The Megyn Kelly Show - Scott Peterson May Get a New Trial - A Look Back at the Case： A ＂True Crime Christmas＂ Special ｜ Ep. 975

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00:00:30.780 Now streaming on Paramount+.

00:00:32.960 Someone is trying to frame us.

00:00:35.860 Until our names are cleared.

00:00:38.440 We're fugitives from interval.

00:00:40.240 Like Bonnie and Clyde with better snacks.

00:00:43.620 Espionage?

00:00:44.320 You still as good a shot as you used to be?

00:00:47.340 Better.

00:00:48.160 Is there love language?

00:00:49.620 We like to walk that fine line between techno thriller and romantic comedy.

00:00:54.420 We make up our own rules.

00:00:56.720 NCIS Tony and Ziva.

00:00:58.180 Now streaming on Paramount+.

00:01:00.200 Welcome to The Megyn Kelly Show.

00:01:03.300 Live on Sirius XM Channel 111 every weekday at New East.

00:01:13.080 Hey everyone, I'm Megyn Kelly.

00:01:14.900 Welcome to The Megyn Kelly Show and the conclusion to our True Crime Christmas series.

00:01:19.740 Today we're looking at the Scott Peterson case, which we've covered on the show before,

00:01:23.740 but there is new information this year.

00:01:26.340 It's actually kind of unbelievable.

00:01:28.400 And an effort underway to get the man convicted of killing his pregnant wife, Lacey, and their

00:01:33.600 unborn son, Connor, a new trial.

00:01:36.840 Joining me today, our pal, Matt Murphy, former California prosecutor and district attorney.

00:01:42.080 Now streaming on Paramount+.

00:01:45.520 Someone is trying to frame us.

00:01:48.500 Until our names are cleared.

00:01:51.040 We're fugitives from interval.

00:01:52.840 Like Bonnie and Clyde with better snacks.

00:01:56.280 Espionage?

00:01:56.900 You still as good a shot as you used to be?

00:02:00.000 Better.

00:02:00.740 Is there love language?

00:02:02.200 We like to walk that fine line between techno thriller and romantic comedy.

00:02:07.500 We make up our own rules.

00:02:08.760 NCIS Tony and Ziva, now streaming on Paramount+.

00:02:12.780 Matt, good to see you again.

00:02:16.280 Thank you for being here.

00:02:17.700 All right, so this is so crazy.

00:02:19.900 The more I hear about this case, the more it feels like Scott Peterson actually has a shot

00:02:27.460 at a retrial, which just seems insane to me.

00:02:31.860 But since you're a prosecutor and you're from California, I'm going to play devil's advocate

00:02:37.820 here and I will try to make the case on his behalf, okay?

00:02:42.640 It's more interesting if we have both sides.

00:02:46.200 So he's just been given wide access to a whole new host of discovery that he says he was entitled

00:02:53.660 to in this case, which my understanding is the judge had earlier said, you're not getting

00:02:57.600 this, go back to prison, goodbye. 0.58

00:02:59.220 But now he is getting access to a bunch of new evidence that would support allegedly this

00:03:06.080 whole theory that what happened on the day Lacey Peterson went missing and was murdered

00:03:11.780 was not that Scott Peterson killed her and then disposed of her body and that of their

00:03:16.080 unborn son.

00:03:17.120 It was that she witnessed a burglary across the street from where they lived.

00:03:22.860 She either tried to stop it, which is what Scott Peterson says he believes, or she was

00:03:29.840 just an eyewitness and therefore became a target.

00:03:32.680 They abducted her.

00:03:34.260 They killed her.

00:03:36.160 They then drove around with her body for some sort of period.

00:03:40.740 And then when the police made clear that Scott Peterson was believed to have been at this

00:03:46.280 harbor, this marina on the day that Lacey went missing, they thought, aha, this is our chance.

00:03:51.960 We're going to dump the body over there so that he will be blamed for this crime.

00:03:57.700 And it does appear like this judge has at least opened up discovery again for him to start probing

00:04:03.680 that theory more meaningfully.

00:04:05.920 Is that about where things stand?

00:04:09.780 Yeah, that's about where things stand.

00:04:12.180 I mean, it's utterly absurd.

00:04:14.840 But yeah, it's look, I thought you hate it.

00:04:18.440 When women who are seven and a half months pregnant go charging in to stop burglaries and

00:04:24.980 then burglars who are there to steal drive around for days and days with a dead body in

00:04:29.940 their car of somebody that they killed just because apparently.

00:04:33.980 And then they get really smart at that point and decide that they're going to drive to probably

00:04:39.800 a marina that will have more law enforcement witnesses and everybody else because the attention

00:04:44.720 given this case back in the day, and they're going to take the body out and go to pretty

00:04:49.320 much the exact same place that Scott Peterson was fishing, according to him, and dump the

00:04:54.320 body.

00:04:55.520 Yeah, it happens all the time.

00:04:57.240 You know, I mean, let's give them a new trial.

00:04:59.240 And not to help you out because, yeah, I'm supposed to be taking the other side.

00:05:03.180 But the other piece of that story that's just so nonsensical is if that's what they wanted

00:05:08.520 to frame him, why would they weigh down the body in the ocean with a bunch of anchors?

00:05:14.720 Why wouldn't they just throw the body on the shore or go out in the middle of the night

00:05:19.140 and dump it overboard so it would float back in?

00:05:22.600 Because burglars go and make fake anchors with cement that they purchase all the time.

00:05:27.600 That's why.

00:05:28.340 I mean, anybody, anybody knows that.

00:05:29.960 It's like this is this is one of this is the latest case in a few of these that are

00:05:36.020 going on right now where it's kind of like, you know, a couple of decades have gone by

00:05:41.040 and everybody has forgotten the overwhelming evidence against Scott Peterson.

00:05:46.860 And this guy, look, this is a domestic violence murder.

00:05:50.920 And I don't have to say alleged because the guy is convicted right now of it.

00:05:55.140 So, you know, everybody forgets Amber Frey and all of the stuff regarding the affair and

00:06:02.360 the fact that he dyed his hair and had $15,000 and was down in San Diego and looked like he

00:06:07.160 was going to flee to Mexico.

00:06:08.480 It's like we get these cases.

00:06:10.360 Menendez Brothers is another one right now where everybody forgets.

00:06:14.500 And then all of a sudden, you know, hey, the L.A.

00:06:17.400 Innocence Project is on there, which is a misnomer if there's ever been one.

00:06:22.420 Yeah.

00:06:22.620 Tell us about them.

00:06:23.380 I mean, look, they they they did some really good work back in the day when right when DNA

00:06:29.740 became ubiquitous in in when CODIS went online and every state joined it and right when they

00:06:37.480 were using modern cofiler and profiler DNA kits, which are way easier than the old RFLP

00:06:43.660 to understand that that's the the gel, you know, that they used to inject.

00:06:47.380 So they they found they found some people that were wrongfully convicted.

00:06:52.200 And that happens in our system.

00:06:53.880 I sit on a board with Purdue University where that's our sole task is trying to trying to

00:06:58.800 identify people who are wrongfully convicted.

00:07:00.540 But since that initial flurry of kind of glory, if you call it that, where they're they're doing

00:07:06.140 good work, you know, finding people that were wrongfully convicted, they've it seems like

00:07:11.100 they've really settled more into stuff like this high profile stuff that that gets a lot

00:07:17.300 of headlines.

00:07:17.860 And then as soon as you all your all your viewers have to do is just read the Wikipedia on this case,

00:07:24.160 the California Supreme Court affirmed this conviction seven to oh, they reverse the

00:07:30.220 they were first the death part because of the some irregularities during jury selection.

00:07:35.500 But they affirm his conviction.

00:07:37.240 And another term that we keep hearing, there's a Newsweek article on this.

00:07:41.880 And it, you know, the defense alleges it was circumstantial evidence.

00:07:46.480 We've all heard that.

00:07:47.380 We've seen that in TV shows, right?

00:07:48.940 Like you see Starsky and I mean, I'm going to date myself here.

00:07:52.380 Starsky and Hush or Cagney.

00:07:53.860 I know the reference.

00:07:54.780 You know, whoever the cops are today.

00:07:57.140 And we we have this concept and it's a myth that circumstantial evidence, quote unquote,

00:08:02.400 is somehow inadmissible or bad evidence.

00:08:05.220 And that's exactly the way Newsweek wrote their article on this that I read this morning.

00:08:08.660 Case based on circumstantial evidence, according to L.A.

00:08:12.140 Innocence Project.

00:08:13.140 It's like every single domestic violence, murder guys in America and in the world throughout

00:08:19.140 history involves some degree of circumstantial evidence.

00:08:22.820 Direct evidence just means a witness comes into court and they say they saw something.

00:08:28.360 Circumstantial evidence is pretty much everything else.

00:08:31.640 I mean, circumstantial evidence.

00:08:32.800 It's like, you know, this guy had every poker tell that you could ever want during this

00:08:39.320 investigation, including refusing at one point to communicate with her family, refusing

00:08:44.220 to speak to the police anymore.

00:08:46.680 He told his his his paramour mistress, whatever we want to call Amber Frey, that Lacey was

00:08:54.280 dead when she was very much alive.

00:08:56.660 He said that he was a widower.

00:08:58.100 He bought this boat two weeks before she disappeared.

