🚨 Could This Lead to a New Trial? Scott Peterson's Attorney Breaks down 'New Evidence'

[00:00:00] Speaker 1: - Could Scott Peterson ever walk free? Could he get a new trial? Do you believe that he's actually innocent, factually innocent, or didn't receive a fair trial or a combination? [00:00:11] Mark Garagos: - All three, all three. [00:00:13] Speaker 1: - Defense attorney Mark Garagos opening up about case evidence, the new documentary, and what we didn't know about the now infamous convicted killer, Scott Peterson. [00:00:24] Speaker 3: - The Los Angeles Huston's Project is putting forward a new scientific evidence that suggests that Scott Peterson is absolutely innocent. [00:00:31] Mark Garagos: - If you believe you've got the right guy, why wouldn't you test the evidence? [00:00:36] Speaker 3: - There's so many witnesses who claim to have seen Lacey when she was supposed to have already been murdered. - I knew that's the same woman that I see walking a dog. [00:00:43] Speaker 1: - But first, hit the like, hit the subscribe, and hype the episode. I'm Matt Johnson, and this is Justice. So here to help talk about the case and break it all down is Mark Garagos, criminal defense attorney, podcast host, and represented Scott Peterson. First off, nice to see you, my friend. What sticks out to you about this case, and why do you think it makes headlines year after year? [00:01:13] Mark Garagos: - One of the interesting things about this case is that no matter when I tried the case 20 some odd years after trying the case, there is a phenomena connected with this case. And there's Pat Harris, my co-counsel on the right, used to be my partner, Scott in the middle, and me looking unaffected there. And I'll also talk about that in a second. But one of the things that I found when I would be at the gym in the mornings before trial, and I would inevitably have women who would come up to me, and they would say, how can you represent this guy? And I'd say, hold on, hold on, what's the issue? And they would say one thing, and I would say, well, that actually didn't happen. And then they'd say a second thing, and I'd say, well, that never happened. And then a third, whatever the urban legends were. And you would knock them all down, and I would explain to them. And I have a lot of patience when it comes to this case. I can talk about it endlessly. And inevitably, the default was, well, I don't care about the evidence. I had an ex once, and I can see him doing this. And that's very hard to argue against. And the target demographic is, I've told many of the podcast people that I've interviewed, are white professional women. They can't get past this guy. And one of the reasons I think, and I think there is this image, with anybody who followed the case, of Lacey pregnant, very pregnant, sitting at a Christmas party alone in a chair, looking beautiful. And then an image that was famously published side by side, and she's a gorgeous young lady. And pregnancy is always enhances that. But then there was a picture of Scott with his arm around, Amber Fry the blonde. There you go. And when you juxtapose those, it's hard for some people to get past that. They don't care. It's, you know, the adultery for them is not a bridge too far to turn a guy who has not a single solitary violent act in his past into a mass murder. [00:03:33] Speaker 1: Well, we'll talk about the evidence in the case in just a minute. And this new documentary that you're interviewed for, A&E, Scott Peterson, The New Evidence. It's a fantastic doc. I encourage everyone to check it out. But on a scale of one to 10, do you think that this guy is ever going to get a new trial? Is he ever going to be set free? Do you think? [00:03:53] Mark Garagos: It would be very hard for me. And this is talking about me to get up every morning and do what I do and do it without believing that he will and being positive about it. I will tell you that the CNN did a poll. In fact, it's sitting up in my office up on the wall there in a snow globe right after we lost that case, does Mark Derrigus have a career? And two thirds of the people voted online that I did have a career. So I'm hopeful that not only I've had a career, but that he will be free. [00:04:28] Speaker 1: And what sticks out to you for evidence in this case? So in the new doc, they really dive into a few things that stuck out to me. But I guess the highlights are the burglars, which we'll talk about people that saw Lacey alive with the dog, the San Francisco Bay and the tides and all of the movement and also Connor and whether or not, you know, the time of death of him, the unborn child and who wrote the note. So let's begin with the burglars. You don't feel and correct me if I'm wrong, you don't feel that that was ever really examined properly, correct? [00:05:04] Mark Garagos: Well, this is what happened. You showed that earlier picture that had Pat Harris. Pat was fixated right there on the right. Pat was fixated on the burglary across the street. And when I say fixated, it was the point where sometimes I had to I seriously wanted to have an intervention. And he would, in discovery request, he would pour through the discovery. Everything was van related because his working theory was how in the world could Lacey Peterson on that street, which was 30 feet wide. Clearly, we knew, contrary to what the