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Pretrial Hearing in Peterson Case Covers Host of Issues
Aired June 06, 2003 - 13:35 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
MILES O'BRIEN. CNN ANCHOR: Let's -- we're going to shift gears and get out to Modesto, California. Another pretrial hearing in the Laci Peterson case. Jeffrey Toobin is out there, which means it must be an important hearing. Jeff Toobin is now out. The hearing is over. A full range of issue discussed. Wiretapping up there on the list.
Why don't you give us a summation, counselor?
JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, it was a dramatic scene inside the courtroom today.
One of the main issues being discussed was the autopsy results, whether that report, which was partially leaked last week should be released in total. And when the issue came up, Laci Peterson's mother burst into tears and had to leave the courtroom as Scott Peterson's parents watched awkwardly right across the aisle. And there was really quite a heated argument. It was muted in tone, but the substance was quite -- was quite heated between the two sides about, you know, who was doing leaking and who was responsible. And at the end, the judge decided that he was not going to release the autopsy reports.
The prosecution had changed its mind and said, In light of the partial leaks, we want the whole thing out. And the defense said, No, we want to keep the report under seal. And the judge decided to keep the report under seal.
Then, in a related matter, which is what the court turned to next, he very clearly indicated that he was going to impose a gag order on the parties. He was tired of all the information coming out in unauthorized ways and he apparently thought that a gag order, a more formal restriction on the parties, would keep some of this information out of the press.
He didn't actually write the order. He's going to do that. He didn't say when he was going to do that, but it seemed very clear in the courtroom that he was going to impose a gag order on everyone in the case.
O'BRIEN: All right, so, I mentioned wiretaps. They haven't gotten to that issue yet. Is that to come?
TOOBIN: Well, they did talk about it somewhat. Clearly, none of the information is going to be released yet. Basically, in the first hour of the hearing there was a rather complicated series of arrangements worked out about who gets to hear the wiretaps, and then there will be arguments about who will -- who further will get access to them. But certainly there were no decisions made on public disclosure of the wiretaps.
O'BRIEN: I guess one of the interesting points is here, there are some conversations between Scott Peterson and reporters and there are some reporters who would prefer those not get out.
TOOBIN: Right.
One of the issues was who gets to hear those tapes of Scott Peterson? In fact, there was one interesting bit of by-play, that one of the things that was tape recorded was Scott Peterson checking his message machine and hearing messages from reporters. And as you can imagine, there were probably plenty of those.
Reporters want access to that. They don't want those phone calls disclosed to even the lawyers involved in the case. But the judge hasn't resolved that issue for sure yet. There was just a lot of scheduling and copying of tapes decided. But it illustrates the complexity of the issue here, because you have reporters saying, Don't disclose my conversations, and you have the attorneys for Scott Peterson saying, Well, we don't want our conversations with Scott Peterson disclosed to anyone. So that's what the first hour of the hearing was taken up with.
But the drama related to the autopsy and the dispute about leaking.
O'BRIEN: All right. Are you at all surprised about the autopsy ruling? I mean, no one disputed the facts that were leaked. The fact that a portion of the facts are out there -- I suppose there might be some interest in getting the full story out if at least half the story is out.
TOOBIN: Well, I think -- it was funny. The prosecutor at one point said, Well, the reports that came out seemed more or less accurate. But then at another point he backed away and said, Well, you know, there were some inaccuracies out there.
What was surprising was that the prosecution changed its mind -- that in reaction to the leaks, turned around. I don't think it was terribly surprising that the judge said, Look, I'm not going to compound the issue by getting more information into the media stream.
You know, we're looking at a preliminary hearing in this case in July. It's only a month away. Certainly in that hearing, the autopsy will be discussed at length and it will all come out then. What the judge has said implicitly was, Look, let's just let things go until the preliminary hearing, try to keep a lid on things as much as possible. And that's what he is going to do. Whether he succeeds or not, you know, remains to be seen.
O'BRIEN: All right.
As we have been speaking, Jeff Toobin, the videotape of that videotape has been coming in. As we've been telling you, there is a tape delay on this, the judge not allowing these things to go out real time, live.
Let's listen in for a little while as we listen to some of this proceeding, which Jeff Toobin just outlined for us.
UNIDENTIFIED MALE: ...regarding their conversations being made public. And I indicated that matter was going to be held today on June 6. And so I indicated the only thing I was going to concern myself on the 27th was the issue of the attorney-client privilege.
Now there's a request later on by Mr. Destasso (ph) requested -- that's on page 16, line 23 -- "So my request to the court would be that the court go in camera and listen to those conversations and Mr. Geragos and Mr. McAllister be present during that time."
I respond, wouldn't it better as they suggest -- I'm referring to the defense -- that the matters should just be turned over to the defense?
