MODESTO, Calif. -- A Stanislaus County Superior Court judge reluctantly agreed Friday to delay the Scott Peterson preliminary hearing for a third time rescheduling it for Oct. 28.
A preliminary hearing in the case was scheduled to begin Monday but was rescheduled because Peterson defense attorney Mark Geragos is currently representing a murder defendant in a Los Angeles trial that has been slow in wrapping up.
Meanwhile on the eve of a court hearing, Peterson's defense team submitted a filing late Thursday claiming that an investigator 'willfully omitted' evidence that allegedly proved the body of Laci Peterson was never in her husband's boat.
According to the filing, the defense believes that the prosecution's claim that Laci Peterson's lifeless body was placed in Scott Peterson's boat and dumped in the San Francisco Bay off the Berkeley Marina on Christmas Eve day is pivotal to the case against the Modesto fertilizer salesman.
Kirk McAllister, a member of Peterson's defense team, asked the court for a 'Franks Hearing' on the alleged omission. A 'Franks Hearing' is simply an evidentiary hearing on a motion to suppress evidence based on a challenge to the facts included or omitted from a search warrant.
In the filing, McAllister claims that a cadaver dog named Twist was placed in the boat by the Contra Costa County Sheriff's Search and Rescue Team and failed to 'alert' -- to signal that a scent of Laci Peterson had been detected.
"This information was purposely omitted from the search warrant affidavits because it destroys the theory on which the prosecution has based its case," McAllister stated in the filing.
He added that such an omission "fatally undermines a finding of probable cause." McAllister went even further to claim that the "prosecution's own investigation proved that Laci Peterson's body was never in Scott Peterson's boat."
Peterson has been charged with the capital murder of his wife, Laci, and the couple's unborn son and if convicted faces the death penalty.
Laci Peterson disappeared from the couple's modest Modesto home on Christmas Eve day, triggering a highly publicized search effort. At the time of her disappearance, Scott Peterson has told police he was on a day fishing trip to the San Francisco Bay off the Berkeley Marina.
Laci's partially decomposed body and that of her unborn son was discovered in April by dog walkers on successive days on the shoreline of a park in Richmond, just miles north of the Berkeley Marina. Scott Peterson was arrested in San Diego a few days later with his hair dyed blond and $10,000 in cash in his pocket. Authorities have said they feared he was preparing to flee to Mexico.
He has been held without bail in the Stanislaus County Jail.
Prosecutors Defend Evidence; Prelim May Be Delayed Copyright 2007 by KTVU.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
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