How Hearsay Evidence Could Help the Case Against Drew Peterson

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M. Spencer Green / AP

Former Bolingbrook, Ill., police sergeant Drew Peterson arrives at a courthouse for his arraignment on charges of first-degree murder in the death of his former wife Kathleen Savio

"Testimony from the grave." That's what prosecutors are calling a key part of their strategy against Drew Peterson, the former Illinois police officer arrested last week on charges that he murdered the third of his four wives. It may sound like just another melodramatic turn in the tabloid tale of Peterson, who has been under a cloud of suspicion since his petite fourth wife, Stacy Peterson, disappeared in the fall of 2007 after reportedly telling relatives that she wanted to leave what she described as an abusive relationship. But the prosecution's strategy against Peterson, 55, could in fact be based on a controversial new Illinois law that allows for the admission of hearsay testimony.

The 2004 death of Peterson's third wife, Kathleen Savio, was originally ruled to be an accidental drowning after her body was found in her bathtub. But after all the media attention on Stacy Peterson, 23, Savio's body was exhumed, and a coroner reclassified her death as a "homicide staged to look like an accident." All the while, Drew Peterson gave frequent, rambling interviews, professing his innocence in both cases and taunting investigators; he even went so far as to angle for a spot on a reality television show to be set in a Nevada brothel, and brought his new 20-something girlfriend into the home he shared with his two young children by his still-missing fourth wife as well as his two teenage sons with Savio. (See the top 10 crime stories of 2008.)

But on May 7, Peterson was arrested at a traffic light near his brown-brick home on a cul-de-sac in Bolingbrook, Ill., a suburb about a half-hour's drive west of Chicago. In a press conference, Will County's state attorney, James W. Glasgow, indicated that Illinois's new hearsay law would help the case he would prosecute. He did not specify which statements he would use to ask a pre-trial judge to allow before a jury. Prosecutors may try to enter as testimony Stacy Peterson's alleged statement to her pastor that her husband had confessed to killing Savio. But the statements more likely to come into play are from Kathleen Savio. (See the top 25 crimes of the century.)

In a 2002 letter, Savio told a prosecutor that after learning of an alleged affair between Drew Peterson and the future Stacy Peterson — then still a minor who worked in the police department — she sought a restraining order against her husband. Then, she wrote, Drew Peterson confronted her by "striking me with his hand and chasing me though [sic] the house with a police stick." She added, "He knows how to manipulate the system, and his next step is to take my children away. Or Kill [sic] me instead." Savio's death came as negotiations were going on for a financial settlement in the couple's divorce.

For years, courts have allowed certain types of hearsay testimony. However, matters became complicated in 2004, when the U.S. Supreme Court issued a ruling in Crawford v. Washington, a case involving a husband, Michael Crawford, convicted of stabbing a man he claimed tried to rape his wife, Sylvia. After having initially complained about her husband's actions, the wife declined to testify, citing marital privilege. The central issue was the admissibility of the wife's statements to police officers just after the incident. Could it be considered evidence or was it hearsay? In the majority opinion, which reversed Crawford’s conviction for assault and attempted murder, Justice Antonin Scalia wrote that allowing the statement as testimony violated the husband's Sixth Amendment right "to be confronted with the witnesses against him" — in other words, to cross-examine the witness.

Then, in the case of Giles v.California last year, the Supreme Court ruled that statements to law enforcement officers are admissible as testimony if the defendant is found to have caused "unavailability." In that case, Dwayne Giles was convicted of fatally shooting his ex-girlfriend, Brenda Avie. He claimed to have acted in response to threats on his life. California courts allowed as testimony Avie's previous statement to police that he had, in fact, threatened her. A provision of the state law allows out-of-court statements to be admitted if the declarant is unavailable (or, in this case, dead) at the time of the trial. The Supreme Court's ruling essentially confirmed the legal concept known as "forfeiture by wrongdoing."

Last fall came Illinois's new hearsay law — coincidentally, one of the last pieces of legislation signed by Rod Blagojevich before he left office in disgrace. The law seems to resemble the increasing number of statutes across the country essentially codifying the Giles decision. "A statement is not rendered inadmissible by the hearsay rule if it is offered against a party that has killed the declarant ... intending to procure the unavailability of the declarant as a witness in a criminal proceeding," the law states.

Those two Supreme Court cases, along with Illinois's law, may give Will County prosecutors key openings in their quest to invoke some of Savio's statements. To succeed on that front, prosecutors must first focus on aspects of the Giles ruling that give particular consideration to statements from victims of abusive relationships, including those ending in murder. So in pre-trial hearings, prosecutors must quickly examine Savio's frame of mind when she crafted her statements. Among the questions they will likely explore: How fearful was Savio for her life, and that her children would be taken away? Did she intend the letter to someday be used as courtroom evidence? Prosecutors will also raise the isolation factor: Savio was probably, for a time, intimidated by the likelihood that her allegations would at least initially be investigated by her estranged husband's fellow Bolingbrook police officers. "With all of those little facts added together, the judge would have to decide whether the reason he kills her is to keep her from testifying by a preponderance of evidence," says David A. Erickson, director of the criminal-litigation program at Chicago-Kent College of Law and a former appellate court judge.

But isn't asking a judge to consider and then admit such statements into a trial essentially asking him or her to cast the defendant as guilty before the case even reaches a jury? Supreme Court Justices David Souter and Ruth Bader Ginsburg raised this issue in response to the majority opinion in Giles (also authored by Scalia). They wrote, "Equity demands something more than this near circularity before the right to confrontation is forfeited, and more is supplied by showing intent to prevent the witness from testifying." (See a pictorial history of Supreme Court nomination battles.)

Meanwhile, experts say it will be far trickier for prosecutors to admit Stacy Peterson's apparent statement to her pastor mainly because he was not a law enforcement officer — and the Supreme Court rulings dealt only with statements offered to police.

Will County's Glasgow calls the new law a "significant step forward in the prosecution of these types of cases" but concedes, "We've got a tough road ahead of us." Prosecutors say they have ample evidence beyond the statements to support their case. For now, Peterson remains in a Will County jail on $20 million bond. If he is found guilty, he could face a 60-year sentence. Precisely when Peterson's trial will open is unclear.

In the meantime, there is the case of his missing fourth wife. The Will County grand jury has two scheduled meetings left to decide on charges. Even if the panel fails to come to a resolution, prosecutors are expected to continue their investigation. So, in some ways, this may all be a simple prelude to an even greater Drew Peterson spectacle.

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