And Mr. Destasso, page 117, I anticipated today releasing the entire wiretap, all documents, all recordings, all information to the defense. And although I didn't respond as far as that particular issue, when we went on, I think what we got off track there is that Me. Destasso is assuming that's what the order is going to be.
On line 21 on that page, Mr. Geragos -- "I would agree to having everything turned over to us. Obviously, my hesitation is that none of the three calls go to the prosecutors." And he's referring to the calls to defense counsel. Also let the record reflect Mr. McAllister has been present for the last five minutes.
On page 118, Mr. Geragos continues. "Other than that, I've got no problem with the prosecutor getting everything else, but I would like to carve out the 69 calls which were intercepted between Mr. McAllister and my client and/or the investigator and my client and then everything else can go to them."
On page 119 is what I -- I make the suggestion on line 10, "While I would suggest is that investigator Jacobson turn over all of the contacts between that were intercepted, Mr. McAllister's calls and also Gary Moren (ph), the investigator, and provide those to the defense, not provide them to the prosecution. And then we will have a motion for the defense probably after that and we will figure out what we're going to do as far as suppressing things or allowing things or ignoring things. Mr. Destasso, that's fine.
Then line 22, the court will be ordering that protective order on those, that the defense is not to share those outside the defense team.
Page 27, the other question he is asking for is all the notes regarding the monitoring. Is that part of what you're already giving them? Mr. Destasso, that would be part of -- I think it's my understanding that the only notes that are available are the summary sheets that are kind of kept during the course of the investigation. If any other notes were in existence, investigator Jacobson will know of them and I will have no problem with the order and I'll tell him to turn over everything he has.
Then on page 121, I ask a question to Mr. Destasso. The defense will be getting all of those documents and transcripts today? And Mr. Destasso -- They can have most of the information today, your honor. The problem is, I wasn't specifically clear as to what the items were.
Subsequently, that morning, Mr. -- I think it was Mr. Destasso -- brought the stipulation and order to me. And the stipulation was -- "The parties stipulate that the wiretap information contained in Stanislaus County wiretap number two and three, including all audio recordings and all documentation currently maintained by the court under seal are necessary by the parties to maintain this case. The parties stipulate that the court should release copies of the above document according to the below listed order to each party and order that neither party shall release, disseminate or disclose any of the information contained therein without further order of the court."
And the order that I was asked to sign on that morning, on May 27, was basically everything. And what I did -- I changed it to the point that I didn't want to have it marked up so that I instructed Mr. Destasso, based on changes, to go back and do it. So the order that came out of that hearing and as the way I understood the proceedings was -- "The court hereby orders the Stanislaus County Superior Court clerk obtain the above-sealed records" -- and I put parentheses -- " only those relating to the intercepts of the attorney and the investigator, and provide access to the sealed records to investigator Steve Jacobson for copying." The Stanislaus County clerk shall then reseal the documents. Investigator Jacobson shall copy the above audio recordings and any and all documentation relating them, and distribute same only to the defense." And the protective order is there too so...
And then the problem was that apparently the defense did not get those. Is that correct, Mr. Geragos?
O'BRIEN: All right. Jeff Toobin now joining us on the line. Just want to dip in here and get a little but of background on what we're hearing for those of us who don't have a trained ledge ear.
Judge Al Girolami (ph) at the early stages of the hearing laying out kind of the ground rules there on what's going to proceed as far as the wiretapping issue goes.
Give us a little of the backstory here, Jeff.
I guess we don't have Jeff Toobin. We will effort -- Jeff Toobin, are you there? OK. We've lost him. Let's go back to Mark Geragos and we'll try to get Jeff back on the line.
UNIDENTIFIED MALE: You did get the calls that are in question here in the motion today? MARK GERAGOS, SCOTT PETERSON'S ATTORNEY: That's correct. I got the 69 calls, audio version. I also received, on two occasions from investigator Jacobson, the transcript and what they're calling a summary sheet or a log.
What I did not get -- and I think the dispute, if you will, or the discrepancy is both Mr. Destasso and I -- I think -- and Mr. Harris left here on the 27th with the impression that we would receive all of the underlying documentation. And I know when the court was reading that, we used that term on a couple of occasions. That would have included the affidavits in support of the applications for the wiretaps.
Absent having the applications for the affidavits in support of the applications, we are unable to proceed, obviously, with the hearing. The -- we -- I need those, obviously, because one of the people we're going to put on in the hearing is the affiant. We don't have those applications.
We also -- and this was kind of brought dramatically to our attention once we saw the people's response. Mr. Destasso, in that 36-page response, went through a number of items which we have no knowledge of because we don't have the underlying documents. I think that the -- both the people and I left here with the misimpression that the court was ordering that we receive that. They do not have, is my understanding, any of those affidavits. The only person who I think has those are the court and they're under seal or maybe investigator Jacobson has a copy but I'm not sure about that. The fact of the matter is that since they're under seal, we can't get at them until the court orders that.
