Saturday, March 28, 2015

The Amber Phone Calls: Evidentiary Value Analysis

This is a rerun of a portion of a webpage I created for SII years ago devoted to the subject of Amber Frey.  The webpage first gives a timeline, and then this article follows.  I will rerun the Timeline tomorrow.

The Amber Phone Calls: Evidentiary Value Analysis

Collected on:  December 30, 2002 through February 19, 2003
Collected by:  Amber Frey, under the management of Detective Jon Buehler
Reason:  To obtain a confession or other incriminating statements from Scott Peterson
Media Reports:  Various media sensationalized the tape recordings as the evidence necessary to convict Peterson and hailed Amber as the Star Witness.  Copies of the tape recordings were leaked to People Magazine
Received by:  Det. Jon Buehler
Received on:  On a regular basis throughout the period
Case No:  CV 02-010941
Results: The tapes were used to portray Scott as an adulterer and liar, and romancing Amber instead of looking for Laci.

Those who believe Scott Peterson murdered his wife and unborn son cite as strong evidence of guilt his many hours on the telephone with Amber after Laci’s disappearance, romancing her instead of looking for Laci, as everyone else was. I’ve even seen it posted on our BB that he spent 300+ hours on the phone with Amber.  Furthermore, they cite his eagerness to begin the affair and his willingness to lie in order to keep Amber on the string as evidence of motivation for this planned, pre-meditated murder.

The facts, however, do not support this public perception. Instead of spending hours romancing Amber instead of looking for Laci, in the first 12 days after Laci's disappearance, he spent only an average of 28 minutes per day on the phone with Amber, mostly late at night when no searching for Laci was even possible, and he was at home with the home phone open to take calls regarding Laci.

The first contact between Scott and Amber occurred on November 19, with 3 phone calls exchanged to arrange the first date.  Rick Distaso, in his Opening Statement, claims that Scott is the one that called Amber: 
In this particular case you can see Scott, or the defendant called Amber Frey three times on the 19th to set up their date. (Distaso)
Did Distaso deliberately lie?  Because what he told the Jury certainly isn't the truth.  According to Jacobson’s chart for November 19, 2002 (People’s Exhibit 207F-1), and Amber’s cell phone records (Defendant’s Exhibit 5O), she is the one who called Scott three times on that day to arrange the meeting date for the next day.
4:24 p.m. Amber called Scott Bus [1m]
4:27 p.m. Amber called Scott Cell 1 [4m]
10:00 p.m. Amber called Scott Cell 1 [2m]
Jacobson, in his testimony, confirms that no other calls between Scott and Amber were identified for the 19th, or any day prior to the 19th.
Mark Geragos: Would you pull those out for November. These three calls on the 19th, do you have those?
Steven Jacobson: Yes, sir, I do.
Mark Geragos: Okay. What are the duration of those three calls?
Steven Jacobson: The first one indicated there at 4:24 p.m. to the business.
Mark Geragos: Right.
Steven Jacobson: Shows one minute.
Mark Geragos: Okay. So we're assuming that's a, leaving a voice mail?
Steven Jacobson: It's certainly, it all depends whether he had an answering machine there at the business or not, but it is a short duration call, so that could be a correct assumption.
Mark Geragos: 4:27?
Steven Jacobson: 4:27 p.m. shows a four minute duration.
Mark Geragos: Okay. So more likely to be either a long message or a conversation?
Rick Distaso: Objection. Calls for speculation.
Judge Delucchi: Overruled.
Steven Jacobson: It could either be a long voice mail message or a short conversation, you're correct.
Mark Geragos: 10:00 p.m.
Steven Jacobson: 10:00 p.m. indicates two minutes.
Mark Geragos: Okay. Now, go to the, and those are the only three that you were able to find, right?
Steven Jacobson: Those are the only three on the records, yes, sir.
So, we have the State's own expert witness stating that Amber is the one who called Scott to arrange for the first date -- and she placed 3 calls on the 19th, one to his office number and two to his cell phone number.

How much time did Scott spend on the phone with Amber?
Jacobson estimated that Scott and Amber shared at least 250 calls.  9 calls were in November 2002 and 48 in December before Laci disappeared.  So, we eliminate those from the discussion.  In the following analysis, Jacobson's note of who called whom is followed by the detail from Amber's cell phone records (Defense 5O).  Scott's Cell 1 number is the -0337 Modesto number, and his Cell 2 is the -8427 Modesto number. 

Jacobson has 0 calls on December 24.  On December 25, we have these calls:
8:23 a.m. Amber called Scott Cell 1 [5 min]
8:32 a.m. Amber called Scott Cell 2 [1 min]
9:06 a.m. Scott Cell 2 called Amber [10 min]
6:14 p.m. Amber called Scott Cell 1 [1 min]
7:41 p.m. Amber called Scott Cell 1 [1 min Doug Sibley voice message]
8:20 p.m. Scott Cell 2 called Amber [6 min]
8:26 p.m. Scott Cell 2 called Amber [23 min]
The total time is 47 minutes, including the voice mail messages and even the voice mail from Doug Sibley.  Did these calls prevent him from looking for Laci?  No, they did not.  Scott was at the house on the morning of the 25th as a steady stream of people came in for flyers and then out to distribute them.  He was out by 10:30 a.m. with Brent Rocha putting up flyers.  He walked around the corner with Sharon Rocha to see one of her friends.  Three and a half hours that afternoon were spent in an interview with Det. Grogan and Agent Mansfield.  47 minutes pales in comparison to the hours he spent on the 25th working with family, friends, and police investigators to find Laci.

