The Double Life of Scott Peterson: Defending Scott Peterson — Ep. 4 | MK Confidential

If you turn on CNN at 9 o'clock at night in the month of April, 2003, you get one thing. Scott Peterson. Larry King is running a Peterson segment almost every night. One lawyer, and seemingly only one lawyer at that table, keeps taking a most unpopular position. Condemn him as a narcissist. Condemn his character flaws, but that does not make him a murderer. Condemn him because he might be guilty of adultery. That is Mark Garagos. Some nights, he hits Scott Peterson, but most, he defends him. He does not represent Scott Peterson. Not yet. On April 18th, police arrest Scott Peterson. That evening, the state's attorney general announces that the bodies that washed ashore in San Francisco Bay are Lacey Peterson and her son, Connor. That night, Garagos tells Larry King that their bodies washing ashore within two miles of Scott's fishing trip alibi is, quote, devastating. Even still, Garagos criticizes how the case against Scott Peterson is being framed. And at no point does he say Peterson is guilty. 23 years after defending him in court, Mark Garagos spoke with us about his former client. Mark is now the co-host of the show In the Well on our MK True Crime podcast channel. Does he think Scott Peterson is a killer? You know whether somebody is good for it. He's not good for it. I said it then. I've said it consistently with much blowback since in the 20 some odd years since. The guy I met does not have the capability, the wherewithal, the ability to do it. When Garagos was making those rounds on cable news, he had not yet met Scott Peterson. He later says of those appearances, quote, Maybe I was one of the media pundits who jumped on a bunch of misleading information and convicted the guy. That's not how Lee and Jackie Peterson saw it. In San Diego, Scott's parents are watching Garagos on TV almost every night. They had retained lawyer Kirk McAllister to represent their son after Lacey went missing. Once Scott is arrested, McAllister tells them that a case of this size is going to get expensive very fast. They should just let the public defenders take it. In 2017, Lee Peterson tells A&E why they did not take that advice. We contacted Mark Garagos because he was on a Larry King show just about every night and he was defending Scott. I finally said, well, what, you know, what's it going to cost Mark? He said a million bucks. And I said, wow, you know. They cannot afford him. They hire him anyway. I'm Megan Kelly, and this is MK Confidential. Did you know many U.S. homes have toxic chemicals in their tap water? Even though contaminated water looks clear, it could put you at risk for devastating health concerns, including fatigue, hormone disruption, cognitive decline, even cancer. Surprisingly, standard fridge and pitcher filters do little to remove most contaminants, and bottled water contains microplastics. So one solution, introducing AquaTrue, the countertop water purifier, which they say has been tested and certified to remove 84 contaminants, including chlorine, lead, forever chemicals, and microplastics. Its patented four-stage reverse osmosis system goes way beyond ordinary filters. For pure, healthy water you can trust. No plumbing, no installation. AquaTrue has been featured in Business Insider, Popular Science, and it's been named Best Countertop Water Filter by Good Housekeeping. Go to AquaTrue.com right now for 20% off your purifier using the promo code MKC. AquaTrue even comes with a 30-day best-tasting water guarantee. That's AquaTrue.com, A-Q-U-A-T-R-U.com, promo code MKC. We began our conversation with Mark Garagos where his relationship with the Peterson family started. On television, talking about Scott, weeks before Mark had met the man he was arguing about. So before you actually got hired as counsel for Scott Peterson, what did you think of the case, Mark? You know, famously, in fact, because of my smart aleck tendency, I had said on a show, I think it was Larry King who was back on CNN when CNN actually had more than four viewers, I said something to the effect of there are guys in state prison on a lot less evidence than what was facing Scott. And what I meant by that was the sheer coincidence, so to speak, of Blasey and Connor washing up at exactly the location, it wasn't really exactly, but in basically the bay for all intents and purposes, was enough to get him convicted. And sure enough, at the end of the day, fast forward, I don't want to step over everything else. A couple of the jurors said they never would have convicted but for that fact. So you, before the Petersons called you, were you looking at this saying he did it? I was commenting virtually nightly. I mean, people have to remember we're almost in a return from 20 to 25 years ago. 20 to 25 years ago, every summer there was always a trial of the century. There was always some, what I used to call the axis of evil of true crime, which was cable shows at night, the morning shows, and then back then it was People magazine. And if you got into that kind of axis, you were done for. It was awful because before you even walked into a courtroom, you were done. That media machine would soon come for Garagos. By Friday, May 2nd, 2003, Garagos had now signed on as Scott Peterson's lawyer and walks out of the Stanislaus County Courthouse to face the cameras. Reporters immediately ask about what looks like a change of heart. Garagos waves it off saying, I think I succumbed to the media buzz. Mark's telling starts with Scott's mother. Jackie Peterson, Scott's mom, reached out to me and said she wanted to see me and I think came in initially at least just to try to correct the record, so to speak, and make sure that I understood that she believed fervently that he was innocent. I met with her and we had a long talk and I was so taken with her. She asked me to go meet with him. I met with him. I was convinced of his innocence after meeting him in Modesto. I went to the Modesto or Stanislaus County Jail and I took the case. I will tell you, virtually everybody, including lawyers in my office, lawyers who ended up working on the case, told me do not take this. I was coming off of basically a seven-year streak of not losing a case. I