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Jan. 2, 2025 - The Megyn Kelly Show
01:07:16
20250102_scott-peterson-may-get-a-new-trial-a-look-back-at-
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New Trial for Scott Peterson 00:12:56
Welcome to the Megan Kelly Show, live on Sirius XM Channel 111 every weekday at Noon East.
Actually, kind of unbelievable.
And an effort underway to get the man convicted of killing his pregnant wife, Lacey, and their unborn son, Connor, a new trial.
Joining me today, our pal, Matt Murphy, former California prosecutor and district attorney.
Matt, good to see you again.
Thank you for being here.
All right, so this is so crazy.
The more I hear about this case, the more it feels like Scott Peterson actually has a shot at a retrial, which just seems insane to me.
But since you're a prosecutor and you're from California, I'm going to play devil's advocate here and I will try to make the case on his behalf.
Okay.
It's more interesting if we have both sides.
So he's just been given wide access to a whole new host of discovery that he says he was entitled to in this case, which my understanding is the judge had earlier said, you're not getting this.
Go back to prison.
Goodbye.
But now he is getting access to a bunch of new evidence that would support allegedly this whole theory that what happened on the day Lacey Peterson went missing and was murdered was not that Scott Peterson killed her and then disposed of her body and that of their unborn son.
It was that she witnessed a burglary across the street from where they lived.
She either tried to stop it, which is what Scott Peterson says he believes, or she was just an eyewitness and therefore became a target.
They abducted her.
They killed her.
They then drove around with her body for some sort of period.
And then when the police made clear that Scott Peterson was believed to have been at this harbor, this marina on the day that Lacey went missing, they thought, aha, this is our chance.
We're going to dump the body over there so that he will be blamed for this crime.
And it does appear like this judge has at least opened up discovery again for him to start Probing that theory more meaningfully.
Is that about where things stand?
Yeah, that's about where things stand.
I mean, it's utterly absurd, but yeah, it's look, don't you hate it when women who are seven and a half months pregnant go charging in to stop burglaries.
And then burglars who are there to steal drive around for days and days with a dead body in their car of somebody that they killed just because, apparently.
And then they get really smart at that point and decide that they're going to drive to probably a marina that will have more law enforcement witnesses and everybody else because the attention given this case back in the day.
And they're going to take the body out and go to pretty much the exact same place that Scott Peterson was fishing, according to him, and dump the body.
Yeah, it happens all the time.
You know, I mean, both give them a new trouble.
And not to help you out, because, yeah, I'm supposed to be taking the other side.
But the other piece of that story that's just so nonsensical is if that's what they wanted to frame him, why would they wade down the body in the ocean with a bunch of anchors?
Why wouldn't they just throw the body on the shore or go out in the middle of the night and dump it overboard so it would float back in?
Because burglars go and make fake anchors with cement that they purchase all the time.
That's why.
I mean, anybody, anybody knows that.
It's like, look, this is this is one of, this is the latest case in a few of these that are going on right now, where it's kind of like, you know, a couple of decades have gone by and everybody has forgotten the overwhelming evidence against Scott Peterson.
And this guy, look, this is a domestic violence murder.
And I don't have to say alleged because the guy is convicted right now of it.
So, you know, everybody forgets Amber Frey and all of the stuff regarding the affair and the fact that he dyed his hair and had $15,000 and was down in San Diego and looked like he was going to flee to Mexico.
It's like we get these cases.
Menendez Brothers is another one right now where everybody forgets.
And then all of a sudden, the, you know, hey, the LA Innocence Project is on there, which is a misnomer if there's ever been one.
Yeah, tell us about them.
I mean, look, they did some really good work back in the day when, right when DNA became ubiquitous in when CODIS went online and every state joined it, and right when they were using modern co-filer and profiler DNA kits, which are way easier than the old RFLP to understand.
That's the gel that they used to uncheck.
So they found some people that were wrongfully convicted.
And that happens in our system.
I sit on a board with Purdue University, where that's our sole task is trying to identify people who are wrongfully convicted.
But since that initial flurry of kind of glory, if you call it that, where they're doing good work, you know, finding people that were wrongfully convicted, it seems like they've really settled more into stuff like this, high-profile stuff that gets a lot of headlines.
And then as soon as you, all your, all your viewers have to do is just read the Wikipedia on this case.
The California Supreme Court affirmed this conviction seven to oh.
They reversed the, they reversed the death part because of the, there were some irregularities during jury selection, but they affirmed his conviction.
And another term that we keep hearing, there's a Newsweek article on this, and it, you know, the defense alleges it was circumstantial evidence.
We've all heard that.
We've seen that in TV shows, right?
Like you see Starsky and I mean, I'm going to date myself here, Starsky and Husk or Tagnane Lacey.
I know the reference.
You know, whoever the cops are today, We have this concept, and it's a myth that circumstantial evidence, quote unquote, is somehow inadmissible or bad evidence.
And that's exactly the way Newsweek wrote their article on this that I read this morning.
Case based on circumstantial evidence according to LA Innocence Project.
It's like every single domestic violence murder, guys, in America and in the world throughout history involves some degree of circumstantial evidence.
Direct evidence just means a witness comes into court and they say they saw something.
Circumstantial evidence is pretty much everything else.
I mean, circumstantial evidence, it's like, you know, this guy had every poker tell that you could ever want during this investigation, including refusing at one point to communicate with her family, refusing to speak to the police anymore.
He told his paramour, mistress, whatever we want to call Amber Frey, that Lacey was dead when she was very much alive.
He said that he was a widower.
He bought this boat two weeks before she disappeared.
He bought cement, which is consistent with the way her body was found.
Her body was heavily decomposed, and they believe that the coroner testified at the time that it was consistent with several anchors holding her down.
There's so much overwhelming evidence here.
And circumstantial evidence is that good old-fashioned common sense stuff like somebody running away from a crime scene, somebody in possession of stolen property from a recent burglary that happened down the street from that.
Like circumstantial evidence is the bread and butter of every domestic violence murder case in the history of justice.
And that really is the right word for it, is justice, like holding people accountable for what they did.
The evidence against this guy is laughably overwhelming.
And they come in, they get the headlines, Ellie Innocence Project, and then everybody forgets all that stuff.
And it's like, ooh, there was a van down the street with a mattress in it.
And essentially, that's what the current legal action is about.