prosecution opening statement was, the prosecution proceeded on this case that she was killed on the 23rd. They pinned her death on the 23rd because they claimed the last known citing or proof of life is when she called her mom on the day before Christmas Eve. The problem was that all of their theories and I won't bug you with them, but they conceded by the time we got the closing that clearly she was alive on the 24th, the morning of the 24th. So, and I knew that, I knew that going in, whether it was their own forensic computer analyst who admitted that somebody logged in and looked at items that were consistent with hers on that morning, whether it was the kind of apocryphal story of Martha Stewart being on the Today Show, where they had invested everything and told every judge on a search warrant that that was the 23rd, not the 24th. They were wrong. And the clothing that was in the hamper, we also showed that it was the tan pants that they had linked to the 23rd was already in the hamper and they didn't even look. So I, and that lengthy explanation I just gave covers both the people who saw her on the morning of the 24th and this idea that she was out walking the dog. So if you assume that she was alive on the 24th, the burglary makes sense because this street is only about 30 feet wide. I mean, literally it's, it's enough for two cars to pass each other. But the, the Modesto PD took the position. The burglary didn't happen on the 24th. It happened on the 26th. Now this was ludicrous. Ted Rollins, who was then a local reporter, you know, Ted, as you can see from the smile. Ted used to say, I was there. It was a media scrum. There was a shrine to Lacey by two days after she was missing. You, they would have, Modesto police would have you believe the burglars were doing a burglary at probably ground zero of the international media, 30 feet away from them with most of them doing shots that faced the house. So it made no sense that it was on the 26th. The day Scott was convicted, they handed me a report from a guy named Gaponte, who was a lieutenant at the Chino prison. He had overheard a call between the, one of the guys that you just put up on the screen, who was an inmate and a relative. And they talked about Lacey Peterson, realized they were on confronting Lacey, realized they were on a recorded call and quickly shut it down. Mysteriously, not so mysterious if you saw everything I saw, but that tape recorded call disappeared. I never got that document showing that a law, sworn law enforcement lieutenant had heard this, which also focused on it. And then the biggest piece of evidence that ties all of this together is, they knew we were looking for a van. Pat was mocked for looking for a van. This van was discovered two days after, burned out, lit on fire, with a mattress in the back in the seedy airport district of Modesto. They never turned back over any of the stuff that they had. They had DNA. They had other stuff that they tested. The only reason we found out about it is the previous OSC issued by the court triggered some guilt by a Department of Justice state analyst who said, wait a second here. I was, I was the one who analyzed the stuff that was in that van. How come, how come this was never brought out? How come they was never disclosed? Which is shocking in a death penalty case. [00:09:44] Speaker 1: So has everything been tested? I know that you've been pushing for it with the van and have those men been interviewed? [00:09:53] Mark Garagos: The men have denied it, as you would expect. They're, they serve their burglary term. Um, they've denied it. Nobody's that I know of, uh, absent a couple of, um, wingnuts are going to, uh, confess to a, uh, death penalty case. Uh, that's number one. Number two, the prosecution has fought tooth and nail, uh, extensively to not have this stuff tested. Now, if you were to say, oh, they're, you know, they're, they're fighting for the taxpayer. They're supporting the taxpayer. I'd say, fine, I'll pay for whatever DNA testing you want. They don't want to know the truth because if they did, they would say, we'll gladly test it. Why not test it? Shut up, you know, all the Peterson supporters, shut up anybody who's got a problem with this case. We'll test it and we'll debunk all of this and we'll be done with it. If you had any faith in the integrity and sanctity of your conviction, why wouldn't you do it? [00:10:54] Speaker 1: Um, that brings us to the testing of the boat and the theories surrounding the boat and whether or not Lacey knew about it. And what's in the documentary is the notes, right? And the scribblings she probably knew according to, uh, that documentary. What are your thoughts on that? [00:11:11] Mark Garagos: I'll never forget cross-examining a detective named Brocini, who was one of the co lead detectives. I noticed I put up on the screen, a report now, mind you going into this trial, the beginning of this trial, mitochondrial DNA, that is the DNA that tests the, basically the maternal lineage. It was not admissible in California, we did a extensive hearing because before you can get DNA admissible, you have to do a hearing if there's no court of appeals decision. That's the law. We did a long hearing, blew in federal DOJ personnel, FBI personnel, and did a extensive hearing on it. And the judge ultimately ruled that the mitochondrial DNA