One other point about the calls on Dec. 25th needs to be made.  Amber makes the 1st 2 calls.  Would Scott have called her if she had not first called him?  The same can be asked about the calls that evening.  If Doug Sibley had not called and left his voice mail, would Scott have called Amber? 

December 26th shows more of the same pattern -- but even more excessive, with 5 calls from Amber to Scott, and then a series of 9.   
3:04 p.m. Amber called Scott Cell 1 [2 min VM]
5:32 p.m. Amber called Scott Cell 1 [1 min VM]
5:37 p.m. Amber called Scott Cell 1 [1 min VM]
5:48 p.m. Amber called Scott Cell 1 [2 min VM]
5:50 p.m. Amber called Scott Cell 2 [1 min VM]
6:55 p.m. Scott Cell 1 called Amber [1 min]
6:57 p.m. Amber called Scott Cell 1 [2 min VM]
7:18 p.m. Amber called Scott Cell 1 [1 min VM]
7:19 p.m. Amber called Scott Cell 1 [1 min VM]
7:34 p.m. Amber called Scott Cell 1 [1 min VM]
7:34 p.m. Amber called Scott Cell 1 [1 min VM]
7:36 p.m. Amber called Scott Cell 1 [1 min VM]
8:16 p.m. Amber called Scott Cell 1 [1 min VM]
8:20 p.m. Amber called Scott Cell 1 [1 min VM]
8:21 p.m. Amber called Scott Cell 1 [1 min VM]
9:33 p.m. Scott Cell 2 called Amber  [17 min]
We have to ask, would Scott even have called Amber on the 26th if she had not left 14 voice mail messages for him?

Because we know from Amber's testimony that these were voicemails, not conversations, we can see that they only spent 17 minutes on the phone on the 26th, and that only after search efforts for the day would have ended.  Besides aiding in the search earlier that day, Scott was quite busy that evening being served a search warrant and working with the dog handlers.  Clearly, Amber was not uppermost on his mind -- finding Laci was.  And when he does spend the 17 minutes on the phone with Amber, he can't be at home to receive incoming calls on the home phone because the police have it cordoned off for the search warrant. 

December 27 shows the same pattern.  Amber first calls Scott multiple times before he calls her, and when he does call her, it's late at night, for only 23 minutes, well after search efforts would have ceased for the day, and from home, where he is available to take calls regarding Laci on the home phone. 
8:37 a.m. Amber called Scott Cell 1 [1 min]
8:38 a.m. Amber called Scott Cell 1 [2 min]
8:25 p.m. Amber called Scott Cell 1 [1 min]
8:39 p.m. Amber called Scott Cell 1 [1 min]
9:33 p.m. Scott Cell 2 called Amber [2 min]
9:34 p.m. Scott Cell 2 called Amber 
9:35 p.m. Scott Cell 2 called Amber [23 min]
December 28, same pattern.  Amber calls Scott twice before he calls her, and they spend only 28 minutes talking on the phone. 
4:45 p.m. Amber called Scott Cell 1 [1 min]
4:46 p.m. Amber called Scott Cell 1 [1 min]
4:46 p.m. Scott Cell 1 called Amber [15 min]
6:28 p.m. Scott Cell 1 called Amber [8 min]
9:51 p.m. Amber called Scott Cell 2 [5 min]
December 29, same pattern.  Amber calls Scott twice before he calls her.  And, they only exchange voice mails, or extremely short conversations.  
3:09 p.m. Amber called Scott Cell 1 [1 min]
3:10 p.m. Amber called Scott Cell 2 [1 min]
6:20 p.m. Scott Cell 2 called Amber [1 min]
6:20 p.m. Amber called Scott Cell 2 [1 min]
6:23 p.m. Amber called Scott Cell 1 [1 min]
Of course, December 29 is the magic day for Amber, when she becomes aware, very late that night, that Scott is married and his wife is missing.  She makes contact with the MPD and discusses Scott's calls with Brocchini and Buehler, who, of course, have only her word for it because they do not yet have the phone records.

So, let's review what we have.  Each and every day after Laci disappeared, Amber calls first, multiple times.  Only then does Scott call her.  On the 26th, we have 14 calls from Amber to Scott, voice mail messages.  The total time on the phone is not very impressive, for someone that is "romancing" Amber and allegedly trying to keep the relationship going:
December 25, 44 minutes talk time
December 26, 17 minutes talk time
December 27, 23 minutes talk time
December 28, 28 minutes talk time
December 29, 0 minutes talk time
TOTAL talk time = 115 minutes, an average of 23 minutes per day
During these first 5 days, Scott was not romancing Amber instead of looking for Laci.  He was spending very little time on the phone with her, only on average 23 minutes a day, and well after the search efforts would have ended for the day.  He probably would not have spent any time at all on the phone with her if she had not called him multiple times first, each and every day.