They want to test a mattress that was found in some burnout van somewhere in the neighborhood of where Lacey Peterson lived.
Okay.
So, you know, if they get in there and I can already tell you what the argument is going to be.
The mattress, which they say has blood on it, but that the initial test suggested maybe it was blood.
Then the second test done by the officials suggested it was inconclusive, not clear whether it's blood or rust.
Go ahead.
Sorry, Matt.
Right.
What they're going to do, if they get that thing, they're going to swab it.
And modern genetic and DNA testing is so sensitive.
I can virtually guarantee you will find unknown male DNA on that mattress.
And the next thing that the Innocence Project is going to do is they're going to say, aha, that's the DNA for the real killer.
And it doesn't match Scott Peterson.
But without a link to Lacey Peterson, it is literally meaningless.
And look, we see that all the time in a lot of cases.
Like, like I said, there are cases where DNA has legitimately freed people that didn't do it.
And thank goodness for that.
And that's the way we want this system to work.
And forensic technology is unbiased.
And it, thank goodness, right?
Like, but there's also a lot of these cases, Megan, that, and this is something that drives me crazy, where you'll have, you know, something that happened, maybe say a rape murder in the 1980, okay?
And somebody will have been convicted of rape murder.
The jury who, in my experience, and I've done a lot of capital case litigation, I've done a lot of cases like this, which were bifurcated murder trials.
The juries take their task very seriously.
The judges tend to be the most experienced and the best.
The detectives tend to be the most experienced and the best.
And it's imperfect, but everybody really wants to do their job.
So then a couple of decades later, and say it's a homeless drifter, okay, and that guy is convicted and maybe he's got some sex offenses in his past.
And the way it works over and over again is he'll say, hey, it was consensual sex.
I understand that she's a stockbroker and I was living in a tent, but trust me, we really had a spark.
And boy, did we hit it off?
And so that's why my sperm was found all over the place.
but somebody else came along later and killed her.
And that will be the absurd, ridiculous defense that they will run and the jury will reject it properly and he'll get convicted.
And then what happens is that, you know, the DNA comes back like 20 years later or 30 years later, and they'll test the scrapings under her fingernails or they'll test some object that's found at the crime scene.
And, you know, if she pat if she patted a little boy on the head that day, or if she shook hands with her mailman or something, you can discover unknown male DNA that has no link whatsoever to the actual murder.
But the standard on appeal is, could a jury, could a reasonable jury have found differently?
Essentially, could they have, could they have come to a different result based on that new evidence?
And the answer under those circumstances is, yeah, if they didn't consider that, maybe so.
So that's the standard for reversal on appeal.
So the case comes back for a retrial and Aunt Millie, who worked in the evidence room, put it in the wrong box or the evidence got washed away in the great flood of 82 or and they can't redo it or the critical witnesses have died.
The investigator necessary to lay the foundation for that evidence has passed away.
Like you can have this entire host of problems that can afflict a case like that 30 years later.
So they can't retry it.
And then what happens is you've got people like Barry Sheck in front of the cameras going another innocent man exonerated, which is the term they love, exonerated from DNA evidence when they weren't exonerated at all.
They were granted a new trial and the prosecution couldn't proceed.
And then that guy goes out.
And this has happened over and over and over again in America because we know sex offenders keep doing it again.
So they'll get out.
They'll sue the county.
They'll get settlements for a couple million bucks and then they get caught for doing it, doing it again.
DNA Evidence Under Seal 00:06:42
And nobody wants to talk about those.
And it drives me insane.
Scott Peterson is a relatively young man.
I mean, if he were to get out, I think he would pose a danger to other women and other people.
Like, obviously it would take the most stone cold sociopath in America to murder one's eight month pregnant wife and one's unborn child with your bare hands and then dump them in the ocean like they were trash.
While you're talking to your lover with these nonsense claims, while you're actually I, we actually have this queued up because it's just so amazing while you're actually at the vigil for
your missing wife and child talking to your lover in Amber Fry's defense here she did not know he was married and at this point, the reason it's on tape is because when she saw his picture all over the news, she called the cops to say, holy cow, i'm dating your suspect um.
And so she got him on tape.
And he's claiming he's in Paris on new year's eve, while Lacey's still missing.
They haven't found the body.
He's there, the vigil's there, the people with the candles.
He's on camera like oh poor, poor husband.
And he's talking to the lover about the fake Paris fireworks.
Here it is unreal.
Un unreal is exactly the word.
Now, Matt, I want to ask you a couple of things.
Okay, so first of all, I understand there is a distinction between the Innocence Project and the LA Innocence Project.
I don't know about this LA Innocence Project because in my experience, the bar is a little high for the Innocence Project to take on your case.
I don't know about LA Innocence.
I've seen this.
There's like a cleavage there in the reporting about these two.
Maybe they have a lower standard.
Secondly, the judge did say before she ordered all this discovery of all this extra stuff, like the van and things around the van.
We'll get to the specifics.
She did say you can go back and do DNA testing on the duct tape that was found on Lacey's pants when they found her body.
There was still some duct tape wrapped around her from whoever wrapped her and connected her to anchors.
That could be one of those situations.
The results of that are under seal, but that could be one of those exact situations you just mentioned where maybe they won't find Scott's DNA on that, but maybe they'll find the DNA of the guy who worked at the Lowe's from whom Scott Peterson bought the duct tape.
Now, if they found DNA that matches the DNA of one of the two burglars, although they're saying it wasn't them, it was their network.
But let's just say they found DNA that matches one of the two burglars that she allegedly caught in the act.
Now you're talking, right?
Now, okay, now you've got our attention.
So far, he's still sitting in prison and there's no retrial.
So I'm guessing they didn't get that on the DNA return.
Okay.
And then the second thing I wanted to point out is you mentioned the absurdity of him going to take his boat, his brand new boat he'd never taken out before.
He wasn't really a fisherman.
He takes his boat out on the water Christmas Day, just for the very first time on Christmas Day.
And he initially, when asked, where were you while your wife went missing and the dogs running around the neighborhood and all this?
He's initially said he was golfing.
And then he changed his story, right?
To make it fishing, presumably because he realized they had something that could prove he was in the area of the marina.
That's right.
And not only did he say he was golfing to, he said that in front of neighbors, whoever heard it, he said that about a dozen times.
So it's not like one person might have misrecollected.
He said it over and over and over again.
