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Jeffrey Toobin: Wiretap strategy shaky

Peterson defense goes after judge who OK'd phone taps

CNN legal analyst Jeffrey Toobin
CNN legal analyst Jeffrey Toobin

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CNN) -- An upcoming hearing in the Laci Peterson murder case will focus on the issue of the prosecution tapping suspect Scott Peterson's phone.

Defense lawyers have now subpoenaed the judge who gave the approval for those wiretaps, and they charge the judge violated rules governing a capital murder case. CNN legal analyst Jeffrey Toobin recently spoke with CNN anchor Bill Hemmer about the issue.

TOOBIN: Let's rip the defense in the Laci Peterson case again. What do you say?

HEMMER: How about it?

TOOBIN: What happened was, in California law, there is a provision that says if it's a death penalty case, you have to have a court reporter present at all times on all proceedings. A fair rule. No problem.

But these wiretaps were subpoenaed, took place -- they were approved by the judge in February -- before there was even an arrest in the case. So the judge had no reason to order a court reporter being there.

It was just an ordinary course-of-business wiretap. They didn't know it would be a death penalty case. They didn't even know there would be an arrest in the case. But because there is no transcript, they are subpoenaing the judge to get him to testify.

HEMMER: So, but under California law, can this be retroactive? Can you rework the rules or not?

TOOBIN: That's what the defense is trying to do. And in fairness to the defense, what they are doing is they are pushing in every way. The best defense is a good offense. We know that, all the time.

So they are trying to put the prosecution on trial, trying to call the judge to testify because there is no transcript of what he said.

HEMMER: So they want a piece of this judge, then?

TOOBIN: They want a piece of the judge. I mean, it takes -- I think it's interesting. You have Mark Geragos, who's a lawyer from Los Angeles who's not based there in Modesto [California]. I think a lawyer who was in Modesto might be a little hesitant to subpoena a judge because, after all, you live in that community. But Geragos says, no, let's go subpoena the judge, full speed ahead.

HEMMER: You almost said something. It takes what?

TOOBIN: It takes...


TOOBIN: It takes guts. Yes, guts. It takes spirit, let's say. I don't know. There's a word I'm thinking of that I probably shouldn't use.

HEMMER: How aggressive a move is this for the defense? If you're Mark Geragos and you're trying to defend your guy and he's up for capital murder, don't you want to try and pull out all the stops you can?

TOOBIN: Absolutely. And that's what causes all of this -- that it's a death penalty case. I was just looking it up this morning in the invaluable Web site of the Death Penalty Information Center. We call this a death penalty case. There are 624 people on death row in California. They are executing them at the rate of about one a year.... So even though we call this a death penalty case, in fact, it's not really, because they do it in order.

Remember David Westerfield in San Diego? He's around number 600. So, he's not going anywhere.

HEMMER: Get back to this whole question about (court) reporters being present. Is that a technicality, or is that something that could reverse the evidence that may be entered into the case?

TOOBIN: It is possible that it could lead to the exclusion of the evidence from the wiretaps. It's not going to get the whole case thrown out.

The worst thing that could happen to the government's case is having the evidence from the wiretaps thrown out. I don't even think that's going to happen.

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