Amber goes to the police

On the morning of December 30, the landscape significantly changed -- Amber met with Detectives Brocchini and Buehler, who set her up with a recording device to use with her cell phone and instructions to record every phone call between herself and Scott.

During the previous 5 days, they have only talked an average of 23 minutes each day, Amber has called Scott 29 times, and Scott has only called Amber 11 times.  Amber has called Scott multiple times each day before Scott called Amber.  They had 0 minutes talk time on the 29th.

Of course, Scott doesn't know he's being taped, so he doesn't know to change his behavior in order to avoid suspicion.  These are the calls for the 30th.
2:32 p.m. Amber called Scott Cell 2 [2 min]
2:39 p.m. Scott Cell 2 called Amber [1 min]
4:02 p.m. Amber called Scott Cell 1 [6 min]
5:01 p.m. Scott Cell 2 called Amber 195B [2 min]
5:03 p.m. Scott Cell 2 called Amber  195C [1 min]
A total of 12 minutes, and that includes rounded up talk times and voice messages.  12 minutes.  Where is the romancing?  Where are the hours of talking to Amber instead of being out looking for Laci? 

Again, on December 31, we clearly see that he is not spending hours on the phone romancing Amber.  The notorious call during the vigil was only a 1-minute call.  That's all.  These are not the calling patterns of a man trying to keep a romance going.  They are the calling pattern of a man deeply engrossed in looking for his wife and only giving lip service to the girl friend who keeps calling him. 
11:35 a.m. Scott Cell 2 called Amber [1 min]
11:42 a.m. Amber called Scott Cell 2 [5 min]
2:59 p.m. Amber called Scott Cell 2 [2 min]
3:05 p.m. Scott Cell 2 called Amber  195D [2 min]
4:18 p.m. Scott Cell 2 called Amber 195E [4 min]
4:20 p.m. Scott Cell 2 called Amber 195F [1 min]
January 1, we have 2 calls from Scott to Amber:
12:01 a.m. Scott Cell 2 called Amber 195G [69 min]
10:05 p.m. Scott Cell 2 called Amber 195H [18 min]
Let's look first at the 12:01 a.m. call.  It's a 69 minute call, the longest by far since Laci's disappearance.  But let's put it into some perspective.

The call occurs between midnight and 1 a.m. - not a time when anyone is out looking for Laci.  So, Scott is not talking with Amber when he should have been out looking for Laci.  Furthermore, Scott is at home, with the home phone and his other cell phone free to receive incoming calls from Laci or any one else about Laci. 

This phone call, filled with so much chatter from Amber, may have been some very necessary comic relief.  One week to the date and time, Scott was at the MPD involved in a one hour interview with Det. Brocchini, culminating several hours of discussions and search efforts.  He has already had his home and place of business searched twice and fully realizes he is the one under scrutiny.  No one has come forward to provide any explanation of what happened to his wife and son.  Much as he wanted to deny it, thoughts that she might never return have surely been on his mind. 

The second call that day likewise was at a time when no one was out looking for Laci, and thus it did not interfere with his efforts to find Laci.  He was at home, and the home phone and his other cell phone were free to take calls.

January 2.  Amber is again the one to call first on this day, we have a grand total of 34 minutes max talk time, 32 of which are after 10 p.m., when no one was looking for Laci and Scott was at home with his home phone free to take calls regarding Laci.  Scott is not romancing Amber instead of looking for Laci.
2:39 p.m. Amber called Scott Cell 2 [2 min]
10:15 p.m. Scott Cell 2 called Amber 195I [28 min]
10:42 p.m. Amber called Scott Cell 2 195J [4 min]
10:43 p.m. Scott Cell 2 called Amber
10:56 p.m. Scott Cell 2 called Amber  195K [VM]
The 10:43 call cannot be reconciled with Amber's cell phone bill
January 3, no romancing going on here.  Just 3 very short phone calls where pretty much all they do is say, Hello, can you hear me?  No one was looking for Laci at that time of night, and Scott was home manning the home phone. 
11:06 p.m. Scott Cell 2 called Amber  195L [2 min]
11:06 p.m. Amber called Scott Cell 2 [2 min]
11:17 p.m. Amber called Scott Cell 2 [2 min]
January 4, the only call worth mentioning is the 61 minute one, and it began at 10:32 at night, long after search efforts had ceased for the day, and when Scott was at home manning the home phone.  I know this is beginning to sound like a broken record, but there just simply isn't any evidence that Scott is romancing Amber instead of being out looking for Laci, or that he is spending hours and hours talking with Amber.  And if this is romancing, romance needs to be redefined.
12:09 p.m. Amber called Scott Cell 2 [2 min]
4:53 p.m. Amber called Scott Cell 2 [4 min]
10:30 p.m. Scott Cell 2 called Amber  195M [1 min]
10:31 p.m. Scott Cell 2 called Amber [1 min]
10:32 p.m. Scott Cell 2 called Amber 195N [61 min]
January 5, no romancing going on this day.
9:31 a.m. Scott Cell 2 called Amber [VM]
11:15 a.m. Amber called Scott Cell 2 [2 min VM]
10:56 p.m. Amber called Scott Cell 2 [3 min VM]
Obviously, Scott Peterson was not acting like the typical adulterer who wanted to be with his mistress instead of his wife.  He has made no attempt to see Amber and has been spending very little time with her on the phone, mostly in response to her calls, at night when no searching for Laci could be accomplished, and sitting at home manning the home phone. 