could come in. Why do I talk about that? Because there was a hair found in the bone. The mitochondrial DNA testing, I mean, it shows you how long we've come, Matt, that we're talking about mitochondrial DNA. That's something now that's kind of a throwaway. It's just an assumption, but back then it was not, it was not admissible. But that hair was linked to Lacey's maternal lineage by the DNA. And they wanted to get that in, that hair, evidence that it was Lacey's, from the boat, because their working theory was she'd never seen the boat, she didn't know about the boat. The only way her hair would get in the boat is that Scott had killed her somewhere, we don't know where, because they never came up with any explanation for that, trundled her there to the warehouse and put her in the boat, and that's why he went out. Well, cross-examination during the trial, Detective Brocchini, I put up his report, he had whited out an area, we demanded to see the original, do you know what he had whited out? That he'd interviewed a woman at that place, that what you just saw, in that kind of, it was a warehouse area, who would come into the Scott's warehouse and had seen Lacey playing in the boat and doing like this right before she disappeared. And this guy, the lead detective, in a special circumstance, death penalty case, had taken it upon himself to excise that out of the report so we would never see it. [00:13:51] Speaker 1: What other evidence, what other evidence would shock people that you can talk about, that you couldn't present in court during the trial? [00:13:59] Mark Garagos: I think, speaking of the boat, I had a young man who worked for me back then, go out into the bay. And I bought a boat, the identical boat, we got a dummy that weighed the same amount that Lacey did at her last OBGYN appointment. I had Rafi get into the boat, we filmed it as a demonstration, and we put him in the bay at the same time that the prosecution theory was. And I said to him, while filming it, just try to dump this dummy into without capsizing. [00:14:43] Speaker 3: Release your weight. [00:14:52] Mark Garagos: He tried it, I don't know, four or five times. He almost drowned. He couldn't swim. Of course, I picked the one guy in my office who couldn't swim. But, and I filmed all of that. And I wanted to introduce it. And I thought it was a no-brainer. In fact, the prosecution had done the exact same thing, unbeknownst to me, while I was doing it, they were doing it. The judge allowed in their demonstration, which didn't support their theory, but kind of talked about buoyancy, and excluded our demonstration. Why did that become Nettleson? During the jury deliberations, and mind you, for everybody who says the jury heard everything, the jury foreperson, who was both a doctor and a lawyer, on day seven of deliberations, when the jury was hung, and we were in chambers, said to the judge, Judge DeLuke, I don't think I can deliver the verdict that would be what the community wants, or what the community expects. And I feel threatened by the other jurors. The solution by Judge DeLuke, and by the way, he's passed away, and I have often said I had the greatest respect for him. And we had an avuncular relationship. But I did curse him out. Because instead of finding, excluding, or removing the jurors who were threatening the foreperson of the jury, who didn't feel safe, he removed the foreperson. And sure enough, the jury immediately came back with the verdict once the foreperson was removed. During deliberations, the jurors wanted to see the boat. You know what they did when they saw the boat? It was in the parking lot of the courthouse. They started to get in to test the buoyancy because they too understood you couldn't do this, that the whole theory made no sense. And I turned to the judge and I said, "Do you regret excluding my evidence now when the jury's doing this?" And he ordered them out of the boat. They couldn't. Gave him an instruction. That was yet just another. I go on. You don't have enough time for me to go on on all of the shenanigans that were pulled in this case. [00:17:09] Speaker 1: That is fascinating about the jury view being done on courthouse property and then it being shut down. And then, you know, basically the jury is admonished. And then the fact that you can't bring in your own demonstration when prosecutors can't. It's supposed to be a fair system, no matter what you believe about this case. You know, like what we would see with the Karen Reed trials that I covered, one and two, each parties were allowed to do their own testing. You know, you just kind of have to be able to keep an open mind before you go into that deliberating room. Fascinating, my friend. That's fascinating. Have you talked to Scott? Does he know about the documentary? [00:17:43] Mark Garagos: I have not talked to him. I would imagine that he does. He writes me occasionally. I purposely stepped away after the conviction for a variety of reasons, not the least of which because it was then a death sentence. And I wanted them to be able to use ineffective assistance of counsel if it was necessary. So I didn't want to be in the mix of that. I will cooperate whenever I ask. I, as you said, I will, or I, as I said to you, I'll pay for DNA testing because I've lost enough sleep over this case. And my belief that he did not do this, that