As an adjunct to that -- and I want to make sure I make it clear this time, and maybe I didn't last time. I -- in addition to the 69 calls, I want all of the intercepts, and I have no objection to, obviously, the people getting the same information, with the exception of what I carved out as the 69 attorney-client, because I believe that I need to have those in order to make an appropriate challenge to the legality of the wiretap and, consequently, in order to have the motion heard, which is kind of a free form motion at this point until I get the underlying documents, and I can't really articulate any further exactly what the challenge would be, obviously, until I see the affidavit.
Obviously, there is a necessity requirement that has to be met. We have access to some discovery, not all of the discovery. I believe that there is a significant argument there. So we need all of those things. And I think a hearing in this case would be obviously premature until such times as we get all of those documents and have had in some period of time to digest it and be able to prepare for the hearings.
UNIDENTIFIED MALE: Any comments in that regard, Mr. Destasso?
UNIDENTIFIED MALE: I do have some comments, your honor.
I do -- I actually concur with counsel that when I left the hearing on -- at the last hearing, I believed that the court had released all wiretap information to both parties except for 69 calls relating to Mr. McAllister and two calls righting to Mr. Gary Moen (ph)....
O'BRIEN: All right. I believe we've established communication with Jeff Toobin. And Jeff, are you with us?
TOOBIN: Yes, sir.
O'BRIEN: Excellent. Excellent.
Give us a -- set the scene for us here, this little bit of deja vu for you since you have seen this happen. But for those who aren't intimately familiar with all of these intercepted communications, what is going on between defense and prosecution here right now?
TOOBIN: OK. It got really complicated and tedious in the courtroom on this issue. And, really -- it's worthwhile, I think, to try to cut through some of this -- the mumbo jumbo.
Basically what happened here is the court -- there was surveillance. There were wiretaps of Scott Peterson. And in the course of those wiretaps there were captured conversations between Scott and his lawyers and there were captured conversations between Scott and journalists.
And what Mark Geragos was doing today was saying, We want access to those conversations, but we don't want the other guys to have access to those conversations, because they may violate the attorney- client privilege. And at the end of a lot of complicated talk, basically, he was allowed to get access to whatever was taped of those potential attorney-client conversations.
Now, there were also taped conversations between Scott Peterson and reporters, including, apparently, messages from his answering machine. Reporters, you know, calling him and leaving messages.
Reporters -- lawyers for journalists said, We don't want those phone calls to go to anyone. We think we have a privilege. Those should not be disclosed. And the judge disagreed with the media lawyer and said, No, those conversations get to go both of the prosecution and the defense and they'll be turned over. And on June 26, there will be a hearing about how these conversations were recorded, what the circumstances were and what the legalities were. But that's just the gist of what went on in the first hour of the hearing today.
O'BRIEN: All right. And so -- quickly, so what they're basically saying is if by some chance they intercept a privileged conversation, the authorities are supposed to cease recording or whatever the case may be, not listen in. But nevertheless, some might have been captured.
TOOBIN: That's right.
And what Mark Geragos has done -- the defense attorney has done is he's filed a motion saying, As far as I can tell, there was prosecutorial misconduct, that they did record these conversations but, of course, the conversations themselves will determine whether there was any misconduct and the hearing on June 27 -- June 26 will really explore the issue of how these tapes were -- how these phone calls were taped and whether there was anything improper that took place by the government.
O'BRIEN: All right. We're looking at the judge here, judge Al Girolami. Can you give us a quick background on him?
TOOBIN: Well, to be honest, I don't know a lot about him. I mean, he is a -- he's veteran judge here. He seems to be in firm control of these proceedings, although, you know, things are moving, I would say, on the slow side.
The preliminary hearing in this case is still scheduled July 18 through 20th. People may remember a preliminary hearing is like a mini-trial where the government has to only prove it is more probable than not that the defendant committed the crime. And that is -- it's a hurdle that the government always needs.
But it remains much in doubt, at least in my mind, whether this case really will go to a preliminary hearing that early. There's still a lot of evidence that has not been disclosed, a lot of discovery material that has not been turned over. I think it's very likely that this case may be in somewhat more of a slower track.
O'BRIEN: All right. The slow wheels of justice. Jeff Toobin, take a break right there a moment. We're going to dip back into this taped replay of the hearing you've already witnessed in person.
We're awaiting Mark Geragos, his departure from the courthouse. Possible he may speak with reporters although with the possibility of a gag order out there, we don't know how that's going to go. But nevertheless, when we see him, we'll bring that to you live.
Let's listen in for just a little bit.
UNIDENTIFIED MALE: The transcripts of all those hearings -- I assume they were hearings -- and certainly in the spirit, if not the letter of 190.9, being a death penalty investigation, I would hope that they were reported. We're going to ask for those transcripts.