In fact, over the last 12 days, Scott has been on the telephone with Amber a total of 338 minutes, and that counts all the little 1 minute and 2 minute calls that probably are just voice messages. 
December 25, 44 minutes talk time
December 26, 17 minutes talk time
December 27, 23 minutes talk time
December 28, 28 minutes talk time
December 29, 0 minutes talk time
December 30, 12 minutes
December 31, 15 minutes
January 1, 87 minutes
January 2, 34 minutes
January 3, 6 minutes
January 4, 69 minutes
January 5, 5 minutes
Total = 338 minutes divided by 12 days = 28 minutes per day average
No wonder the MPD wanted to put the heat on Scott.  Their theory that Amber was the reason he murdered Laci was falling apart.  Amber just wasn't getting enough romantic interest from Scott to sustain their theory. 

January 6, D-day
January 6 is the D-day of sorts, the day Amber, coached by the MPD and even the Department of Justice, forces Scott into a declaration that he is the husband of Laci Peterson, the missing Modesto woman.  Information about this attempt came out in the trial.  Leading up to the 6th, David Harris asks Amber:
David Harris: Ms. Frey, we played some of the recordings that occurred up until January 4th, 2003. The next recordings that we're going to be playing are from January 6th. I want to be talking to you specifically about January 6th at this point in time. Did, did something occur at the Modesto Police Department on January 6th?
Harris doesn't play any recordings from January 5th because there aren't any to play. He doesn't inform the jury that Scott Peterson's last attempt to contact Amber was at 9:31 a.m. on the 5th.  That is important, because Amber left 2 voice messages on the 5th, but Scott had not yet called her back.
11:15 a.m. Amber called Scott Cell 2 [2 min VM]
10:56 p.m. Amber called Scott Cell 2 [3 min VM]
Scott did not make his usual night-time call to Amber on the 5th, even though she left him a voice mail at 10:56 that night.  Now, let's listen in as Harris continues his questioning about the events of January 6.
David Harris:  . . . Did, did something occur at the Modesto Police Department on January 6th?
Amber Frey: Yes.
David Harris: Did they ask you to leave your home or move you to another location on that date?
Amber Frey: Yes.
David Harris: Without getting into what it was that, why they did that, did you accompany them and go to some other location?
Amber Frey: Yes.
What David Harris does not want the jury to hear is what any reasonable person would suspect, given the whole truth.  Scott's failure to make his customary call the night of the 5th, even though Amber left him a voice message that morning and that night, undoubtedly unnerved the MPD.  Furthermore, Scott did not make any calls to Amber during the day on the 6th -- not even a single voicemail message. 
David Harris: And did you, were you pretty much under their protection at that point in time?
Amber Frey: Yes.
David Harris: And did you start to make some phone calls, I don't want to say using their words, but did you talk with them about certain subjects or certain information that should start coming up on January 6th?
Amber Frey: Yes.
David Harris: And a part of that was to at this point in time, on January 6th, indicate that you might –
Mark Geragos: Objection. Leading.
Judge Delucchi: Sustained.
David Harris: Did you talk to the defendant about finding out some information on January 6th?
Amber Frey: Yes.
David Harris: And did you start this early in the day and leave a message?
Amber Frey: I believe so.
David Harris: If we can go to the document
Judge Delucchi: O then? Okay. And this is January 6th at 2213 hours.
Harris specifically asks if Amber started "early in the day," and Amber replies, "I believe so."  Yet, the first call on Jacobson's chart is from Scott's cell 2, at 10:12 p.m.  The 2nd call was also from Scott at 10:13 p.m., which is the recording played for the jury. 
10:12 p.m. Scott Cell 2 called Amber
10:13 p.m. Scott Cell 2 called Amber  195O
10:15 p.m. Scott Cell 2 called Amber  195P
10:16 p.m. Scott Cell 2 called Amber  195Q
11:02 p.m. Scott Cell 2 called Amber  195R
11:29 p.m. Scott Cell 2 called Amber  195S
These calls are not "early in the day" and they are not Amber calling Scott.  Why don't Amber's "early in the day" calls appear on Jacobson's chart?  The chart gives the impression that Scott just resumed his regular nightly calls, but Amber's testimony makes it clear that she had left voice messages for Scott "early in the day" as an incentive for him to call her. 

What does Amber say "off the record" about this important day?  In Witness for the Prosecution, she gives this introduction:
The next day [January 6], Buehler phoned and asked if I could come to Modesto.  He gave me directions to the Orchard Motel, in nearby Turlock, and I drove there and met him and Sharon Hagan, a profiler with the Department of Justice, as well as Detective Craig Grogan, of the Modesto Police Department.  They had checked me in under the name Teresa Collins.  I guess they were just being careful.
"One of the reasons I asked you to come up is because Scott is in Fresno," Buehler said.  "I didn't want you to run into him.  The other reason is that we want to help you in your next conversation with Scott." 
"Help me how?" I asked.
"You're going to keep him on the phone, and we'll feed you questions from time to time.  Officer Hagan is going to try to help you get some information out of him."
"I'll do what I can," I said.
It turned out to be a watershed day.  It was the day Scott Peterson finally told me about Laci. (pp. 90-91)
Of course we know Buehler lied to Amber about Scott being in Fresno (or Amber lied about Buehler saying that) because he was tracked all day by GPS and was nowhere near Fresno. 