I want him vindicated and I want him out of custody. [00:18:27] Speaker 1: A big part of that, if this ever goes to trial again, is Amber Frye, who you mentioned. [00:18:33] Speaker 4: Okay. First of all, I met Scott Peterson, November 20th, 2002. Scott told me he was not married. We did have a romantic relationship. [00:18:43] Speaker 1: She has gone on interviews to say that she, or at least Gloria Allred, who represented her, has gone on to say that she's ready to testify again if it ever gets to that point. [00:18:54] Speaker 5: She has indicated that if it were necessary, she would do it again if there was another trial. Because she has said the truth is the truth and it doesn't change with the passage of time. [00:19:07] Speaker 1: What do you make of the affair factor in this trial? Do you think that that was some of the strongest evidence for prosecutors in the case? [00:19:16] Mark Garagos: I think there were two things. I think the, where the bodies washed up was where he said he was. Mind you, you have to, that, that has to be explained in terms of the four months that elapsed between her disappearance and everybody in the world who was following the case. I knew what his so-called alibi was. I think that was compelling. And the tapes. The tapes were, speaking of Pat Harris, Pat always said, the tapes were bad. [00:19:43] Speaker 3: But I had a different perspective on the tapes. [00:19:56] Mark Garagos: I had, I was just coming off having represented at the time, Gary Condit in Modesto. Gary was a congressman who covered that area in Modesto. Gary was caught up at right before 9/11 with the disappearance of Chandra Levy, who was a intern in Washington DC from Modesto. That case took a turn immediately when there was the allegation that Gary was having an affair or sex with Chandra Levy, that all bets were off. To the point where when I was representing Gary, I used to say, what are you doing? You've got a guy in custody in Washington DC who you've already convicted and believe is good for jumping, mugging women who are jogging in the park that Chandra used to jog in in the morning. So the most obvious explanation to me, and I used to say this to the US attorneys who were acting as the prosecutors, would say, what are you doing? I said, obviously, it's wintertime when the ice melts. Unfortunately, that's when you're going to find Chandra. Sure enough, that's what happened. And so anybody who was a sentient being with neurons fired and who was living in Modesto would have known, including Scott Peterson, that the minute Amber Fry showed up, all bets were off. They were not going to look for Lacey anymore. And all the suspicion was going to focus like a laser on him. [00:21:35] Speaker 1: We've kind of talked about Scott Peterson and how a lot of the general public perceives him. Let's let's be frank. You know, a lot of people just don't like the guy. Did you see the same person when you were working with him behind the scenes? Were you also his counsel when he did those interviews with like Diane Sawyer and other outlets? Violence towards women is unapproachable. [00:22:01] Speaker 6: It is the most disgusting act to me. And I know that suspicion has turned to me. [00:22:08] Speaker 7: What kind of marriage was it? [00:22:10] Speaker 6: God, I mean, the first word that comes to mind is, you know, glorious. I mean, we took care of each other very well. She was amazing. It is amazing. [00:22:24] Speaker 7: Another story that is out there is that the kitchen was spotless. And in fact, there was still a wet mop around, which indicated somebody had cleaned something very recently. [00:22:35] Speaker 6: Lacey was mopping the floors when I left that morning. Yes, the house was spotless. She had a cleaning lady on Monday, the 23rd. [00:22:45] Speaker 7: So if the cleaning lady had been there, why have to clean again? [00:22:50] Speaker 6: Dog, two cats, muddy backyard. [00:22:54] Speaker 7: You haven't mentioned your son. [00:22:58] Speaker 1: I had breakfast. Why would he go on camera and say stuff like that? [00:23:02] Mark Garagos: I had breakfast with Diane Sawyer maybe three months ago, completely unrelated to this, in New York. And the first thing I told her is I said, I've had three trials, Scott being one of them, Susan McDougal being another, and a third I won't mention. Michael Jackson? Three trials. And in those three trials, I've had to deal with a Diane Sawyer interview of my client that I have inherited. And I said, Diane, I love you, but there is no way, because we were talking about it, I said, there's no way prior to a trial that I'm ever going to let you interview any client of mine, because I've got exhibit A, B, and C. For those out there looking for a practice tip, Diane will probably never pay for breakfast again. But I highly advise never having Diane Sawyer interview your client before you go to trial. Well, she's fantastic. [00:24:06] Speaker 1: I hope to meet her one day. I'm a big fan of her. And, you know, it was a fascinating interview. It was a fascinating interview. [00:24:13] Mark Garagos: Yeah. It was an iconic figure in a lot of ways. You know, she really is a larger than life iconic legend. So. [00:24:24] Speaker 1: Yeah. And a trailblazer. She did morning news and she did morning television, all that. You know, we talked about searching for justice and that's