Drew Peterson

Drew Peterson: Legal Commentary

September 6, 2012: Guilty! Wow. We at Wild About Trial were split down the middle as to how this would come out, but after 14 hours of deliberation, the jury convicted Peterson of Kathleen Savio’s murder.

What a roller coaster this trial has been. Some of us felt sure that the lack of any real physical evidence would acquit Peterson, but other lawyers on the WAT staff put it this way: “If it looks like a duck, walks like a duck and talks like a duck, it’s a duck.” Apparently the jurors agreed: Savio’s death and Peterson’s response to it were suspicious enough to convict.

It seems like the jurors were also split for a long time. At one point they asked “what does unanimous mean?” Defense lawyers commented that that question means there was going to be a hung jury. Eventually, of course, the jurors managed to agree.

It was a long, crazy trial. There was infighting between the judge and the prosecutor, a mistrial was nearly declared for prosecutorial misconduct and the defense team was as flamboyant as a television show. The jury had a tough job, not just to determine Peterson’s guilt or innocence, but to look beyond the courtroom and the media circus and focus on the cold, hard facts of the case.

Peterson is facing up to 60 years in custody and will surely spend the rest of his life in prison.

September 4, 2012: “It is clear that this man killed Kathleen Savio,” began the state’s attorney, Chris Koch, during today’s closing argument.

Well, Mr. Koch, you can raise your voice and point your finger all you want, but no amount of Perry Mason zeal is going to produce physical evidence against Drew Peterson.

Every time our intrepid reporter, Joseph Hosey, checks in with us at the Wild About Trial offices, he regales us with stories of the courtroom theatrics from both sides of the courtroom — and even from the judge! Closing statements in this trial are no exception.

Even better than Koch’s fierce “this man killed Kathleen Savio,” was defense attorney Joe Lopez’s comment to the jurors that each of them must have a voice whispering in his or her ear that Peterson is innocent. It’s certainly true that jurors must presume Peterson is innocent unless they find beyond a reasonable doubt that he killed Savio, but the image of Drew Peterson wearing wings and a halo and whispering to each juror “I’m innocent!” is pretty funny.

Lopez sealed the deal with this gem: “The framers of the Constitution would barf on this evidence,” referring to all the circumstantial and hearsay evidence submitted to the jury to convict Peterson.

Entertaining courtroom antics aside, it’s hard to know how the jury will decide. The fact that they have been empaneled for 25 solid days is significant, because at this point they are annoyed and looking for someone to blame. That person might be Peterson, but it may also be the prosecutors.

Either way, they will probably decide the case quickly, just because so many of them want to put this case to rest. It is hard to imagine jury deliberations stretching longer than a day, despite the quantity of evidence that was presented at trial.

Ultimately, we at WAT think that the prosecution did not prove their case. We think they showed that Peterson was a suspicious guy who said and did some stupid, and potentially incriminating, things, but we don’t think that the prosecution proved beyond a reasonable doubt that Savio was killed by Peterson. But it remains to be seen what the jury will decide.

August 23, 2012: As Peterson’s trial moves into its fourth week, there’s no other way to put this: it’s become a slog.

On Tuesday, defense attorney Darryl Goldberg, whose wife and parents were watching from the audience, delivered an excruciating 4-hour cross examination of a forensic pathologist. No stone was too insignificant to go unturned. No detail could be left alone. He examined every second of her testimony with razor-like precision in what I’m sure he thought was a masterful afternoon of lawyering.

The jury of course, was bored to tears. And they found themselves staying past six yet another night.

The jury is going to become a problem, and quickly, if both sides don’t wrap things up soon. School is starting again and at least one juror is due back in college soon. Parents of school-age children need to be available to pick up and drop off their children, to go to Back-to School Nights and pack lunches. None of this can happen if they are stuck in the never-ending trial.

Judge Burmila has even said that he will schedule Saturday trial dates if he needs to. Can you think of anything less appealing than serving your civic duty on THIS jury?

At this point, the jury probably hates all of the lawyers so much that they will convict anything that moves.

August 20, 2012: Peterson’s defense team has withdrawn their request for a mistrial. There’s only one way to interpret this: They think they have an acquittal in the bag.