And that was his story.
He didn't want anybody knowing that he was there, apparently.
And, you know, I mean, look, this is, you know, when you see enough of these, it's like he did everything that you would expect to see.
And that's one of them.
Like when the truth is, you didn't do it.
Okay.
And that like in any murder case, there's a quality of the way people behave.
And if the truth is you didn't do it, you don't build a ladder to the truth with a bunch of lies.
And yeah, he said he, he said he was golfing.
You know, there, there are, you know, he bought the boat two weeks before.
And here's another thing that, again, it's like I shout at my TV when I see this come on.
They found her hair in pliers inside the boat.
You know, they matched it with mitochondrial DNA.
That's hair, teeth, bonds, things like that.
So the numbers aren't, you know, overwhelming.
It's not like one in octillions, but it's Lacey Peterson's hair in a pair of pliers in the boat, which is totally consistent with him dumping her body and using that tool as he's affixing her to these homemade anchors.
There's so many individual small points of corroboration with the prosecution's theory that just nobody wants to talk about.
You know, it's when you put it together, every one of these cases, Megan, is like a collage.
You know, each piece, it's like, where does this fit in the picture?
And sometimes like a mattress down the street, it probably has no part of it in any way.
But when you start putting little pieces together, you start to see the big picture.
And here, you know, you've got Amber Fray where he's saying his wife is already dead.
He buys the boat two weeks before.
He's actually in the marina, you know, in this place and left her a voicemail saying, hey, beautiful, I'm back from the marina, which is also odd because he left his house in where they lived, which is not super close to the marina.
And he leaves it.
90 miles away.
Right.
It's 90 miles away.
And he's calling her at 2.30.
He leaves at 9.30.
He's calling her at 2.30 saying, hey, beautiful, I'm on my way back.
So he goes fishing by himself on Christmas Day.
And he, what, how much time is there to launch a boat that he probably isn't that skilled with at that point?
He goes and fishes for 30 minutes.
And he never used a single lure.
No, give me a break.
There's so many problems with that.
And then when he's arrested, he's in San Diego.
He's changed his appearance.
He's got $15,000 in cash.
And he's got survival gear in a car.
And he's got two different IDs.
He's in possession of his brother's ID.
Like, I mean, those are the types of things.
Each one of those things is something that a jury gets to weigh and consider on determining whether or not he's the guy.
And so you have these, there's always a burglary down the street.
Retroactive Alibi Explained 00:14:37
There's always some, somebody got to.
Okay.
Okay.
But now this is where I'm going to try to defend the defense theory.
Is this really Scott Peterson's sister-in-law, who has been his biggest advocate?
She's married to his brother.
And she's been, I mean, all over this, like white on rice, like to the point where she went to law school much later, long after he was convicted, not necessarily to try this case for him or to, you know, pursue, but because she was so immersed in the legalities around it.
So then they get Innocence Project involved or LA Innocence.
So here are some of what they say are the facts that suggest he didn't do it, that they should have been able to argue all of this to a jury and that they weren't given full disclosure by the prosecution of what the prosecution had done on some of these leads.
All right.
I'll give you a couple of them.
First of all, there's a neighbor, a neighbor named Diane Jackson who claims she saw three men and a van in the neighborhood at the time Lacey went missing.
So Diane can presumably place a van and three men in the neighborhood when she went missing.
Okay, that's a piece that the defense would like to argue.
Then there is this guy named Tom Harshman who claims he saw a pregnant woman being forced into a van, Matt, and called in a tip, but it was never followed up in on he called back to say, I'm telling you, I saw, I think it was this guy who called back in any event that he had seen this.
And in this discovery, sorry, in this Peacock channel show called Face to Face with Scott Peterson, where they got Scott Peterson on camera and doing an interview from the jail.
Very well done.
They have a clip of this guy.
Do we have it, team?
Tom Harshman.
All right, we'll drop it in.
But he sounds a little drunk, to be perfectly honest.
His words are kind of slurry, Matt, but he does say he saw a pregnant woman being forced into a van.
I mean, those two things alone, you got to admit, as a defense attorney, you'd like to know about those and you would certainly be arguing to the jury.
Let me tell you what that van did to Lacey Peterson.
We say that a girl and she was pregnant and she was in a van.
We were worried about it.
She had the t so they took her over to fans and they said, forces her back in the van.
It was kind of manhandling her.
She was kind of frightened.
My wife says, don't get into this, stay out of it.
These are very bad people and they'll hurt you.
Yeah, okay.
So number one, passionate belief Megan, As and look, we see this all the time.
We see this politically in our country, on both sides.
Passionate belief has no necessary connection to the truth.
Okay, just doesn't.
Like you can, you can have a sister-in-law who's banging the drum and absolutely, I'm sure she personally believes this, but that doesn't equal evidence.
Okay.
So it's also very important to remember that Lacey Peterson.
And, you know, again, I don't want to age myself here, but I remember this case very well when it happened, as I'm sure you do too.
You're way younger than me, Megan.
But look, she was missing.
Okay.
And when it comes, when you prosecute cases like this, when somebody is missing before the body is found, those are the ones that get all of the national media.
It's like my Samantha Runyon case back in the day, a little five-year-old girl that disappeared.
We had international media attention.
The president of the United States is talking about that because that catches the headlines.
My Tom and Jackie Hawks case, that couple was missing.
They were the ones tied to the anchor and thrown overboard, right?
Those get overwhelming media-wise because it captures the public's attention.
This was an absolute run-of-the-mill bread and butter domestic violence murder in almost every way to be almost to the point of being boring.
Okay, this is so common, but for the fact that Lacey Peterson was pretty, she was pregnant, and she was missing.
Okay, so we all saw that photo of her.
So what happens that, and I can tell you this from personal experience, good, you know, good-hearted, well-meaning members of the community, people, neighbors, and complete strangers come out of the woodwork because they want to help.
So when you talk about this guy, you know, Tom Harshman, you know, that is something that this was the biggest case in the world for the period of time that she was missing.
And she was missing for a long time.
This was Christmas Day.
Her body wasn't discovered until April.
So this was something, there's been movies made out of this.
So well-meaning people come out of the woodwork.
And I'll tell you what, you know, when you talk about another big thing that the defense has raised is one of the arguments they made in their court documents that I read was, look, if there are all these neighbors that say they saw her, you know, after she had died and all these people, and if even one of them is right, that means Scott Peterson couldn't have done it.