00:09:00.300 He bought cement, which is consistent with the way her body was found.

00:09:04.940 Her body was heavily decomposed.

00:09:07.100 And they believe that the coroner testified at the time that it was consistent with with

00:09:12.260 several anchors holding her down.

00:09:15.420 There's so much overwhelming evidence here.

00:09:18.440 And circumstantial evidence is that good old fashioned common sense stuff like somebody running

00:09:24.820 away from a crime scene, somebody in possession of stolen property from a recent burglary that

00:09:29.680 that happened down the street from that, like circumstantial evidence is the bread and butter

00:09:34.300 of every domestic violence murder case in the history of justice.

00:09:40.240 And that really is the right word for it is justice, like holding people accountable for

00:09:44.320 what they did.

00:09:45.120 The evidence against this guy is is laughably overwhelming.

00:09:50.480 And they come in, they get the headlines, Ellie, Ellie Innocence Project, and then everybody

00:09:55.720 forgets all that stuff.

00:09:57.200 And it's like, ooh, there was a van down the street with a mattress in it.

00:10:02.280 And essentially, that's what the current legal action is about.

00:10:05.860 They want to test a mattress that was found in some burnout van somewhere in the neighborhood

00:10:12.240 of where Lacey Peterson lived.

00:10:15.140 OK, so, you know, if if they get in there and and I can already already tell you what

00:10:20.660 the argument is going to be, the mattress, which they say has blood on it, but that the

00:10:24.480 initial test suggested maybe it was blood.

00:10:26.700 Then the second test done by the officials suggested it was inconclusive, not clear whether

00:10:31.180 it's blood or rust.

00:10:32.140 Go ahead.

00:10:32.660 Sorry, Matt.

00:10:33.280 Right.

00:10:33.760 What they're going to if they get that thing, they're going to they're going to swab it.

00:10:37.480 And modern modern genetic and DNA testing is so sensitive, I can virtually guarantee you

00:10:43.680 will find unknown male DNA on that mattress.

00:10:46.620 And the next thing that the Innocence Project is going to do is they're going to say, aha,

00:10:50.600 that's the DNA for the real killer.

00:10:52.380 And it doesn't match Scott Peterson.

00:10:54.080 But without a link to Lacey Peterson, it is it is literally meaningless.

00:10:58.820 And and look, we see that all the time in a lot of cases.

00:11:02.720 Like like I said, there are cases where DNA has legitimately freed people that didn't

00:11:08.880 do it.

00:11:09.380 And thank goodness for that.

00:11:10.440 And that's why we want the system to work.

00:11:12.080 And forensic technology is unbiased.

00:11:15.360 And it thank goodness.

00:11:17.140 Right.

00:11:17.420 Like but there's also a lot of these cases, Megan, that and this is something that drives

00:11:21.600 me crazy, where you'll have, you know, something that happened, maybe say a rape

00:11:26.420 murder and in the nineteen nineteen eighty.

00:11:28.820 OK, and somebody will have been convicted of rape murder, the jury who, in my experience,

00:11:34.540 I've done a lot of capital case litigation.

00:11:36.100 I've done a lot of cases like this, which are bifurcated murder trials.

00:11:39.680 The juries take their task very seriously.

00:11:42.220 The judges tend to be the most experienced and the best.

00:11:45.280 The detectives tend to be the most experienced and the best.

00:11:48.020 And it's imperfect.

00:11:49.440 But everybody really wants to do their job.

00:11:51.960 So then a couple of decades later and and and say it's a homeless drifter.

00:11:56.260 OK, and that guy is convicted and maybe he's got some some sex offenses in his past.

00:12:01.520 And the way it works over and over again is he'll say, hey, it was consensual sex.

00:12:06.360 She I understand that she's a stockbroker and I was living in a tent.

00:12:09.700 But trust me, we really had a spark.

00:12:12.040 And and boy, did we hit it off.

00:12:13.740 And so that's why my sperm was found all over the place. 0.97

00:12:17.380 But somebody else came along later and killed her. 0.97

00:12:20.040 And that will be the absurd, ridiculous defense that they will run and the jury will reject 0.71

00:12:25.200 it properly and he'll get convicted.

00:12:27.760 And then what happens is that, you know, that the DNA comes back like 20 years later, 30 years

00:12:34.260 later, and they'll test the scrapings under her fingernails or they'll test some object 1.00

00:12:39.360 that's found at the crime scene.

00:12:40.660 And, you know, if she pat if she patted a little boy on the head that day or if she shook hands

00:12:47.160 with her mailman or something, you can discover unknown male DNA that has no link whatsoever

00:12:53.160 to the actual murder.

00:12:54.720 But the standard on appeal is could a jury could a reasonable jury have found differently?

00:13:01.500 Essentially, could they have could they've come to a different result based on that new

00:13:06.160 evidence?

00:13:06.520 And the answer under those circumstances is, yeah, if they didn't consider that, maybe

00:13:11.120 so.

00:13:11.780 So that's the standard for reversal on appeal.

00:13:14.140 Then so the case comes back for a retrial and Aunt Millie, who worked in the evidence

00:13:19.180 room, put it in the wrong box or the evidence got washed away in the great flood of 82 or

00:13:24.040 and they can't redo it or the or the critical witnesses have died.

00:13:27.960 The investigator necessary to lay the foundation for that evidence has has passed away.

00:13:32.500 Like you can have this entire host of problems that can afflict a case like that 30 years

00:13:38.120 later.

00:13:38.400 So they they can't retry it.

00:13:41.760 And then what happens is you've got people like Barry Sheck in front of the cameras going

00:13:45.840 another innocent man exonerated, which is the term they love, exonerated from DNA evidence

00:13:51.540 when they weren't exonerated at all.

00:13:53.840 They were they were granted a new trial and the prosecution couldn't proceed.

00:13:57.420 And then that guy goes out and this has happened over and over and over again in America, because

00:14:03.020 we know sex offenders keep doing it again.

00:14:06.220 So they'll get out.

00:14:07.240 They'll sue the county.

00:14:08.140 They'll get settlements for a couple million bucks and then they get caught for doing it

00:14:12.020 doing it again.

00:14:12.840 And nobody wants to talk about this.

00:14:14.440 And it drives me insane.

00:14:16.660 Scott Peterson is a relatively young man.

00:14:18.960 I mean, if he were to get out, I think he would pose a danger to other women and other

00:14:24.520 people. 0.96

00:14:24.700 Like, obviously, it would take the most stone cold sociopath in America to murder one's eight 1.00

00:14:33.380 month pregnant wife and one's unborn child with your bare hands and then dump them in 1.00

00:14:39.860 the ocean like they were trash while you're talking to your lover with these nonsense claims 0.91

00:14:47.480 while you're actually we actually have this queued up because it's just so amazing while 0.98

00:14:52.020 you're actually at the vigil for your missing wife and child talking to your lover.

00:14:59.740 And Amber Frye's defense here. 0.97

00:15:01.820 She did not know he was married.

00:15:03.580 And at this point, the reason it's on tape is because when she saw his picture all over

00:15:07.360 the news, she called the cops to say, holy cow, I'm dating your suspect.

00:15:12.320 Um, and so she got him on tape and he's claiming he's in Paris on New Year's Eve while Lacey's

00:15:19.000 still missing.

00:15:19.560 They haven't found the body.

00:15:20.740 He's there.

00:15:21.380 The vigil's there.

00:15:22.080 The people with the candles.

00:15:23.160 He's on camera like, oh, poor, poor husband.

00:15:26.260 And he's talking to the lover about the fake Paris fireworks.

00:15:30.160 Here it is.

00:15:30.540 Unreal is exactly the word.

00:15:45.040 Now, Matt, I want to ask you a couple of things.

00:15:46.400 Okay.

00:15:46.540 So first of all, you meant the, I, I understand there is a distinction between the innocence

00:15:50.640 project and the LA innocence project.

00:15:54.100 Um, I don't know about this LA innocence project because I, in my experience, the bar is a little

00:15:59.340 high for the innocence project to take on your case.

00:16:02.080 I don't know about LA innocence.

00:16:04.020 I've seen this.

00:16:05.260 There's like a cleavage there, uh, in the reporting about these two.

00:16:08.480 Maybe they have a lower standard.

00:16:10.220 Secondly, um, the judge did say before she ordered all this discovery of all this extra

00:16:16.520 stuff, like the van and things around the van, we'll get to the specifics.

00:16:21.520 She did say, um, you can go back and do DNA testing on the duct tape that was found on 1.00

00:16:27.260 Lacey's pants.

00:16:29.560 When they found her body, there was still some duct tape wrapped around her from whoever

00:16:33.840 wrapped her and connected her to anchors.

00:16:36.880 That could be one of those situations that the results of that are under seal, but that

00:16:40.700 could be one of those exact situations you just mentioned where maybe they won't find

00:16:45.180 Scott's DNA on that, but maybe they'll find the DNA of the guy who worked at the Lowe's

00:16:49.340 from whom Scott Peterson bought the duct tape.

00:16:53.940 Now, if they found DNA that matches the DNA of one of the two burglars, although they're

00:17:01.340 saying it wasn't them, it was their network.

00:17:04.500 But let's just say they found DNA that matches one of the two burglars that she allegedly caught

00:17:09.320 in the act.

00:17:10.100 Now you're talking right now.

00:17:11.980 Okay.