There were -- there's another document referenced in the report called attorney communication sheets. And that is when they intercepted or were about to intercept or thought they had attorney- client conversations going on, that triggered them using something called the attorney communications sheets. We're going to request that. And then finally summary logs, which I think are some of the documents that the court already asked for.
So those are some of the things that we learned about just yesterday. We're going to also need before we can proceed full bore on this issue.
UNIDENTIFIED MALE: Your honor, I need to address that. The counsel has referenced 190.9, which requires the recording of -- or I guess the court reporting of information in a death penalty case. Of course, there was no filing at the time this wiretap took place. And so I -- that has not applicability in my opinion but counsel can of course argue it in their papers.
I want to state for the court that none of these periodic meetings with Judge Levin (ph) were recorded. I don't -- investigator wrote a report. That report was signed. Certainly they can have all those documents, but -- and the investigator Jacobson can testify to this if the court wants, but I am representing to the court that there was no court reporter present during any of those meetings.
UNIDENTIFIED MALE: Judge Levin now is a witness, and another reason to hold off on this is that he begins a long civil trial, Garcia versus Patton Music (ph), in 20 minutes. So I don't think he's going to be available.
UNIDENTIFIED MALE: Well, the court is ordering that those periodic reports, any transcripts, should they exist regarding any meetings, any wiretaps, any communications regarding those matters, the attorney communication sheet, the summary log, any other items that are in there?
I have reviewed the sealed envelopes, by the way, and my recollection is I think I've covered everything. My intent is everything in those sealed envelopes is to be given to the parties except for, at this point, until further order, the communications between the journalists and the defendant. That was my intent.
UNIDENTIFIED MALE: Okay. Just so I'm clear. So audio logs -- I mean, the actual audio recordings, save for journalist recordings, can also be turned over to either side?
UNIDENTIFIED MALE: That is my intent.
UNIDENTIFIED MALE: OK. And...
UNIDENTIFIED MALE: The only objection has been from the journalists involved, that they want to be heard and that was set for today and we will do that.
UNIDENTIFIED MALE: OK -- well why don't -- I'm sorry. Can I -- just one more thing.
The -- and it's my understanding we're going to take up the journalist's position sometime this morning?
UNIDENTIFIED MALE: I hope so.
UNIDENTIFIED MALE: OK. Thank you.
GERAGOS: I just want to make sure -- we're not saying that they get the audio logs of the attorney-client communications?
UNIDENTIFIED MALE: Oh, OK. UNIDENTIFIED MALE: I'm not asking for those and investigator Jacobson knows not to provide those to us.
GERAGOS: So everything that I've been given so far by investigator Jacobson -- I keep looking in his direction so that he understands this. Everything that he's given us so far -- the court is not ordering that to go to the people?
UNIDENTIFIED MALE: Correct. That's part of that motion we're having.
GERAGOS: OK.
UNIDENTIFIED MALE:: Okay. Everybody clear? Mr. Jacobson?
UNIDENTIFIED MALE: Yes, that's fine, your honor. He's clear.
UNIDENTIFIED MALE: Investigator Jacobson is in control of those -- or actually, the court has them sealed but he goes back and unseals...
O'BRIEN: We're going to leave the hearing for a little while. As a matter of fact, let's button this up while this continues to play.
We've gotten a preview from Jeff Toobin that this is perhaps the more tedious portion of the hearing. And, thus, what we will do now is get a little preview of what's to come from Jeff Toobin because, after all, we are watching a replay.
You know, I've got to ask you Jeff, I still don't understand the logic of these tape delays.
TOOBIN: You know, it is peculiar. I've covered a lot of trials that have either been closed to the cameras in the courtroom or have had live coverage. I don't get what the point is of doing it on a delayed basis.
Obviously, one possibility is you can edit something out later if something improper came out and you later decide you don't want it to go out over the airways. But as far as I know, there is no kind of review like that going on.
You know, one thing peculiar about California law is it gives the judge a lot of discretion about whether and how to allow cameras in the courtroom. This is something the judge decided and he's the boss.
O'BRIEN: It would be very interesting if something happened and he said, OK, that's -- we need to stop the tape and rewind and see exactly how that all plays out. I'm sure there would be a whole host of other hearings to contend with.
TOOBIN: That's right. And, you know, it would be an interesting question about whether something that took place in front of a lot of witnesses -- I mean, obviously, we were all there as it was unfolding live -- whether you could then stop a tape recording from being played. I don't know the answer to that. And the judge has made no effort to try to stop anything. But it's unclear to me why he doesn't just allow it to go out live.
O'BRIEN: Maybe he just wants to preserve the option. I don't know. But let's...
TOOBIN: That makes sense to me.
O'BRIEN: Yes. All right. So we've talked a little bit about the autopsy. That remains sealed up for now. The wiretap issue, kind of a confusing issue for now, that stuff to be shared by the defense -- looks like we're getting somebody else there. That -- I don't know who that is.