had won back-to-back Susan McDougal on both coasts and not guilties against all odds. I had had an incredible streak and everybody said, look, if you win the case, you're a pariah a la Johnny Cochran. Johnny, people forget, after OJ, Johnny didn't want to do another criminal case again. He was kind of verboten. Johnny used to sit at jury selection. He would rent himself out to mass tort lawyers and to PI lawyers because jurors would raise their hand and say, I can't be fair because Johnny Cochran is the lawyer. He was that much hated. Here's what Pat Harris, a colleague of Mark's, tells him. Pat retold it to A&E in 2017. Mark, you are a very popular attorney. That's all going to end because Scott Peterson is the most hated man in America. And if you take this case, you're going to be the second most hated man in America. One voice, however, calls Mark with a very different perspective. My father, who was my mentor, partner and hero, he said to me, look, if you're not going to take this case because of the absolute blowback you're going to get, and he knew there would be blowback, then you should be selling oranges on the side of the freeway. What are you doing? If you're more concerned about your reputation, then you shouldn't be doing this. And that scene outside of the Stanislaus County Sheriff's Station, when they had arrested Scott, brought him in, and people were surrounding the Sheriff's Station with placards asking that he'd be hung and banned or monster and all that stuff, that kind of roiled me to the point where I said, OK, I'm going to jump in. Garagos takes the case with Scott's reputation already in tatters. Scott has just wrapped an ill-advised interview spree, which includes a train wreck sit-down with Diane Sawyer. Do you really expect people to believe that an eight-and-a-half-month pregnant woman learns her husband has had an affair and is saintly and casual about it, accommodating, makes a peace with it? Well, yeah, you don't know. No one knows our relationship with us. At peace with it, not happy about it. In the wake of exchanges like that, what convinced Garagos that Scott was actually innocent? Kind of the Malcolm Gladwell 10,000 reps, 10,000 hours. I talk about this with Carole all the time, too. You get a sense, you know, you have. I mean, you're not infallible when it comes to that, but you know. Nothing in his background shows that he could have done it. You have to understand, it's the only time that I can think of in any case and I've tried hundreds of cases, I stopped counting at 300, that I've ever called a nun onto the stand as a character witness. And even she talked about she had grown up or watched him grow up and said he had no violence in his background. He had no indication whatsoever that he could ever hurt anybody. In fact, it was quite the contrary. He was the most docile kind of laid-back kid. Garagos maintains it's not the evidence against Scott that has convinced most people he's guilty, but something else. I do know why this thing has fascination in my humble opinion. I, and I've talked to you about this before, and don't take this, don't be insulted because you fall into the category and I love you dearly, but I would be sitting at the gym before court each morning and inevitably I would get approached by, and it was almost always a white professional woman, and they would ask me questions and I would say, no, if there was TV in the court you would understand that didn't happen. And then I would explain it. And then the same question. And it would happen over and over and over again. And inevitably, across the board, every single one of them said to me, I don't care what the evidence was, I had an ex-boyfriend and if he was cheating on me with that hussy or whatever name they would call Amber Fry, he would have done the same thing and I can see it. And so there is this kind of just guttural reaction where you can't get past that. It is just the picture of Lacey sitting in the chair at the Christmas party, pregnant, beautiful, resplendent, and then placed side by side with the picture of him with his arm around the masseuse therapist from Fresno, California, who fits the archetype of many a wife. And you can't get past that for a certain demographic or a certain constituency. There is also the matter of Scott Peterson standing in a Modesto park on New Year's Eve at a vigil for his missing wife, three blocks from his own home, telling his lover, Amber Fry, that he is in Paris celebrating New Year's with a huge French crowd. I'm going to take a wild guess that Megyn Kelly has a real problem with that. 100%. He looks like a sociopath. And I do wonder as you talk about, you get a sense sitting across from somebody, do you think you'd know if you were across from a sociopath? I think, I don't know that this is something I want on my tombstone. I don't think anybody has handled as many murder cases as I have. And that, and if I were to tack on, I mean, you know, my first 13 years of my life, my father was a homicide prosecutor in the L.A. D.A.'s office. That's all I watched. I used to follow him around the court and watch him do murder cases. I watched him while waiting for bar results. He had three murder cases pending and I watched all three trials while waiting for them, back to back to back. I've handled, I can't tell you how many murder cases. I don't know that it's a skill set that anybody wants to brag about, but I will tell you, I know who is capable of this. I know who's got it in them. And I can also tell you, just from working with somebody, what triggered it. I had at one point, in fact, it's how I got Susan McDougal's case. I had at one point four women on what we called murderer's row in the old Sybil Brand Jail. Sybil Brand Jail was this notorious women's prison, jail, not a prison, in L.A. And those, I've never had before since, four women charged with murder. But I will tell you, all four of them I knew had committed the act. All four had killed another human being in various ways. But all four were ultimately not convicted of murder because there was a back story to it. And I knew that and I did not have to reinvent the facts, so to speak. Scott, I never had that. Despite Mark's gut feelings on Peterson, the jury that