We also know that Amber shared more than one phone call with the Modesto Police Department on the 6th, several of which she placed to them.  209-572-9524 is Buehler's number, and 209-652-1814 is Brocchini's.  Note that Amber's call to Buehler is the first exchange for them that day, as she has no incoming calls before it.  So, she had calls to Buehler at 8:34, 8:58, and 9:03 before she receives her first incoming call.  Then another call to Buehler at 10:25 a.m. immediately followed by one to Brocchini. 

More calls to Brocchini at 12:54, 3:06, 4:56, and 5:08. 
Amber receives two calls at 5:11 and 5:12, then a 5 hour silence until Scott calls at 10:11 p.m. 
So, rather than a single phone call from Buehler to Amber asking her to come to Modesto, we have a series of 9 phone calls from Amber to Buehler and Brocchini throughout the day.  Amber didn't seem to recollect these 9 calls when she testified under cross examination:
Mark Geragos: Yeah. Did you tell him you were going to go up there on January 6th?
Amber Frey: No, it wasn't something that was planned.
Mark Geragos: It was what?
Amber Frey: It was, it wasn't something that was planned through the police department that I come up on that date.
Mark Geragos: Well, you called them on the 6th, right?
Amber Frey: I called who?
Mark Geragos: The police on the 6th, correct? On January 6th?
Amber Frey: My recollection, they had contacted me and wanted me to come up there that day.
Mark Geragos: Okay. And you said you would?
Amber Frey: Yes.
Mark Geragos: Okay. And when you said you would go up there, did they tell you why they wanted you there?
Amber Frey: Not until I was there.
Now, let's analyze the phone calls that Scott made to Amber.  His last call to her was a voice mail left at 9:31 a.m. on the 5th.  No calls on the night of the 5th from Scott to Amber, even though Amber left 2 voice messages, one at 11:15 a.m. and the other at 10:56 p.m.  Amber has made 9 calls throughout the day to the MPD and she has gone to Modesto to be coached by Buehler, Grogan, and Hagan.  These are the calls Scott made that night.
10:12 p.m. Scott Cell 2 called Amber [1 min]
10:13 p.m. Scott Cell 2 called Amber  195O [2 min]
10:15 p.m. Scott Cell 2 called Amber [2 min] 195P
10:16 p.m. Scott Cell 2 called Amber [27 min] 195Q
11:02 p.m. Scott Cell 2 called Amber [25 min] 195R
11:29 p.m. Scott Cell 2 called Amber [98 min] 195S
David Harris didn't play the first call for the jury, probably because the subject of it seems to be Ayianna's diaper rash and it was very short.  In the second call, Amber tries to plant the hint, as Harris terms it. 
David Harris: Yes. Playing O.
Judge Delucchi: And this is two pages?
David Harris: Yes.
(196O played)
FREY: (clears throat) (phone ringing) Hello.
PETERSON: Diaper rash?
FREY: Huh-huh. Hi.
FREY: Can you hear me?
PETERSON: Yeah, perfect.
FREY: Really. Oh, my God! I’m so glad that…to hear from you.
FREY: Oh, well, something uh…strange had happened today. Um…
FREY: I’m here.
FREY: Can you hear me?
PETERSON: Hey? Okay, got ya.
FREY: Okay.
FREY: Barely?
PETERSON: Yeah. What’s up?
FREY: I was just um…well, I got a message from Sauki. She was in-between airports today. I don’t know what happened with her flight.
PETERSON: Amber? Amber, are you there?
FREY: I’m here.  
PETERSON: Amber, I can’t hear you, sweetie.
FREY: I can hear you just fine.
PETERSON: Amber, are you…I don’t know if you’re there or not. Amber?
FREY: I can hear you.
PETERSON: Amber, I’ll try calling back.
FREY: I can hear you. (click)
David Harris: The message, the information on that particular phone call about Saki, was that the beginning of this kind of dropping a hint to the defendant?
Mark Geragos: Objection. Leading.
Judge Delucchi: Overruled.
Amber Frey: Repeat the question.
David Harris: The phone call that was just played, the message about something from Saki, was that part of this process of leaving or planting this hint?
Amber Frey: Yes.
Harris played the 3rd call, too, which is nothing more than Scott being unable to hear a word she says.
David Harris: We go to next. I believe this is P.
Judge Delucchi: This January 6, 2215 hours. One page.
(196P played)
(phone ringing)
FREY: Hello? Hello? Scott? I hope you could hear me…
FREY: Yeah.
FREY: Yeah, I’m here.
FREY: I was just seeing…I don’t know what…she just called and said she was worried about me and I have no idea what she’s…what she’s talking about.
PETERSON: Amber, is that…?
FREY: I’m here, can you hear me?
FREY: I can hear you.
PETERSON: Okay, I can’t hear. I don’t know if you’re there, sweetie. Um…
FREY: I can hear you. I just don’t know. I’m worried about her. She says she’s worried about me and I have no idea what she’s talking about. And her plane…I don’t know when her plane’s gonna get in. I just…I’m…she just sounded very concerned for me and I’m just…I have no idea what she’s talking about. Are you there? Can you hear me? Scott? Hello? (beep, beep) 
Scott called the 4th time, which was a total actual talk time of 24 minutes and 34 seconds, according to David Harris, and starts off with Amber continuing to plant the hint, but Scott quickly changes the subject -- to Ayianna, Amber's toddler child, and her problems with diaper rash and a cold. 
Judge Delucchi: Now we're going to play Q. And that's dated January the 6th at 2216 hours, which is 10:16 p.m. And have you distributed Q, Mike? Distributing it now. Okay.
(196Q played)
FREY: Yeah, he listened to me (talking to someone in background). (phone ringing) Hello, Scott?
FREY: Yes.
PETERSON:  Hey, okay. I can hear you.
FREY: Did you hear me?
PETERSON: Yeah. We were talking about diaper rash.
FREY: Oh, well, I heard diaper rash. But you didn’t hear me?
PETERSON: No. What’s wrong?
FREY: I don’t know. Sauki called and left me a message and said she was worried about me and that she was in-between flights and she said she needed to talk to me when she got back into town. And I have no idea. I…I don’t know.
PETERSON: Huh! Weird.
FREY: It is weird.
PETERSON: She left like a cryptic message?
FREY: Yeah, she had left me a message. I was at diner with uh…my family. And when I tried calling her back it went straight to her voicemail and I haven’t heard back from her since. But she said she was just getting on her flight and she’d call me when she got back into L.A., I think is what she said.
PETERSON: Wow! When does she get in?
FREY: Um…I have no idea. She didn’t tell me a time.
FREY: She said she was delayed and in-between. I have…I have no idea if she’s in…in Chi…Chicago, I think. I have no idea where she’s at. 
PETERSON: But you’re okay, right?
FREY: I’m okay. But she said she was worried about me and concerned and said, “I hope you’re okay, Amber”. I’m gonna…I have no idea, I’m scared, I have no idea what she’s talking about.
PETERSON: Yeah. Weird.
FREY: Yeah. It’s like, you know, like okay, what next? You know, I fight with my sister and it’s just…
PETERSON: Yeah. Like you need more in your life, huh?
FREY: And then you’re so far away. I just feel so…I just feel so alone. I just don’t…I don’t…I have no idea. I’m…
PETERSON: Well sweetie, there’s lots of people that care about you.
FREY: I know, but I…I have no idea why she was so concerned. She sounded like she was crying and…
PETERSON: Well…gosh, you don’t need anything else tough in your life.
FREY: No, I don’t.
PETERSON: I mean people can make it better. And I don’t mean your life is bad, I’m just saying, you know, quality people. Oh…huh!
FREY: So I’ve got…
PETERSON: Well, let’s get your mind off of that until you find out what it is.
FREY: Okay.
PETERSON: So the poor girl’s got diaper rash and a cold?
This call seems to end with no question on Scott's mind about Saki's call.  Scott does not mention calling her back or having any unresolved questions. 