00:17:12.500 Now you've got our attention.

00:17:13.600 So far, he's still sitting in prison and there's no retrial.

00:17:17.700 So I'm guessing they didn't get that on the DNA return.

00:17:22.040 Okay.

00:17:22.260 And then the second thing I wanted to point out is you mentioned the absurdity of him

00:17:25.600 going to take his boat, his brand new boat.

00:17:28.760 He'd never taken out before.

00:17:29.960 He wasn't really a fisherman.

00:17:31.200 He takes his boat out on the, on the water Christmas day, um, just for the very first time

00:17:38.060 on Christmas day.

00:17:38.880 And, uh, he initially when asked, where were you while your wife went missing and the dogs

00:17:45.960 running around the neighborhood and all this, he's initially said he was golfing and then

00:17:50.580 he changed his story, right.

00:17:52.860 To make it fishing, presumably because he realized they had something that could prove he was in

00:17:57.060 the area of the Marina.

00:17:58.820 That's right.

00:17:59.720 And not only, not only did he say he was golfing too.

00:18:03.040 He said that in front of neighbors, whoever heard it, he said that about a dozen times.

00:18:08.260 So it's not like one person might've misrecollected.

00:18:11.520 He said it over and over and over again.

00:18:13.380 And that was his story.

00:18:14.380 He didn't want anybody knowing that he was there apparently.

00:18:17.560 And, you know, I mean, look, this is, you know, when you see enough of these, it's like

00:18:23.320 he, he did everything that you expect to see.

00:18:27.340 And that's one of them.

00:18:28.280 Like when, when the truth is you didn't do it.

00:18:31.100 Okay.

00:18:31.540 And that like in any murder case, there's a quality of the way people behave.

00:18:35.960 And, and the, if the truth is you didn't do it, you don't build a ladder to the truth

00:18:40.320 with a bunch of lies.

00:18:41.980 And yeah, he said, he, he said he was golfing, you know, there, there, you know, he bought

00:18:47.680 the boat two weeks before.

00:18:49.400 And here's another thing that, again, it's like, I shout at my TV when I see this come

00:18:53.160 on, they found her hair in pliers inside the boat.

00:18:57.500 You know, they, they, they matched it with mitochondrial DNA, that's hair, teeth, bones,

00:19:02.140 things like that.

00:19:02.680 So the numbers aren't, you know, overwhelming.

00:19:04.920 It's not like one in octillions, but it's Lacey Peterson's hair in a pair of pliers in

00:19:09.700 the boat, which is totally consistent with him dumping her body and using that tool as

00:19:15.280 he's affixing her to these homemade anchors.

00:19:17.640 There's so many individual small points of corroboration with the prosecution's theory that

00:19:23.100 just nobody wants to talk about.

00:19:24.680 You know, it's when, when you, when you put it together, every one of these cases,

00:19:28.540 Megan is like a collage, you know, each piece it's, it's like, where does this fit in the

00:19:33.800 picture?

00:19:34.120 And sometimes like a mattress down the street, it probably has no part of it in any way.

00:19:39.080 But, but when you start putting little pieces together, you start to see the big picture

00:19:44.080 and here, you know, you've got Amber Frey saying his wife is already dead.

00:19:48.500 He buys the boat two weeks before he's actually in the Marina, you know, in this, in this

00:19:53.520 place and left her a voicemail saying, Hey, beautiful, I'm back from the Marina, which

00:19:57.040 is also odd because he left his house in where they live, which is not super close to the

00:20:02.360 Marina.

00:20:02.560 And, and he leaves it.

00:20:04.280 90 miles away.

00:20:05.760 Right.

00:20:06.180 It's 90 miles away.

00:20:07.480 And he's calling her at two 30.

00:20:09.340 He leaves at nine 30.

00:20:10.480 He's calling her two 30 saying, Hey, beautiful, I'm on my way back.

00:20:13.660 So he goes fishing by himself on Christmas day.

00:20:16.200 And he, what, how much time is there to launch a boat that he probably isn't that skilled

00:20:20.280 with at that point?

00:20:21.080 He goes and fishes for 30 minutes, you know, like, and he never used a single lure.

00:20:25.240 No, give me a break.

00:20:27.840 There's so many problems with that.

00:20:29.260 And then when he's arrested, he's in San Diego, he's changed his appearance.

00:20:32.980 He's got $15,000 in cash and he's got survival gear in a car and he's got two different IDs.

00:20:38.860 He's in possession of his brother's ID.

00:20:40.460 Like, I mean, those are the types of things.

00:20:43.200 Each one of those things is something that a jury gets to weigh and consider and on determining

00:20:48.940 whether or not he's the guy.

00:20:50.620 And so you have these, there's always a burglary down the street.

00:20:55.140 There's always some, somebody got.

00:20:57.760 Okay.

00:20:57.880 Okay.

00:20:58.200 But now, now this is where I'm going to try to defend the defense theory because it's

00:21:02.160 really Scott Peterson's sister-in-law who has been his biggest advocate.

00:21:06.480 She's married to his brother and she's been, I mean, all over this, like white on rice, 0.99

00:21:11.020 like to the point where she went to law school much later, long after he was convicted, not

00:21:16.860 necessarily to try this case for him or to, you know, pursue, but because she was so immersed

00:21:21.640 in the, in the legalities around it.

00:21:23.900 So then they get innocence project involved or LA innocence.

00:21:27.560 So here are some of what they say are the facts that suggest he didn't do it, that they

00:21:36.700 should have been able to argue all of this to a jury and that they weren't given full disclosure

00:21:43.160 by the prosecution of what the prosecution had done on some of these leads.

00:21:48.080 All right.

00:21:48.280 I'll give you a couple of them.

00:21:49.940 First of all, there's a neighbor, a neighbor named Diane Jackson who claims she saw three

00:21:57.040 men and a van in the neighborhood at the time Lacey went missing.

00:22:03.280 So Diane can presumably place a van and three men in the neighborhood when she went missing.

00:22:10.460 Okay.

00:22:10.660 That's a piece that the defense would like to argue.

00:22:13.500 Then there is this guy named Tom Harshman who claims he saw a pregnant woman being forced

00:22:23.940 into a van, Matt, and called in a tip, but it was never followed up in on.

00:22:30.480 He called back to say, I'm telling you, I saw, I think it was this guy who called back in

00:22:36.620 any event that he had seen this and in this discovery, I'm sorry, in this Peacock channel

00:22:43.100 show called face to face with Scott Peterson, where they got Scott Peterson on camera and

00:22:49.120 doing an interview from the jail.

00:22:50.840 Very well done.

00:22:51.640 They have a clip of this guy.

00:22:54.420 Do we have it team?

00:22:56.820 Tom Harshman.

00:22:58.080 All right.

00:22:58.400 We'll drop it in, but he sounds a little drunk to be perfectly honest.

00:23:03.660 I, his words are kind of slurry, Matt, but he does say he saw a pregnant woman being forced

00:23:09.440 into a van.

00:23:10.000 I mean, those two things alone, yeah, you got to admit as a defense attorney, you, you'd

00:23:15.280 like to know about those and you would certainly be arguing to the jury.

00:23:18.120 Let me tell you what that van did to Lacey Peterson.

00:23:21.340 We seen a girl and she was pregnant and she was in a van. 0.77

00:23:28.240 We were worried about it.

00:23:30.660 She had to pee.

00:23:31.980 So they took her over to a fence and then said, forced her back in the van. 0.97

00:23:37.380 It was kind of manhandling her.

00:23:40.980 She was kind of fighting. 0.99

00:23:43.560 My wife says, don't get into this. 0.59

00:23:45.840 Stay out of it.

00:23:47.320 She says, if they're bad people, they don't hurt you.

00:23:52.060 Yeah.

00:23:53.060 Okay.

00:23:53.940 So number one, passionate belief, Megan, as, and look, we see this all the time.

00:23:59.040 We see this politically in our country on both sides.

00:24:02.720 Passionate belief has no necessary connection to the truth.

00:24:07.840 Okay.

00:24:08.020 Just doesn't like you can, you can have a sister-in-law who's banging the drum and, and

00:24:12.120 absolutely, I'm sure she personally believes this, but that doesn't equal evidence.

00:24:19.180 Okay.

00:24:19.460 So it's also very important to remember that Lacey Peterson and, you know, again, I don't

00:24:26.480 want to age myself here, but I remember this case very well when it happened, as I'm sure

00:24:31.060 you do too.

00:24:31.920 You're way younger than me, Megan, but look, she was missing. 0.94

00:24:36.340 Okay.

00:24:37.080 And when it comes, when you prosecute cases like this, um, when somebody is missing before

00:24:42.280 the body's found, those are the ones that, that get all of the national media.

00:24:47.460 It's like my Samantha Runyon case back in the day, a little five-year-old girl that

00:24:50.640 disappeared.

00:24:51.180 We had international media attention.

00:24:52.840 The president of the United States was talking about that because that catches the headlines.

00:24:56.940 My Tom and Jackie Hawk's case, that couple was missing.

00:24:59.580 They were the ones tied to the anchor and thrown overboard, right?

00:25:02.220 Those get overwhelming media wise because it, it captures the public public's attention.

00:25:07.420 This was an absolute run-of-the-mill, bread-and-butter domestic violence murder in almost every way to

00:25:15.200 be almost to the point of being boring.

