Drew Peterson and the Blue Towel: Attorney Karen Conti weighs in

Witnesses have said that they did not see or place this towel on Savio’s bath tub.

If you’ve been following the trial of The People v. Drew Peterson, then you know that the evidence in this case is largely circumstantial. The prosecution has been attempting to build a story, bit by bit, to create doubt in the juror’s minds — enough to get a conviction for murder.

One part of that story is the condition of the bathroom in which Kathleen’s lifeless body was found. The scene appeared odd to the first witnesses to arrive, who remarked aloud at the absence of any clothing in the room, no towels nearby and no bathroom rug.

However, evidence photos taken after neighbors, friends and EMTs had left the house depict a folded blue towel on the side of the bathtub. Seeing as Peterson was a seasoned veteran of the Bolingbrook police force, who knew very well how to preserve a crime scene, and who had even kept a witness from covering Savio’s body, telling her that to do so would taint the scene, how did this towel come to be there?

It’s the position of the prosecution that not only did Drew Peterson kill Kathleen Savio, but that he then took steps to conceal his crime which included a clean up of the murder scene. Possibly, a clean-up that was a bit too thorough–something he came to realize when the first people on the scene commented on the missing accouterments of a typical bath time.

The prosecution began to build this argument with testimony from the witnesses on the scene, who were all asked if they had seen the towel and if they had placed the towel. They all testified that they had not. But the defense objected, and after some argument Judge Burmila agreed with the defense on grounds that Peterson’s fifth amendment right against self-incrimination came into play.

The argument went down like this:

Brodsky: “Witness after witness after witness has testified about a blue towel. Fine. The EMTs testified that the towel wasn’t there…The inference is that somehow Drew Peterson would have moved the towel to cover up the crime scene. Nobody can put Drew Peterson in the bathroom after the EMTs arrived, and didn’t see the blue towel…so why does the State now want to call witnesses to say they were in the house and didn’t see the blue towel? Of what relevance is this? It’s of absolutely no relevance. They’re going to be asking the jury to speculate. There has to be evidence putting him with that towel, or giving him the opportunity to move it. It’s another attempt to make something insignificant significant. There’s absolutely nothing to connect Drew Peterson with that towel. I ask you to bar the witnesses, and, in fact, anything to do with that towel.”

Glasgow: “It’s the intent of the State to call every witness who could have placed that towel there.”

Judge: “You absolutely cannot do that…that’s a direct comment on the defendant’s right to remain silent. You cannot do that. You CANNOT do that. That’s a direct reflection on his right to remain silent. I’m sorry, but you cannot do that.”

Glasgow: “He had opportunity, knowledge of the towel, and the motive to place it.”

Judge: “I tell you right now, if the aim of the State is to ask every single person who could have moved that towel, I cannot allow that…you will not be able to call a series of witness, have them all say they did not do it, and then point a finger at the defendant and say he must have done it because we didn’t hear from him. It’s absolutely impermissible.”

I asked Attorney Karen Conti for her informed opinion on how it is that Judge Burmila is barring this circumstantial evidence from a circumstantial case. This was her reply:

I too am at a loss.

What I can say is this. Using an analogy from this case: Remember the neighbor who found the bullet on the driveway who assumed it was put there by Drew trying to intimidate? Well, the judge correctly barred that testimony because no one could testify that Drew put it there and therefore the jury could not be left with the impression (unsupported by any evidence whatsoever) that Drew did that. You cannot have the jury speculate with innuendo and assumptions.

Here, this is different, in my view. You have a finite number of people who were at the crime scene. If all of them but Drew testifies that they did not place the towel on the scene, the jury could rightfully draw the conclusion—from circumstantial evidence—that Drew put it there to stage the scene.

How this impacts his 5th amendment right is not clear to me. Drew’s failure to address all of these matters because he is likely not testifying is not to be considered by the jury as they are specifically instructed that his failure to testify cannot be held against him because it is his right. So, the fact that Drew does not get up on the stand to deny placement of the blue towel cannot be held against him BUT the jury should be able to hear evidence and draw the conclusion based upon the other witnesses’ testimony that Drew did it.

Put simply, the jury CANNOT consider that Drew did not get up on the stand to deny putting the towel there, but the jury CAN consider that, by virtue of the other witnesses’ testimony that he did put the towel there.

The judge is much more experienced than I am and I haven’t researched this, so this is just my two legal cents.

So, there you have it from a lawyer. I think only the judge at this point could really explain to us what his reasoning is for blocking testimony about the blue towel.

A big thank you to Attorney Karen Conti for taking time out of her day to take a look at this issue and weigh in with an opinion. You can catch her this evening at 4 p.m. CST on The Crime Line webcast with Jon Lieberman and Mari Fagel.

