The moment of truth is close at hand for both sides. Much is hanging on a slice of a thread or, more accurately, on the Amber Frey tapes and her testimony. Frey has told her story to a jury who, for the most part, has responded empathetically to her enforced celebrity and the traumatic circumstances surrounding her relationship with Scott Peterson. She appeared well prepared. Represented by media guru and newly glamorized Gloria Allred, Frey has toned down her appearance, making her more attractive, subdued and appealing in front of the jury.
The tapes refer to telephone conversations between Frey and Peterson that were monitored by wiretaps of Peterson’s home and cell phones and also recorded by Frey at the request of the police. Those tapes, by and large, show Peterson to be indifferent, if not callous about his wife, Laci, and willing to say anything to promote his illicit relationship with a very vulnerable and suspicious Frey. Peterson at first tells Frey that he is on vacation in Paris, and then in later tapes admits that he lied and was really in Modesto. He admits to lying about his marriage and makes elusive promises to Frey and her child. Peterson refuses to answer Frey’s question on whether he slept with his wife, Laci, the night before she “disappeared.” Peterson claims that he told his nine-month pregnant wife about his affair with Frey who responds with abject disbelief. It seems the jury agreed with Frey as some of them smirked as they listened.
More importantly, some members of the jury began to glare at Peterson during the course of the playing of the tapes and the testimony of Frey. This is significant. For the first time it appears that the jury is “feeling” the alleged lies and the deliberate and elaborate deceptions of Scott Peterson. The danger for the defense is once the jury reaches a certain threshold and becomes emotionally committed to the prosecution case, the more difficult it will be for them to be moved to find reasonable doubt. The jury will be more inclined now to attach sinister reasons for the continued deceptions, and place more value on the fact that Peterson’s claim to have gone fishing on Christmas Eve day 100 miles away from home clangs false in light of his wife and unborn baby’s remains being found within two miles of where he says he went fishing.
I’ll let you in on a trial lawyer’s secret. In a case of this kind, facts alone will not determine the outcome of the case. A jury, like ordinary people, must be emotionally involved. They need to want to come to a conclusion. Once that is achieved, the lawyer must then show them the way. For the first time, the prosecution may have reached that important threshold in spite of its plodding and often boring presentation. Clearly the wizardry, wit and charm of defense lawyer Mark Garagos have made the prosecution appear to be marginally competent at times and therefore the prosecution case suspect. But now we have reached benchmark that will ultimately determine who will win this case.
Garagos will be given the opportunity to cross examine Frey and to play some additional tapes where Peterson proclaims his innocence to Frey. But there are sharks swimming all around Garagos and he must tread carefully. That old refrain “Fools rush in where angels fear to tread,” should serve as a warning to Garagos. His penchant for an aggressive, bombastic, sarcastic cross-examination will not serve him well with Frey, of whom the jury is likely to be protective. Indeed, Garagos’s real dilemma is whether he should even ask any questions of Frey. Whatever he does is fraught with risk. If he fails to cross examine her, the jury will wonder what he was afraid of, especially in light of his aggressive cross-examinations of the previous witnesses. Yes, he can argue that the defense does not disagree with her that she was wronged, that Peterson lied to her, but mendacity and illicit affairs do not make one a murderer.
On the other hand, he can softly and deftly cross examine her, but that will yield nothing much except to keep her in the presence of the jury, further reinforcing Peterson’s attempts to manipulate her while his wife is proven to be dead. He could ask just a few questions such as, “Did Scott ever admit to having anything to do with his wife’s disappearance at any time?” “Did Scott ever tell you not to go to the police?” Frey would have to answer in the negative, but at what cost to the defense?