Published November 20, 2014
With no physical evidence tying Drew Peterson to the death of his third wife and so much of the case hinging on what she said before she died and what his next wife said before she vanished, it was a certainty that his trial would be unlike anything ever seen in Illinois and perhaps in the country.
But nobody expected what unfolded in the first three weeks of the trial: prosecutors made a series of blunders that prompted the judge to consider at least three defense motions for a mistrial and has some legal experts wondering just how much trust is left.
"If the jury can't trust the prosecution, everything after that fails," said Daniel Coyne, a professor at Chicago Kent School of Law and a former criminal defense lawyer, adding that it is not a big leap for jurors who don't trust prosecutors not to trust the witnesses they call to testify. "The judge has told the jury on a number of occasions that the prosecutor has done something wrong ... (If) they transfer that wrongness to the witnesses, that is very dangerous."
It's particularly important for prosecutors to connect with jurors in a trial such as Peterson's, which relies heavily on what the former suburban Chicago police officer's ex-wife, Kathleen Savio, told others before — as the prosecution alleges — he killed her and left her body in a bath tub in 2004.
Peterson also is a suspect in the disappearance of his fourth wife, Stacy Peterson, though he has never been charged in that case and maintains she is still alive.
Prosecutors are trying to let jurors hear Savio's voice "from the grave" to convince them not only that her death was a murder but that Peterson was capable of making it look like an accident, which authorities initially determined.
While Will County Judge Edward Burmila hasn't declared a mistrial, he has harshly criticized prosecutors — sometimes in front of the jury — for saying things or asking questions that they shouldn't have.
As the trial enters its fourth week, there is a growing speculation that the next big mistake might be the prosecution's last and that Burmila could declare a mistrial and send the jurors home.
And even if that doesn't happen, it's unclear how much his public admonishment of prosecutors has hurt their credibility in the eyes of a jury deliberating whether Peterson, who has been locked up for three years during the investigation, should stay behind bars or go free.
"I've never seen anything like this," said David Erickson, a former state appellate judge who teaches law at Chicago Kent College of Law, who has followed closely the trial.
On Friday, the judge barred testimony from a man who at a 2010 hearing said that Stacy Peterson had told him days before she vanished that her husband came in late the night the Savio died and said, "If anybody ever asks, I was home."
The defense motioned for a mistrial each time prosecutors attempted to put before jurors testimony about Drew Peterson's character or Savio's fears of her ex-husband.
One came after Will County State's Attorney James Glasgow alleged minutes into the trial that before Peterson killed Savio he tried to hire a hit man to kill her. Another followed another prosecutor asking about Savio's discussion about seeking an order of protection, about an hour after Burmila ordered that question not be asked. A third came after Savio's neighbor testified that he viewed a bullet on his driveway as a message of intimidation from Peterson.
While Coyne, Erickson and others say what is going on would be dangerous to any prosecutors, it could be particularly so in Will County, where jurors are bound to be aware of several recent law enforcement blunders. That history includes the high-profile arrest of a man who spent eight months in jail in the 2004 slaying of his 3-year-old daughter, Riley Fox, before DNA evidence cleared him. Last year, another suburban police officer was wrongly jailed for random shootings along the Illinois-Indiana border that left one person dead.
"That could definitely be a factor," said Kathleen Zellner, a defense attorney who won a multimillion-dollar court judgment on behalf of Riley Fox's father, Kevin, and the child's mother. "There's a history there and jurors came (to the case) well informed."
But others wonder if prosecutors are taking a deliberate risk by getting allegations about Peterson before the jury in the hopes that jurors will not disregard them, even if the judge orders them to.
"I think what they are doing is very calculated," said Gal Pissetzky, a Chicago defense lawyer with no link to the case. "They are not young prosecutors who just got out of law school."
The prosecution team includes Glasgow, a lawyer for more than 30 years, and Assistant State Attorney Kathleen Patton, a 19-year veteran of the office.
Prosecutors have apologized profusely for what they have characterized as inadvertent errors — particularly the question Patton asked about the order of protection. And Erickson doesn't buy Pissetsky's theory that prosecutors are purposely putting inadmissible allegations in jurors' heads.
"I think the pressure's gotten to them," Erickson said, though he still predicts a conviction "unless this insanity goes on."
Zellner said in her two days sitting in the courtroom, she became convinced prosecutors were winning the jury over. Jurors are intently taking notes when prosecutors question witnesses and "rolling their eyes" when Peterson's attorneys object, she said.
Besides, she said, similar reports emerged about prosecutors in California during the trial of Scott Peterson before he was convicted in 2004 in the deaths of his wife, Laci, and the couple's unborn son. Peterson, who is no relation to Drew Peterson, was sentenced to death.
"It was all an illusion that they weren't winning," Zellner said.