Drew Peterson’s hearsay hearing has taken Illinois criminal law into uncharted territory, a path that has sparked a lively — and sometimes angry — debate in the legal community as the prosecution nears completion of its portion of the landmark proceeding.
“It’s a miscarriage of justice,” said Leonard Cavise, a DePaul University law professor. “This hearing is not how the American judicial system is supposed to work. It’s ridiculous.”
Nearly 70 witnesses have been called in the unprecedented hearing in which a Will County judge will decide whether hearsay statements condemning former Bolingbrook police Sgt. Peterson for the March 2004 death of his third wife, Kathleen Savio, are trustworthy enough to be admitted into trial.
The prosecutors are relying on a new Illinois statute, dubbed “Drew’s Law,” that allows them to build their case around comments made by Savio and Peterson’s fourth wife, Stacy, who vanished in 2007.
Prosecutors are focusing on 15 so-called hearsay statements, which they say will give the women a voice from the grave. In order to prove the hearsay’s reliability, however, the prosecution had to show most of its hand at a pretrial hearing, a move that gave the public its first glimpse at the state’s case.
The case, so far, seems underwhelming, some legal experts say. None of the evidence physically tied Peterson to the crime or put him inside Savio’s house the weekend of her death. Illinois State Police have admitted they, at best, blundered Savio’s death investigation and collected no evidence from the scene.
So far, at least eight witnesses — including her two sisters, boyfriend and co-workers — have testified that Savio told them Peterson broke into her home in 2002, held a knife to her throat and threatened to kill her. Savio’s divorce attorney testified that Savio told him Peterson often threatened to kill her and make it look like an accident. And Stacy Peterson’s aunt recalled hearing Drew Peterson, then 54, apologize to his young wife for “burdening her with his past.”
Some witnesses also bring credibility concerns with them to the stand, such as a self-described psychic who says she hears voices from God and a sister of Savio’s who said she has signed a five-figure book and movie deal.
“I would be reluctant to let some of that stuff in because it’s dangerous on appeal,” said Terry Ekl, a defense attorney and former prosecutor. “I’d be cautious about using it.”
But other attorneys said State’s Attorney James Glasgow is obliged to use the legal means available.
“If I were the prosecutor, my attitude would be the rule of law is there … and if it’s a weapon I’m able to use, I’m going to use it,” said Mark Rotert, a former state and federal prosecutor now in private practice. “He’s only using the tools that the law provides to him. People can argue when those tools were put in his toolbox, but those are policy and constitutional questions he should not spend a lot of time on.”
Judge Stephen White is presiding over the hearing, which has drawn the attention of attorneys across the state, with lawyers popping into his Joliet courtroom to watch the proceedings.
Legal experts describe White as “well-schooled” and “extremely competent.” But he has no road map in which to follow.
The judge, who plans to retire in October, has banned one potentially damaging statement from the trial. He ruled that marital privilege prevents Stacy Peterson’s former pastor from testifying that she told him that her husband confessed to killing Savio.
The statement’s exclusion is a victory for the defense, though White still may allow the minister to testify that Stacy Peterson lied to police about Drew Peterson’s alibi and that she saw him come home at night wearing dark clothes the weekend Savio died.
“I think that the prosecution has a difficult case because they have — according to their case in their best light — an inept investigation and a bunch of hearsay statements, which by law are usually unreliable — a bunch of rumor and innuendo,” defense attorney Steve Greenberg said. “The law disfavors convicting someone because he’s a bad person, and that’s really all they’ve got here.”
In judging whether the statements meet the standard of trustworthiness, White must consider the motives of Savio and Stacy Peterson for sharing their accounts with people, experts said.
Was Savio, as friends and family contend, so terrified Drew Peterson planned to kill her that she wanted to make sure he was held responsible in the event of her death? Or was she, as the defense suggests, angry at Peterson for finding a much younger woman and moving on with his life?
“You’ve got to look at these things very skeptically,” Ekl said. “Two people who are going through a terrible divorce can say a lot of terrible things about each other that aren’t true.”
Other experts said White must consider the witnesses’ state of mind, as well as motives, when deciding whether the statements are trustworthy. For instance, the prosecution’s star witness, Drew Peterson’s stepbrother Thomas Morphey, has been admitted to rehab for alcoholism and battles depression. And several others — including Stacy Peterson’s pastor — broke their public silence on national television instead of in an open courtroom.
“These people put Kato Kaelin to shame,” Greenberg said. “You’ve got a bunch of people saying this guy was scared to death of this guy, and not a single person said a word to anybody. Who could keep that kind of a secret? And everybody kept it. Everybody.”
Peterson’s attorneys argue that the new law, which took effect in December, violates a defendant’s Sixth Amendment right to cross-examine witnesses.
DuPage County prosecutors invoked the hearsay law last year in a murder case with both a videotaped confession and a victim who was gunned down shortly after she filed battery charges against the defendant. In that case, the prosecution intends to use oral and written statements given to police.
In 2008 the U.S. Supreme Court ruled that statements to law enforcement officers are admissible as testimony if the defendant has committed a criminal act that made the victim unable to testify. The court did not address hearsay offered by family members and neighbors, as in the Peterson case.
At least 13 other states and the federal courts allow for a forfeiture by wrongdoing, meaning prosecutors may submit a written proffer to the judge that says it wants to include hearsay evidence and that they will prove it trustworthy at trial.
Typically used in conspiracy cases, prosecutors try to enter this type of hearsay only when they are sure they can prove it trustworthy; otherwise a judge may declare a mistrial.
In Illinois, the law calls for the judge to determine whether the hearsay is trustworthy — and the defendant possibly guilty — before the trial begins, said defense attorney Richard Kling, a professor at ChicagoChicago reviews
-Kent College of Law.
“It’s a serious constitutional problem because you’re taking defendants who are presumed innocent under the Constitution and you’re having them go before a judge … who has to decide that they’re probably guilty,” Kling said. “To get hearsay statements (into trial), they have to prove that they’re trustworthy and also have to prove that more likely than not that he’s guilty of murdering to keep them from testifying.”
The judge already has warned 240 prospective jurors to avoid news coverage of the hearsay hearing, but given the attention the case receives, some experts doubt they’ll follow the instruction.
“There’s no way ever that they’ll find a fair jury,” Cavise said. “By the time the pretrial hearing is over, Drew Peterson won’t be able to find two people who don’t know about all of this.”
–Stacy St. Clair and Erika Slife
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