The Double Life of Scott Peterson: Defending Scott Peterson — Ep. 4 | MK Confidential

29:55Hi, I'm Sean Evans from Hot Ones, and I want to tell you about YouTube Premium. It has offline downloads, so you can watch without Wi-Fi. Background play, so you can lock your phone and it still plays, baby. Oh, and it is completely ad-free. Yes, I said it, ad-free. Try YouTube Premium for two months free at youtube.com slash premium. Trial eligibility varies, terms apply, cancel anytime. On the 13th day of testimony, the state calls Detective Al Brocchini. He will spend much of the next week on the stand. While he is testifying, the jury loses one of its members. A courthouse camera catches juror number five, Justin Falconer, speaking with Lacey's brother near the security checkpoint.

30:42Judge DeLuke looks into it and decides the conversation was harmless. But after the incident draws media attention, Falconer admits that he discussed the coverage with his girlfriend, despite the judge's orders to stay away from the news and not discuss the case. Two days later, DeLuke removes him from the jury. Falconer walks out of the courthouse and directly into the arms of reporters. They ask him the question everyone wants answered. After what he has heard so far, does he think Scott Peterson is guilty? Well, the prosecution hasn't given me any reason to believe that he is. All the prosecution witnesses have pretty much been just as good a witness for the defense as they were for the prosecution, if not in some cases better, for the defense.

31:22and I haven't heard any testimony whatsoever that would lead me to believe that he was guilty. Asked how he would vote if he had to decide the case that day, Falconer says not guilty. So far, Garagos isn't doing too badly. Garagos, meanwhile, has been fighting over discovery almost from the day he took over the Peterson case, arguing that prosecutors are consistently turning over evidence late or only after repeated requests. And he is convincing the judge. I will tell you that I think in real time, not now, but in real time, I knew the facts better than anybody. I knew the discovery better than anybody.

32:01It's one of the reasons during that trial, we had not one, not two, three separate recesses. And the late, great Al DeLuki, who was the judge, had excoriated the prosecution for their discovery compliance, for not turning over discovery, for not following up on exculpatory leads. And I was bellyaching about that every single day, making motions for mistrials, the whole bit. Journalist Catherine Cryer covered the trial from inside the courtroom and writes that Judge DeLuki took to chastising prosecutors in open court about discovery issues. But while Garagos may be scoring points, there are facts that will prove insurmountable for him.

32:49Let me ask you the things that convinced me he did it. The tapes with Amber are bad, for sure. I accept that there is an explanation for them. There is a version of him doing that stuff with Amber that doesn't have Scott as a murderer. However, the fact that he bought that boat after the affair began, he did not tell anybody that he bought that boat. He went out fishing on Christmas Eve. He went out fishing on Christmas Eve. I feel like I'm in the gym right now. He places himself at the scene. Wait, I didn't interrupt you. He places himself at the scene where the bodies wash up. And on top of that, Lacey's body washes up without her head, her arms or the lower legs.

33:39And he clearly, the killer, clearly weighted the body down in an effort to keep it at the bottom of the sea. And sure enough, they found what looked like the molds for four concrete anchors. His boat had some concrete remnants on the inside of it. and it matched the little pitcher that the detectives found on that boat perfectly. And yet those anchors were never found. And to me, that is absolutely devastating for Scott Peterson. Okay. So like I said, I feel like I'm in the gym. Number one, what was your first point? That was the one where you... He bought this boat after the affair began and didn't tell anybody.

34:19Which she didn't know about, right. during the trial they put on the lead detective al brocchini guess what and mind you i had spent one week doing mitochondrial in california at the time this shows you how long ago this was mitochondrial dna was not admissible in california in order to have the the prosecution be able to introduce mitochondrial dna which is dna that is linked to the maternal lineage and they had a hair and they wanted to show that the hair was in the boat. So, aha, Lacey was in the boat. Lacey didn't know about the boat. Your kind of aha moment. Well, guess what happened during the cross-examination of Al Brocchini?

35:01I had, they didn't realize Al Brocchini had whited out a paragraph in his report. I had him produce the original report. What he had whited out was Al Brocchini himself had interviewed a witness at the warehouse who saw Lacey in the boat, actually saw her in the boat. He had whited it out. So I spent a week contesting mitochondrial DNA so that we could get it admitted when all along Modesto PD knew that she was in the boat and they had a witness who was at the warehouse. Stop there because what Mark just said leaves out an important part of what happened. The witness is a woman named Peggy O'Donnell who runs a business a few doors down from Scott in the same warehouse complex.