Planting the hint worked, because just 30 minutes later Scott called back for the 5th time?  This call was billed at 25 minutes on Amber's phone bill, but Harris said the recording was only 22 minutes. 
PETERSON: …the worst thing in the world.
FREY: Okay.
PETERSON: And I’m so sorry that this has happened and I am so sorry I going to hurt you in this way. I don’t want to do this over the phone. I want to tell you this, I want to be there in person to tell you this. But I’m sure that’s why Sauki called you.
FREY: What?
PETERSON: I’m sure that’s why Sauki called you.
FREY: Why…why would Sauki…what
PETERSON: It’s the worst thing. I’m sorry, Amber. Um…well, I’ll just…I’ll just tell you.
FREY: Okay.
PETERSON: Uh…you haven’t been watching the new obviously?
PETERSON: Um…I have not been traveling during the last couple weeks. I have…I have lied to you that I’ve been traveling.
FREY: Okay.
PETERSON: The girl I’m married to, her name is Laci.
FREY: Uh-hum.
PETERSON: She disappeared just before Christmas.

For the next 20 or so minutes, Amber badgers Scott with questions about what he said or did on this day or that.  The call is unexpectedly disconnected.  Almost immediately Scott called Amber back, and this last, the 6th call for the day, was billed at 98 minutes, over an hour and a half.  The call ends with Amber asking Scott not to call her, and he agrees.
FREY: You know, Scott, I…I just really need to think about all this so don’t call me.
PETERSON: Okay, I won’t. I respect that.
FREY: I’ll call you, okay?
PETERSON: Please do. Please do.
FREY: Gotta go.
FREY: Oh, my God!

That should be the end of it, right?  Amber has made it clear to Scott that she thinks he is involved in Laci's disappearance, and he's emphatically said he's not.  She's demanded to know details about his and Laci's relationship, and he's refused to tell her. Buehler and Grogan have accomplished their goal, they got Scott to admit that he was Laci's husband.