decided the case did look at the evidence. Well, the jurors, two of the jurors who sat on the case, gave an interview to Netflix for their most recent special. And they were pointing to not the affair. Both of those guys said, the affair did not move us. We understood that men cheat. It was, they said, the tapes, Amber's tapes of Scott and what he was saying to her while people were searching for Lacey. Obviously, he was trying to keep this woman on the line. And they, I think, couldn't get past how cold he was about the fact that his wife was, quote, missing during those tapes. Jurors Mike Balmessieri and Mark Baratlas described the impact of those recorded phone calls to Netflix in 2024. A lot of people believe that the affair was a big deal. No, I didn't see it as a big deal. And I don't think anybody on the jury did either. What we did see as a big deal is what he said and what he did. It was damning. It was absolutely damning. And not only the phone calls, but the lies. Yes, the charade. Geragos says his co-counsel, Pat Harris, understood the danger of those tapes immediately. And in trying to explain Scott's behavior, they kept coming back to another disappearance that had consumed Modesto, California, only a few years earlier, and one familiar to MK Confidential fans. Pat Harris, who I tried that case with, who had been my partner for many years, in fact, I met Pat. Fun story. Pat was Susan McDougal's fiance when I first met Susan McDougal during Whitewater. And Pat came in to try to fire me because Susan had hired me. And he ended up becoming my partner, law firm partner, for 15 years. And he ended up dumping Susan. When Pat first heard those tapes, because he was deep into the case, in the prep of it, and he called me up and he said, we're never getting past these tapes. And I said, why? And he says, even though I know why he did it, there's no way we can capture that or present that to the jury. And I explained to him what I was going to try to do, and we were not, I think, entirely successful. Two or three years before Lacey went missing, in Modesto, there was a congressman. His name was Gary Condit. Gary Condit was a client of mine, and so I was very familiar with that case. Gary was admitted to having an affair with Chandra Levy. Chandra Levy was from the Modesto area. Chandra Levy went missing, and Gary Condit, as soon as they discovered the affair and Gary had disclosed it to the investigators, that was it. They were off to the races. The investigators didn't care about any other lead. They were focused like a laser on Gary. And because the prosecutors were so fixated on Gary, they lost all kinds of opportunity. I tell you that story because Scott was well aware of that. He understood completely. Living in Modesto, Gary Condit was a beloved congressman. Everybody there understood that Gary's career was torched because of admitting the affair with Chandra. Scott knew the minute that Amber surfaced, Modesto, who had already, all you have to do is take a look at that first or second interview in the Modesto Police Department or Stanislaus County where they're already suspicious of him. They're already in his face. He knew that if Amber surfaced, he was done, they'd stop looking for Lacey and it was over with. Unfortunately, the jurors, I'm sure, had an enormous amount of problems with when the vigil, he's sitting at the vigil, that he's talking about the rooftops of Paris. But the jury never heard that explanation. Scott Peterson would never take the stand. In San Mateo County, the bias against Scott Peterson shows up before the trial even begins. Nearly every prospective juror has already heard about the case and almost 45% say they believe Scott Peterson is guilty. We went through 1,600 jury questionnaires and people, I used to say people who were illiterate were writing GITY, G-I-T-Y. And the Buddhists up there, because we were in San Mateo, it has a large community there, would say, you know, I'm against the death penalty conceptually, but for Scott Peterson, I'll make an exception. I mean, it was the wildest thing I've ever seen. There was a billboard truck circling the courthouse during the jury selection as jurors are coming into the courthouse and it's got a giant poster of Scott in his orange jumpsuit and you had people vote man or monster. And it was a, like I said, it reminded me in some ways of the Jim Crow South or at least of what I always used to imagine. You know, I grew up reading To Kill a Mockingbird and it had that kind of a feel to it, at least from my standpoint. During death penalty questioning, prospective jurors are brought in one at a time so that one person's answers do not influence the rest of the pool. Garagos is looking for what lawyers sometimes call a stealth juror, someone trying to get onto the jury with a verdict already in mind. He gets at least two prospective jurors excused. One had reportedly bragged during a bus trip to Reno that the fertilizer salesman was going to get what was coming to him. The second is more striking. She tells Garagos and prosecutor Rick DiStasso that she can put aside her feelings about Scott and be fair. Garagos believes her, so does DiStasso. There was one woman who came in and I remember talking to DiStasso. She said something to the effect, you know, Mr. Garagos, yeah, I didn't think I could be fair, but then I talked to my dad and my dad said, what if it was your brother? And I thought, you know what? Intellectually, I'm going to put aside the animus I have towards Scott, your client, and I think I can be fair. And I remember she left and I turned to DiStasso and I said, we should order her back. She's good. And DiStasso said, I thought the same thing. And I went back to the hotel afterwards. And back then there were things called fax machines. And somebody had faxed me a chat that she was in or some kind of a conversation. And it basically said, I really pulled one over on that dumb ---- defense lawyer. I'm going to get on to this jury and I'm going to fry his client. And we brought her back and I confronted her. She had also had a restraining order in the same courthouse and he had never found it. So she was excused. After that, once the jury is chosen, Garagos asks the judge to sequester them, to