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

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.”

Condemium is an narcissist. Condemn is character flaws, but that does not make him a murderer. 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 wash to shore in San Francisco Bay are Lee C. 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 "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 sins in the 20s, some of your sins.

The guy I met does not have the capability to wear with all 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 McCallister to represent their son after Leecy went missing. Once Scott is arrested, McCallister 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 Larry King's show just about every night, and he was defending Scott.

I finally said all what's going to cost Mark, he said a million bucks.

And I said, "Wow." They cannot afford him. They hire him anyway. I'm Megan Kelly, and this is MK Confidential.

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Thank you, 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 alcoholic 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 where it was facing Scott and what I meant by that was the sheer coincidence, sort of speak of

And it wasn't really exactly, but in the basically the Bay for all the tense 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 Peterson's call, you were you looking at this thing, 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 access of the 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 access, you were done for. It was awful because before you even walked into a cart room, you were done. That media machine would soon come for Garagos.

By Friday, May 2, 2003, Garagos had now signed on as Scott Peterson's lawyer and walks out of the Stanislaw 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." Back in Peters and 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 records that I was speaking and make sure that I understood that she believed perfectly 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 that his innocence after meeting him. In Medesta, I went to the Medesta or Stanislaw County jail.

And that I took the case. I will tell you, virtually everybody, 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 one back-to-back Susan McDougall on both coasts and not guiltys against kind of all odds. I had had a incredible streak. And everybody said, look, if you win the case, you're a pariah, a lot of Johnny Cockburn.

Johnny, people forget. After O.J., Johnny didn't want to do another criminal case again. He was kind of remote. Johnny used to sit at jury selection. He would rent himself out to mass tort lawyers and to pay

the lawyers because jurors would raise their hand and say, "I can't be fair." Because Johnny Cockburn is the lawyer. He was that much hated.

Here's what Pat Harris, a colleague of Marks, tells him.

Pat retolded 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 should be doing this. That scene outside of the state of the Slaught's County Sheriff Station, where they had arrested Scott Brottonid. And people were surrounding the Sheriff Station with placards,

asking that he'd be hung in man or monster. And all that stuff. That kind of royal lead to the point where I said, "Okay, 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. And that's a peace with it. Not happy about it. In the wake of exchanges like that, what convinced Garagos that Scott was actually innocent?

I talk about this with Corolla 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 and see only time that I can think of in any case,”

and I've tried hundreds of cases. I stopped coming to 300, that I've ever called a nut under 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 talked to him 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 you would why 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 that hussy or whatever name they would call him or friend, he would have done the same thing that I can see it. And so there is this kind of just the federal reaction where you can't get past that. It is just the picture of Lacy sitting in the chair at the Christmas party.

Pregnant, beautiful, resplendent. And then place 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 while to guess that Megan 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 if this is something I want on my tombstone. I don't think anybody has handled as many murder cases as I have.

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 LADA'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 one point in fact, it's how I got to some of the doodles case. I had a one point four women on what we called murder as row of the old civil brand jail. Civil brand jail was this notorious women's prison jail. That a prison in LA.

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 backstory 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.

Both of those guys said, the affair did not move us.

We understood that men cheek. It was, they said, the tapes,

“numbers, tapes of Scott and what he was saying to her while people were searching for lazy.”

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 Bell Messieri, and Mark Baratless, described the impact of those recorded phone calls to Netflix in 2024.

A lot of people believed that their affair was a big deal. I didn't see this a big deal. And I don't think anybody on a 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, that the charade. Garagos says his co-castle, 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 Medesto, California only a few years earlier. And one familiar to MK confidential fans. Pat Harris, who I tried that case went through it. Been my partner for many years. In fact, I met Pat, I'm story. Pat was Susan McDougall's fiancé.

When I first met Susan McDougall during Whitewater, and Pat came in to try to fire me because Susan had hired me. And he ended up becoming my partner and 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, "I were 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 when we were not, I think entirely successful. Who were three years before Lacy went missing?

In Medesto, 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 Shandra Levy. Shandra Levy was from the Medesto area.