But, that's not all they wanted.  They wanted a confession, or at least an incriminating statement.  But Amber fell far short.  What is worse, Scott appeared to be keeping his word; he wasn't going to call her.  From Jacobson's charts, we know that Amber is indeed the one that initiated the next call.  On the 7th, she called Scott at 4:13 p.m., and they talked for 100 minutes.
4:13 p.m. Amber called Scott Cell 2 [100 min] 195T
So, we must ask the question, would Scott have called Amber again if Amber had not first called him on the 7th?  So many times, Scott gives every indication that he is not going to maintain the relationship, but Amber persists in calling him.  She reels him in, so to speak.

This wouldn't be a factor worth discussing, if it were not for the fact that the Prosecution has portrayed Scott as pursuing a romantic relationship with Amber, when the truth is that she was deliberately perpetuating that relationship and wouldn't let it die the natural death it was destined for. 

We shall never know for sure if Scott would have ever called Amber again, but the Prosecution would have had a much better case if the facts went down like this:
On December 25, Scott had called Amber without having to be prompted by her voice mail messages and the message from Doug Sibley
On December 26, Scott had called Amber 14 times, not Amber called Scott 14 times
Through the course of the next 10 days, Scott had been the one to make the first call of the day, not Amber
Through the course of the next 10 days, Scott had called Amber at least as often as she called him
Scott hadn't skipped his January 5 usual nighttime call, in spite of 2 voice mails from Amber
Scott had called Amber on January 6 without having to be prompted by voice mails from Amber expressing some urgent situation
Scott had called Amber on January 7, not Amber called Scott
Those would be some facts that would support the claim that Scott was pursuing Amber as a romantic relationship.  But those facts are nowhere to be found. 

Friday, March 27, 2015

Argument - Counter Argument

I was scouring my computer for certain information and found this article I had started to put together years ago.  Though not complete, I think it's far enough along to be of value.  The part in black is the State's argument; in red is the counter argument.

