Trapped on Tape?
Until now, according to many legal experts, the prosecution's case seemed dead in the water. Through three months of testimony, the prosecution team apparently failed to connect the dots for jurors, while antagonizing the judge by bungling basic procedural matters. But suddenly, momentum has shifted toward the prosecution—thanks to Frey's meticulous grilling of Peterson during phone conversations recorded after Laci disappeared. "If the D.A. had done as good a job questioning witnesses as she does questioning Scott, they wouldn't be nearly as far behind," says Loyola Law School professor Stan Goldman. Characterizing the tapes as "devastating," Bay Area defense attorney Daniel Horowitz adds, "We were in the seventh inning and the score was 5-0 for the defense. Now, it's 5-5 and the bases are loaded."
Through five days of prosecution testimony, Frey more than held her own. Each day she turned up at the Redwood City, Calif., courthouse looking demure in a black top and simple skirt. Her entrances and exits were undramatic, even when she slipped out to nurse Justin, her 4-month-old son by her boyfriend David Markovich, 44, a chiropractor. On the stand, Frey, 29, avoided eye contact with jurors and with Peterson, 31, speaking in a soft, surprisingly girlish voice. Off the stand, she showed little emotion as she listened to the tapes, only once bursting into tears when she heard herself speak of her history of being victimized by men. "Is it written all over me?" she says on a tape. "You know, sucker or something?" All in all, says defense attorney Michael Cardoza, "she appears humble, as someone who has done the right thing, and didn't do it for money." Horowitz detects careful professional preparation, but, he says, "to the jury, she's just telling the truth."
In contrast, the taped conversations seem to reinforce Peterson's reputation as a master liar and manipulator. While Frey still plays along with Scott's claim that he "lost" his wife—in fact, she learned about Laci on Dec. 30—he covers for the time he spent searching for his wife by pretending to be in Paris. During a Jan. 6 exchange in which Scott admits he's married and his 27-year-old wife is missing, Frey wonders how he could spend hours on the phone flirting with her when volunteers are still looking for Laci. "Isn't that a little twisted, Scott?" she asks. Peterson responds, "It is." At another point, after he calls her "sweetie," Frey protests, "Wouldn't that be Laci, your pregnant wife that's missing?" Peterson agrees: "I don't have the right to call you that anymore."
The taped fragment that seemed to jolt the jury the most came from another Jan. 6 conversation in which Peterson reads her a romantic Boris Pasternak poem. When Amber says she doesn't understand the line "...my hands around your waist," Peterson replies, "You know, my hands around your waist, like, you know, like anchors for people." As a murmur went through the courtroom, several jurors flipped to the printed transcript, no doubt remembering the prosecution contention, as yet unproven, that Scott made and attached concrete anchors to Laci's body before dumping her in San Francisco Bay. "That is as close to a smoking gun as we're going to get," says Horowitz. "How the heck does he get the words 'anchors' and a human being in the same sentence if he doesn't know how Laci died?"
Other legal experts remain skeptical, hearing in the phone banter proof only that Peterson was a lying philanderer, not a lying murderer. "There's still no smoking gun in these conversations," says TV commentator Greta Van Susteren. Bottom line? "Nobody who watches CSI regularly," says Goldman, "will vote to convict, because there's no physical evidence there."
Still, there may be surprises to come. Repeatedly on the tapes, Peterson sidesteps questions about Laci and the baby, saying things like, "I can't tell you all the details." He also alludes to the baby Laci was carrying as "the baby" and "her child." Observes Horowitz: "He's literally putting out that it's not his baby."
No matter what tack the defense takes, the prosecution has created its own set of problems. Too often, its bungling of procedural matters has created the aura of a Keystone Kourt: On at least three occasions, Judge Alfred A. Delucchi rebuked prosecutor Rick Distaso for failing to turn over relevant documents to the defense. "Being chewed out by the judge in front of the jury is one of the worst things that can happen to you as an advocate," says Ruth Jones, a professor at Mc-George School of Law in Sacramento.