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Aired June 6, 2003 - 13:35 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
MILES O'BRIEN. CNN ANCHOR: Let's -- we're going to shift gears and get out to Modesto, California. Another pretrial hearing in the Laci Peterson case. Jeffrey Toobin is out there, which means it must be an important hearing. Jeff Toobin is now out. The hearing is over. A full range of issue discussed. Wiretapping up there on the list.
Why don't you give us a summation, counselor?
JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, it was a dramatic scene inside the courtroom today.
One of the main issues being discussed was the autopsy results, whether that report, which was partially leaked last week should be released in total. And when the issue came up, Laci Peterson's mother burst into tears and had to leave the courtroom as Scott Peterson's parents watched awkwardly right across the aisle. And there was really quite a heated argument. It was muted in tone, but the substance was quite -- was quite heated between the two sides about, you know, who was doing leaking and who was responsible. And at the end, the judge decided that he was not going to release the autopsy reports.
The prosecution had changed its mind and said, In light of the partial leaks, we want the whole thing out. And the defense said, No, we want to keep the report under seal. And the judge decided to keep the report under seal.
Then, in a related matter, which is what the court turned to next, he very clearly indicated that he was going to impose a gag order on the parties. He was tired of all the information coming out in unauthorized ways and he apparently thought that a gag order, a more formal restriction on the parties, would keep some of this information out of the press.
He didn't actually write the order. He's going to do that. He didn't say when he was going to do that, but it seemed very clear in the courtroom that he was going to impose a gag order on everyone in the case.
O'BRIEN: All right, so, I mentioned wiretaps. They haven't gotten to that issue yet. Is that to come?
TOOBIN: Well, they did talk about it somewhat. Clearly, none of the information is going to be released yet. Basically, in the first hour of the hearing there was a rather complicated series of arrangements worked out about who gets to hear the wiretaps, and then there will be arguments about who will -- who further will get access to them. But certainly there were no decisions made on public disclosure of the wiretaps.
O'BRIEN: I guess one of the interesting points is here, there are some conversations between Scott Peterson and reporters and there are some reporters who would prefer those not get out.
TOOBIN: Right.
One of the issues was who gets to hear those tapes of Scott Peterson? In fact, there was one interesting bit of by-play, that one of the things that was tape recorded was Scott Peterson checking his message machine and hearing messages from reporters. And as you can imagine, there were probably plenty of those.
Reporters want access to that. They don't want those phone calls disclosed to even the lawyers involved in the case. But the judge hasn't resolved that issue for sure yet. There was just a lot of scheduling and copying of tapes decided. But it illustrates the complexity of the issue here, because you have reporters saying, Don't disclose my conversations, and you have the attorneys for Scott Peterson saying, Well, we don't want our conversations with Scott Peterson disclosed to anyone. So that's what the first hour of the hearing was taken up with.
But the drama related to the autopsy and the dispute about leaking.
O'BRIEN: All right. Are you at all surprised about the autopsy ruling? I mean, no one disputed the facts that were leaked. The fact that a portion of the facts are out there -- I suppose there might be some interest in getting the full story out if at least half the story is out.
TOOBIN: Well, I think -- it was funny. The prosecutor at one point said, Well, the reports that came out seemed more or less accurate. But then at another point he backed away and said, Well, you know, there were some inaccuracies out there.
What was surprising was that the prosecution changed its mind -- that in reaction to the leaks, turned around. I don't think it was terribly surprising that the judge said, Look, I'm not going to compound the issue by getting more information into the media stream.
You know, we're looking at a preliminary hearing in this case in July. It's only a month away. Certainly in that hearing, the autopsy will be discussed at length and it will all come out then. What the judge has said implicitly was, Look, let's just let things go until the preliminary hearing, try to keep a lid on things as much as possible. And that's what he is going to do. Whether he succeeds or not, you know, remains to be seen.
O'BRIEN: All right.
As we have been speaking, Jeff Toobin, the videotape of that videotape has been coming in. As we've been telling you, there is a tape delay on this, the judge not allowing these things to go out real time, live.
Let's listen in for a little while as we listen to some of this proceeding, which Jeff Toobin just outlined for us.
UNIDENTIFIED MALE: ...regarding their conversations being made public. And I indicated that matter was going to be held today on June 6. And so I indicated the only thing I was going to concern myself on the 27th was the issue of the attorney-client privilege.
Now there's a request later on by Mr. Destasso (ph) requested -- that's on page 16, line 23 -- "So my request to the court would be that the court go in camera and listen to those conversations and Mr. Geragos and Mr. McAllister be present during that time."
I respond, wouldn't it better as they suggest -- I'm referring to the defense -- that the matters should just be turned over to the defense?