Okay.
That's that's the way the argument goes.
There were, ready for that.
Just to be clear, just to be clear, that's because the defense would like to say Scott Peterson left the house early that morning to quote, go fishing.
And so if Lacey Peterson was out and about walking around after Scott had left the house, obviously he didn't do it.
Keep going, Matt.
Right.
That's right.
So it's essentially, it's like a retroactive alibi.
You know, hey, if that person, okay, so here's here's something for you, just to keep in mind.
There were 74 officially reported sightings of Lacey Peterson in 26 different states and overseas during the time that she was missing.
74.
Those are regular folks who are like, hey, I saw, I think I saw her.
I think I saw her in, you know, Amaganset, New York.
I think I can.
Right.
No, 100%.
Remember that case?
Everybody's like, I saw her here.
I saw her there.
How many people saw Elvis?
You know, it's people.
And the thing is, some people really want to help.
They're well-meaning.
And also, I can tell you again from personal experience, every wackadoo comes out of the woodwork saying, I'm certain of this.
And what happens when you get like, look, and I don't want to criticize the defense too much.
It's their job to raise issues, you know, especially at the trial level.
But my problem is sort of the public's willingness to indulge nonsense, you know, in something like this.
This is a horrific double murder.
This woman was seven and a half months pregnant.
Scott Peterson did it.
He's convicted of it.
The California Supreme Court, which is absolutely not, I can also tell you, not a rubber stamp for criminal convictions.
The California Supreme Court upheld this seven to zero.
And they, again, they reversed the death penalty part for reasons unrelated to the guilt of Scott Peterson.
7-0.
Yeah, it was because the judge on the jury selection said to the jury, could you, if he's found guilty, could you impose a sentence of death potentially?
And he said, if you can't, then you can't sit on this case, something like that.
And you're not allowed to say that, right?
Yeah.
And the thing is, they just, it was a, it was kind of an innocent way of, I don't know if that judge hadn't done enough capital case litigation.
Essentially, what was happening was when jurors were saying, I do not believe in the death penalty, the court has to ask the additional question, could you follow the law?
Could you set your personal beliefs aside?
And the vast majority of the time they say, no, I actually had a woman who voted death on a case who said, I'm religiously against it.
I believe the death penalty is murder, but I could follow the law.
So the judge, and I kept her on and she imposed the death penalty.
So the judge didn't ask that next question.
Can you set it aside?
Like simply because somebody's opposed to it politically, religiously doesn't mean they're necessarily disqualified as a juror.
That was the problem.
So we are talking, I mean, the common use of that or the common term would be, that's not only a technicality, that's kind of a hyper technicality.
I don't disagree with the California Supreme Court's decision on that.
That was a mistake.
This is why Scott Peterson's death sentence was reversed and commuted to life in prison.
But now obviously they're seeking much, much more than that on team.
And I've also, I read one article where it's like the way they wrote it was so disingenuous.
It's like the California Supreme Court has already had reservations.
That's not true.
That is absolutely not true.
It's like, this drives me crazy.
It drives me crazy.
They reversed it.
Okay, but let me keep going with the evidence that Scott and his sister-in-law and his defense team say warrants a retrial or the reopening of this case.
Now, there was a man named Xavier Aponte, who I think is a prison guard who came in with a tip claiming that he heard something that would exonerate.
I might be mixing up my witnesses.
Hold on.
This one says a tip came in from Xavier Aponte late in the trial that claimed Lacey had confronted the burglars, which could have led to her murder.
That's, yeah, this is the guy.
And the defense claims we were never given this information, even though the police talked to this guy.
The prosecutors claim that the statement was recanted.
But again, this peacock piece face-to-face has an interview with Xavier where he denies recanting it.
It appears that he may have overheard a prison conversation to this effect.
And he says, I didn't recant it, but apparently he admits that it was like a rumor he was hearing.
My name's Xavier Punton.
I was a correctional officer at the California Real Implication Center in Norco.
In January 2003, one of the correctional officers responsible for monitoring inmate calls overheard a conversation.
There were rumors on the street that Lacey Peterson had walked up and interrupted a burglary down the street from her house.
I contacted the Modesto PD's tip hotline because somebody might want to follow up on it.
At no time have I ever recanted my statements.
What I did say is that his conversation seemed to be hearsay from the talk on the street.
I don't know.
Like, I understand how you and I are like, oh, come on.
But if you're Garagos, right, who was his defense lawyer at trial, you want all of this because now you're like, okay, that is supportive of my theory.
There was a van in the neighborhood.
We know there was a burglary across the street from Lacey.
We have a witness who says they saw three guys and the van.
And then we have another witness who says he saw a pregnant woman being forced into the van.
Now you have this guy who says Lacey confronted the burglars.
It's all coming together.
You can see a defense lawyer trying to drive a freight train through that in front of a jury that may or may not be gullible or susceptible to this kind of argument.
And then the final piece is her watch.
Let's just stop before we get to the watch with Xavier Aponte and this alleged claim that Lacey confronted the burglars.
Yeah, I mean, look, it's like with a cape on.
Another thing to keep in mind on that is that remember all the neighbors that came out because his dog was running around.
Remember this?
This is 9.30 on Christmas, Christmas Day.
So this is a like every neighbor on that street, it seems like, saw their dog.
Remember, they all came forward and or heard Scott talking about how he went golfing.
So there are people out and about.
This is not, this didn't happen at three o'clock in the morning.
So when everybody sees the dog, right?
And literally, and one of the neighbors actually, it was seen by multiple neighbors that it was important for establishing the timeline.
And one of the neighbors actually went and put the dog in the backyard with them and it was the muddy leash and all that.
It was a golden retriever.
And we can all picture that.
So it's like everybody sees the dog, but nobody sees Lacey getting forced into a van on their street on Christmas Day at 9.30 in the morning when everybody's out and about.
You know what I mean?
Like, are we really having this conversation?
Not you and me, but raising some good points.
Like, okay, so we've got three guys in the van coming through.
Like, are they ninjas?
Are they invisible?
You know, like, you know, and so some dude is interviewed 20 years later who said, yeah, well, I heard a rumor in jail, which, and this is another thing that kind of drives me crazy.
Sorry to rant here, but jailhouse informants have are bad, right?
Like I thought, I thought rumors in jail, we weren't supposed to rely on them.
