Judge denies mistrial and dismissal motions in Scott Peterson case

Friday, July 30th 2004, 6:15 am

By: News On 6

REDWOOD CITY, Calif. (AP) _ Scott Peterson's murder trial will resume next week after his lawyer failed to convince the judge that false testimony from an investigator warranted a mistrial or dismissal of the two charges.

Defense attorney Mark Geragos argued that detective Allen Brocchini lied on the witness stand to help prosecutors convict Peterson of killing his pregnant wife, Laci, and dumping her body into San Francisco Bay.

The defense had asked for a mistrial twice before. Judge Alfred A. Delucchi also quickly denied the earlier requests.

In court, Geragos said he would be ``delusional'' to have expected a dismissal. He appeared to be following standard procedure in a death penalty case by establishing a record for appeal. Geragos contends someone framed Peterson after learning his alibi, that he took solo fishing trip on the bay Dec. 24, 2002, the day Laci Peterson went missing from their Modesto home.

To dismiss the charges, Delucchi would have had to find intent on Brocchini's part; he could have declared a mistrial if he felt Brocchini's comments poisoned the jury.

Last month, Brocchini told jurors about a tipster who claimed that Scott Peterson, in 1995, said he would dispose of a body by sinking it in the ocean. Brocchini testified the tipster said Peterson would ``tie a bag around the neck with duct tape,'' a potentially damaging assertion because police said duct tape was found on Laci Peterson's tattered clothing and remains.

Geragos argued the tipster never mentioned duct tape: ``The only reason this detective would have injected ... duct tape was to stir the pot.''

Prosecutor Rick Distaso said Brocchini made a ``simple mistake.''

Geragos argued that this was just one instance in a history Brocchini had of contempt for legal boundaries while on the witness stand; a judge in a 1998 home invasion robbery case declared a mistrial after determining Brocchini's testimony might have prejudiced the jury.

Geragos implied Thursday that Brocchini thought prosecutors were losing the Peterson case, so he decided to create grounds for a mistrial _ and a chance for prosecutors to start over.

``He knows that in another case when he does a similar stunt the court grants a mistrial ... and when they started all over again they got a conviction,'' Geragos appealed to Delucchi.

A state appeals court found Brocchini's conduct in that case ``improper'' but didn't conclude he intentionally tried to ``trigger a mistrial.''

Geragos, however, did get permission from Delucchi to bring up Brocchini's misstatement in his closing argument or recall the detective to testify about the tipster's statement.

In other action Thursday, Delucchi also quashed a prosecution subpoena that would have required a Modesto Bee photographer and librarian to verify that a picture of Peterson smiling at a vigil for his wife was published in the newspaper. Jurors can see the photo, but prosecutors must call a witness to describe Peterson's demeanor.