No less troubling, key investigators have appeared to ignore important leads pointing away from Scott as the killer. Under cross-examination by defense attorney Mark Geragos, Det. Ray Coyle left the impression that while tracking down most of the 309 sex offenders registered in the Modesto area, police made only perfunctory efforts to check their alibis for their whereabouts on Dec. 24. More embarrassing, Coyle recalled how a mentally ill man told police that he had killed a woman in Modesto named "Lisa Peterson" by breaking her neck as she walked her dog. Jurors visibly perked up as Coyle told how cops quickly "eliminated" the man as a suspect—solely because of his mental illness. "Even paranoids are right sometimes," cautions Cardoza.
Oddest of all, the stone-faced prosecutors seem bent on numbing jurors' minds with too much and often irrelevant detail. Several analysts warn that even the taped phone conversations went on way too long. "The prosecution is diluting whatever good these tapes have for them," says Cardoza. Former San Francisco assistant D.A James T. Hammer says of the overkill, "This is what a baby D.A. does: You put everything in, because you don't want to screw anything up." Hammer adds that Distaso and company may also be spooked by Geragos's evident skill. "They're spending 80 percent of their time on defense," he says, "worrying about what Geragos is going to do."
Certainly, Geragos has lived up to his billing as an attorney who blends charisma and cunning. One of his best moments came after the prosecution, hoping to underscore Peterson's callousness, tried to suggest that Scott had thrown photos of Laci into a wastebasket that was found in a storage locker. Geragos quickly stalked to the witness box to confront Det. Richard House, who had searched the locker. Wasn't it true, Geragos demanded, that the basket looked more like a receptacle to store the photos than a trash can? "I think so," House haplessly replied.
Even so, there are two powerful pieces of circumstantial evidence that the defense may have trouble explaining. First, there's the proximity problem—the bodies of Laci and her unborn son Conner washed up close to where Scott had supposedly been fishing. Then, there's the phone call Scott made on the morning of Dec. 24. In his opening statement, Geragos maintained that Scott had left the house between 9:30 and 10.A neighbor said she found the couple's dog running loose at 10:18, relying on a time-stamped shopping receipt to fix the time. But a prosecution expert testified that Scott had made a call from his cell phone at 10:08. The call pinged off the cell tower close to his home, meaning that he was no more than a minute or two away. "You've got a very short time line," says Goldman. "How could Laci have gone walking, be kidnapped, and have the dog barking and then retrieved, all in 10 minutes?"
Beyond those two points, the prosecution's best asset may be Scott himself. Repeatedly, Distaso has produced evidence about Scott's dubious behavior right after Laci disappeared. On the afternoon of Dec. 24, for instance, he stopped to take a shower at home even though he knew by then that Laci was missing, and without prompting told people that the police would probably find his blood on his truck; on Dec. 30, he phoned Frey 10 minutes before a memorial vigil for Laci. Gerald Uelmen, a professor of law at Santa Clara University, cautions, "Grief can affect people in so many different ways." Still, says Goldman, the jury may feel "he's just not acting like an innocent man."
The phone conversations seem to strengthen that perception. "If you listen to those tapes, you can't not but hate Scott with all your heart," says Goldman. Frey appeared to drive that point home when she testified about Peterson's interaction with Ayianna, her 3-year-old daughter from a previous relationship. She described how Scott—with whom she only had four dates—quickly ingratiated himself with both mother and daughter, picking Ayianna up at school and even changing the bandages covering Ayianna's stitches from a small wound. "It's such an intimate thing for a child, such a trust issue," Horowitz says. The net effect? "She's got the jury on the edges of their seats. Literally."
Will Frey's galvanizing effect last? Legal experts predict that prosecutors will continue for several more weeks. By the time Geragos begins to mount what is expected to be a tight defense case, "the strong emotional tie that Amber has created will begin to fade," says Goldman. That leaves the prosecution with only one more shot—closing arguments—to fit the pieces of the puzzle together. "Circumstantial evidence cases are like filling a proverbial glass of water, one drop at a time," says former San Francisco D.A. Terrance Hallinan: "It's all in the summation."
Written by Jill Smolowe and Bill Hewitt. Ron Arias, Vickie Bane, Lorenzo Benet, Lyndon Stambler and Frank Swertlow in Redwood City