And Mr. Destasso, page 117, I anticipated today releasing the entire wiretap, all documents, all recordings, all information to the defense. And although I didn't respond as far as that particular issue, when we went on, I think what we got off track there is that Me. Destasso is assuming that's what the order is going to be.
On line 21 on that page, Mr. Geragos -- "I would agree to having everything turned over to us. Obviously, my hesitation is that none of the three calls go to the prosecutors." And he's referring to the calls to defense counsel. Also let the record reflect Mr. McAllister has been present for the last five minutes.
On page 118, Mr. Geragos continues. "Other than that, I've got no problem with the prosecutor getting everything else, but I would like to carve out the 69 calls which were intercepted between Mr. McAllister and my client and/or the investigator and my client and then everything else can go to them."
On page 119 is what I -- I make the suggestion on line 10, "While I would suggest is that investigator Jacobson turn over all of the contacts between that were intercepted, Mr. McAllister's calls and also Gary Moren (ph), the investigator, and provide those to the defense, not provide them to the prosecution. And then we will have a motion for the defense probably after that and we will figure out what we're going to do as far as suppressing things or allowing things or ignoring things. Mr. Destasso, that's fine.
Then line 22, the court will be ordering that protective order on those, that the defense is not to share those outside the defense team.
Page 27, the other question he is asking for is all the notes regarding the monitoring. Is that part of what you're already giving them? Mr. Destasso, that would be part of -- I think it's my understanding that the only notes that are available are the summary sheets that are kind of kept during the course of the investigation. If any other notes were in existence, investigator Jacobson will know of them and I will have no problem with the order and I'll tell him to turn over everything he has.
Then on page 121, I ask a question to Mr. Destasso. The defense will be getting all of those documents and transcripts today? And Mr. Destasso -- They can have most of the information today, your honor. The problem is, I wasn't specifically clear as to what the items were.
Subsequently, that morning, Mr. -- I think it was Mr. Destasso -- brought the stipulation and order to me. And the stipulation was -- "The parties stipulate that the wiretap information contained in Stanislaus County wiretap number two and three, including all audio recordings and all documentation currently maintained by the court under seal are necessary by the parties to maintain this case. The parties stipulate that the court should release copies of the above document according to the below listed order to each party and order that neither party shall release, disseminate or disclose any of the information contained therein without further order of the court."
And the order that I was asked to sign on that morning, on May 27, was basically everything. And what I did -- I changed it to the point that I didn't want to have it marked up so that I instructed Mr. Destasso, based on changes, to go back and do it. So the order that came out of that hearing and as the way I understood the proceedings was -- "The court hereby orders the Stanislaus County Superior Court clerk obtain the above-sealed records" -- and I put parentheses -- " only those relating to the intercepts of the attorney and the investigator, and provide access to the sealed records to investigator Steve Jacobson for copying." The Stanislaus County clerk shall then reseal the documents. Investigator Jacobson shall copy the above audio recordings and any and all documentation relating them, and distribute same only to the defense." And the protective order is there too so...
And then the problem was that apparently the defense did not get those. Is that correct, Mr. Geragos?
O'BRIEN: All right. Jeff Toobin now joining us on the line. Just want to dip in here and get a little but of background on what we're hearing for those of us who don't have a trained ledge ear.
Judge Al Girolami (ph) at the early stages of the hearing laying out kind of the ground rules there on what's going to proceed as far as the wiretapping issue goes.
Give us a little of the backstory here, Jeff.
I guess we don't have Jeff Toobin. We will effort -- Jeff Toobin, are you there? OK. We've lost him. Let's go back to Mark Geragos and we'll try to get Jeff back on the line.
UNIDENTIFIED MALE: You did get the calls that are in question here in the motion today? MARK GERAGOS, SCOTT PETERSON'S ATTORNEY: That's correct. I got the 69 calls, audio version. I also received, on two occasions from investigator Jacobson, the transcript and what they're calling a summary sheet or a log.
What I did not get -- and I think the dispute, if you will, or the discrepancy is both Mr. Destasso and I -- I think -- and Mr. Harris left here on the 27th with the impression that we would receive all of the underlying documentation. And I know when the court was reading that, we used that term on a couple of occasions. That would have included the affidavits in support of the applications for the wiretaps.
Absent having the applications for the affidavits in support of the applications, we are unable to proceed, obviously, with the hearing. The -- we -- I need those, obviously, because one of the people we're going to put on in the hearing is the affiant. We don't have those applications.
We also -- and this was kind of brought dramatically to our attention once we saw the people's response. Mr. Destasso, in that 36-page response, went through a number of items which we have no knowledge of because we don't have the underlying documents. I think that the -- both the people and I left here with the misimpression that the court was ordering that we receive that. They do not have, is my understanding, any of those affidavits. The only person who I think has those are the court and they're under seal or maybe investigator Jacobson has a copy but I'm not sure about that. The fact of the matter is that since they're under seal, we can't get at them until the court orders that.