00:25:17.280 Okay.

00:25:17.400 This is so common.

00:25:18.480 But for the fact that Lacey Peterson was pretty, she was pregnant and she was missing.

00:25:25.260 Okay.

00:25:25.440 So we all saw that photo of her.

00:25:27.240 So what happens that, and I can tell you this from personal experience, good, you know, good-hearted,

00:25:34.220 well-meaning members of the community, people, neighbors, and complete strangers come out of

00:25:38.700 the woodwork because they want to help.

00:25:40.760 So when you talk about this guy, um, you know, Tom Harshman, you know, that, that is something

00:25:46.180 that the, this was the, the biggest case in the world for the period of time that she was

00:25:50.780 missing.

00:25:51.040 And she was missing for a long time.

00:25:52.800 This was Christmas day.

00:25:54.120 Her body wasn't discovered until April.

00:25:55.800 So this was something, there's been movies made out of this.

00:25:58.940 So well-meaning people come out of the woodwork.

00:26:01.040 And I'll tell you what, you know, when you talk about another big thing that the defense

00:26:05.600 has raised is one of the arguments they made in their court documents that I read was, look,

00:26:10.460 if there, there are all these neighbors that say they saw her, you know, after she had died

00:26:15.460 and all these people, and if even one of them is right, that means Scott Peterson couldn't

00:26:19.280 have done it.

00:26:19.880 Okay.

00:26:20.040 That's, that's the way the argument goes.

00:26:21.780 There were just, just to be clear, just to be clear.

00:26:24.460 That's because the, the defense would like to say Scott Peterson left the house early

00:26:29.000 that morning to quote, go fishing.

00:26:31.260 And so if Lacey Peterson was out and about walking around after Scott had left the house,

00:26:36.460 obviously he didn't do it.

00:26:37.740 Keep going, Matt.

00:26:38.740 Right.

00:26:39.220 That's right.

00:26:40.040 So it's essentially, it's like a retroactive alibi, you know, Hey, if that person, okay.

00:26:44.700 So, so here's, here's something for you just to keep in mind.

00:26:47.800 There were 74 officially reported sightings of Lacey Peterson in 26 different States and

00:26:55.620 overseas during the time that she was missing 74.

00:26:58.860 Those are regular folks who were like, Hey, I saw, I think I saw her.

00:27:02.980 I think I saw her in, you know, um, Amagansett, New York.

00:27:07.040 I think I, it's like Madeline McCann.

00:27:10.040 Right.

00:27:10.640 No, a hundred percent.

00:27:11.640 Remember that case.

00:27:12.060 It's like, how many, everybody's like, I saw her here.

00:27:14.020 I saw her there.

00:27:15.300 How many people saw Elvis?

00:27:17.320 You know, it's people.

00:27:18.720 And the thing is, some people really want to help.

00:27:21.060 They're well-meaning.

00:27:21.500 And also I can tell you again, from personal experience, every wackadoo comes out of the,

00:27:26.180 of the woodwork saying, I'm certain of this.

00:27:28.840 And what happens when you get like, like it's, and I don't want to criticize the defense too

00:27:33.540 much.

00:27:33.720 It's, it's their job to raise issues, you know, especially at the trial level.

00:27:38.920 But my problem is sort of the public's willingness to indulge nonsense, you know, in something

00:27:45.640 like this, this is a horrific double murder.

00:27:47.520 This woman was seven and a half months pregnant. 0.58

00:27:49.700 Um, Scott Peterson did it.

00:27:51.500 He's convicted of it.

00:27:52.500 The California Supreme court, which is absolutely not.

00:27:55.340 I can also tell you not a rubber stamp for, for criminal convictions.

00:27:59.400 The California Supreme court upheld this seven to zero, you know, and they, again, they reverse

00:28:05.640 the death penalty part for reasons unrelated to the guilt of Scott Peterson seven.

00:28:10.100 Oh, it was because the judge on the jury selection said to the jury, could you, if he's

00:28:16.420 found guilty, could you impose a sentence of death potentially?

00:28:19.020 And he said, if you can't, then you can't sit on this case, something like that.

00:28:23.580 And you're not allowed to say that.

00:28:24.860 Right.

00:28:25.120 Right.

00:28:25.380 Right.

00:28:25.680 It was, it was, yeah.

00:28:27.040 And the thing is, if they just, it was a, it was kind of an innocent way of, I don't

00:28:32.260 know if that judge hadn't done enough capital case litigation.

00:28:34.660 Essentially what was happening was when jurors were saying, um, I, I do not believe in the

00:28:39.840 death penalty.

00:28:40.600 The court has to ask the additional question.

00:28:43.380 Could you follow the law?

00:28:44.760 Could you set your personal beliefs aside?

00:28:47.380 And the vast majority of the time they say, no, I actually had a woman who voted death

00:28:52.320 on a case who said, I'm, I'm religiously against it.

00:28:55.300 I believe the death penalty is murder, but I could follow the law. 0.88

00:28:57.660 So the judge, and I kept her on and she imposed the death penalty. 1.00

00:29:02.000 So the judge didn't ask that next question.

00:29:05.440 Can you set it aside?

00:29:06.380 Like you simply because somebody's opposed to it politically, religiously doesn't mean

00:29:11.420 they're necessarily disqualified as juror.

00:29:13.480 That was the problem.

00:29:14.360 So we are talking, I mean, the common use of that or the common term would be, that's

00:29:18.820 not only a technicality, that's kind of a hyper technicality.

00:29:21.800 I don't disagree with the California Supreme court's decision on that.

00:29:25.100 That was a mistake made by the judge.

00:29:25.980 This is why Scott Peterson's death sentence was reversed and commuted to life in prison.

00:29:31.300 But now obviously they're seeking much, much more than that on team defense.

00:29:35.500 And I've also, I read one article where it's like the, the way they wrote it was so disingenuous.

00:29:40.420 It's like the, the California Supreme court has already had reservations.

00:29:44.700 That's not true.

00:29:46.200 That is absolutely not true.

00:29:48.540 I want to, it's like, I, it drives, this drives me crazy.

00:29:51.340 It drives me crazy.

00:29:52.000 They're reversing, but let me keep going with the, with the evidence that Scott and his

00:29:57.200 sister-in-law and his defense team say warrants a retrial or the reopening of this case.

00:30:03.240 Um, now there was a man named Xavier Aponte, who I think is a prison guard who came in with a tip

00:30:13.580 claiming that he heard something that would exonerate.

00:30:22.260 I might be mixing up my, my witnesses.

00:30:26.220 Hold on.

00:30:26.520 This one says a tip came in from Xavier Aponte late in the trial that claimed Lacey had confronted

00:30:31.220 the burglars, which could have led to her murder.

00:30:33.660 That's yeah, this is the guy.

00:30:35.300 And, um, the defense claims we were never given this information, even though the, the

00:30:39.260 police invest, uh, talk to this guy, the prosecutors claim that the statement was recanted.

00:30:44.640 But again, this, uh, peacock piece face to face has an interview with Xavier where he denies

00:30:51.420 recanting it.

00:30:52.260 Um, it appears that he may have overheard a prison conversation to this effect.

00:30:58.160 And he says, I didn't recant it, but apparently he admits that it was like a rumor he was hearing.

00:31:06.220 My name is Xavier Aponte.

00:31:08.260 I was a correctional officer at the California rehabilitation center in Norco.

00:31:14.560 In January, 2003, one of the correctional officers responsible for monitoring inmate calls overheard

00:31:22.500 a conversation.

00:31:24.220 There were rumors on the street that Lacey Peterson had walked up and interrupted a burglary down 1.00

00:31:31.620 the street from her house.

00:31:36.080 I contacted the Modesto PD's tip hotline because somebody might want to follow up on it.

00:31:43.780 At no time, uh, have I ever recanted my statements.

00:31:49.580 What I did say is that his conversation seemed to be, uh, hearsay from the talk on the street.

00:31:59.440 I don't know.

00:32:00.680 Like, I understand how you and I are like, oh, come on.

00:32:04.640 But if you're Garagos, right, who was his defense lawyer at trial, you want all of this because

00:32:11.580 now you're like, okay, that is supportive of my theory.

00:32:15.980 There was a van in the neighborhood.

00:32:17.680 We know there was a burglary across the street from Lacey.

00:32:20.760 Um, we have a witness who says they saw three guys and the van.

00:32:25.920 And then we have another witness who says he saw a pregnant woman being forced into the van.

00:32:30.600 Now you have this guy who says Lacey confronted the burglars.

00:32:34.680 It's all coming together.

00:32:36.060 You can see a defense lawyer trying to drive a freight train through that in front of a jury

00:32:41.060 that may or may not be gullible or susceptible to this kind of argument.

00:32:47.640 And then the final piece is her watch.

00:32:50.720 Let's just stop before we get to the watch with Xavier Aponte and this alleged claim that

00:32:56.740 Lacey confronted the burglars.

00:33:02.900 Yeah.

00:33:03.440 I mean, look, it's like with, with a cape on another thing to keep in mind on that is that

00:33:08.140 remember all the neighbors that came out because, because his dog was running around.

00:33:12.580 Remember this, this, this is nine 30 on Christmas, Christmas day.

00:33:16.160 So this is a, uh, like every neighbor on that street, it seems like saw their dog.

00:33:23.120 Remember they all came forward and, or heard Scott talking about how you went golfing.