Shandra 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 and 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 Medesto. Gary Condit was a beloved congressman. Everybody there understood that Gary's career was torch because of admitting the fairish Shandra.

Scott knew the minute that Amber's surface.

“Medesto, who it already, all you have to do is take a look at that.”

First, there's second interview in the Medesto police department. There's their sauce county where they're already suspicious of him. They're already in his face. He knew that if Amber's surface, he was done. They stopped looking for lacy and it was over with unfortunately.

The jurors, I'm sure, had an enormous amount of problems with when the visual he's sitting at the visual 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 1600 jury questions.

And people, I used to say people who were illiterate were writing, "Githy, G-I-T-Y." You know, and the Buddhists are there because we were in San Mateo. As a large community there, we 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 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 jury of poster of Scott.

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 in it. And that kind of a field to at least for 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 Dostoso that she can put aside her feelings about Scott and be fair. Garagos believes her, so does Dostoso. There was one woman who came in. And I remember talking to Dostoso. 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 had towards Scott and your client. And I think I could be fair.

And I remember she left. And I turned into Dostoso and I said, we should order her back. She's good. And the sauce 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 what over on that dumb ship, the fenceware. I'm going to get on this.

I'm going to get on to this jury and I'm going to fry his client. And we brought him. 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. Whole judge Deloque, again, when I would complain bitterly about the atmosphere around it.

He would say, what do you want me to do? The jurors in a time capsule or put him in a spaceship and hadn't circled the earth. And I said, no, what I want you to do is sequester this jury. Because the community is, you know, 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 1, 2004 in courtroom 2M in Redwood City, California. The Peterson and Rocha Families set 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 Dostaso 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 Marine.

Dostaso says the episode airing December 24th never mentioned Marine.

The next morning belongs to Margaragos. He does not try to make Scott Peterson likeable. He calls his client a CAD and describes some of his behavior as "Bourish." 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 "stone-cold innocent." Then Garagos goes after one of the prosecutions opening day claims. He plays the Martha Stewart tape from Christmas Eve.

“So what are we going to do with the egg white story?”

Ooh, one of the little Marines? Oh, that would be nice. Garagos plays the tape a second time saying, quote, "Just in case the Modesto PD couldn't hear it."

On the second day of the trial, one of the prosecutions 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 Peterson's 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 to Stasso had given the jury in his opening could not be right. The prosecution adjusts its timeline. Garagos remembers the moment this way. Rick Stasso 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 too 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 at the David 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, that somebody had used Lacey's password. Somebody had access some sunflower related, which she had a tattoo of on the morning of the 24th. The dog was out with the muddy 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."

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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 Lacy's brother near the security checkpoint. Judge Deluki 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, Deluki removes him from the jury. Falconer walks out of the courthouse and directly into the arms of reporters. They ask him the question everyone once 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 of 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 leave 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, Gary goes isn't doing too badly. Gary goes meanwhile has been fighting over discovery almost from the day he took over the Peterson case.

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 out delucing who was the judge had excoriated the prosecution for the for their discovery compliance for not turning over discovery for not following up on expoatory leads. And I was belly aching about that every single day making motions for mistriles the whole bit. Journalist Katherine Crier covered the trial from inside the courtroom and writes that Judge Delucy took to chestizing prosecutors in open court about discovery issues.

But while Gary goes may be scoring points, there are facts that will prove insurmountable for him. Let me ask you the my 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 that doesn't have Scott as a murderer.

“However, the fact that he bought that boat after they affair began, he did not tell anybody that he bought that boat.”

He went out fishing on Christmas Eve. He went out fishing on Christmas Eve. He placed 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, Lacy's body washes up without her head, her arms or the lower legs. And he clearly, the killer clearly waited 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 picture 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.

He didn't know about. Right. During the trial, they put on the lead detective Albro Keene. 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, Lacy was in the boat.

Lacy didn't know about the boat. You're kind of aha moment. Well, just what happened during the crossing examination in Balbro Keene. I had, they didn't realize Albro Keene had whiteed out a paragraph in his report. I had him produce the original report.