35:49Peggy tells police that Lacey had come by the warehouse complex and asked to use her bathroom a few days before she disappeared. This happens on either December 20th or December 23rd. Peggy isn't sure which date. If true, that places Lacey at the warehouse complex, not in Scott's boat. But Garagos is right about one important part of this. Burkini had removed witness information about Peggy O'Donnell from his report. One sentence has been removed. It is about O'Donnell's claim that Lacey visited the warehouse complex on either December 20th or December 23rd and asked to use O'Donnell's bathroom.

36:32On cross-examination, Garagos produces a page of Brokini's notes, which include a line that reads, quote, Lacey used restroom on 12-23, Peggy, end quote. Garagos then asks the detective, can you tell me how that particular piece of information got excised out of your police report? I excised it, Brokini answers. You did it? Yes, I did. The reaction in the courtroom is immediate. Garagos asks the judge whether they might stop for the weekend and let that exchange sit with the jury for three days. But Burkini has an explanation, and after the weekend, the jury hears it. Prosecutors ask him about the missing sentence, and Burkini says the information had not disappeared from the case, that another detective named Dennis Holmes included Peggy's account in his report from that day, and that unlike Brickini, Holmes had interviewed Peggy O'Donnell directly.

37:34In 2024, Brickini explained his reasoning to Netflix and conceded the optics in court. What happened was on this one day, after I dictated, turn it in, now we all sit down together and I tell all the detectives what I heard. And Detective Dennis Holmes, he said, whoa, I interviewed Peggy. So he could testify to what Peggy said. Mine was through the grapevine. And so I deleted that sentence because it was in his report. Could look wrong to the jury. It could look wrong to the, you know, roaches. Burkini's explanation does not end the argument. Garagos still sees the missing sentence as part of a larger pattern.

38:17Evidence, he says, was mishandled, minimized, or disclosed too late. But when I pressed him on what that evidence actually proved, the argument quickly moved back to the boat. he whited it out because another detective put it in his report and had interviewed this person how we found it and he whited it out so it wouldn't be wouldn't get to the defense but it was in the public record because another cop put it in his report that's how we found that's how we found it he had yes so i mean how is it nefarious for brockini to have taken it out when he understood his report was hearsay but he had the actual cop who had interviewed the woman because he was doing it in an affidavit.

38:55He was doing it in the affidavit to be presented to the judge and he had whited it out. The other thing is, there's no proof that Lacey was ever in that boat. And Scott also said he was taking, he told investigators he was taking that boat out. Allegedly, half the reason was so he could just see how it went. So we're to believe that Lacey went to the warehouse. She just sat in the boat. She just sat there. They didn't go out in it. This was a test run. By the way, it's funny you say that. I'm glad you do. She got in the boat and she did exactly what the jurors did. Do you know what the jurors did during deliberation?

39:28We had the boat. It was in the courthouse. The jurors went down. They wanted to see the boat day three or day four of deliberation. They actually got in the boat and started doing what Lacey did to see about his buoyancy. I turned to DeLuki and I said, okay, do you remember when I did a demonstration? I actually, and it's somewhere somebody put it in the internet because it was an exhibit. I put this poor kid who worked for me in the boat. I gave him a dummy that weighed approximately what Lacey did. And I tried to have him re reenact what actually happened. He sunk every time. Unfortunately for Rafi, who was the guy in the boat, he didn't swim and I had to save him each time.

40:08But that judge would not allow that into evidence. That was one of the first things the jurors wanted to do was get in and test the buoyancy of the boat. Number two, before you go off on. Wait, wait, where's your witness who said she saw Lacey get in the boat? Did she testify? No, she did not testify. They admitted that they were wrong during the trial. The witness, that came into evidence. That's what I'm saying. Did you call the witness? No, why didn't you call the witness to testify to that? He admitted that, yes, she had been in the boat and he had whited it out. I didn't need it at that point.

40:44I thought. No, no, no. If you had a witness who saw Lacey Peterson get into that boat and you felt good about that witness, you, Mark Garagos, would have called Churchgate to testify at trial. You know it. I know it. And the American people know it. Let me tell you what happened in this case. This case started in opening statements with them saying Scott had killed Lacey on the 23rd. We are dodging. Where was your witness? Why didn't you call the magical witness who could place Lacey in the boat? Because they admitted afterwards. Afterwards, they abandoned that the same way they abandoned that she was killed on the 23rd.

