Attorneys presented arguments in the Lucas Peterson case to the Hon. Judge Theodore Carlson at the Court of Appeals May 20.
     Carlson was hearing an appeal of information the Hon. Judge Alan Gless, Seward County District Court, ruled in February should be suppressed.
     James Smith, assistant attorney general, presented four points of disagreement with Gless's ruling, specifically the suppression of statements to law enforcement, suppression of letters and statements from Peterson to Jennifer Williams, involuntary statements that led law enforcement to Trista Peterson's body and stale Miranda warnings. Jeff Pickens, attorney for Lucas Peterson, reviewed the same points.
     Peterson was arrested in March of 2007 and later charged in the disappearance and death of his daughter, 11-month-old Trista.
     Smith said the Miranda warnings are a critical point. They were given to Peterson twice and waived twice. However, he said of the April 12, 2007, interview in which Peterson agreed to take officers to his daughter, Trista's, body, "there is no evidence that he didn't understand."
     He cited the clear articulation rule which requires a person who doesn't want to talk to law enforcement to make that clear. Peterson did so on April 11, which "shows he knows his rights and can articulate them," Smith said. "He didn't say on April 12 he didn't want to talk."
     In the matter of voluntary or involuntary statements, Smith said, Peterson's statements to officers that led to the discovery of Trista's body were voluntary under federal due process.
     "That should have been the issue," he said.
     Smith felt Gless had applied the wrong legal standard to Peterson's statements.
     Carlson asked about the continuation of the Miranda warnings throughout the questioning and how that made Peterson's statements voluntary.
     Smith cited Gless's ruling where the judge said Peterson knew the situation and took advantage of it, adding that there was no coercive conduct in that instance. Because voluntary statements and those given following Miranda warnings are distinct and separate, they are treated that way, he said.
     "If a statement is voluntary," Pickens argued, "the fruits come in. If it's not, we have a different issue and fruits of a poisonous tree."
     In this case, he said, Gless's ruling that Peterson's statements were voluntary means Trista's body and the autopsy report may be admitted as evidence as fruits of Peterson's statements.
     "In my opinion Judge Gless is wrong, but I can't ask you to review that," Pickens told Carlson.
     When Carlson asked what would happen if Trista's body and the autopsy report were admitted, Pickens was candid.
     "It could be a conviction. It would be very bad for us," he said. "When you look at all the facts, it's clear that the statements were not voluntary."
     Although Peterson was in custody, he was not advised by counsel on the offer of leniency, Pickens said. Peterson did have counsel for an unrelated case, but that attorney was not invited to or advised of the meeting in which the cooperative agreement was presented.
     Officers told Peterson the felony charges he was facing would be reduced to misdemeanors if he would tell them where Trista was. At that point, Peterson agreed to take them to her body.
     Carlson asked specifically about a letter from Peterson to Williams, Trista Peterson's mother, that was seized by Seward County Sheriff's Deputy Tina Matulka after Peterson was transferred from the Seward County Sheriff's Office to the Nebraska Diagnostic and Evaluation Center.
     "It's not clear how Matulka happened to seize the letter," Smith said. "It's a critical piece of evidence."
     Smith also argued that while Gless found that Williams was not acting as a law enforcement officer during her correspondence with Peterson, Williams was acting as "an undercover law enforcement agent in another context."
     Pickens said Williams was acting as an agent during the correspondence because she was doing what the Seward County Attorney and law enforcement told her to do, including lying about her future with Peterson. In fact, officials had to ask the York Women's Correctional Facility to "give special permission to violate the rules," he said.
     Both Deputies Dan Hejl and Tina Matulka talked to Williams about tactics to use to get Peterson to tell her where Trista was, Pickens said.
     "It is clear that she is an agent. She's doing what she's told," he said.
     Following the presentations, which are limited to 10 minutes each in the Court of Appeals, Carlson told the attorneys he "would try to get something out within the appropriate time."