00:33:27.240 So there are people out and about, this is not, this didn't happen at three o'clock in

00:33:30.980 the morning.

00:33:31.620 So, so when everybody sees the dog, right.

00:33:35.520 Um, and literally, and one of the neighbors actually, it was seen by multiple neighbors

00:33:40.120 that it was important for establishing the timeline.

00:33:43.120 And one of the neighbors actually went and put the dog in the backyard with them.

00:33:47.000 And it was the muddy leash and all that.

00:33:48.700 It was a golden retriever.

00:33:49.620 And we can all picture that.

00:33:50.520 So it's like, everybody sees the dog, but nobody sees Lacey getting forced into a van on

00:33:54.500 their street on Christmas day at nine 30 in the morning when everybody's out and about,

00:33:58.580 you know what I mean?

00:33:59.360 Like, are, are, are we really having this conversation?

00:34:02.960 Not you and me, but like, okay.

00:34:05.700 So you've got three guys in the van coming through, like, are they ninjas?

00:34:10.200 Are they invisible, you know, like, you know, and so some dude, um, is, is interviewed 20

00:34:16.600 years later who said, yeah, well, I heard a rumor in jail, which, and this is another

00:34:21.600 thing that kind of drives me crazy.

00:34:23.260 Sorry to rant here, but jailhouse informants have are bad, right?

00:34:28.960 Like I thought, I thought rumors in jail, we weren't supposed to rely on them.

00:34:32.160 And I, look, I never used a jealous informant in my entire career because of all the inherent

00:34:37.140 problems with a criminal, who's going to try to throw somebody else under the bus and say

00:34:41.400 what they heard.

00:34:42.000 Like they're inherently unreliable witnesses.

00:34:44.980 And that's something that I have to agree with a lot of public defenders about.

00:34:48.480 Like I, that was something that there was a big scandal in orange County about it.

00:34:51.460 Like, like they're inherently unreliable, but now there's a rumor in a jail and this

00:34:57.200 means everything.

00:34:57.820 This is the, this is the key to the whole thing.

00:35:00.720 Look, I know Mark Gary goes very well.

00:35:02.600 Mark and I go way back.

00:35:03.500 We did cases together and I got to say, Mark is an outstanding lawyer and Scott Peterson

00:35:08.480 had him as a trial lawyer.

00:35:09.940 And yeah, like I, yes, absolutely.

00:35:12.620 This is called Brady evidence.

00:35:13.940 Like you want the defense to have everything, you know, and if the, if the prosecution sat

00:35:19.620 on that or didn't provide it, that's an issue under Brady for potential.

00:35:24.700 Because the defense is entitled to everything.

00:35:27.740 It's not just that the prosecution wants them to have it.

00:35:29.720 It's that they have a constitutional right to it.

00:35:31.500 Yeah, absolutely.

00:35:33.160 And they should, and they should, but it, but there are also limits there.

00:35:36.780 There have to be rational limits to what is, what is provided to them.

00:35:41.000 It's like, all right, so let me ask you that.

00:35:42.740 So if, if, if, if, if the investigatory team speaks with some random guys, like I saw a van

00:35:50.920 take the pregnant lady. 1.00

00:35:51.860 And they're like, Oh my Lord, like, let's say they can, this is hypothetical.

00:35:55.780 They can smell the alcohol on his breath.

00:35:57.940 They ask around about the guy.

00:35:59.560 He's some vagrant, whatever.

00:36:01.560 Did, do they have to turn that over?

00:36:03.560 Like the things that are easily ruled out.

00:36:06.400 They should turn that over.

00:36:08.160 They should.

00:36:09.120 Yep.

00:36:09.660 They should turn that over.

00:36:10.620 And I don't know, I don't know, you know, part of this is we've got allegations from essentially

00:36:17.040 a family member and from, from one side here.

00:36:21.260 So I don't know the reasons if I haven't read that report.

00:36:24.880 If there's something like that, yeah, they should turn that over.

00:36:27.300 Like when I, when I went through training, I had a guy that, um, Chris Evans was his name.

00:36:31.740 He's, he's now a superior court judge.

00:36:33.360 He trained us when we were baby DAS and his philosophy on discovery is give the defense

00:36:37.940 absolutely everything and then just beat them with it.

00:36:39.920 So the prosecution shouldn't be, um, they shouldn't be deciding what's relevant or not.

00:36:45.760 They should just be turning it all over.

00:36:47.120 But under Brady, it, there is, there are limits to what are called Brady events.

00:36:52.960 And that's the prosecution's obligation to discover it.

00:36:55.660 Okay.

00:36:55.920 And that is, is it, you know, is it reasonably likely to, um, you know, lead to, uh, you

00:37:03.580 know, corroborative of a defense or reasonably likely to help the defendant in their claims?

00:37:08.380 And, you know, that's, there's, there's gray area there.

00:37:11.880 Yeah.

00:37:12.200 There's a little wiggle room in there.

00:37:13.680 Yeah.

00:37:14.160 Okay.

00:37:14.360 Let's talk about, though.

00:37:15.320 Let's talk about two other things.

00:37:16.360 Cause you mentioned the eyewitnesses in the neighborhood on the timeline.

00:37:20.340 So the, you know, loosely the timeline by the prosecution was,

00:37:25.240 that morning by 10 30, she was missing and Scott had left to go to either golfing or the

00:37:33.460 Marina as he later changed his story to.

00:37:35.540 And that's in fact, where he was, um, there was an issue about the dog because the dog

00:37:41.600 was found running around in the neighborhood with its leash on.

00:37:45.280 I think you and I believe, and the prosecution argued, like, I believe Scott let the dog out.

00:37:52.500 It was like, this is part of creating his story that somebody got her.

00:37:55.820 Somebody abducted her in broad daylight on Christmas Eve.

00:37:58.540 And they're walking around their neighborhood.

00:38:00.220 And, um, there was a question about whether, well, like what time the dog was returned by

00:38:05.840 a well-meaning female neighbor who found the dog, knew it was the Petersons and opened up their gate 0.98

00:38:11.220 and put the dog back into the backyard as a good Samaritan.

00:38:15.060 And, um, if it was early, I'm trying to remember how it went down, but basically there's a mailman

00:38:22.620 who is saying that when he dropped off the mail, the dog wasn't there.

00:38:29.120 And he came a little later in the morning and, um, he always got barked at by the dog.

00:38:36.000 But this day when he dropped off the mail around 10 30, there was no barking.

00:38:39.820 He doesn't believe the dog had been returned to the neighborhood.

00:38:44.140 And therefore Lacey must've been out walking the dog at 10 30. 1.00

00:38:49.240 This is the defense theory.

00:38:50.680 And therefore Scott could not have committed this murder because Scott was already gone.

00:38:54.400 The defense wants Scott gone as early in the, in the day as possible and Lacey running into

00:39:00.820 trouble as late in the morning as possible so that Scott couldn't have done it.

00:39:05.400 And they want to rely on this mailman as proof.

00:39:09.920 The dog had not yet been lost or returned to the backyard.

00:39:17.140 I, if the, why, if the viewing, I mean, if the listening audience could just see Matt's face,

00:39:21.640 it's worth watching this on YouTube just so you can see.

00:39:24.400 It's facial reactions.

00:39:26.620 Sorry.

00:39:27.060 I'm not terrible at poker.

00:39:30.100 Yeah.

00:39:30.820 Um, not into it.

00:39:33.800 Yeah, no, it's, it's, there's any irregularity.

00:39:38.700 We're talking about human beings and we're talking about the frailty of human recollection.

00:39:41.780 First of all.

00:39:42.540 So everything is an estimate.

00:39:44.080 I mean, you, you see your neighbor's dog walking around.

00:39:46.180 Can't reopen a case on that.

00:39:48.120 Well, you shouldn't be reopening a case on that.

00:39:50.500 And, and, and we're talking 20 years later and it's like, oh yeah, I think I got there

00:39:54.040 on my route, you know, about 10 30 based on the following.

00:39:57.420 And, but also it's so, there's so much inherent speculation and supposition like, well, the

00:40:03.020 dog used usually would bark at me. 0.51

00:40:04.860 And I don't remember it barking that day.

00:40:06.580 And it, but the thing is also, there's, there's a thing in, there's an instruction regarding

00:40:11.860 circumstantial evidence and it's two reasonable interpretations.

00:40:15.120 Okay.

00:40:15.600 So that it, it, there's an instruction that every jury is provided about, um, whether there's

00:40:20.560 one reasonable interpretation or two, one pointing towards innocence, one point towards

00:40:24.160 guilt.

00:40:24.400 And the problem is, is that, you know, when you, when you have to jump through a million

00:40:29.280 different speculative hoops about, well, so the mailman remembers the dog barking.

00:40:35.100 Okay, good.

00:40:36.120 Um, but that's also consistent completely with the idea that the dog got out when he is,

00:40:42.500 when he's loaded his dead wife into the boat and somehow he leaves a gate or the garage

00:40:49.220 open up long enough for the dog to get outside and, and leaving at nine 30.

00:40:53.780 And that just means the dog is running around the neighborhood at the time.

00:40:57.420 You know, that, that is not one of those things that you can say, aha, it's totally.

00:41:01.860 Well, and by the way, if your dog's not barking, it could mean your dog has found a bone.

00:41:07.100 Your dog has found something more interesting than the mailman.