41:19We would knock down every single theory. And it came down. Really? Where? Why didn't you call all the witnesses who saw Lacey walking her dog after 1030 that exact same reason? The case started that so much magical evidence that would have gotten your client off that just you you just decided not to call in front of the jury because somehow it had been admitted. It had all been admitted. and the jury was just too dumb to understand it. No, I don't think the jury was dumb. I really don't. I don't think it was a dumb jury. I think that the jurors did what the community wanted, which was to convict.

41:57Because at the end of the day, there wasn't a coherent theory. I would give you another example. How about Scott's four little anchors? Okay, they never found the anchors. The most searched - I know, because they're at the bottom of the sea holding down Lacey's arms and her head. Okay, now when you say bottom of the sea, you're conveying to people that somehow this is a very deep area. You realize that the bay that was searched, that on low tide, they found they not only had sonar subs, they not only had all kinds of searches out there, they found Snapple bottles, they found boots, they found tires, They found everything in the world.

42:39They did not find anchors. They did not find Lacey. They did not find Connor. The reason for that is because they weren't there. And yet we know they were in there. No, it was after the large storm. Because the real killer dumped the bodies. I don't know. Is that your theory? No, my theory is that wherever they were, they were washed up into that area by the storm. The jury never sees Garagos' boat demonstration. Instead, prosecutors call a commercial fisherman and ask whether a 153-pound fish, weighted with four 10-pound weights, could be pushed over the side of a 14-foot aluminum boat without capsizing it.

43:18Without hesitation, his answer is yes. Juror John Guinasso later called the fisherman the star witness of the trial. Then Garagos catches Brocchini in another error. Burkini tells the jury about a tip from Miguel Espadilla, one of Scott's former college classmates. Miguel had said that years earlier, in 1995, Scott had talked hypothetically about how someone might dispose of a body, cover the head, weight the body down, and put it in salt water, where the water and marine life would eventually destroy the evidence. From the witness stand, Burkini adds another detail. He says Scott had talked about wrapping the head in duct tape.

44:04That matters because there was duct tape on Lacey Peterson's remains when she came ashore. Garagos goes back to the original tip report. Espedia never mentions duct tape. Burkini acknowledges that he supplied that detail, the duct tape, from memory and that he got it wrong. He has not reviewed the original police report on the tip in months. So the alleged conversation about the duct tape did not happen. But Scott, fantasizing about disposing of a body at sea, did. Or so the jury hears. Garagos moves to have the case dismissed, and Judge DeLuki denies the motion. But what about the hair? Police reports log a single hair collected as evidence from the nose of those pliers in the boat.

44:53But by the time the envelope was examined, two hairs turned up inside. Garagos grills the detective over the exact number of hairs found at Scott's warehouse in the boat. Prosecutors claim the single hair broke in half in the envelope. But Garagos says that theory is made up, and that it was made up after the defense began asking tough questions. One hair went in, Prokini says, and two hairs came out. Is this a magic envelope? asks Garagos. FBI analyst Constance Fisher testifies about the hair during the trial. Fisher estimates that 1 in 112 people in Modesto share the same profile as the hair found in Scott Peterson's boat, less than 1%.

45:38The defense calls Dr. William Shields, who challenges that figure. Shields says the DNA could be as common as 1 in 9 people in Modesto and points out the size of the FBI database and the error rate for mitochondrial DNA testing. Both experts agree that the DNA proves the hair from the pliers is not from Scott Peterson, but that it could be from Lacey. The trial moves on into August. On August 10, 2004, Amber Fry walks into courtroom 2M. Years later, she described that moment to A &E. I remember the doors opened. You could hear a pin drop. It was so quiet. You could hear everybody's body shifting as I'm walking in.

46:25But the most important evidence Amber brings into the courtroom is not what she says from the witness stand. It is what Scott said to her on those secret tapes. Scott Peterson never testifies. But for days, the jury hears his voice through Amber's undercover recordings, following along on printed transcripts as the calls are played in court. Defense co-counsel Pat Harris had seen this problem coming while reviewing Discovery. He later tells A &E that he believed those tapes alone could sink the entire defense. Then we got the actual tapes. I started listening to the tapes. and after I'd finished, I went into Mark's office and I said, we're screwed.

47:09Because when you hear them, it's a whole different thing. Because Scott is on the phone with Amber and you hear giggling and you hear sort of the tones of voice and it changes the whole dynamic. Take New Year's Eve, for example. Three blocks from Scott and Lacey's home, roughly 1 ,000 people gather for a candlelight vigil for Lacey. Tears are shed for the missing mother and child. And Scott is on the phone with Amber.