And I, look, I never used a jailhouse informant in my entire career because of all the inherent problems with a criminal who's going to try to throw somebody else under the bus and say what they heard.
Like they're inherently unreliable witnesses.
And that's something that I have to agree with a lot of public defenders about.
Like that was something that there was a big scandal in Orange County about it.
Like they're inherently unreliable.
But now there's a rumor in a jail and this means everything.
This is the, this is the key to the whole thing.
Look, I know Mark Garagos very well.
Mark and I go way back.
We did cases together.
And I got to say, Mark is an outstanding lawyer.
And Scott Peterson had him as a trial lawyer.
And yeah, like, yes, absolutely.
This is called Brady evidence.
Like you want the defense to have everything, you know, and if the, if the prosecution sat on that or didn't provide it, that's an issue under Brady for potential.
Because the defense is entitled to everything.
It's not just that the prosecution wants them to have it.
It's that they have a constitutional right to it.
Brady Evidence and Circumstance 00:05:50
Absolutely.
And they should.
And they should.
But there are also limits.
There have to be rational limits to what is provided to them.
It's like.
All right.
So let me ask you that, Matt.
So if the investigatory team speaks with some random guy who's like, I saw a van take the pregnant lady.
And they're like, oh my Lord.
Like, let's say they can, this is hypothetical.
They can smell the alcohol on his breath.
They ask around about the guy.
He's some vagrant, whatever.
Do they have to turn that over?
Like the things that are easily ruled out?
They should turn that over.
They should.
Yep.
They should turn that over.
And I don't know.
I don't know.
You know, part of this is we've got allegations from essentially a family member and from one side here.
So I don't know the reasons.
If I haven't read that report, if there's something like that, yeah, they should turn that over.
Like when I went through training, I had a guy that Chris Evans was his name.
He's now a Supreme Court judge.
He trained us when we were baby DAs and his philosophy on discovery is give the defense absolutely everything and then just beat them with it.
So the prosecution shouldn't be, they shouldn't be deciding what's relevant or not.
They should just be turning it all over.
But under Brady, there are limits to what are called Brady events.
And that's the prosecution's obligation to discover it.
Okay.
And that is, is it, you know, is it reasonably likely to, you know, lead to, you know, corroborative of a defense or reasonably likely to help the defendant in their claims?
And, you know, that's, there's, there's gray area there.
Yeah, there's a little wiggle room in there.
Yeah.
Okay.
Let's talk about, though, let's talk about two other things because you mentioned the eyewitnesses in the neighborhood on the timeline.
So the, you know, loosely, the timeline by the prosecution was that morning by 1030, she was missing.
And Scott had left to go to either golfing or the marina, as he later changed his story to.
And that's, in fact, where he was.
There was an issue about the dog because the dog was found running around in the neighborhood with its leash on.
I think you and I believe.
And the prosecution argued, like, I believe Scott let the dog out.
It was like, this is part of creating his story that somebody got her, somebody abducted her in broad daylight on Christmas Eve and they're walking around their neighborhood.
And there was a question about whether, well, like what time the dog was returned by a well-meaning female neighbor who found the dog, knew it was the Petersons and opened up their gate and put the dog back into the backyard as a good Samaritan.
And if it was early, I'm trying to remember how it went down, but basically there's a mailman who is saying that when he dropped off the mail, the dog wasn't there and he came a little later in the morning.
And he always got barked at by the dog.
But this day, when he dropped off the mail around 1030, there was no barking.
He doesn't believe the dog had been returned to the neighborhood.
And therefore, Lacey must have been out walking the dog at 1030.
This is the defense theory.
And therefore, Scott could not have committed this murder because Scott was already gone.
The defense wants Scott gone as early in the day as possible and Lacey running into trouble as late in the morning as possible so that Scott couldn't have done it.
And they want to rely on this mailman as proof the dog had not yet been lost or returned to the backyard.
If the viewing, I mean, if the listening audience could just see Matt's face, it's worth watching this on YouTube just so you can see his facial reactions.
Sorry, I'm not.
Well, I'm terrible at poker.
Yeah.
Not into it.
No, it it's there's any irregular, we're talking about human beings and we're talking about the frailty of human recollection, first of all.
So everything is an estimate.
I mean, you see your neighbor's dog walking.
You can't reopen a case on that.
Well, you shouldn't be reopening a case on that.
And we're talking 20 years later and it's like, oh, yeah, I think I got there on my route, you know, about 1030 based on the following.
But also, it's so, there's so much inherent speculation and supposition.
Like, well, the dog usually would bark at me and I don't remember it barking that day.
But the thing is also, there's a thing in, there's an instruction regarding circumstantial evidence, and it's two reasonable interpretations.
Okay.
So that it, it, there's an instruction that every jury is provided about whether there's one reasonable interpretation or two, one pointing towards innocence, one pointing towards guilt.
And the problem is, is that, you know, when you, when you have to jump through a million different speculative hoops about, well, so the mailman remembers the dog barking.
Okay, good.
But that's also consistent completely with the idea that the dog got out when he is, when he's loaded his dead wife into the boat and somehow he leaves a gate or the garage open long enough for the dog to get outside and leaving at 9.30.
And that just means the dog is running around the neighborhood at the time.
You know, that is not one of those things that you can say, aha.
It's totally.
Well, and by the way, if your dog's not barking, it could mean your dog has found a bone.
Your dog has found something more interesting than the mailman.
Your dog is asleep.
Or the dog just got out when he left at 9.30 and the mailman comes and the dog's not barking because it hasn't been returned yet because the neighbor doesn't remember exactly when she did it.
Dog Behavior and Timing 00:06:57
Well, the other thing is, to your point, Matt, when I was a young lawyer myself, I practiced law with this very smart woman.
And she told me this amazing story about when she was in law school.
At the time, she was a nurse.
She wound up pursuing law later in her life.
And her teacher came in late one day, her professor, a law school professor, came in late one day, was all huffing and puffing.
Sorry, I'm so late.
There was like crazy incident on the road, almost got run off the road, like a road rage situation, but sorry, I'm fine.
Two minutes later, the guy with whom he had the road rage confrontation comes banging on the door to the classroom.
And the teacher's like, whoa.
And the students are like, whoa.
And the guy comes in and starts threatening the professor.
And everybody's like, oh my God, and draws a gun.