keep the jurors and alternates together and away from the coverage for the duration of the trial. Quote Judge Delucchi again, when I would complain bitterly about the atmosphere around it. He would say, what do you want me to do? Put the jurors in a time capsule or put them in a spaceship and have them circle the earth? And I said, no, what I want you to do is sequester this jury because the community is in an outrage over this case. The judge says no. For the next five months, the jurors go home each and every night into the same media environment Garagos has been warning about since jury selection. The trial begins June 1st, 2004, in courtroom 2M in Redwood City, California. The Peterson and Rocha families sit on opposite sides of the room. Reporters fill the seats between them. Outside, members of the public begin lining up before dawn for a lottery system that will decide who gets inside the courtroom that day. Prosecutor Rick DiStasso goes first. His opening takes the full day. Among the things he tells the jury is that Scott lied about watching Martha Stewart on TV with Lacey on Christmas Eve morning. Scott had told police they were watching a segment about meringue. DiStasso says the episode airing December 24th never mentioned meringue. The next morning belongs to Mark Garagos. He does not try to make Scott Peterson likable. He calls his client a cad and describes some of his behavior as boorish. Then he turns to the physical evidence. Investigators have taken more than 100 bags of evidence from the Peterson home and Scott's warehouse and sent it for testing. Garagos picks up the Department of Justice lab reports and gives the jury his summary of it. Zip. Nada. Not a thing. No physical evidence, he argues, connects Scott Peterson to Lacey's murder. Garagos then goes further. He makes promises about what the defense will prove. He will call witnesses, he says, who saw Lacey Peterson alive and walking her dog after Scott had already left the house. He says an expert will show that baby Connor lived beyond Christmas Eve. And he tells the jury that Scott Peterson is not just not guilty, that he is, quote, stone-cold innocent. Then Garagos goes after one of the prosecution's opening day claims. He plays the Martha Stewart tape from Christmas Eve. So what are we going to do with all the egg white story? Ooh, you want to make little meringues? Oh, that would be nice. Garagos plays the tape a second time, saying, quote, People laugh. On the second day of the trial, one of the prosecution's opening claims that Scott killed Lacey on the evening of December 23rd and spent the next morning moving her body takes a massive hit. Garagos gets the state's computer expert to confirm that at 8.40 a.m. on Christmas Eve, someone logged on to the Petersons' home computer using Lacey's password, Sunflower, and searched for a Sunflower umbrella stand and women's clothing. If that was Lacey, then she was alive the morning of the 24th, and the timeline DeStasso had given the jury in his opening could not be right. The prosecution adjusts its timeline. Garagos remembers the moment this way. Rick DeStasso started this trial with the theory that the killing had taken place on the 23rd, not on the day before. I mean, on the day before, not on the day she went missing. By the time we got to closing, they abandoned that. They agreed, and he argued in closing, it doesn't matter, because I think we had definitively proved it. The cross-examination of the forensic expert showed that she had logged in to her computer on the morning of the 24th. Their whole search warrant affidavit that said Martha Stewart had not been on the 24th, but on the 23rd, when Scott told her, that was debunked. We showed that Martha Stewart was on the 24th. We showed that she had, that Lacey, somebody had used Lacey's password, somebody had accessed some Sunflower-related, which she had a tattoo of, on the morning of the 24th. The dog was out with the money leash. Garagos says it was Lacey who logged in. The evidence establishes only that someone using her password did. By closing, however, the prosecution is no longer committed to December 23rd as the night Lacey was killed. Telling the jury, quote, it's very simple. The defendant strangled or smothered Lacey Peterson the night of December 23rd or in the morning while she was getting dressed on the 24th. I can't tell you when he did it. I can't tell you if he did it at night. I can't tell you if he did it in the morning. I'm not going to try to convince you of something that I cannot prove. I don't have to prove that to you. I only have to prove that he did it. Did you know that a bag of cat food labeled natural has zero legal definition behind it? 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That's 60% off your first order, plus free shipping and free treats for life when you head to Smalls.com slash True Crime. On the 13th day of testimony, the state calls Detective Al Brocchini. He will spend much of the next week on the stand. While he is testifying, the jury loses one of its members. A courthouse camera catches juror number five, Justin Falconer, speaking with Lacey's brother near the security checkpoint. Judge Delucchi looks into it and decides the conversation was harmless. But after the incident draws media attention, Falconer admits that he discussed the coverage with his girlfriend, despite the judge's orders to stay away from the news and not discuss the case. Two days later, Delucchi removes him from the jury. Falconer walks out of the courthouse and directly into the arms of reporters. They ask him the question everyone wants answered. After what he has heard so far, does he think Scott Peterson is guilty? Well, the prosecution hasn't given me any reason to believe that he is. All the prosecution witnesses have pretty much been just as good a witness for the defense as they were for the prosecution, if not, in some cases, better for the defense. And I haven't heard any testimony whatsoever that would lead me to believe that he was guilty. Asked how he would vote if he had to decide the case that day, Falconer says, not guilty. So far, Garagos isn't doing too badly. Garagos, meanwhile, has been fighting over discovery almost from the day he took over the