Prosecutors got off to a rocky start in this trial by referring to evidence that the judge had ruled improper to bring up at trial. After a number of admonishments by the judge, the defense team asked for a mistrial. The judge declined to grant the mistrial, the prosecution went on with its case, and after a few more days of prosecution blunders, the defense decided they didn’t need a mistrial after all.

With virtually no physical evidence to go on, the prosecution is grasping at straws to prove that Peterson killed his third wife, Kathleen Savio. And although circumstantial evidence can sometimes lead to a conviction, it’s not at all a sure thing.

Judge Burmila has refused to let a number of prosecution witnesses testify, believing that the witness’ testimony would be hearsay and thus inadmissible at trial. Every time the judge dismisses a prosecution witness, the jury loses faith in the prosecution’s case.

It’s a gold mine for Peterson and his flamboyant defense team, as long as they make good use of it when it’s their turn to present their case.

July 29, 2012: As the trial date approaches, the judge has reserved his ruling on a few outstanding hearsay issues. It’s possible that he is waiting for trial to begin before he rules on whether or not certain people will be permitted to testify so he does not send the case back to the Court of Appeal for months to come. After all the delay in this case, he may be making a decision based on what will move the case along most quickly. This could point to a decision he knows will be unpopular or controversial, as it will effectively lock the parties into trial no matter what his decision is. It’s tough for a trial lawyer to build his case when he does not know which evidence will come in yet, but it’s something the veteran lawyers in this case should be able to negotiate with ease — if they can set aside the inevitable bickering.

Pre-trial commentary: The biggest hurdle for the prosecution at trial will be proving the quality and reliability of their forensics. Since most of the physical evidence in their case relies on Savio’s exhumed body, the defense would be wise to challenge the reliability of signs of trauma on a long-dead body. Another strong defense strategy would be drawing attention to the media witch hunt aspect of the prosecution — that the media basically swooped in, hired their own experts and redid the investigation after the state of Illinois had absolved Peterson of wrongdoing in Savio’s death.

The defense has many more problems to overcome, most notably Drew’s Law, a 2008 law passed by Illinois voters in reaction to this case. Normally, hearsay testimony (statements made by someone who is not testifying under oath, think of the old telephone game from elementary school) cannot be used at trial because the person testifying does not have first hand knowledge of that fact.

However, Illinois voters thought it was important to allow statements made by missing witness Stacy Peterson into evidence in this case, so they carved out an exception to criminal jurisprudence especially for this case and others like it.

Due to Drew’s Law, lawyers on both sides of this case have been engaged in prolific litigation, arguing about which of Stacy’s statements the court will permit the jury to hear at the eventual trial, even though Stacy herself will in all likelihood not be around to speak for herself.

Since using hearsay evidence is rare for a criminal trial, the attorneys for both parties are going over their evidence with a fine-tooth comb, trying to figure out exactly what they will be able to use. Each item needs to be approved by the judge beforehand.

Recently, the judge looked at three requests. The first is to allow Stacy Peterson’s pastor to testify as to statements Stacy made to him, the second is for Kathleen Savio’s divorce lawyer to testify as to conversations with his client, and the third is to admit tape recorded interviews Peterson conducted during the media blitz surrounding Stacy’s initial disappearance.

The judge ruled that if the prosecution can lay a valid foundation, that is, show the court that the statements are relevant, complete, coherent and from a valid source of information, the prosecution may admit testimony from the divorce lawyer and the pastor.

The pastor will testify that Stacy told him she saw Peterson carrying a bag of women’s clothing the night Kathleen Savio was found dead. To back up this statement, the pastor will need to be as specific as possible and include corroborating information such as times, dates and how precisely Stacy was able to see Drew with the bag.

Savio’s divorce lawyer will testify that Savio told him she feared Peterson would kill her. He will be rigorously questioned by the judge before he takes the stand, however, as to any other comments she may have made to him and what the context of those comments was.

However, the judge found that the interviews Peterson did with various media outlets were not admissible because they are so inflammatory that they would prejudice Peterson negatively. He also will not permit the actual bathtub in which Savio allegedly drowned to be dragged into court, probably to maintain court order and keep the trial from becoming too much of a spectacle.

Because of these complex evidentiary issues, this is one case that our legal analysts are watching very closely. As the trial date fast approaches, keep checking in for the latest updates.

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