47:42For juror number one, Greg Baratlas, those calls would be a turning point. Years later, he explained why to A &E. When I started to think that Scott was guilty was when Amber Fry came. to hear the tapes. He saw that it wasn't hard for him to lie. He was trying to have both a wife disappeared and he's trying to find her, supposedly, and at the same time, he's still trying to lead Amber Fry on. Seven court days later, on August 23rd, Garagos begins his cross-examination of Amber Fry. Go ahead, Mr. Garagos, Judge DeLuke tells him. No questions, Your Honor. The courtroom gasps. What? DeLuki says. Just kidding, Garagos says, trying to lighten it up a little.

48:34There is laughter in the courtroom. Outside, afterward, Sharon Rocha tells reporters she sees nothing funny about the murder of her daughter, Lacey. The defense begins its case on October 18th, 20 weeks into the trial. Garagos builds his argument, and on the 21st, he produces one of the witnesses he promised the jury. an expert who he says will prove that baby Connor was alive on Christmas Eve and beyond. Dr. Charles March, a fertility specialist, dates Connor's death to December 29th. That would mean Connor and Lacey were alive five days after Christmas Eve, which would blow apart the prosecution's timeline.

49:18Then prosecutor Dave Harris gets up. Dr. March's date depended on an assumption. He had assumed Lacey took a pregnancy test on June 9, 2002, because she had not announced her pregnancy at a friend's baby shower the day before that. His reasoning out loud on the stand is that women talk. Of course, sometimes they don't talk about things like their own pregnancy at another woman's baby shower where one's friend is supposed to be the center of attention. He concedes he has done no testing himself and that the state's expert, Dr. Gregory DeVore, is better qualified to read the ultrasound. Dr. DeVore estimated that Conor died on either December 23rd or 24th, with a few days' margin of error on either side.

50:08He mapped the measurements from Lacey's first and second trimester ultrasounds forward and then compared them to Conor's size when he was found. Garagos attacked his methodology on cross, but for prosecutors, DeVore's testimony is enormously important. The state had already called forensic anthropologist Dr. Allison Galloway. Based on measurements of Conor's remains, she could only put his age at somewhere between 33 and 38 weeks in the womb, too broad to pinpoint a particular date of death. DeVore gives them a calculation that points directly at the day Lacey disappeared. And the jury listens.

50:50Divorce testimony would later be described as one of the most persuasive pieces of scientific evidence in the state's case. That leaves Garagos' promise about the eyewitnesses. Garagos' own investigator, Matt Dalton, found six people who said they saw Lacey walking that morning, and later than the time Scott allegedly left with her body in his truck. Garagos promised them to the jury in his opening statement. He calls none of them. Matt Dalton, the investigator who found those witnesses and interviewed every one of them, still says he does not know why Garagos never called them. The defense calls a total of 14 witnesses.

51:32Five of them are police officers, and through them, Garagos does elicit testimony, repeating what the uncalled eyewitnesses claimed they had seen. The judge tells the jury to only consider the officers' actions in response to those reports, however, not the actual sightings themselves. In other words, these testimonials were hearsay, as told by the officers, and could not be considered for the truth of what the eyewitnesses actually said. For that, you would need to call the witnesses, but Garagos did not. Three of the defense witnesses are subject matter experts, one in cement, one in finance, and one in dog tracking.

52:15Garagos also calls Scott Peterson's parents to the stand. When police arrested Scott 30 miles north of the border, they found nearly$15 ,000 in cash in his car. His mother, Jackie Peterson, tells the jury the money came from her. Ten days before the arrest, she had been arranging to buy Scott's truck to give to his brother, she says, and in the process, she accidentally withdrew$10 ,000 from an account belonging to Scott. She gave him extra cash to make up for the mistake. Journalist Catherine Cryer, watching from the courtroom, wrote that the explanation sounded illogical, bordering on the absurd.

52:58Lee Peterson had been called by the prosecution earlier in the trial, told the jury, Scott's the fisherman, he says. I'm more the golfer. Under Garogas' questioning, Lee Peterson confirmed Scott was staying in San Diego the week he was arrested, not far from a golf course where his father had an 8 a.m. tea time. Eight days into its case, on October 26, 2004, the defense rests. I asked Mark for his best proof that Scott Peterson is innocent. Not reasonable doubt, but stone-cold innocent, like he told the jury. There's no time of death. There's no place of death. There's no manner of death. You say, obviously, the body was held under.