Peterson case, arguing that prosecutors are consistently turning over evidence late or only after repeated requests. And he is convincing the judge. I will tell you that I think in real time, not now, but in real time, I knew the facts better than anybody. I knew the discovery better than anybody. It's one of the reasons during that trial, we had not one, not two, three separate recesses, and the late, great Al DeLuca, who was the judge, had excoriated the prosecution for their discovery compliance, for not turning over discovery, for not following up on exculpatory leads. And I was bellyaching about that every single day, making motions for mistrials the whole day. Journalist Catherine Cryer covered the trial from inside the courtroom and writes that Judge DeLuca took to chastising prosecutors in open court about discovery issues. But while Garagos may be scoring points, there are facts that will prove insurmountable for him. Let me ask you the things that convinced me he did it. The tapes with Amber are bad, for sure. I accept that there is an explanation for them. There is a version of him doing that stuff with Amber that doesn't have Scott as a murderer. However, the fact that he bought that boat after the affair began, he did not tell anybody that he bought that boat. He went out fishing on Christmas Eve. I feel like I'm in the gym right now. He places himself at the scene. Wait, I didn't interrupt you. He places himself at the scene where the bodies wash up. And on top of that, Lacey's body washes up without her head, her arms, or the lower legs. And he clearly, the killer, clearly weighted the body down in an effort to keep it at the bottom of the sea. And sure enough, they found what looked like the molds for four concrete anchors. His boat had some concrete remnants on the inside of it. And it matched the little pitcher that the detectives found on that boat perfectly. And yet those anchors were never found. And to me, that is absolutely devastating for Scott Peterson. Okay, so like I said, I feel like I'm in the gym. Number one, what was your first point? That was the one where you- He bought this boat after the affair began and didn't tell anybody. Which he didn't know about, right. During the trial, they put on the lead detective, Al Brochini, guess what? And mind you, I had spent one week doing mitochondrial in California at the time. It shows you how long ago this was. Mitochondrial DNA was not admissible in California. In order to have the prosecution be able to introduce mitochondrial DNA, which is DNA that is linked to the maternal lineage. And they had a hair, and they wanted to show that the hair was in the boat. So aha, Lacey was in the boat. Lacey didn't know about the boat. Your kind of aha moment. Well, guess what happened during the cross-examination of Al Brochini? I had, they didn't realize, Al Brochini had whited out a paragraph in his report. I had him produce the original report. What he had whited out was Al Brochini himself had interviewed a witness at the warehouse who saw Lacey in the boat, actually saw her in the boat. He had whited it out. So I spent a week contesting mitochondrial DNA so that we could get it admitted when all along Modesto PD knew that she was in the boat and they had a witness who was at the warehouse Stop there, because what Mark just said leaves out an important part of what happened. The witness is a woman named Peggy O'Donnell who runs a business a few doors down from Scott in the same warehouse complex. Peggy tells police that Lacey had come by the warehouse complex and asked to use her bathroom a few days before she disappeared. This happens on either December 20th or December 23rd. Peggy isn't sure which date. If true, that places Lacey at the warehouse complex, not in Scott's boat. But Garagos is right about one important part of this. Brochini had removed witness information about Peggy O'Donnell from his report. One sentence has been removed. It is about O'Donnell's claim that Lacey visited the warehouse complex on either December 20th or December 23rd and asked to use O'Donnell's bathroom. On cross-examination, Garagos produces a page of Brochini's notes which include a line that reads, quote, Lacey used restroom on 12-23, Peggy, end quote. Garagos then asks the detective, can you tell me how that particular piece of information got excised out of your police report? I excised it, Brochini answers. You did it? Yes, I did. The reaction in the courtroom is immediate. Garagos asks the judge whether they might stop for the weekend and let that exchange sit with the jury for three days. But Brochini has an explanation, and after the weekend, the jury hears it. Prosecutors ask him about the missing sentence, and Brochini says the information had not disappeared from the case, that another detective named Dennis Holmes included Peggy's account in his report from that day, and that unlike Brochini, Holmes had interviewed Peggy O'Donnell directly. In 2024, Brochini explained his reasoning to Netflix and conceded the optics in court. What happened was on this one day, after I dictated, turned it in, now we all sit down together, and I tell all the detectives what I heard, and Detective Dennis Holmes, he says, whoa, I interviewed Peggy, so he could testify to what Peggy said. Mine was through the grapevine, and so I deleted that sentence because it was in his report. Could look wrong to the jury, it could look wrong to the, you know, roaches. Brochini's explanation does not end the argument. Garagos still sees the missing sentence as part of a larger pattern, evidence he says was mishandled, minimized, or disclosed too late. But when I pressed him on what that evidence actually proved, the argument quickly moved back to the boat. Didn't he whited it out because another detective put it in his report and had interviewed this person? How we found it, and he whited it out so it wouldn't get to the defense. But it was in the public record because another cop put it in his report. That's how we found it. Yes, so how is it nefarious for Brochini to have taken it out when he understood his report was hearsay, but he had the actual cop who had interviewed the woman report it. He was doing it in an affidavit. He was doing it in the