00:41:10.840 Your dog is asleep or the dog just got out when he left at nine 30 and the mailman comes

00:41:16.060 and the dog's not barking because it hasn't been returned yet because the neighbor doesn't

00:41:20.920 remember exactly when she did it.

00:41:22.760 You know, you know, there's the other thing is to your, to your point, Matt, when I, when

00:41:25.940 I was, um, a young lawyer myself, um, I practiced law with this very smart woman and she told

00:41:33.520 me this amazing story about when she was in law school at the time she was a nurse.

00:41:38.240 She wound up pursuing law later in her life.

00:41:41.580 And, um, her teacher came in late one day, her professor, a law school professor came

00:41:47.520 in late one day, was all huffing, huffing and puffing.

00:41:50.440 Sorry.

00:41:50.660 I'm so late.

00:41:51.180 There was like crazy incident on the road.

00:41:53.140 Got almost got run off the road, like a road rage situation, but sorry, I'm fine.

00:41:59.400 Two minutes later, the guy with whom he had the road rage confrontation comes banging on

00:42:05.860 the door to the classroom and the teacher's like, Whoa.

00:42:09.000 And the students are like, Whoa.

00:42:10.920 And the guy comes in and starts threatening the professor and everybody's like, Oh my

00:42:17.020 God.

00:42:17.800 And draws a gun.

00:42:20.780 And the professor's like, Oh my God.

00:42:23.320 So he runs and the guy runs after him.

00:42:25.660 And it's great.

00:42:26.600 Cause my friend Sandy, who was, you know, like some people are good in a, in a panic situation

00:42:31.080 and some people aren't.

00:42:32.160 And it was like a George Costanza thing.

00:42:34.760 The way she explained, there were all these big burly men who ran for the door.

00:42:38.340 Like they didn't want any part of this.

00:42:40.880 They weren't going to protect any of the people who were exposed in the classroom.

00:42:43.580 And then there's Sandy, my like very small boned nurse who was like, get the guy in the

00:42:50.520 wheelchair away from the door right now.

00:42:51.900 You barricade the door.

00:42:53.320 You make sure whatever it's like, she took control.

00:42:56.260 Of course, you know where this is going because you're a prosecutor.

00:42:58.840 Of course.

00:42:59.880 Right.

00:43:00.040 10 minutes later, five minutes later, the professor comes back into the classroom.

00:43:04.240 He's totally fine.

00:43:05.480 And he admits to the class that this was an exercise.

00:43:09.920 And he says, take out a piece of paper and a pen.

00:43:14.220 And all I want you to do is write down a description of the man.

00:43:18.560 And they were all over the board.

00:43:21.900 You know, one person said he was in a neon orange jacket.

00:43:24.700 One said he was wearing all black.

00:43:26.420 One said he had shorts on.

00:43:27.900 One said he had full body pants and arms covered.

00:43:30.880 And of course, the whole exercise was an attempt to show how unreliable eyewitness testimony is,

00:43:37.020 especially when there's any sort of adrenaline involved or high stakes involved.

00:43:42.080 A hundred percent.

00:43:44.640 So the example that we would always give for in explaining that concept to a jury is if a clown came running through the courtroom and bopped somebody on the head with a rubber hammer, you know, some people might remember the red floppy shoes.

00:44:00.040 Some might remember the fuzzy buttons.

00:44:03.500 But if somebody didn't remember one of those things, it doesn't mean if the issue is what was the clown wearing.

00:44:08.200 It's very important.

00:44:09.640 If the issue is, did somebody come in and get bopped, bop somebody on the head with a hammer?

00:44:13.440 If that's what the jury is, is that if that's their task to figure out that happened, then those types of details don't remember, don't matter.

00:44:21.780 And the adrenaline in that situation, there's a whole other thing called weapons focus, where I guarantee half that class got everything wrong because they were just wide eyed at the gun.

00:44:31.400 So that's a great exercise.

00:44:33.300 You probably couldn't do that in law school today because everybody would get sued for the trauma.

00:44:37.960 And I can tell you, again, from personal experience, it's funny that you say nurse because we used to joke about this.

00:44:45.240 Nurses are the best prosecution jurors of any potential profession because they are in the real, real world and they don't like falling for BS. 1.00

00:44:55.580 So it doesn't surprise me a bit that your friend and nurse is the one that took control.

00:44:59.240 I love the whole story.

00:45:00.960 Yeah, and by the way, today, depending on where you went, like you do that south of the Mason-Dixon,

00:45:04.940 you're going to get shot by one of the good guys with the gun in the class.

00:45:08.300 So for all sorts of reasons, it wouldn't happen now.

00:45:10.860 So if the question is, did somebody, was the professor, did somebody point a gun at him if that's the issue?

00:45:20.480 Then it doesn't, like all of those details that everybody got wrong doesn't matter because they're still, they're being honest.

00:45:27.140 They just recollect different components of it.

00:45:29.520 And sometimes they'll get something completely wrong.

00:45:32.100 You see that a lot with facial hair, interestingly enough.

00:45:34.520 So what you see the defense doing in things like this case is they're going, well, wait a second.

00:45:41.080 There was a woman in the back. 1.00

00:45:42.600 And yeah, maybe she couldn't see that well with her glasses.

00:45:45.220 But she insists that the man had a bright red cape.

00:45:49.160 And our guy didn't have a bright red cape.

00:45:51.340 So he's entitled, even though his DNA was found, and even though there's a manifesto about how he hated everybody that cut him off in traffic and like all of these evidence.

00:46:01.600 But wait a second, she insists there was a red cape.

00:46:04.680 So we have to do a new trial here.

00:46:07.060 That's kind of what we're seeing over and over again with with cases like this, especially in the modern era.

00:46:12.280 And especially with, you know, I think this is I'm a huge proponent that kind of the interest in true crime is a good thing.

00:46:20.480 People are getting educated.

00:46:21.460 But there's also like, you know, there's there are downsides, too.

00:46:25.000 And that is, you know, people kind of believe some of the things that they see that can be very skewed and one sided.

00:46:33.540 And it's it's presented like I work for ABC News.

00:46:36.700 I'm I'm a firm believer in the professionalism of a lot of the media organizations that cover true crime when it's done right.

00:46:45.180 But still, it's not it's not presented in the legal context.

00:46:49.520 And another thing to remember, you know, this, Megan, because you want you're an attorney.

00:46:53.120 Our law is based on what's called stare decisis.

00:46:55.820 And what that means is we're different than a lot of other legal systems in the world that is Napoleonic or code based.

00:47:02.420 It's called civil law, where essentially a legislature sits down and they write a rule.

00:47:07.840 OK, our law is based on common sense and wise decisions based on real situations involving real people that have tested that have withstood the test of time over the years.

00:47:19.140 So when you're talking about the legal application of instructions, those instructions essentially reflect 500 years of wisdom of real people and real human frailty and real misrecollection.

00:47:32.920 And and when a jury applies those laws, as they did in the Scott Peterson case, in my experience, ninety nine plus percent of the time they get it right or they get it pretty close to right.

00:47:44.240 Not always, but they get it.

00:47:46.280 They get it right.

00:47:46.800 Sometimes that the right, quote unquote, is is an acquittal.

00:47:50.700 Sometimes they can't reach a decision.

00:47:52.740 A lot of times it is a conviction like here.

00:47:54.320 The jury in this case got it right based on the law, in my view, based on on all of the evidence that was presented, not fanciful.

00:48:02.620 And now it's hard to go back and in a quote documentary and second guess them.

00:48:06.420 But it's happening.

00:48:07.660 And they did just get this favorable ruling and all this new access to discovery.

00:48:12.960 And the ultimate goal by the L.A.

00:48:14.880 Innocence Project is a retrial for Scott Peterson.

00:48:17.520 So you you can't rule it out, especially in California.

00:48:20.860 You can't.

00:48:21.600 One other thing, the watch.

00:48:25.180 This is actually something that I didn't know about, but consistent with this whole lane that the defense is trying to open the van, the bad guys.

00:48:33.380 I mean, it's really kind of crazy to me that they say it wasn't the two burglars who actually burglarized the house across from Lacey who killed her.

00:48:40.940 It was part of their gang because these two alibied out that the investigators did check out these two to say, is there any chance they abducted Lacey?

00:48:51.600 And they were apparently they're like on videotape with their families during the relevant time where they would have had to been doing nefarious things.

00:49:00.680 So then they expanded the theory to, well, it was their gang.

00:49:03.660 Their gang did something with Lacey.

00:49:06.300 OK, so let's say it was their gang.

00:49:08.860 The other piece of proof that they mentioned in this documentary is her watch.

00:49:13.940 She had this sparkly watch.

00:49:16.480 And the allegation is that this watch was offered up to a pawn shop on, let's see, a pawn shop claims that a lady came in to sell the watch.

00:49:28.960 I mean, about a week after Lacey went missing New Year's Eve from 2002 to 2003, and she had gone missing December 24th, 2002.

00:49:39.000 It wasn't clear if this was Lacey's watch or what happened to it after, you know, it was or whether, you know, it was sold, what happened to it.

00:49:48.960 But here is Scott Peterson from prison on that piece of jewelry.

00:49:52.800 It was missing, but the first time I heard that the police knew about it being pawned was well after I was arrested.

00:50:03.360 The police have to provide the defense with discovery when they ask for any sculpatory information.