As an adjunct to that -- and I want to make sure I make it clear this time, and maybe I didn't last time. I -- in addition to the 69 calls, I want all of the intercepts, and I have no objection to, obviously, the people getting the same information, with the exception of what I carved out as the 69 attorney-client, because I believe that I need to have those in order to make an appropriate challenge to the legality of the wiretap and, consequently, in order to have the motion heard, which is kind of a free form motion at this point until I get the underlying documents, and I can't really articulate any further exactly what the challenge would be, obviously, until I see the affidavit.
Obviously, there is a necessity requirement that has to be met. We have access to some discovery, not all of the discovery. I believe that there is a significant argument there. So we need all of those things. And I think a hearing in this case would be obviously premature until such times as we get all of those documents and have had in some period of time to digest it and be able to prepare for the hearings.
UNIDENTIFIED MALE: Any comments in that regard, Mr. Destasso?
UNIDENTIFIED MALE: I do have some comments, your honor.
I do -- I actually concur with counsel that when I left the hearing on -- at the last hearing, I believed that the court had released all wiretap information to both parties except for 69 calls relating to Mr. McAllister and two calls righting to Mr. Gary Moen (ph)....
O'BRIEN: All right. I believe we've established communication with Jeff Toobin. And Jeff, are you with us?
TOOBIN: Yes, sir.
O'BRIEN: Excellent. Excellent.
Give us a -- set the scene for us here, this little bit of deja vu for you since you have seen this happen. But for those who aren't intimately familiar with all of these intercepted communications, what is going on between defense and prosecution here right now?
TOOBIN: OK. It got really complicated and tedious in the courtroom on this issue. And, really -- it's worthwhile, I think, to try to cut through some of this -- the mumbo jumbo.
Basically what happened here is the court -- there was surveillance. There were wiretaps of Scott Peterson. And in the course of those wiretaps there were captured conversations between Scott and his lawyers and there were captured conversations between Scott and journalists.
And what Mark Geragos was doing today was saying, We want access to those conversations, but we don't want the other guys to have access to those conversations, because they may violate the attorney- client privilege. And at the end of a lot of complicated talk, basically, he was allowed to get access to whatever was taped of those potential attorney-client conversations.
Now, there were also taped conversations between Scott Peterson and reporters, including, apparently, messages from his answering machine. Reporters, you know, calling him and leaving messages.
Reporters -- lawyers for journalists said, We don't want those phone calls to go to anyone. We think we have a privilege. Those should not be disclosed. And the judge disagreed with the media lawyer and said, No, those conversations get to go both of the prosecution and the defense and they'll be turned over. And on June 26, there will be a hearing about how these conversations were recorded, what the circumstances were and what the legalities were. But that's just the gist of what went on in the first hour of the hearing today.
O'BRIEN: All right. And so -- quickly, so what they're basically saying is if by some chance they intercept a privileged conversation, the authorities are supposed to cease recording or whatever the case may be, not listen in. But nevertheless, some might have been captured.
TOOBIN: That's right.
And what Mark Geragos has done -- the defense attorney has done is he's filed a motion saying, As far as I can tell, there was prosecutorial misconduct, that they did record these conversations but, of course, the conversations themselves will determine whether there was any misconduct and the hearing on June 27 -- June 26 will really explore the issue of how these tapes were -- how these phone calls were taped and whether there was anything improper that took place by the government.
O'BRIEN: All right. We're looking at the judge here, judge Al Girolami. Can you give us a quick background on him?
TOOBIN: Well, to be honest, I don't know a lot about him. I mean, he is a -- he's veteran judge here. He seems to be in firm control of these proceedings, although, you know, things are moving, I would say, on the slow side.
The preliminary hearing in this case is still scheduled July 18 through 20th. People may remember a preliminary hearing is like a mini-trial where the government has to only prove it is more probable than not that the defendant committed the crime. And that is -- it's a hurdle that the government always needs.
But it remains much in doubt, at least in my mind, whether this case really will go to a preliminary hearing that early. There's still a lot of evidence that has not been disclosed, a lot of discovery material that has not been turned over. I think it's very likely that this case may be in somewhat more of a slower track.
O'BRIEN: All right. The slow wheels of justice. Jeff Toobin, take a break right there a moment. We're going to dip back into this taped replay of the hearing you've already witnessed in person.
We're awaiting Mark Geragos, his departure from the courthouse. Possible he may speak with reporters although with the possibility of a gag order out there, we don't know how that's going to go. But nevertheless, when we see him, we'll bring that to you live.
Let's listen in for just a little bit.
UNIDENTIFIED MALE: The transcripts of all those hearings -- I assume they were hearings -- and certainly in the spirit, if not the letter of 190.9, being a death penalty investigation, I would hope that they were reported. We're going to ask for those transcripts.