affidavit to be presented to the judge, and he had whited it out. The other thing is, there's no proof that Lacey was ever in that boat. And Scott also said he told investigators he was taking that boat out. Allegedly, half the reason was so he could just see how it went. So we're to believe that Lacey went to the warehouse. She just sat in the boat? She just sat there? They didn't go out in it? It's test run. By the way, it's funny you say that, and I'm glad you do. She got in the boat, and she did exactly what the jurors did. Do you know what the jurors did during deliberation? We had the boat. It was in the courthouse. The jurors went down. They wanted to see the boat, day three or day four of deliberation. They actually got in the boat and started doing what Lacey did to see about its buoyancy. I turned to DeLuca, and I said, okay, do you remember when I did a demonstration? I actually, and it's somewhere, somebody put it in the internet because it was an exhibit. I put this poor kid who worked for me in the boat. I gave him a dummy that weighed approximately what Lacey did, and I tried to have him reenact what actually happened. He sunk every time. Unfortunately for Rafi, who was the guy in the boat, he didn't swim, and I had to save him each time. But that judge would not allow that into evidence. That was one of the first things the jurors wanted to do was get in and test the buoyancy of the boat. Number two, before you go off on- Wait, wait. Where's your witness who said she saw Lacey get in the boat? Did she testify? No, she did not testify. They admitted that they were wrong during the trial. The witness, that came into evidence. That's what I'm saying. Did you call the witness? No. Why didn't you call the witness to testify to that? He admitted that, yes, she had been in the boat, and he had whited it out. I didn't need it at that point. I had fought. No, no, no. If you had a witness who saw Lacey Peterson get into that boat and you felt good about that witness, you, Mark Garagos, would have called her to testify at trial. You know it, I know it, and the American people know it. Let me tell you what happened in this case. This case started in opening statements with them saying Scott had killed Lacey on the 23rd. We are dodging. Where was your witness? Why didn't you call the magical witness who could place Lacey in the boat? Because they admitted afterwards they abandoned that the same way they abandoned that she was killed on the 23rd. We would knock down every single theory, and it came down to- Yes. Why didn't you call all the witnesses who saw Lacey walking her dog after 10.30 that morning? For the exact same reason. The case started that she- So much magical evidence that would have gotten your client off that you just decided not to call in front of the jury because somehow it had been admitted. It had all been admitted, and the jury was just too dumb to understand it. No, I don't think the jury was dumb. I really don't. I don't think it was a dumb jury. I think that the jurors did what the community wanted, which was to convict. Because at the end of the day, there wasn't a coherent theory. I would give you another example. How about Scott's four little anchors? Okay, they never found the anchors. The most searched- I know, because they're at the bottom of the sea holding down Lacey's arms and her head. Okay, now when you say bottom of the sea, you're conveying to people that somehow this is a very deep area. You realize that the bay that was searched, that on low tide, they found, they not only had sonar subs, they not only had all kinds of searches out there, they found Snapple bottles. They found boots. They found tires. They found everything in the world. They did not find anchors. They did not find Lacey. They did not find Connor. The reason for that is because- I didn't know they were in there. No, it was after- Because the real killer dumped the bodies. Is that your theory? No, my theory is that wherever they were, they were washed up into that area by the storm. The jury never sees Garagos' boat demonstration. Instead, prosecutors call a commercial fisherman and ask whether a 153-pound fish weighted with four 10-pound weights could be pushed over the side of a 14-foot aluminum boat without capsizing it. Without hesitation, his answer is yes. Juror John Guinasso later called the fisherman the star witness of the trial. Then Garagos catches Brocchini in another error. Brocchini tells the jury about a tip from Miguel Espadilla, one of Scott's former college classmates. Miguel had said that years earlier, in 1995, Scott had talked hypothetically about how someone might dispose of a body, cover the head, weight the body down, and put it in salt water, where the water and marine life would eventually destroy the evidence. From the witness stand, Brocchini adds another detail. He says Scott had talked about wrapping the head in duct tape. That matters because there was duct tape on Lacey Peterson's remains when she came ashore. Garagos goes back to the original tip report. Espadilla never mentions duct tape. Brocchini acknowledges that he supplied that detail, the duct tape, from memory, and that he got it wrong. He has not reviewed the original police report on the tip in months, so the alleged conversation about the duct tape did not happen. But Scott fantasizing about disposing of a body at sea did, or so the jury hears. Garagos moves to have the case dismissed, and Judge Delucchi denies the motion. But what about the hair? Police reports log a single hair collected as evidence from the nose of those pliers in the boat. But by the time the envelope was examined, two hairs turned up inside. Garagos grills the detective over the exact number of hairs found at Scott's warehouse in the boat. Prosecutors claim the single hair broke in half in the envelope. But Garagos says that theory is made up, and that it was made up after the defense began asking tough questions. One hair went in, Brocchini says, and two hairs came out. Is this a magic envelope? asks Garagos. FBI analyst Constance Fisher testifies about the hair during the trial. Fisher estimates that one in 112 people in Modesto share the same profile as the hair found in Scott Peterson's boat, less than 1%. The