And the professor's like, oh, my God.
So he runs and the guy runs after him.
And it's great because my friend Sandy, who was, you know, like some people are good in a panic situation and some people aren't.
And it was like a George Costanza thing, the way she explained there were all these big burly men who ran for the door.
Like they didn't want any part of this.
They weren't going to protect any of the people who were exposed in the classroom.
And then there's Sandy, my like very small boned nurse who was like, get the guy in the wheelchair away from the door right now.
You barricade the door.
You make sure whatever.
It's like she took control.
Of course, you know where this is going because you're a prosecutor.
Of course.
10 minutes later, five minutes later, the professor comes back into the classroom.
he's totally fine and he admits to the class that this was an exercise um and he says take out a piece of paper and a pen and all i want you to do is write down a description of the man and they were all over the board you know one person said he was in a neon orange jacket one said he was wearing all black once that he had shorts on one said he had full body pants and arms covered like And of course,
the whole exercise was an attempt to show how unreliable eyewitness testimony is, especially when there's any sort of adrenaline involved or high stakes involved.
100%, right?
So the example that we would always give for in explaining that concept to a jury is if a clown came running through the courtroom and bopped somebody on the head with a rubber hammer.
You know, some people might remember the red floppy shoes.
Some might remember the fuzzy buttons.
But if somebody didn't remember one of those things, it doesn't mean if the issue is what was the clown wearing, it's very important.
If the issue is, did somebody come in and get bopped somebody on the head with a hammer, if that's what the jury is determined, is that if that's their task to figure out that happened, then those types of details don't remember, don't matter.
And the adrenaline in that situation, there's a whole other thing called weapons focus, where I guarantee half that class got everything wrong because they were just wide-eyed at the gun.
So that's a great exercise.
You probably couldn't do that in law school today because everybody would get sued for the trauma, right?
And I can tell you, again, from personal experience, it's funny that you say nurse because we used to joke about this.
Nurses are the best prosecution jurors of any potential profession because they are in the real, real world and they don't like falling for BS.
So it doesn't surprise me a bit that your friend the nurse is the one that took control.
But it's a very important thing.
Yeah, by the way, today, depending on where you went, like you do that south of the Mason-Dixon, you're going to get shot by one of the good guys with the gun in the class.
So for all sorts of reasons, it wouldn't happen now.
But so if the question is, did somebody was the professor, did somebody point a gun at him?
If that's the issue, then it doesn't like all of those details that everybody got wrong doesn't matter because they're still, they're being honest.
They just recollect different components of it.
And sometimes they'll get something completely wrong.
You see that a lot with facial hair, interestingly enough.
So what you see the defense doing in things like this case is they're going, well, wait a second.
There was the woman in the back.
And yeah, maybe she couldn't see that well with her glasses, but she insists that the man had a bright red cape.
And our guy didn't have a bright red cape.
So he's entitled, even though his DNA was found.
And even though there's a manifesto about how he hated everybody that cut him off in traffic and like all of these evidence, but wait a second, she insists there was a red cape.
So we have to do a new trial here.
That's kind of what we're seeing over and over again with cases like this, especially in the modern era.
And especially with, you know, I think this is, I'm a huge proponent that kind of the interest in true crime is a good thing.
People are getting educated.
But there's also like, you know, there's their downsides too.
And that is, you know, people kind of believe some of the things that they see that can be very skewed and one-sided.
And it's, it's presented.
Like I work for ABC News.
I'm, I'm a firm believer in the professionalism of a lot of the media organizations that cover true crime when it's done right.
But still, it's not presented in the legal context.
And another thing to remember, and you know this, Megan, because you want you're an attorney.
Our law is based on what's called starry decisis.
And what that means is we're different than a lot of other legal systems in the world that is Napoleonic or code-based.
It's called civil law, where essentially a legislature sits down and they write a rule.
Okay.
Our law is based on common sense and wise decisions based on real situations involving real people that have tested, that have withstood the test of time over the years.
So when you're talking about the legal application of instructions, those instructions essentially reflect 500 years of wisdom of real people and real human frailty and real misrecollection.
And when a jury applies those laws, as they did in the Scott Peterson case, in my experience, 99 plus percent of the time, they get it right, or they get it pretty close to right.
Not always, but they get it.
They get it right.
Sometimes that the right, quote unquote, is an acquittal.
Sometimes they can't reach a decision.
A lot of times it is a conviction.
Like here, the jury in this case got it right based on the law, in my view, based on all of the evidence that was presented, not fanciful theories.
And now it's hard to go back in a quote documentary and second guess them, but it's happening.
And they did just get this favorable ruling and all this new access to discovery.
And the ultimate goal by the LA Innocence Project is a retrial for Scott Peterson.
So you can't rule it out, especially in California.
Pawned Jewelry Facts 00:03:56
You can't.
One other thing.
The watch, this was actually something that I didn't know about, but consistent with this whole lane that the defense is trying to open, the van, the bad guys.
I mean, it's really kind of crazy to me that they say it wasn't the two burglars who actually burglarized the house across from Lacey who killed her.
It was part of their gang because these two alibied out.
The investigators did check out these two to say, is there any chance they abducted Lacey?
And they were, apparently, they're like on videotape with their families during the relevant time where they would have had to been, you know, doing nefarious things.
So then they expanded the theory to, well, it was their gang.
Their gang did something with Lacey.
Okay.
So let's say it was their gang.
The other piece of proof that they mention in this documentary is her watch.
She had this sparkly watch.
And the allegation is that this watch was offered up to a pawn shop on, let's see, a pawn shop claims that a lady came in to sell the watch.
I mean, about a week after Lacey went missing, New Year's Eve from 2002 to 2003.
And she had gone missing December 24th, 2002.
It wasn't clear if this was Lacey's watch or what happened to it after, you know, it was or whether, you know, it was sold, what happened to it.
But here is Scott Peterson from prison on that piece of jewelry.
I mean, it was missing, but the first time I heard that the police knew about it being pawned was well after I was arrested.
The police have to provide the defense with discovery when they asked for any exculpatory information.
The police hadn't shared this with us at all.
And now I know why, because they covered it up.
Anything?
Okay.
Do you know how many pawn shops there were like around Modesto in this area?
They call it Meth Desto.