What he had whiteed out was Albro Keene himself had interviewed a witness at the warehouse who saw Lacy in the boat. Actually, sorry, in the boat, he had whiteed it out. So I spent a week contesting mitochondrial DNA so that we could get admitted. When all along, Modesto PD knew that she was in the boat. 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 Lacy 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 place is Lacy at the warehouse complex, not in Scott's boat. But Garagos is right about one important part of this.

Burkini had removed witness information about Peggy O'Donnell from his report. One sentence has been removed. It is about O'Donnell's claim that Lacy 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 Burkini's notes, which include a line that reads "Lacy used restroom on 1223, Peggy."

I excised it, Rokini 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 Burkini has an explanation, and after the weekend the jury hears it. Prosecutors asked him about the missing sentence, and Burkini 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 Burkini, Holmes had interviewed Peggy O'Donnell directly.

In 2024, Burkini explained his reasoning to Netflix and conceded the optics in court. What happened was on this one day after I dictated, turn 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 sense because it was in his report. It could look wrong to the jury, it could look wrong to the, you know, roaches.

Burkini'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. He whited it out because another detective put it in his report and had interviewed this person. At the time we found it, and he whited it out, so it wouldn't be, 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. He had holes. Yes. So I mean, how is it nefarious for Burkini to have taken it out, and he understood his report was hearsay. But he had the actual cop who had interviewed the woman before. 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. Okay.

The other thing is, there's no proof that Lacy was ever in that boat. And Scott also heard that he was taking, he told investigators he was taking that boat out. Allegedly half the reason was so he could just see how it, how it went. So we're to believe that Lacy went to the warehouse. She just sat in the boat. She sat there. They didn't go out and hit. He just said, it's just run.

By the way, she, it's funny. You say that and I'm glad you do. She got in the boat. She did exactly what the jurors did. You know what the jurors did during deliberation? They had, 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 Lacy did to see about his buoyancy.

“I turned into Luki and I said, okay, do you remember when I did a demonstration?”

I actually, and it's somewhere as somebody put it in the internet because it was an exhibit. I quit this poor kid who worked for me in the boat. I gave him a dummy that weighed approximately what Lacy did. And I tried to have him re-enact 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 in the 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 the boat. How where's your witness who said she saw Lacy get in the boat and she testify? I know 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.

“If you call the witness, why don't you call the witness to testify to that?”

He admitted that, yes, she had been in the boat and he had widened it out. I didn't need it at that point. I have fought. No, no, no. If you had a witness who saw Lacy Peterson get into that boat and you felt good about that witness,

you Mark Garagos would have called her to get to testify to the trial. You know, 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 Lacy on the 23rd that we are dodging where was your witness?

Why didn't you call the magical witness who could place Lacy in the boat? Because they admitted afterwards, they abandoned that. The same way they abandoned that she was killed on the 23rd. We would not down every single theory and it came down.

“Really, where why didn't you call all the witnesses who saw Lacy walking her dog after 1030?”

That same reason. The case started. So much magical evidence that would have gotten your client off. You just decided not to call in front of the jury because somehow it had been admitted. It had all been admitted in the jury, which is to dumb to understand it.

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? I know. Because they're at the bottom of the sea holding down Lacy'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 day that was searched that on low tide, they found they not only had so-nar subs.

They not only had all kinds of searches out there. They found snap bottles. They found boots. They found tires. They found everything in the world.

They did not find anchors. They did not find Lacy. They did not find Connor.

“The reason for that is because they weren't there.”

We know they were in there. No, it was after all because because the real killer dumped the bodies. That's your theory. No, my theory is that wherever they were, they were washed up into that area by the storm.

The jury never sees Garagus's 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. Jur John Gwynoso, leader called the fisherman, the star witness of the trial. Then Garagus catches Burkini in another error.

Burkini 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, Burkini adds another detail. He says Scott had talked about wrapping the head in duct tape.

That matters because there was duct tape on Lacy Peterson's remains when she came ashore. Garagus goes back to the original tip report.