00:50:10.140 The police hadn't shared this with us at all.

00:50:13.620 And now I know why, because they covered it up.

00:50:18.100 Eh, anything?

00:50:19.500 OK, do you know how many pawn shops there were, like, around Modesto in this area?

00:50:25.500 They call it Meth-Desto.

00:50:27.200 I mean, like, if they cannot connect that watch to Lacey Peterson, it is a – like, if you don't have a serial number saying this is the one that was purchased, there's no – like, how wide does the prosecution detectives have to cast the net for the guy that's dyed his hair and has 15 grand and looks like he's about to split after – you know what I mean?

00:50:49.120 Like, compared to all the evidence against Scott Peterson, every pawn shop has a sparkly watch that's been – that's been gotten pawned or a ring or something else.

00:50:57.860 I'm Megan Kelly, host of The Megan Kelly Show on SiriusXM.

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00:52:01.280 Another thing to remember, facts-wise in this, and you've got to keep bringing this case back to the facts.

00:52:07.020 When police searched the house, they found Lacey Peterson's purse.

00:52:10.720 They found her sunglasses.

00:52:12.180 So I guess the theory is she is out walking the dog with expensive, sparkly jewelry, but didn't take her sunglasses, didn't take her keys, didn't take her purse.

00:52:22.520 That just doesn't make any sense.

00:52:24.520 You know, so there's immediate problems based on the real evidence that was discovered.

00:52:30.560 And the idea that then they go, well, hey, there was somebody that pawned something in the central – in central California during the height of a methamphetamine epidemic where every car is getting broken into and burglies are happening all the time.

00:52:44.580 Like, it's just absurd, Megan.

00:52:46.440 And the idea also – let's think about this.

00:52:48.220 You've got two guys that are in a burglary gang, which, by the way, I've never heard of, and I worked in the gang unit, a burglary gang, okay?

00:52:57.660 So the burglary gang, somebody identifies them.

00:53:00.880 So if the thing is she jumps over a fence with her pregnant woman cape on and they kidnap her because of a burglary, but, oh, no, they didn't kidnap her.

00:53:10.520 The gang came in and kidnapped her because they weren't actually there and committed a murder because of an offense that you could – for a residential burglary back then, you might do a bullet.

00:53:23.240 You might do a year, county jail, maybe you get no time, maybe you get – you're going to get probation or low term.

00:53:28.700 No, let's murder a pregnant woman so that she can't identify the guys in our gang is laughably absurd. 0.94

00:53:37.380 Like, it's just – there's such a burglary gang, by the way. 0.93

00:53:41.320 It just doesn't exist.

00:53:42.960 There's gangs and they commit horrible crimes. 0.98

00:53:46.480 It's like a burglary gang, like, you know, that they're going to go and commit a first-degree murder of a pregnant woman to help the guys that she saw is absolutely – it just – it is ridiculous. 0.84

00:54:02.180 And, again, going back to that instruction, reasonable versus unreasonable.

00:54:06.400 The jury is instructed to reject unreasonable interpretations of evidence.

00:54:11.260 You know, and that is a laughable sort of unreasonable in the courtroom.

00:54:16.400 And what I love, though, is the chutzpah of Scott Peterson, you know, saying, oh, the police withheld it.

00:54:23.460 That's another thing that we should probably dispel is the idea that the cops just want to make an arrest because there's – you know, they just want to make an arrest.

00:54:32.220 That by itself, like to any professional law enforcement officer, you look like a buffoon if you arrest the wrong person.

00:54:38.740 And if somebody murdered a pregnant beautiful woman like Lacey Peterson, you don't just arrest her husband so that you look good having arrested somebody and then you let the real killer stay free so he can, what, murder the next person, the neighbor down the street two weeks later.

00:54:55.380 Like nobody wants to do this.

00:54:57.100 No cop wants to arrest an innocent guy.

00:54:59.220 They arrested Scott Peterson because of the overwhelming evidence that they accumulated against him and the way he behaved, the way he repeatedly lied to everybody.

00:55:10.400 And, you know, it's like that whole notion that it was withheld to frame him from him just kind of gets my blood boiling a little bit.

00:55:22.060 And the cops in the piece, they deny, they deny that they withheld, inappropriately withheld any evidence from the defense.

00:55:31.460 I will show you this.

00:55:34.420 Scott Peterson, maybe he's been working on his acting skills.

00:55:38.840 He managed to work up a bit of emotion when he was on the phone in this documentary.

00:55:45.880 I mean, it was interesting because he didn't cry at all.

00:55:48.500 He showed no emotion the entire time she was allegedly, quote, missing.

00:55:53.880 I told you, at the vigil, he was talking to his girlfriend.

00:55:56.340 He wasn't looking for Lacey.

00:55:58.420 And he didn't even flinch when they found him guilty or sentenced him to death.

00:56:02.960 He explains that in this documentary saying, the media had been so horrible to me, I didn't want him to have his satisfaction.

00:56:09.240 But then they end the piece with Scott getting all watery-eyed over Lacey.

00:56:16.100 Watch this.

00:56:18.500 Is it easy to remember what life was like 20 years ago?

00:56:23.680 Every moment is so real.

00:56:27.420 It's so tactile.

00:56:29.280 It's still there.

00:56:30.320 It smells and the light and the sound of what I say, goodbye to Lacey.

00:56:35.520 And my family was gone.

00:56:38.680 I drove away, expecting to come back that afternoon and have our wonderful Christmas together.

00:56:44.780 After we both had, you know, fun mornings and about, they were gone.

00:56:49.640 And it's still very, very, uh, present.

00:56:54.260 But there are certainly times that I become a wreck.

00:56:56.760 He's wiping his face.

00:56:59.940 He's wiping his eyes.

00:57:00.560 Excuse me.

00:57:02.320 Yeah.

00:57:03.020 Try not to be, uh, too emotional out here in the day room with the prison.

00:57:08.840 Take it, you don't, you don't buy it.

00:57:16.720 Well, the problem, the problem with that, number one, look, anybody who would murder his pregnant

00:57:21.440 wife so that he can go continue his dalliance with a woman that he likes better, um, nobody

00:57:26.680 should be shocked that a guy who would do that would turn around and then lie about the

00:57:30.700 circumstances of it.

00:57:31.740 Okay.

00:57:31.920 So for it, it, it always gets us, you know, when, when a grown man cries, you know, but

00:57:38.080 it's like the first time I saw, yeah, the first time I, the first time I saw a criminal

00:57:43.760 defendant lie and cry, you know, it kind of got to me.

00:57:47.180 And the second time I saw a murder defendant do that in the third, like it's, this is, it's

00:57:51.660 again, going back to the evidence here, the lead detective on the case, when they

00:57:55.760 interviewed Scott Peterson, he said he showed a shocking lack of emotion and a shocking

00:58:01.880 lack of additional follow-up questions.

00:58:04.420 He didn't ask for their cards.

00:58:06.200 He didn't ask for where's the state of the investigation.

00:58:08.860 Can I call you a five questions?

00:58:10.540 He didn't ask any of those things that you would expect from somebody that whose wife 1.00

00:58:15.120 had gone missing.

00:58:15.840 Like this is that what your viewers just watched is the exact opposite of the way that he was

00:58:21.920 behaving.

00:58:22.740 And this is something that I've seen before.

00:58:24.620 This was my Sam Lopez performance with my Kathy Torres case.

00:58:28.880 That was a boyfriend who murdered his, his girlfriend.

00:58:31.220 And she was also missing found a week later in the trunk of her car.

00:58:34.820 And we, we convicted him largely based on his interview where they, they often will play

00:58:40.080 the wrong role.

00:58:40.740 Megan, the innocent husband, spouse, boyfriend, whatever will play the role of like, Hey, how

00:58:47.120 would an innocent person act?

00:58:48.420 And they pretend like a bystander who has nothing to hide and no dog in the fight is who's calm

00:58:54.300 and collected and sort of like peacefully answering questions, respectfully going through it versus

00:59:00.120 a real husband who loved his wife, who's innocent, who would be losing his mind during all of those

00:59:06.280 initial investigation.

00:59:07.020 Like Chris Watts, this is reminding me of Chris Watts too.

00:59:12.020 Right.

00:59:12.320 And look, people react to grief differently, but, but when you're, when you're cold about

00:59:17.520 it, it's totally inconsistent with what we just watched.

00:59:20.320 So if, so if Scott, remember, remember that one interview Scott Peterson gave to a reporter,

00:59:25.900 I can't, I don't think it was the Diane Sawyer one.

00:59:28.200 I think it was the local reporter who got great stuff from him.

00:59:31.420 And this was when the search was on for Lacey and Connor and the phone rang and he didn't

00:59:39.120 even look at it.

00:59:41.420 It was like, didn't happen to your point, to exactly the point you're making.

00:59:46.740 Right.

00:59:46.980 How would an innocent guy not know that that's, that that's the police going great news.

00:59:50.820 We found her.

00:59:51.680 She was tied up in a, in a warehouse or, or like that's exactly what I'm talking about.

00:59:57.180 The thing is, Megan jury, when you take a jury, you have 512 deliberating jurors.

01:00:03.260 You have about 500 years of life experience.

01:00:06.420 You have 500 years of collective common sense wisdom on that.