defense calls Dr. William Shields, who challenges that figure. Shields says the DNA could be as common as one in nine people in Modesto, and points out the size of the FBI database and the error rate for mitochondrial DNA testing. Both experts agree that the DNA proves the hair from the pliers is not from Scott Peterson, but that it could be from Lacey. The trial moves on into August. On August 10th, 2004, Amber Fry walks into courtroom 2M. Years later, she described that moment to A&E. I remember the doors opened. You could hear a pin drop. It was so quiet. You could hear everybody's body shifting as I'm walking in. But the most important evidence Amber brings into the courtroom is not what she says from the witness stand. It is what Scott said to her on those secret tapes. Scott Peterson never testifies. But for days, the jury hears his voice through Amber's undercover recordings, following along on printed transcripts as the calls are played in court. Defense co-counsel Pat Harris had seen this problem coming while reviewing Discovery. He later tells A&E that he believed those tapes alone could sink the entire defense. Then we got the actual tapes. I started listening to the tapes. And after I finished, I went into Mark's office and I said, we're screwed. Because when you hear them, it's a whole different thing. Because Scott is on the phone with Amber and you hear giggling and you hear sort of the tones of voice and it changes the whole dynamic. Take New Year's Eve, for example. Three blocks from Scott and Lacey's home, roughly a thousand people gather for a candlelight vigil for Lacey. Tears are shed for the missing mother and child. And Scott is on the phone with Amber. For juror number one, Greg Beratlas, those calls would be a turning point. Years later, he explained why to A&E. When I started to think that Scott was guilty was when Amber Fry came. To hear the tapes, he saw that it wasn't hard for him to lie. He was trying to have both a wife disappeared and he's trying to find her, supposedly, and at the same time, he's still trying to lead Amber Fry on. Seven court days later, on August 23rd, Garagos begins his cross-examination of Amber Fry. Go ahead, Mr. Garagos, Judge Delucchi tells him. No questions, Your Honor. The courtroom gasps. What? Delucchi says. Just kidding, Garagos says, trying to lighten it up a little. There is laughter in the courtroom. Outside, afterward, Sharon Rocha tells reporters she sees nothing funny about the murder of her daughter, Lacey. The defense begins its case on October 18th, 20 weeks into the trial. Garagos builds his argument and on the 21st, he produces one of the witnesses he promised the jury, an expert who he says will prove that baby Connor was alive on Christmas Eve and beyond. Dr. Charles March, a fertility specialist, dates Connor's death to December 29th. That would mean Connor and Lacey were alive five days after Christmas Eve, which would blow apart the prosecution's timeline. Then prosecutor Dave Harris gets up. Dr. March's date depended on an assumption. He had assumed Lacey took a pregnancy test on June 9th, 2002 because she had not announced her pregnancy at a friend's baby shower the day before that. His reasoning out loud on the stand is that women talk. Of course, sometimes they don't talk about things like their own pregnancy at another woman's baby shower where one's friend is supposed to be the center of attention. He concedes he has done no testing himself and that the state's expert, Dr. Gregory DeVore, is better qualified to read the ultrasound. Dr. DeVore estimated that Connor died on either December 23rd or 24th with a few days margin of error on either side. He mapped the measurements from Lacey's first and second trimester ultrasounds forward and then compared them to Connor's size when he was found. Garagos attacked his methodology on cross, but for prosecutors, DeVore's testimony is enormously important. The state had already called forensic anthropologist Dr. Allison Galloway. Based on measurements of Connor's remains, she could only put his age at somewhere between 33 and 38 weeks in the womb, too broad to pinpoint a particular date of death. DeVore gives them a calculation that points directly at the day Lacey disappeared. And the jury listens. DeVore's testimony would later be described as one of the most persuasive pieces of scientific evidence in the state's case. That leaves Garagos's promise about the eyewitnesses. Garagos's own investigator, Matt Dalton, found six people who said they saw Lacey walking that morning and later than the time Scott allegedly left with her body in his truck. Garagos promised them to the jury in his opening statement. He calls none of them. Matt Dalton, the investigator who found those witnesses and interviewed every one of them, still says he does not know why Garagos never called them. The defense calls a total of 14 witnesses. Five of them are police officers and through them, Garagos does elicit testimony repeating what the uncalled eyewitnesses claimed they had seen. The judge tells the jury to only consider the officers' actions in response to those reports, however, not the actual sightings themselves. In other words, these testimonials were hearsay, as told by the officers, and could not be considered for the truth of what the eyewitnesses actually said. For that, you would need to call the witnesses, but Garagos did not. Three of the defense witnesses are subject matter experts, one in cement, one in finance, and one in dog tracking. Garagos also calls Scott Peterson's parents to the stand. When police arrested Scott 30 miles north of the border, they found nearly $15,000 in cash in his car. His mother, Jackie Peterson, tells the jury the money came from her. Ten days before the arrest, she had been arranging to buy Scott's truck to give to his brother, she says, and in the process, she accidentally withdrew $10,000 from an account belonging to Scott. She gave him extra cash to make up for the mistake. Journalist Katherine Cryer, watching from the courtroom, wrote that the explanation sounded illogical, bordering on the absurd. Lee Peterson had been called by the prosecution earlier in the trial. Told the jury, Scott's the fisherman, he says, I'm more the