Espadilla never mentions duct tape.

Burkini 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. Garagus moves to have the case dismissed, and judge Deluki 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. Garagus grills the detective over the exact number of hairs found at Scott's warehouse in the boat. Prosecutors claim the single hair broken half in the envelope. But Garagus says that theory is made up, and that it was made up after the defense began asking tough questions.

One hair went in, Burkini says, and two hairs came out. Is this a magic envelope? Asked Garagus. 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 Lacy. The trial moves on into August.

On August 10, 2004, Amber Fry walks into courtroom to M. Years later, she described that moment to A&E.

“Remember the door's open, you can hear a pin drop, it was so quiet.”

You can 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.

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 the tapes, and after I'd 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 tone's voice, and it changes the whole dynamic. Take New Year's Eve, for example. Three blocks from Scott and Lacy's home roughly 1,000 people gather for a candlelight vigil for Lacy. Tears are shed for the missing mother and child, and Scott is on the phone with Amber.

And my new year of recovery really felt great to them real. For juror number one, Greg Beratlis, those calls would be a turning point. Years later, he explained why to A&E. When I started to think that Scott was guilty, it was when Amber Fried King. 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 Fried on. Seven court days later, on August 23rd, Garagos begins his cross examination of Amber Fried. Go ahead, Mr. Garagos. Judge Delucy tells him, "No questions, Your Honor. The courtroom gasps. What Delucy 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, Lacy. 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 Lacy 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 Lacy 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 conceans he has done no testing himself, and that the state's expert, Dr. Gregory Devor, is better qualified to read the ultrasound.

Dr. Devor 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 Lacy's first and second trimester ultrasounds forward,

and then compared them to Connor's size when he was found.

“Garigos attacked his methodology on cross, but for prosecutors Devor'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, to broaden to pinpoint a particular date of death. Devor gives them a calculation that points directly at the day Lacy disappeared.

And the jury listens. Devor's testimony would later be described as one of the most persuasive pieces of scientific evidence in the state's case. That leaves Garigos's promise about the eyewitnesses. Garigos' own investigator Matt Dalton found six people, who said they saw Lacy walking that morning, and later than the time Scott allegedly left with her body in his truck.

Garigos 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 Garigos never called them.

The defense calls a total of 14 witnesses. Five of them are police officers, and through them, Garigos does elicit testimony, repeating what the uncalled eyewitnesses claimed they had seen. The judge tells the jury to only consider the officer's actions in response to those reports, however, not the actual sightings themselves.

and could not be considered for the truth of what the eyewitnesses actually said.

“For that, you would need to call the witnesses, but Garigos did not.”

Three of the defense witnesses are subject matter experts, one in cement, one in finance, and one in dog tracking. Garigos 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 Catherine Crier, 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, "Scots the fisherman," he says, "I'm more the golfer."”

Under Garigos' 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 8am tea time. Eight days into its case, on October 26th, 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 like, you know, you gave a kind of a synopsis of what the prosecution was. Take any single one of those, the body was held under water. 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 growth test,”

I will tell you that there is no way that body was underwater, and no scientists, 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 debunked 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, by Coastal elites, may not go fishing on Christmas Eve, but if you're in this country. And so with Scott, Scott wanted to be Scott was there. 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 Garagus' theory of the case.

You and I both know that burglars who get spotted by an 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 jump 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. Like 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 was 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 under water 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. Galaway, the forensic anthropologist, examined Lacey's body as well. She offers a more specific timeline in court, three to six months in the water.

Galaway testifies that decomposition alone could explain how Lacey's limbs separated from her body. She found no evidence to the contrary.

“According to Katherine Crier, 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 gas is built 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 in a new trial.

“If you 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 evolved. The people who weren't in the courtroom would tell you that this case fell apart during the entire time. But didn't fall apart was the hatred, the animus, and this idea that he was a bad man that needed to be punished. That did not fade away.

But if you would see the evidence in real time, and there was over a hundred 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 want a public seat in the morning lottery. On November 1st and 2nd 2004, both sides give their closing arguments.

On the third, 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.