of the Hoffman Channel near the location of the Target Bag, which proves that even though there is no road access for vehicles, a vehicle can certainly get to that area. Click to enlarge.

Body found by birdwatcher on Richmond shore
KTVU's coverage of the finding of this body just last Christmas Eve included a video, which showed police cars and other emergency vehicles on the Bay Trail to recover this body. In the event the video link ceases to work, I captured a few instances which showed the vehicles. Click to enlarge.

I've labeled another Google Earth aerial to show vehicle access from 51st Street to the location of the car caught by Google. Click to enlarge.

Wednesday, January 12, 2011

More neglected evidence -- "whole bunches" of it

In his trial report on October 6, 2004, Richard Cole exposes more of the Prosecution's duplicity as he reviews one of the last witnesses called by the State. To give some context to the issue, a 402 hearing was held on September 23, 2004, because Geragos complained that misleading information was given through Pin Kyo's testimony. Buelna's testimony was allowed by the Judge because she would provide the date and location of the debris that was examined by Pin Kyo, and the jury could place whatever weight they wanted on the evidence.

The first witness was an East Bay Regional Park police officer apparently called to clear up misleading evidence given by another prosecution witness earlier in the trial.

That occurred last month when state Department of Justice lab expert Pin Kyo testified she compared plastic twine knotted around Conner Peterson's neck with other plastic debris found on the San Francisco Bay shoreline.

She concluded that the twine was similar to the other debris -- implying Conner had simply become entangled in flotsam commonly found in bay waters.

What prosecutors failed to tell the judge and jury was that the debris she used in the comparison was found more than two months later and a mile away, nearer to where Laci's body washed up on April 14, 2003.

Officer Kris Buelna testified yesterday that on June 21 a passerby had alerted her to the plastic trash alongside a canal on Point Isabel. She recovered it and sent it to the Modesto police.

Prosecutors did not explain, however, why they chose to compare that debris with the twine around Conner's neck.
Of course they don't "explain" anything -- they just use innuendo to allow the jury and the public to draw whatever conclusion they want, knowing that odds are good that the conclusion, whatever it is, will be adverse to Scott.

I checked Kyo's testimony, and yes, she was asked to compare the twine from around Conner's neck to the twine found in the rip rap at Hoffman Channel, which is very near where Laci was found. You can view the two twines at People's 253 and People's 254 and Kyo's testimony on SII. To get to the relevant part of Kyo's testimony quickly, do a search for "Rich 1" without the quotation marks.

People's 290 depicts the Hoffman channel bridge and the debris in the rocks. 290A has an X in about the center of the picture to indicate where the debris was located. Also see Defense 8E, which is the collection of debris in a bag.

I don't doubt the State wanted everyone to conclude that this proves the twine around Conner's neck was just flotsam, but in my opinion, that is not a reasonable conclusion.

First, this collection of "debris" was not strewn over the rocks; it was all found together in a crevice, and it took a bit of effort for Buelna to retrieve it.

HARRIS: These items, did you have to go down into this, the concrete area to get these items?

BUELNA: Yes, I did.

HARRIS: How were these items in the concrete, if you can describe that for us?

BUELNA: They were kind of in between and underneath the concrete.

HARRIS: When you say around and in between,


HARRIS: Did you have to move any of the concrete?

BUELNA: Some of it, yes.

The collection included:
  • a pair of purple gloves
  • a piece of a green glove
  • a "whole bunch" of long pieces of plastic that is 17" wide
  • plastic twine similar to what was found around Conner's neck
  • 1/4" plastic yellow ties
  • 1/2" plastic green ties
  • a dirty sock
  • yellow caution tape that is used at crime scenes or construction sites
  • a plastic tag with a loop of string around it
Kyo obviously didn't find any of the plastic twine tied in a tight double knot with a bow on top, or we surely would have seen it.

Kyo sent the plastic twine similar to what was found around Conner's neck to Yoshida to be tested, but no testing was done with the long, 17"-wide plastic. If you look at the evidence photos, there indeed is a "whole bunch" of it. Conner was 48 cm long, or 18.9 inches, according to Dr. Peterson's measurement.