golfer. Under Garagos's questioning, Lee Peterson confirmed Scott was staying in San Diego the week he was arrested, not far from a golf course where his father had an 8 a.m. tea time. Eight days into its case, on October 26, 2004, the defense rests. I asked Mark for his best proof that Scott Peterson is innocent. Not reasonable doubt, but stone cold innocent, like he told the jury. There's no time of death, there's no place of death, there's no manner of death. You say, obviously the body was held under, and it's a, you gave a kind of a synopsis of what the prosecution was. Take any single one of those, the body was held underwater. That's not what the pathologist testified. The prosecution witness was that the body was not underwater. That the condition of the body, and I was at the autopsy, and without getting grotesque, I will tell you that there is no way that body was underwater. And no scientist, nor no prosecution witness ever said that that body was held underwater. It could not have been held underwater, because of the condition that the body was in. So that debunks that. In terms of going fishing on that day, up until the cross-examination of Ron Gransky, who was married to Sharon. Up until trial itself, it was never disclosed that, guess where Ron Gransky was on the day before Christmas, at the exact same time Scott was fishing. He too was fishing. So us bi-coastal elites may not go fishing on Christmas Eve, but if you're in the- He was a fisherman. And so was Scott. Scott wanted to be. Scott was there. He's a fisherman. He wanted to be. Started that desire on the day he murdered his wife. Really wanted to get out there. We'll get to whether the body was underwater in one minute. But first, a response to Garagos's theory of the case. You and I both know that burglars who get spotted by a neighborhood pregnant lady are not known for, let's abduct the pregnant lady, let's kill the pregnant lady, let's hold the body and wait and then we'll dump it in the bay when we find out that the husband took the boat out. They leave. If they're going to do anything to the eyewitness, they're going to hurt her and move on. The notion that these guys came to rob, got spotted by the pregnant lady, captured the pregnant lady, held the pregnant lady, did something with the pregnant lady, then killed the pregnant lady, then held the bodies, then made sure the bodies would wash up. As opposed to the guy who was married to the pregnant lady, who is the most likely to kill her on the face of the earth, that is when a woman is most vulnerable to domestic violence when she's pregnant with a baby, who's having an affair, who's already told the affair partner that his wife has been lost, that he's lost his wife, who's bought a boat without telegraphing it to the family, who goes out, tells a neighbor he was golfing, tells other people he was fishing, produces the receipt that he actually was at the bay where the bodies would ultimately wind up, and magically has four anchors that he produced that we can't find and this body has been held down underwater by something heavy. The two scenarios, it's so clear if you're not representing Scott Peterson. The forensic pathologist who examined Lacey's body did testify that it had been in the water for, quote, months. His name is Dr. Brian Peterson, no relation to the defendant. Dr. Peterson also testifies that there were no tool marks on Lacey's joints. Dr. Galloway, the forensic anthropologist, examined Lacey's body as well. She offers a more specific timeline in court, three to six months in the water. Galloway found barnacles on one of Lacey's exposed bones. Galloway testifies that decomposition alone could explain how Lacey's limbs separated from her body. She found no evidence to the contrary. According to Catherine Cryer, the medical examiner who performed Lacey's sealed autopsy, suggests the limbs were either cut with surgical precision or they were weighted down and pulled apart by the currents of the bay. Prosecutor Dave Harris asks pathologist Dr. Peterson about the weights directly on the stand. Dr. Peterson says either natural decomposition or weights on the limbs could explain how Lacey's body came apart. Her remains were consistent with both explanations. Finally, Dr. Peterson confirms that Lacey's body showed no evidence of a vaginal birth. There was a rip in her abdominal wall big enough that Connor's body could have passed through. This can happen when a mother dies as gases build up and eventually burst through her body in what is known as a coffin birth. No cause of death for Lacey Peterson is ever firmly established. Despite the Garagos charm and lovable swagger about this case, he does have one big regret and I asked him about it. Okay, let me ask you this. At this point in time, because there is still a contingent trying to find a way to get Scott Peterson a new trial, if he got one and you were to handle it, what would you do differently? Well, number one, the biggest mistake I made is it wasn't televised. If it had been televised, then we wouldn't have the urban legends of what the case involved. The people who weren't in the courtroom would tell you that this case fell apart during the entire time. What didn't fall apart was the hatred, the animus, and this idea that he was a bad, bad man that needed to be punished. That did not fade away. But if you had seen the evidence in real time, and there was over 100 witnesses, and when the kind of cherry picking of what the urban legends are were debunked in real time by what actually happened in the courtroom. So the first thing I would suggest to whoever retries this case is you have to have a camera in the courtroom. Judge DeLucchi had barred cameras from the courtroom. So for five months, anyone who wanted to see the trial Garagos believed he was winning had to be in the room. The only way in was as a juror, an alternate, a reporter, or one of the lucky few who won a public seat in the morning lottery. On November 1st and 2nd, 2004, both sides give their closing arguments. On the 3rd, a jury of 12 people goes behind a closed door to decide Scott Peterson's fate. And the drama in that jury room will become yet another twist in this case. I'm Megan Kelly, and this is MK Confidential.