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Toobin: Prosecutors calling bluff over autopsy report

Jeffrey Toobin

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NEW YORK (CNN) -- The Stanislaus County District Attorney's Office Thursday filed a motion to unseal the autopsy reports of Laci Peterson and her unborn child.

The autopsy reports had been sealed by court order -- a decision that had been supported by both the defense and prosecutors. Anchor Wolf Blitzer spoke with legal analyst Jeffrey Toobin about this latest legal maneuver.

TOOBIN: To put this in perspective -- what we've seen today is kind of a cable TV feeding frenzy of reports. Some contradictory, frankly, about what the autopsy actually says about the unborn child, Connor. There was suggested in some of these reports that there was some direct effort to harm Connor with plastic tape, possibly around his neck, like a wound inflicted on the fetus itself, not just through the mother.

I'm sorry to talk about this as if this is evidence and not real human beings, but these leaks appear to be designed to help the defense, to suggest there was some sinister force out there to get Connor directly.

What the prosecution seems to have done is called the bluff and said, look, let's get the report out there, get rid of these crazy stories, show what the autopsy actually says so there will be no more speculation with people that have an interest, an ax to grind, to put forward.

BLITZER: But by leaking the actual words, presumably from this report, this autopsy report involving Connor, was a crime committed?

TOOBIN: It's hard to know.

Leaking is one of those things that is theoretically a crime in lots of places. It is almost never prosecuted because the recipients of the leak, that is you and me and our colleagues in the news media, we never have an incentive to say who gave us the material. So it is a crime that journalists essentially refuse to participate in the investigation and we feel like we're doing the public's business by getting information.

Whether this specifically was a crime, possibly it was some form of contempt of court. But in the real world no one is ever prosecuted for this kind of leaking.

BLITZER: We know the news media, the newspapers in the area have been seeking permission from the court to release these documents. Now the prosecution says "go ahead" to the judge, "release it." We haven't heard from Mark Geragos, the defense attorney, yet if he's changed his mind. But do you think now that the D.A. says to the judge, "Go ahead, release it," that will have an impact?

TOOBIN: That's a very interesting question, Wolf. I don't know. This would be an interesting example of seeing whether the defense wants his bluff called. Do they want this document really out in the public or do they want their selective leaks, their spin on the document out there?

My sense is that they will probably preserve their position of saying we don't want disclosure to try to be consistent. I frankly don't know what's going to happen on this. It's an interesting question.

BLITZER: They didn't change their mind on releasing the documents involving the search warrants, only the autopsy reports. Is that your understanding?

TOOBIN: That's right, and I think significantly, there have not been the same kind of detailed leaks regarding what was found in the house, the results of those searches. So I think the prosecution doesn't feel like they need to correct the record or call the defense's bluff on what was found in the house. It's only these autopsy records where there was the very specific, very controversial reports today. That's what the prosecution is hoping to clean up by getting the real stuff on the record.

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