I mean, like, if they can't, if they cannot connect that watch to Lacey Peterson, it is a like, if you don't have a serial number saying this is the one that was purchased, there's no, like, how wide does the prosecution detectives have to cast the net for the guy that's dyed his hair and has 15 grand and looks like he's about to split after, you know what I mean?
Compared to all the evidence against Scott Peterson, every pawnshop has a sparkly watch that's been gotten pawned, or a ring, or something else.
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Withheld Information and Arrests 00:15:15
Another thing to remember facts-wise, in this, and you got to keep bringing this case back to the facts.
When police searched the house, they found Lacey Peterson's purse, they found her sunglasses.
So, I guess the theory is she is out walking the dog with expensive, sparkly jewelry, but didn't take her sunglasses, didn't take her keys, didn't take her purse.
That just doesn't make any sense.
You know, so there's immediate problems based on the real evidence that was discovered.
And the idea that then they go, Well, hey, there was somebody that pawned something in the central central California during the height of a methamphetamine epidemic where every car is getting broken into and burglaries are happening all the time.
Like, it's just absurd, Megan.
And the idea also, let's think about this: you've got two guys that are in a burglary gang, which, by the way, I've never heard of, and I worked in the gang unit, a burglary gang.
Okay, um, so the burglary gang, somebody identifies them.
So, so if the thing is, she jumps over a fence with her pregnant woman cape on and they kidnap her because of a burglary, but oh no, they didn't kidnap her.
The gang came in and kidnapped her because they weren't actually there and committed a murder because of an offense that you could for a residential burglary back then.
You might do a bullet, you might do a year county jail, maybe you get no time, maybe you get you're gonna get probation or low term.
No, let's murder a pregnant woman so that she can't identify the guys in our gang is laughably absurd.
Like, like it's just that there's no such thing as a burglary gang, by the way.
It just doesn't exist.
There's gang and they commit horrible crimes.
Like a berg gang, like you know, that they're gonna go and commit a first-degree murder of a pregnant woman to help the guys that she saw is absolutely just it is ridiculous.
And again, going back to that instruction: reasonable versus unreasonable.
The jury is instructed to reject unreasonable interpretations of evidence, you know, and that's absolutely when they're unreasonable in the court.
And what I love, though, is the chutzpah of Scott Peterson, you know, saying, Oh, the police withheld it.
That's another thing that we should probably dispel is the idea that the cops just want to make an arrest because there's, you know, they just want to make an arrest.
That by itself, like to any professional law enforcement officer, you look like a buffoon if you arrest the wrong person.
And if somebody murdered a pregnant, a pregnant, beautiful woman like Lacey Peterson, you don't just arrest her husband so that you look good having arrested somebody, and then you let the real killer stay free so he can, what, murder the next person, the neighbor down the street two weeks later.
Like nobody wants to do that.
No cop wants to arrest an innocent guy.
They arrested Scott Peterson because of the overwhelming evidence that they accumulated against him and the way he behaved, the way he repeatedly lied to everybody.
And, you know, it's like that whole notion that it was withheld to frame him from him just kind of gets my blood boiling a little bit.
I'm sorry to say.
And the cops in the piece, they deny.
They deny that they withheld and inappropriately withheld any evidence from the defense.
I will show you this.
Scott Peterson, maybe he's been working on his acting skills.
He managed to work up a bit of emotion when he was on the phone in this documentary.
I mean, it was interesting because he didn't cry at all.
He showed no emotion the entire time she was allegedly, quote, missing.
I told you at the vigil, he was talking to his girlfriend.
He wasn't looking for Lacey.
And he didn't even flinch when they found him guilty or sentenced him to death.
He explains that in this documentary saying, the media had been so horrible to me, I didn't want him to have his satisfaction.
But then they end the piece with Scott getting all watery-eyed over Lacey.
Watch this.
Is it easy to remember what life was like 20 years ago?
Every moment is so real, just so tactile and still there and the smells and the light and the sound of when I say goodbye to Lacey, that camera's gone.
I drove away, expecting to come back that afternoon and have our wonderful Christmas together after we both had five warnings.
And they were gone.
And it's still very, very present.
But there are certainly times that I become a wreck.
Wiping his face.
Excuse me.
Yeah, trying not to be too emotional out here in the day room with the person.
Take it, you don't, you don't buy it.
Well, the problem, the problem with that, number one, look, anybody who would murder his pregnant wife so that he can go continue his daylance with a woman that he likes better, nobody should be shocked that a guy who would do that would turn around and then lie about the circumstances of it.
Okay.
So for it, it always gets us, you know, when a grown man cries, you know, but it's like the first time I saw, yeah, the first time I saw a criminal defendant lie and cry, you know, it kind of got to me.
And the second time I saw a murder defendant do that.
And the third, like it's, this is, it's, again, going back to the evidence here.
The lead detective on the case, when they interviewed Scott Peterson, he said he showed a shocking lack of emotion and a shocking lack of additional follow-up questions.
He didn't ask for their cards.
He didn't ask for where's the state of the investigation.
Can I call you a five questions?
He didn't ask any of those things that you would expect from somebody that whose wife had gone missing.
Like this is that what your viewers just watched is the exact opposite of the way that he was behaving.
And this is something that I've seen before.
This was my Sam Lopez performance with my Kathy Torres case.
That was a boyfriend who murdered his girlfriend and she was also missing, found a week later in the trunk of her car.
And we convicted him largely based on his interview where they often will play the wrong role, Megan.
The innocent husband, spouse, boyfriend, whatever will play the role of like, hey, how would an innocent person act?
And they pretend like a bystander who has nothing to hide and no dog in the fight, who's calm and collected and sort of like peacefully answering questions, respectfully going through it, versus a real husband who loves his wife, who's innocent, who would be losing his mind during all of those initial investigation.
Chris Watts.
This is reminding me of Chris Watts, too.
Right.
And look, people react to grief differently, but when you're cold about it, it's totally inconsistent with what we just watched.
So if so, if Scottish...
Remember that one interview Scott Peterson gave to a reporter?
I can't, I don't think it was the Diane Sawyer one.
I think it was the local reporter who got great stuff from him.
And this was when the search was on for Lacey and Connor and the phone rang and he didn't even look at it.
It was like, didn't happen.
To your point, to exactly the point you're making.
Right.
How would an innocent guy not know that that's the police going, great news?
We found her.
She was tied up in a warehouse or like that's exactly what I'm talking about.