From People's 290, I can't tell how far up in the rip rap the collection of debris was compared to the high water line. That would be important information to know in considering whether the debris washed up or was placed there, but it's hard for me to imagine that debris can wash up to be "between and under the concrete" such that pieces of concrete had to be moved in order to collect it all.

Here is an aerial from Google Earth that shows the location of the debris relative to the Laci and Conner Recovery sites and to the Target bag found the day was found. Click to enlarge.

Tuesday, January 11, 2011

Bizarre Moments . . .

In his September 30, 2004, article, Richard Cole calls attention to some very bizarre trial moments.

First, the incident wherein Fladager challenged one of their own crime photos.
The incident capped a day of shadowboxing over issues so obscure that experts and reporters following the case were left scratching their heads.

Prosecutor Birgit Fladager attacked Modesto Police Department photos used by the defense to throw doubt on a police demonstration.

In that demonstration, police put a pregnant Stanislaus County district attorney's office employee in the toolbox of Scott's pickup truck to show he could have hidden Laci's body in the tight space.

But defense attorney Mark Geragos showed jurors earlier photos police took when the truck was seized. They showed that the toolbox was too packed with boxes, shoes and other items to fit a body inside.

When Fladager resumed questioning lead Modesto police Detective Craig Grogan, she had him take a closer look at the crime scene photos used by the defense.

She triumphantly showed that the police photographer whose name appeared on the bottom information line of the photo actually could be seen in one frame -- proving she could not have taken the shot.

"Those are her own photos!" a bewildered Geragos said from the defense table.

It was not Fladager's best moment.

Second, Fladager makes a pointless point.
Fladager showed Grogan photos of Scott during his first police interview on Dec. 24, 2002, the day Laci disappeared. She made the detective note that Scott was wearing a blue shirt and brown pants with a wide leather belt.

She then showed photos of the same shirt and pants in a clothes hamper at the Petersons' home. The photos were taken during a search of the house two days later.

What significance that might have to the murders of Laci and Conner was not explained.

Third, forensic tests never completed.
Grogan acknowledged that police developed a theory that Scott had strangled or asphyxiated Laci because there was no evidence of blood or violence in the Petersons' home.

The detective said that police confiscated the Peterson's bed linen - and then apparently never checked it for forensic evidence such as urine, which is often found when a victim is strangled.

Monday, January 10, 2011

The State's "trump card" is a Joker, continued

In his article after Dr. Ralph Cheng's testimony concluded, Richard Cole continued to expose the contradictions in the State's theory. These are some of the quotes he picked up from Cheng's testimony that should have caused anyone to seriously wonder about this man's credentials as an expert.
  • Cheng acknowledged that his theory "involved large uncertainties."
  • Cheng admitted, "I don't know how bodies behave in water."
  • Cheng admitted he could not "reproduce the trajectory of Laci's body."
And yet the State, through the efforts of Detective Hendee to find some evidence, any evidence, that Laci was actually in the Bay in a place that could be linked directly to Scott Peterson, spent thousands of dollars using the best dive team and the finest sonar equipment in the US all based on this joker's theory of the most likely place Conner washed from. Did Hendee find anything? No. I won't rehearse all the reasons why I've long known this so-called expert is really a Joker, as you can read them on Dr. Cheng's Progressive Vector Diagram is Junk Science, Did Cheng use the wrong starting point?, Cheng for Dummies, and More on the Cheng controversy.

Cheng said he didn't know how bodies behave in water. Neither do I. But I observed some very large objects moving in the water on a recent field trip to the Conner Recovery Site. First, for some background. I usually enter the site from the West, parking in the public parking area adjacent to the Shimada Friendship Park, and then walk the Bay Trail to the beach. This time, on December 22, 2010, I took the back way. I started at the Bay Trail at the foot of 51st Street, joining the main Bay Trail just East of the bridge over Baxter Creek, aka Stege Creek, and then following the Bay Trail West to the beach. Click on the aerial to enlarge.

The following pictures were taken from 9:30 - 9:35 a.m. The water level during this time rose from 6.44 feet to 6.55 feet, according to preliminary water levels published by the NOAA Richmond 9414863 station. The Bay was experiencing a storm surge of about 8 3/4 inches from several days of rain: the predicted water levels were only 5.71-5.81 feet. The winds were very mild., using a weather station very near this site (KCARICHM4), reports winds ranging from 2.5 mph to a maximum gust of 4.0 mph, and from the NW/WNW. Obviously, these logs were getting no help from the wind.