53:44And it's a, you know, you gave a kind of a synopsis of what the prosecution was. Take any single one of those. The body was held underwater. That's not what the pathologist testified. The prosecution witness was that the body was not underwater, that the condition of the body and I was at the autopsy and it's without getting grotesque I will tell you that there is no way that body was underwater and no scientist nor no prosecution witness ever said that that body was held underwater it could not have been held underwater because of the condition that the body was in so that debunks that in terms of going fishing on that day up until the cross-examination of ron gransky who was married to sharon up until trial itself it was never disclosed that guess where ron gransky was on the day before christmas at the exact same time scott was fishing he too was fishing so us bi-coastal elites may not go fishing on Christmas Eve.

54:50But if you're in the central... And so was Scott. Scott wanted to be. Scott was there. He's saying... He wanted to be. He wanted to be. Started that desire on the day he murdered his wife. Really wanted to get out there. We'll get to whether the body was underwater in one minute. But first, a response to Garagos' theory of the case. You and I both know that burglars who get spotted by a neighborhood pregnant lady are not known for, let's abduct the pregnant lady. Let's kill the pregnant lady. Let's hold the body and wait. And then we'll dump it in the bay when we find out that the husband took the boat out.

55:26They leave. If they're going to do anything to the eyewitness, they're going to hurt her and move on. Like the notion that these guys came to rob, got spotted by the pregnant lady, captured the pregnant lady, held the pregnant lady, did something with the pregnant lady, then killed the pregnant lady, then held the bodies, then made sure the bodies would wash up, as opposed to the guy who was married to the pregnant lady, who is the most likely to kill her on the face of the earth. That is when a woman is most vulnerable to domestic violence when she's pregnant with a baby. Who's having an affair.

55:56Who's already told the affair partner that his wife has been lost. That he's lost his wife. Who's bought a boat without telegraphing it to the family. Who goes out, tells a neighbor he was golfing. Tells other people he was fishing. Produces the receipt that he actually was at the bay where the bodies would ultimately wind up. and magically has four anchors that he produced that we can't find. And this body has been held down underwater by something heavy. The two scenarios, it's so clear if you're not representing Scott Peterson. The forensic pathologist who examined Lacey's body did testify that it had been in the water for, quote, months.

56:34His name is Dr. Brian Peterson, no relation to the defendant. Dr. Peterson also testifies that there were no tool marks on Lacey's joints. Dr. Galloway, the forensic anthropologist, examined Lacey's body as well. She offers a more specific timeline in court, three to six months in the water. Galloway found barnacles on one of Lacey's exposed bones. Galloway testifies that decomposition alone could explain how Lacey's limbs separated from her body. She found no evidence to the contrary. According to Catherine Cryer, the medical examiner who performed Lacey's sealed autopsy suggests the limbs were either cut with surgical precision or they were weighted down and pulled apart by the currents of the bay.

57:26Prosecutor Dave Harris asks pathologist Dr. Peterson about the weights directly on the stand. Dr. Peterson says either natural decomposition or weights on the limbs could explain how Lacey's body came apart. Her remains were consistent with both explanations. Finally, Dr. Peterson confirms that Lacey's body showed no evidence of a vaginal birth. There was a rip in her abdominal wall big enough that Connor's body could have passed through. This can happen when a mother dies as gases build up and eventually burst through her body in what is known as a coffin birth. No cause of death for Lacey Peterson is ever firmly established.

58:10despite the Garagos charm and lovable swagger about this case, he does have one big regret, and I asked him about it. Okay, let me ask you this. At this point in time, because there is still a contingent trying to find a way to get Scott Peterson a new trial, if he got one and you were to handle it, what would you do differently? Well, number one, the biggest mistake I made is it wasn't televised. if it had been televised, that we wouldn't have the urban legends of what the case involved. The people who weren't in the courtroom would tell you that this case fell apart during the entire time. What didn't fall apart was the hatred, the animus, and this idea that he was a bad, bad man that needed to be punished.

59:06That did not fade away. But if you had seen the evidence in real time, and there was over 100 witnesses, and when the kind of cherry picking of what the urban legends are were debunked in real time by what actually happened in the courtroom. So the first thing I would suggest to whoever retries this case is, you have to have a camera in the courtroom. Judge DeLucchi had barred cameras from the courtroom. so for five months, anyone who wanted to see the trial Garagos believed he was winning had to be in the room. The only way in was as a juror, an alternate, a reporter, or one of the lucky few who won a public seat in the morning lottery.

59:51On November 1st and 2nd, 2004, both sides give their closing arguments. On the 3rd, a jury of 12 people goes behind a closed door to decide Scott Peterson's fate. and the drama in that jury room will become yet another twist in this case. I'm Megan Kelly and this is MK Confidential.

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