There were -- there's another document referenced in the report called attorney communication sheets. And that is when they intercepted or were about to intercept or thought they had attorney- client conversations going on, that triggered them using something called the attorney communications sheets. We're going to request that. And then finally summary logs, which I think are some of the documents that the court already asked for.
So those are some of the things that we learned about just yesterday. We're going to also need before we can proceed full bore on this issue.
UNIDENTIFIED MALE: Your honor, I need to address that. The counsel has referenced 190.9, which requires the recording of -- or I guess the court reporting of information in a death penalty case. Of course, there was no filing at the time this wiretap took place. And so I -- that has not applicability in my opinion but counsel can of course argue it in their papers.
I want to state for the court that none of these periodic meetings with Judge Levin (ph) were recorded. I don't -- investigator wrote a report. That report was signed. Certainly they can have all those documents, but -- and the investigator Jacobson can testify to this if the court wants, but I am representing to the court that there was no court reporter present during any of those meetings.
UNIDENTIFIED MALE: Judge Levin now is a witness, and another reason to hold off on this is that he begins a long civil trial, Garcia versus Patton Music (ph), in 20 minutes. So I don't think he's going to be available.
UNIDENTIFIED MALE: Well, the court is ordering that those periodic reports, any transcripts, should they exist regarding any meetings, any wiretaps, any communications regarding those matters, the attorney communication sheet, the summary log, any other items that are in there?
I have reviewed the sealed envelopes, by the way, and my recollection is I think I've covered everything. My intent is everything in those sealed envelopes is to be given to the parties except for, at this point, until further order, the communications between the journalists and the defendant. That was my intent.
UNIDENTIFIED MALE: Okay. Just so I'm clear. So audio logs -- I mean, the actual audio recordings, save for journalist recordings, can also be turned over to either side?
UNIDENTIFIED MALE: That is my intent.
UNIDENTIFIED MALE: OK. And...
UNIDENTIFIED MALE: The only objection has been from the journalists involved, that they want to be heard and that was set for today and we will do that.
UNIDENTIFIED MALE: OK -- well why don't -- I'm sorry. Can I -- just one more thing.
The -- and it's my understanding we're going to take up the journalist's position sometime this morning?
UNIDENTIFIED MALE: I hope so.
UNIDENTIFIED MALE: OK. Thank you.
GERAGOS: I just want to make sure -- we're not saying that they get the audio logs of the attorney-client communications?
UNIDENTIFIED MALE: Oh, OK. UNIDENTIFIED MALE: I'm not asking for those and investigator Jacobson knows not to provide those to us.
GERAGOS: So everything that I've been given so far by investigator Jacobson -- I keep looking in his direction so that he understands this. Everything that he's given us so far -- the court is not ordering that to go to the people?
UNIDENTIFIED MALE: Correct. That's part of that motion we're having.
GERAGOS: OK.
UNIDENTIFIED MALE:: Okay. Everybody clear? Mr. Jacobson?
UNIDENTIFIED MALE: Yes, that's fine, your honor. He's clear.
UNIDENTIFIED MALE: Investigator Jacobson is in control of those -- or actually, the court has them sealed but he goes back and unseals...
O'BRIEN: We're going to leave the hearing for a little while. As a matter of fact, let's button this up while this continues to play.
We've gotten a preview from Jeff Toobin that this is perhaps the more tedious portion of the hearing. And, thus, what we will do now is get a little preview of what's to come from Jeff Toobin because, after all, we are watching a replay.
You know, I've got to ask you Jeff, I still don't understand the logic of these tape delays.
TOOBIN: You know, it is peculiar. I've covered a lot of trials that have either been closed to the cameras in the courtroom or have had live coverage. I don't get what the point is of doing it on a delayed basis.
Obviously, one possibility is you can edit something out later if something improper came out and you later decide you don't want it to go out over the airways. But as far as I know, there is no kind of review like that going on.
You know, one thing peculiar about California law is it gives the judge a lot of discretion about whether and how to allow cameras in the courtroom. This is something the judge decided and he's the boss.
O'BRIEN: It would be very interesting if something happened and he said, OK, that's -- we need to stop the tape and rewind and see exactly how that all plays out. I'm sure there would be a whole host of other hearings to contend with.
TOOBIN: That's right. And, you know, it would be an interesting question about whether something that took place in front of a lot of witnesses -- I mean, obviously, we were all there as it was unfolding live -- whether you could then stop a tape recording from being played. I don't know the answer to that. And the judge has made no effort to try to stop anything. But it's unclear to me why he doesn't just allow it to go out live.
O'BRIEN: Maybe he just wants to preserve the option. I don't know. But let's...
TOOBIN: That makes sense to me.
O'BRIEN: Yes. All right. So we've talked a little bit about the autopsy. That remains sealed up for now. The wiretap issue, kind of a confusing issue for now, that stuff to be shared by the defense -- looks like we're getting somebody else there. That -- I don't know who that is.
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