1.        The most important fact
a.        The connection between Scott's fishing route and where the bodies were found proves that Scott dumped Laci's pregnant body in the Bay on December 24.
                                                               i.      Dr. Cheng’s analysis is seriously flawed        
1.        He could not trace Laci back to the fishing route, only Conner
2.        His wind data was grossly exaggerated
3.        The strong winds did not coincide with the low tide
4.        He used incorrect tidal times, getting his data from the SF station instead of the Richmond station
5.        He still had Conner off-shore at the time of the high tide
                                                              ii.      Conner did not wash ashore
1.        The high tide was a lower than average high tide, with insufficient water level to locate Conner 24 feet north of the breakwater
2.        Conner was found north of the debris line
                                                            iii.      Conner was too old to have died on or before December 24
1.        All eye witnesses described Conner as full-term newborn, even up to a month old
2.        Dr. Brian Peterson’s measurements produced a gestational age of 9 months
3.        Dr. Allison Galoway’s initial observations produced a gestational age of 36-38 weeks; only after applying junk science did she come up with a gestational age that fit Conner’s age on December 23
2.        How and Where
a.        Motive
                                                               i.      Scott didn't want a dull boring life with wife and kids, but freedom and the fantasy life of a rich, successful, jetsetter
1.        Scott was already an international traveler, both for business and for pleasure
2.        Laci allowed Scott a great deal of freedom
3.        Laci and Scott were financially secure
a.        Their own income was sufficient to meet their day-to-day needs
b.       Laci would be coming into a rather large inheritance
c.        Scott’s parents were very generous, such as giving them a costly membership to the Country Club
b.       The Plan
                                                               i.      October -- looking for a new relationship, Shawn Sibley
1.        More like a blatant attempt at a one-night stand
                                                              ii.      November -- starts relationship with Amber Frey
1.        Egged on by Shawn Sibley
2.        Amber made the first call to Scott, 3 phone calls in fact
3.        Scott started the relationship with a well-developed exit strategy
a.        Told her right up front that he would not be available for upcoming holidays
b.       Planned to be totally unavailable for about a 6-week period
c.        Made business trips to Fresno during the dating period in which he did not attempt to see Amber
                                                            iii.      Setup the end of January to be the end of the interest in Laci's disappearance
1.        No, that was his exit strategy – be totally unavailable through the entire Christmas season and until the end of January, giving Amber plenty of time to lose interest in him
c.        The Plan is solidified
                                                               i.      December 6 -- call from Shawn, about being married
1.        Most likely she already knew this, as she and Amber were already trying to track down a marriage record for Scott
                                                              ii.      December 7 -- he researches boats, waterways in Northern California
1.        Very reasonable thing to do for a fisherman who wants to do more fishing
                                                            iii.      December 8 -- he researches Bay charts and fishing information
1.        Very reasonable thing to do for a fisherman
                                                            iv.      December 9 -- he buys a boat
1.        Very reasonable thing to do for a fisherman
                                                             v.      December 20 -- he buys fishing pole and lures, 2-day fishing license
1.        Very reasonable thing to do for a fisherman
2.        These items not necessary to use a boat in the Bay
                                                            vi.      ----------- he made 5 homemade anchors, 4 used on Laci
1.        No evidence whatsoever that he made 4 additional anchors
2.        The weight of those 4 anchors would not have sunk her body
3.        No anchors were found during the extensive searches after the bodies were found
4.        Cheng’s theory about why Laci loosed from the anchors is blatantly false; strong winds did not coincide with an extremely low tide
d.       The Plan is put into action
                                                               i.      Scott strangled or smothered Laci on the night of December 23, or the morning of December 24 while she was dressing. 
1.        If on the night of the 23rd rigor mortis would have set in
2.        No evidence of death in the house
3.        The clothes Laci was found in were not the clothes she wore to Salon Salon
4.        Laci was on the computer the morning of the 24th
5.        Laci was seen walking in the neighborhood by at least 4 credible witnesses
6.        Laci encountered Todd committing the Medina burglary
                                                              ii.      He wrapped Laci in the blue tarp, put her into the Ford pickup, covered her with the market umbrellas, snapped McKenzie's leash on, and left the gate open so McKenzie would follow him.
1.        The blue tarp had no forensic evidence; the cadaver dogs did not hit on the tarp
2.        At least Distaso was smart enough to abandon the theory that Scott stuffed her into the green tool box
3.        No evidence presented that McKenzie would be apt to follow Scott’s vehicle
                                                            iii.      He left the house at 10:08 a.m.
1.        cell site information is not exact enough to pinpoint location
2.         the cell tower for the warehouse borders the 2 cell sites that handled the call
3.        Christmas Eve is traditionally a high-volume day, causing cell sites to overload and calls to be picked up by neighboring sites
4.        AT&T’s records and executives are ambiguous as to whether it was an incoming voice mail, or Scott checking his voicemail
                                                            iv.      Karen Servas found McKenzie at 10:18 a.m., not time for Laci to do what she needed to do, leave the house with McKenzie, get abducted, and McKenzie return home
1.        Karen Servas is not a reliable witness; she changed her timeline a couple of times; moreover as a witness she was hostile to Scott as early as Christmas Day, 2002
2.        The time is based on her Austin’s receipt, which proves she went to Austin’s but does not confirm the sequence of her errands
3.        Buehler did not confirm the accuracy of the register Servas used
4.        Her memory of her activities is unreliable (she thought for a year that she left at 5:05 for her evening engagement when she actually left at 4:05)
5.        Multiple explanations for why McKenzie was alone and not with Laci
a.        Laci was detained after leashing up McKenzie and he got out of the  yard
b.       McKenzie got away from Laci during the walk and they arrived home separately
6.        Karen Servas, the concerned neighbor that she is, does not know for a fact that Laci was not in the house, as she  didn’t bother to knock
7.        Multiple witnesses confirm Laci went on her walk
8.        The Tenbrinks knew Laci confronted Todd
                                                             v.      He drove to the warehouse, put her into the boat, attached the weights using the pliers, and put the boat cover on the boat.
1.        No cadaver scent in the boat
2.        Lab technician testified pliers had not been used recently enough to be involved in Laci’s disappearance
3.        The boat cover is not suitable for being on the boat during transport – it would blow off
                                                            vi.      Sometime after 11:00 a.m., he drove to the Bay, motored out to Brooks Island, and dumped Laci in the water.
1.        The area by Brooks Island is very shallow water, not at all suitable for dumping a body intended to not be found
2.        The 4 alleged weights would not have sunk Laci, nor kept her submerged
e.        Problems with executing the plan
                                                               i.      Original plan was to get to the Bay earlier, then go hang out at the Country club, have a few drinks, but it took him longer than he planned, he screwed up his alibi
1.        Just exactly what interfered with his plan?
a.        He didn’t seem to be in any hurry to get where he was going
b.       He took time to read and send emails
c.        He took time to assemble a mortise
2.        That alleged plan would still have left him with unaccounted for hours
                                                              ii.      He had to admit he was at the Marina because some people saw him
1.        If he was the liar he was made out to be, he would have lied about where he was UNTIL someone came forward to prove he was at the Bay
                                                            iii.      He thought he got her into the deep water, and she would wash out under the Golden Gate
1.        That’s pretty absurd to argue that Scott researched Bay charts but thought he was putting her into deep water
2.        No evidence that Scott did any research on the movement of bodies in the Bay to give him reason to think that the selected location would produce the desired results
3.        Better and easier ways to ensure she washed out to sea than buying a boat and motoring out to Brooks Island
3.        Evidence Scott wasn't fishing
a.        couldn't say what he was fishing for
b.       didn't have the right gear
                                                               i.      How could they know he didn’t have the right gear if he didn’t say what he was fishing for?
1.        He did tell Brocchini he was trolling, and he did in fact have a trolling motor and trolling line
2.        He told others he was interested in sturgeon fishing; that he did not have correct gear for, but he trolled instead
c.        SF Bay too risky for someone just taking the boat out for the first time
                                                               i.      But not too risky to take the boat out for the first time and use it to dump a body? 
d.       He doesn't tell anyone he talks to that afternoon that he has been to the Bay
                                                               i.      Nor does he tell anyone that he assembled a mortise, or that he’s going to his mother-in-law’s that night for diner
4.        Suspicious behavior
a.        He washed his clothes
                                                               i.      God forbid a husband wash his own clothing
                                                              ii.      Even Ron Grantski said Scott did a lot of things around the house
                                                            iii.      Washing clothes does not remove all traces of forensic evidence, and none was found on that clothing

                                                            iv.      He didn't wash the shoes he wore, and no forensics found on the shoes