In the first picture, you can see log #1 just approaching the bend in Baxter Creek, and follow its journey around the bend in #2. Click to enlarge.

In these next 4 pictures, you will see a 2nd log appear in the Creek. Apparently the log was mired in the mud and when the water rose sufficiently, it lifted the log enough to start it floating. Click to enlarge.

This next picture shows the 1st log as it approaches the Baxter bridge, and the following picture shows the 2nd log having rounded the bend.

The next two pictures show log #1 on the north side of the Baxter bridge.

According to the path tool in Google Earth, log #1 traveled .1 miles in 5 minutes powered only by the current in Baxter Creek coming from the rising water in Campus Bay, with absolutely no help from the wind. If my math is correct, that's 1.2 mph.

Cheng discounted the effect of the tidal current, saying it was too weak to matter and the ebb current (falling tide) would erase any movement made by the flood current (rising tide). However, a rising tide lasts hours. According to the chart below, the rising tide following the L lasts about 4 hours; and the rising tide following the LL lasts about 7 hours. It seems to me that these 2 logs would have traveled some distance during a 7 hour rising tide just powered by the tidal current, until they met some obstacle, such as a shoreline.

Sunday, January 9, 2011

The State's "trump card" is a Joker

More common sense from Richard Cole, September 27, 2004, as he notes how the State disproves its own theory.
Scott Peterson's prosecutors are expected to play their trump card this week -- an expert who will trace the path of Laci's and Conner's bodies to where the defendant was fishing the day his wife disappeared.

But the prosecution theory -- that the bodies lay anchored underwater until a storm on April 12, 2003 -- appears to contradict their own expert witnesses and consultants.
-- Contra Costa coroner Dr. Brian Peterson -- no relation to Scott -- testified two weeks ago that he had discovered mineralization in Laci's clothes when her body washed ashore April 14.

The stone-like mineral deposits likely formed because the body spent a substantial amount of time exposed to air and sunlight, Dr. Peterson hypothesized.

That conflicts with the prosecution's belief that Laci's body stayed underwater in the spot where it was dropped until the storm dredged it from the San Francisco Bay floor and freed Conner.

And raised questions as to why no one spotted the floating body despite scores of search boats, dive teams,sonar surveys and helicopter flyovers in that area.

-- Both Dr. Peterson and bone expert Dr. Alison Galloway said Laci's head, arms and legs parted from the body as her corpse floated along the bottom of the bay. That is a common occurrence for submerged bodies, the experts said.

But if the body moved along the bay floor, it would not likely be in the spot where it was allegedly dropped more than three months earlier.

-- As the Daily News previously reported, lead Modesto police Detective Craig Grogan consulted San Francisco Medical Examiner Boyd Stephens two weeks before the bodies washed ashore.

Stephens also told Grogan it was not likely the body would have stayed in one place, in part because of currents in the bay. Bodies have moved as much as 5 miles along the bay floor, Stephens said.

The current around Brooks Island where Scott was fishing is a strong 4 knots, Grogan reported -- so strong that divers said it made underwater searches difficult.

-- Stanislaus County prosecutors and Modesto police have never reenacted the placement of Laci's body in the bay.

That may be because Stephens warned police that the 35 pounds of concrete anchors they theorized were used to sink Laci's 153-pound body was not enough to do the job.

The medical examiner said bodies have been found floating with 80 pounds of weight attached.

Stephens' caution was born out during a test performed by Phil and Dan DeVan, who have worked with several media organizations and consultants during the trial.

Phil DeVan showed the Daily News a videotape he made intended to demonstrate Scott could easily lift Laci's body, plus 50 pounds of weight, out of his boat without capsizing.

The DeVans filled two cloth bags with 153 pounds of material and wrapped them in a tarpaulin, as police theorized Scott had done. They then attached two 25-pound concrete weights.

Phil DeVan maneuvered the mock body and weights out of his 12-f00t boat with little difficulty.

But the videotape then showed the "body" bobbing on the top of the water. It never sank, DeVan said.