everyone is deserved a defense. A lot of people give defense attorneys bad raps, but you know, everyone is deserved a defense and you're among the best. We know that. But I know that Lacey's family is also searching for justice. They've been critical over this constantly being in the news and of, you know, his right to file appeals. [00:24:55] Speaker 8: It is definitely been a roller coaster since December 24th, 2002. There's many times that I get up in the morning and I just go back to bed. I'm never going to get over this. I don't say how any parent will ever get over it. You just have to get through it. [00:25:11] Speaker 1: What is your message for them? Or do you have any, anything to say? [00:25:14] Mark Garagos: I often said, and I don't know Sharon well. And although we were in the same courtroom every day for what seemed like eons. I've often said the toughest cases I handle are actually the ones where I'm representing somebody who's lost a child in a wrongful death civil case or something like that. But I did one earlier this year. And I almost always swear I'll never do that again because it's just, it's just, it tears your soul out. I mean, it really does. It eats away at you. So the, the idea of losing a child before you is just unthinkable. And so, you know, I can't, I can't go there in terms of the grief. What, what I can do, however, is just remind everybody that until Amber Fry, everybody was uniformly in Scott's corner until Amber Fry. That is what turned things. And, and I get that. I understand. But as I said, you can be a cat, but that doesn't make you a murderer. And, and far be it for anybody else to get into what the marriage, the state of their marriage was. That's between the husband and the wife and the two partners. So I don't know what they were doing. I don't know what Lacey knows or did know at the time. And that's just above my pay grade. What I will tell you is it still remains the only case where somebody was. I mean, I can't think of any other case where, you know, that I've handled or anybody else where there was not one violent prior incident where somebody lived and walked on this earth for decades and never had anybody accused him of a violent incident. And on top of it, had a nun testify who knew him as well. So I don't know. I mean, you could send a central casting for that. You couldn't script that because nobody would believe it. [00:27:28] Speaker 1: Final question. Do you believe that he's actually innocent, factually innocent, or didn't receive a fair trial or a combination? [00:27:38] Mark Garagos: All three. All three. I, nobody knew the evidence in real time. I certainly don't now. It's been 25 years and probably 10,000 cases since then. But the, in real time, I knew the evidence inside out. And, and I had to, because I, you know, there's over a hundred witnesses and I cross examine, I don't know, 70% of them. And, and then I lived, basically lived with him, meaning I spent all day, every day, either in the courtroom or in lockup with him. And I have said this to friends of mine, at a certain point, kind of the Malcolm Gladwell theory, you do 10,000 reps or 10,000 hours, you start to learn your trade. Well, one of the things that I think I have learned is when somebody's good for something, meaning they did it. I never have seen anything before, during or after that leads me to believe he did it. And if biggest mistake I made this case was agreeing with the prosecution to not have cameras in the courtroom, because I thought it would damp down the kind of crazy interest in it. Remember, I was representing Michael and Scott at the same time. And you could not have found two more polar opposites in terms of the public reaction. I mean, I tell this story is true. My website crashed when I, when it was announced that I was representing Scott, almost 500,000 people kind of blew it up, most praying that I would have cancer. And the same thing with Michael Jackson, but most saying prayers, I hope you live a long life. So the public animosity towards Scott was one of the reasons that ultimately my father said, look, if you're afraid of your reputation, you're in the wrong business. [00:29:22] Speaker 1: Mark Garagos, criminal defense attorney and podcast host of In The Well with Matt Murphy. And also you work with Harvey Levin on Two Angry Men. How else can we get ahold of you? [00:29:34] Mark Garagos: Well, they, my, my OG podcast, which is, was originally with Adam Carolla called Beyond a Reasonable Doubt. And, you know, I'm pretty easy to find, so I'll leave it at that. Thank you, Matt. It's always good to talk to you. [00:29:50] Speaker 1: The DA's office releasing this statement in light of the documentary, in part, it reads this. A documentary can be edited, produced and marketed to tell whatever story draws the most viewers. It cannot change what the evidence actually shows, and it cannot undo what a jury concluded or a judge who read every page of the record has already decided. Our thoughts are with Lacey's family and friends that have to relive this every time it's back in the headlines. I'll keep you updated on this case and others, so please check out the video section of this YouTube channel. Also, while you're there, please hit the like and subscribe, and I'll keep you updated. But in the meantime, take care of yourself. I'll see you next time.