The thing is, Megan, jury, when you take a jury, you have 500, 12 deliberating jurors, you have about 500 years of life experience.
You have 500 years of collective common sense wisdom on that.
And they might not be experts on DNA or on the forensic processing of like cell phone data or whatever it is.
But I'll tell you, juries are very, very good at human behavior and how somebody should act under certain circumstances and how they shouldn't.
And that jury, you know, they got all that evidence back then.
I don't know if they, I don't think they ever introduced that interview, but you spotted it just like I did.
Like, how does he know if he's innocent that that's not them saying great news or, hey, she needs a blood transfusion?
Like when your wife is missing, you pick up the friggin phone, right?
Like every time.
And that's, that's the type of thing.
And with Scott Peterson, when we're talking about the collage, that's one more piece of that, of the collage.
And then you look at, you know, you put all of that together and you compare that and the affair and seeing that she was going to die.
And the fact that he, according to his own changed story, but later admission, he went from the Berkeley Marina, which is exactly consistent with where they found her body.
You add all that up and the fact, again, her hair was found on pliers in his boat.
Okay.
You put all that together versus, oh, we've got a theory.
There's a drunk guy who thinks he saw a pregnant woman getting into a van, right?
Like for well, the other thing is, Matt, and I know this isn't like, this is just anecdotal between us, but his use of the term wonderful, we were going to have our wonderful Christmas together.
I'm sorry, but that's just not how real people in love talk.
And his message to her, hey, beautiful.
I think they'd been married, what, like a few years, might have been as many as seven at the time.
He left this alleged voicemail.
Hey, beautiful.
I mean, in my experience, like your man might call you like babe, honey, you know, I don't know.
It all, yeah, it all sounded false to me, like somebody who's intentionally trying to insert these, you know, superfluous terms to try to convince you that they're feeling something they're not.
Hey, beautiful.
I just left a message at home.
215, I lived in Berkeley.
I won't be able to get to the Villa Farms to get that basket for Papa.
I was hoping you would get this message and go on out there.
I'll see you in a bit.
Love you.
Bye.
Right.
And this is the golf/slash uh-oh fishing trip, right?
The like that, which had to be the shortest surgeon fishing trip in history, 90 miles away.
Hey, just leaving at 2:30, right?
So, no, you're exactly.
He didn't open up one lure, not one lure.
They were all sitting there still in their plastic wrap in his boat, right?
Right.
But you see that over and over again when you actually do murder cases like this.
You see, and look, the theory always on him and what they convinced the jury of this was a planned murder.
He bought the boat, he bought cement.
Um, they were never able to account for a anchors.
Well, he they found and they found one, but he had a 90-pound bag of concrete and they couldn't find the rest of it.
And the theory always was the rest of it was attached to Lacey.
So there's a bunch of missing cement here, too, guys.
Like, there's there's so much that, but you see that all the time because even dumb criminals are smart enough to go, hey, I, if I leave a false, you know, um, voicemail.
And look, that's like my Daniel Wozniak case.
That they're they, you see that all the time, especially in domestic violence cases when the body is missing.
It's like, hey, wonderful or beautiful, and you pegged it.
You're exactly right.
It's like they've been married for a long time.
It's, and if he's so in love with her, like, kind of weird that he's, I don't know, that he's, I would probably want to go fishing on Christmas Day too if I had the day off or golfing, but it's there's an inherent inconsistency with that.
There's a lot of problems with it.
And when you break it off, that's why that's what it stinks.
That's why the jury convicted him.
The accumulation of all of that evidence, that's why the California Supreme Court affirmed the conviction seven to zero.
And that's why when you're, you know, with the defense running around going, wait, we have a drunk guy who thinks he saw somebody get into a van.
That's that's why I'm reacting the way.
So we, so in sum, we do not believe it is likely that they get ordered a new trial.
Oh, God.
You know, in my fair state of California, Megan, I hope not.
I have a strong opinion on this.
I don't think the court should grant a new trial based on this.
But also, look, Brady evidence is a tricky thing because Brady evidence has been an evolving area of the law.
And essentially, the prosecution is obligated to turn over basically anything that can be helpful for the defense.
And there's been a lot of litigation, a lot of new cases in California, and you have to err on the side of caution on that.
So, in my view, what the court does is going to depend on whether or not they find that there was a Brady violation on this.
And a Brady violation, by the way, is not a statement of innocence.
It's a technical issue that would violate the due process rights of any criminal defendant if exculpatory evidence is withheld.
Okay, but where are the parameters on that?
It's kind of been a moving goalpost in the state of California.
So, in my view, I feel very strongly that what the defense has come up with here is laughably short of where I believe the standard should be on that.
But, you know, prosecutors also make mistakes, detectives make mistakes, and you never really know how it's going to be seen.
So, I don't think he should be granted a new trial.
I really hope he's not.
But if he is, I really hope that the Stanislaus County District Attorney's Office approaches this case with as much vigor.
That, first of all, they defend and they advocate on behalf of their conviction.
Because, look, this guy, in my view, not my case here, he really did it.
It's a horrific murder.
He should have been convicted.
I believe the California Supreme Court was exactly right for affirming it for all the reasons that they did.
And hopefully, if he is granted a new trial, he's retried properly and he's convicted again.
You know, that they take it seriously, that they don't, that they don't just go with like you know, the emotional public momentum like we like.
We're starting to see over and over again.
Yeah, like with Menendez.
He served his time.
Yeah.
Well, I mean, at least in Menendez, they have an argument that there was mitigating evidence, right?
Like that, that they had been tortured by their father.
In this case, there's no such, there's no mitigation.
I mean, if you believe Scott Peterson did this, he's a stone-cold psychopath who, rather than just getting the old-fashioned divorce, decided to murder his own baby and beautiful young wife with a loving family who had everything going for her, who truly believed she was married to the man of her dreams.
The theory is that he looked that sweet woman in the eyes and strangled her to death on their marital bed.
That sick effer should never see the light of day.
No Mitigating Factors Found 00:00:28
He should be on his knees every night thanking God that the death penalty was reversed for him.
That's good enough for him.
I mean, that's the best victory he could hope for in my view.
Matt Murphy, thank you so much.
Happy to be here.
Thanks so much for joining us today.
And all week, we are back on Monday live.
Looking forward to seeing and talking with you then.
See you there.
Thanks for listening to The Megan Kelly Show.
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