01:00:09.920 And they may not be experts on DNA or on the forensic processing of like cell phone data

01:00:16.320 or whatever it is, but I'll tell you, juries are very, very good at human behavior and how

01:00:21.320 somebody should act under, under certain circumstances and how they shouldn't.

01:00:25.480 And that jury, you know, they got all that evidence back then.

01:00:29.040 I don't know if they, I don't think they ever introduced that, that interview, but you

01:00:32.740 spotted it just like I did.

01:00:33.800 Like, how does he know if he's innocent, that that's not them saying great news or Hey,

01:00:38.960 she needs a blood transfusion. 1.00

01:00:40.300 Like when your wife is missing, you pick up the frigging phone, right? 0.99

01:00:44.220 Like that's, that's the type of thing. 0.97

01:00:47.220 And with Scott Peterson, when we're talking about the collage, that's one more piece of

01:00:51.860 that, of the collage.

01:00:52.940 And then you look at, you know, you put all of that together and you compare that and the

01:00:59.100 affair and seeing that she was going to die and the fact that he, according to his own

01:01:03.420 change story, but later admission, he went to from the Berkeley Marina, which is exactly

01:01:09.100 consistent with where they found her body.

01:01:11.340 You add all that up.

01:01:13.120 And the fact, again, her hair was found on flyers in his boat.

01:01:17.580 Okay.

01:01:17.880 You put all that together versus, Oh, we've got a theory.

01:01:21.660 There's a drunk guy who thinks he saw a pregnant woman getting into a van, right?

01:01:26.420 Like, well, the other thing is Matt, and I know this isn't like, this is just anecdotal

01:01:30.800 between us, but his use of the term wonderful, we were going to have our wonderful Christmas

01:01:36.880 together.

01:01:38.280 I'm sorry, but that's just not how real people in love talk.

01:01:42.100 And his message to her, Hey, beautiful.

01:01:45.600 I think they'd been married.

01:01:46.500 What?

01:01:46.640 Like a few years might, might've been as many as seven at the time he left this alleged

01:01:51.800 voicemail.

01:01:52.760 Hey, beautiful.

01:01:53.720 I mean, in my experience, like your man might call you like babe, honey, you know, it, I

01:02:00.720 don't know.

01:02:01.280 It all, yeah, it all sounded false to me.

01:02:04.180 Like somebody who's intentionally trying to insert these, you know, superfluous terms.

01:02:10.520 So to try to convince you that they're feeling something they're not.

01:02:16.360 Hey, beautiful.

01:02:17.440 I just left a message at home.

01:02:18.960 Uh, two 15, I live in Berkeley.

01:02:21.460 I won't be able to get to the Villa farms to get that basket for Papa.

01:02:24.760 I was hoping you would get this message and go on out there.

01:02:28.180 I'll see you in a bit.

01:02:29.140 We love you.

01:02:29.780 Bye.

01:02:31.200 Right.

01:02:31.760 And, and this is the golf slash of fishing trip, right?

01:02:35.340 The, the, like that, which had to be the shortest surgeon fishing trip in history, 90

01:02:40.540 miles away about, Hey, just leaving at two 30.

01:02:42.760 Right.

01:02:43.140 So no, you're exactly right.

01:02:44.160 He didn't open up one lure, not one lure.

01:02:46.540 They were all sitting there still in their plastic wrap in his boat.

01:02:49.680 Right.

01:02:50.360 Right.

01:02:50.680 But you see that over and over again.

01:02:52.460 When you actually do murder cases like this, you see, and look, the theory always on him

01:02:56.860 and what they convinced the jury of, this was a planned murder.

01:02:59.860 He bought the boat.

01:03:00.880 He bought cement.

01:03:02.340 Um, they were never able to account for, uh, he made the anchors.

01:03:05.940 One, well, he, they, and they found one, but he had a 90 pound bag of concrete and they

01:03:11.660 couldn't find the rest of it.

01:03:12.580 And the theory always was the rest of it was attached to Lacey.

01:03:16.060 So there's a bunch of missing cement here too, guys. 0.99

01:03:18.380 Like there's, there's so much that, but you see that all the time because even dumb criminals 0.90

01:03:23.980 are smart enough to go, Hey, I, if I leave a false, you know, um, voicemail and, and look, 0.90

01:03:30.160 that's like my Daniel Wozniak case that there, that you see that all the time.

01:03:35.460 And especially in domestic violence cases, when the body is missing, it's like, Hey,

01:03:40.040 wonderful or beautiful.

01:03:41.080 And you, you pegged it.

01:03:42.160 You're exactly right.

01:03:43.020 It's like, they've been married for a long time.

01:03:45.080 It's, and if he's so in love with her, like kind of weird that he's, I don't know that

01:03:49.780 he's, I would probably want to go fishing on Christmas day too, if I had the day off or

01:03:53.860 golfing, but it's, there's an, there's an inherent inconsistency with that.

01:03:58.200 There's a lot of problems with it.

01:03:59.700 And when you break it all down, that's why the, that's what it stinks.

01:04:03.240 That's why the jury convicted him.

01:04:05.280 The accumulation of all of that evidence.

01:04:08.000 That's why the California Supreme court affirmed the conviction seven to zero.

01:04:11.960 And that's why when you're, you know, with the defense running around going, wait, we

01:04:16.740 have a drunk guy who thinks he saw somebody get into a van.

01:04:19.340 That's, that's why I'm reacting.

01:04:21.860 So we, so in some, we do not believe it is likely that they get ordered a new trial.

01:04:28.180 Oh God, you know, in my fair state of California, Megan, I, I hope not.

01:04:34.880 I have a strong opinion on this.

01:04:36.400 I don't think the court should grant a new trial based on this, but also look, Brady evidence

01:04:41.460 is a tricky thing because Brady evidence has been an evolving area of the law.

01:04:45.680 And essentially the prosecution is obligated to turn over basically anything that can be

01:04:50.120 helpful for the defense.

01:04:51.220 And there's been a lot of litigation, a lot of new cases in California, and you have to

01:04:55.200 err on the, on the side of caution on that.

01:04:57.440 So it, in my view, what the court does is going to depend on whether or not they find

01:05:03.020 that there was a Brady violation on this and a Brady violation, by the way, is not a statement

01:05:07.020 of innocence.

01:05:08.000 It's, it's, it is, it's a technical issue that, that would violate the due process rights

01:05:15.540 of any criminal defendant.

01:05:16.440 If, if, if exculpatory evidence is withheld.

01:05:19.680 Okay.

01:05:20.120 But, but where the parameters on that's kind of been a moving goalpost in the state of

01:05:24.380 California.

01:05:25.380 So I, in my view, I feel very strongly that what the defense has come up with here is

01:05:29.940 laughably short of where I believe the standard should be on that.

01:05:33.020 Um, but you know, prosecutors also make mistakes, detectives make mistakes and you never really

01:05:38.560 know how it's going to be seen.

01:05:39.680 So I, I, I don't think he should be granted any trial.

01:05:42.900 I really hope he's not, but if he is, I really hope that the Stanislaus County district attorney's

01:05:49.940 office approaches this case with as much vigor that first of all, they defend and they advocate

01:05:55.500 on behalf of their conviction, because look, this guy, in my view, not my case here, he's,

01:06:01.380 he really did it.

01:06:02.600 It's a horrific murder.

01:06:03.940 He should have been convicted.

01:06:05.120 I believe the California Supreme court was exactly right for affirming it for all the reasons

01:06:09.220 that they did.

01:06:09.940 And, um, hopefully if he is granted a new trial, he's retried properly and he's convicted

01:06:16.180 again, you know, that they take it seriously, that they don't, that they don't just go with

01:06:19.800 like, you know, the, the, the emotional public momentum, like we, like we're starting to see

01:06:26.260 over and over again.

01:06:27.160 Yeah.

01:06:27.420 Like with Menendez.

01:06:29.000 He served his time.

01:06:30.140 Well, I mean, at least in Menendez, they have an argument that there was mitigating evidence,

01:06:38.780 right?

01:06:38.980 Like that, that they had been tortured by their father.

01:06:41.440 Um, in this case, there's no such, there's no mitigation.

01:06:44.660 I mean, if you believe Scott Peterson did this, he's a stone cold psychopath who rather than 0.87

01:06:51.960 just getting the old fashioned divorce, decided to murder his own baby and beautiful young wife 0.69

01:06:59.960 with a loving family who had everything going for her, who truly believed she was married

01:07:04.880 to the man of her dreams.

01:07:06.380 The theory is that he looked that sweet woman in the eyes and strangled her to death on their

01:07:12.480 marital bed.

01:07:14.100 That sick effort should never see the light of day. 0.77

01:07:17.500 He should be on his knees every night, thanking God that the death penalty was reversed for him.

01:07:22.020 That's good enough for him.

01:07:23.360 I mean, that's, that's the best victory he could hope for in my view, Matt Murphy.

01:07:26.900 Thank you so much.

01:07:28.300 Happy to be here.

01:07:29.960 Thanks so much for joining us today.

01:07:31.440 And all week we are back on Monday live, looking forward to seeing and talking with you then.

01:07:38.260 See you there.

01:07:40.720 Thanks for listening to the Megan Kelly show.

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The Megyn Kelly Show - January 02, 2025

Scott Peterson May Get a New Trial - A Look Back at the Case： A ＂True Crime Christmas＂ Special ｜ Ep. 975

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