~By commenting you agree to be bound by the rules of this blog.

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16 thoughts on “Drew Peterson and the Blue Towel: Attorney Karen Conti weighs in

  1. I fail to see the “judge’s” rationale for not allowing this testimony. I mean, it’s not rocket science. Everyone knows what Peterson’s answer will be to a question about the towel posed to him by the prosecution should he take the stand.

    Prosecutor: Did you place the blue towel the tub after finding the body?

    Peterson: No.

    Does he really have to take the stand just so he can deny placing it there?

    Is the “judge” also not going to allow testimony about the hit man because it will force Peterson take the stand to deny it?

    Something is not kosher about this “judge.”

  2. Boy do I feel pretty dense right now. I understood the towel issue, but I never really placed it into the context of Drew NEEDING to put it there because he heard Mary (and others) comment that the scene looked odd without a towel or clothes. He panicked, believing that the investigators would also pick up on this, so he had to put the towel there to help make the scene look more natural. Duh!

    Your clear explanation above was light a light bulb, Facs. Thanks.

  3. Drew Peterson’s murder trial is scheduled to resume Tuesday with more crucial medical testimony as Will County prosecutors try to prove Kathleen Savio’s 2004 drowning death wasn’t an accident.

    Savio’s former divorce attorney, Harry Smith, also may testify about threats the former Bolingbrook cop allegedly made against his third wife before she was found dead in her empty bathtub.

    Dr. Mary Case is expected to testify that an inch-long cut discovered on the back of Savio’s head after her death wasn’t severe enough to have caused the 40-year-old Bolingbrook woman to lose consciousness.

    Case, a pathologist at St. Louis University and an expert in head trauma, is being called by prosecutors to bolster earlier testimony from another pathologist that the laceration and abrasions found on Savio’s body couldn’t have been caused by a fall in the tub.

    http://www.suntimes.com/news/metro/14621347-418/pathologist-savio-divorce-lawyer-on-deck-in-drew-peterson-murder-trial.html

  4. Hi Fac, Thanks for continuing to highlight this important issue.
    After struggling for a couple of days to come up with any plausible reason for the judge’s ruling, I have developed a possible rationale for why he is not allowing further questioning about the towel.

    An Oregon Supreme Court case sheds some light:

    “In establishing [an] element, the state may rely on circumstantial evidence and reasonable inferences flowing from that evidence. An inferred fact must be one that
    the jury is convinced follows beyond a reasonable doubt from the underlying facts. But the requirement that the jury be convinced beyond a reasonable doubt does not mean that a particular inference must inevitably follow from the established facts. Rather, the established facts may support multiple reasonable inferences and, if they do, which inference to draw is for the jury to decide.

    “Whether particular circumstantial evidence is sufficient to support a particular inference, however, is a legal question for a court to decide. There is a difference between inferences that may be drawn from circumstantial evidence and mere speculation. Reasonable inferences are permissible; speculation and guesswork are not. As we have observed before, the line between permissible inferences and impermissible speculation is sometimes faint. The line is also sometimes difficult to articulate with precision. But we agree with the federal courts, which frequently describe it in these terms:

    “The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial
    idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts * * *.”

    245 Or.App. at 236–37

    The questions about the blue towel are for the prosecution to develop the inference that if no other person place the towel on the bath then it must have been Drew Peterson.

    Accepting this first inference, the prosecution wants the jury to make a second inference that if Drew placed the towel on the bath that he was doing it to make the death scene consistent with an accidental death.

    Accepting this second inference, the prosecution wants the jury to make a third inference that if Drew interfered with the crime scene then he must have killed Kathy Savio.

    Of course, even if none of the witnesses state they did not place the towel by the side of the bath, it is not certain that Drew Peterson was the person that place the towel on the side of the bath. Maybe one of the other witnesses forgot. Maybe the police lost control of crime scene and an unknown person entered the property. Maybe one of the witnesses is trying to frame Peterson…easy to do as there is no forensics supporting Peterson touched the towel. Even if peterson did place the towel on the bath, maybe he did so to clean himself up after touching the deceased…sloppy police work but hardly a “capital” offence. And even if he did inadvertently interfere with the crime scene its not beyond the realm of possibility that the ex-husband was not thinking straight in the immediate
    aftermath of finding his ex-wife of many years naked and deceased. The placing of the towel on the bath could possibly therefore have been for “innocent” reasons.

    Of course the mystery of towel could easily be clarified by Peterson taking the stand in his own defense…and under the circumstances the triple-layered inference would undoubtedly be a 2000 lb elephant in the courtroom were Peterson not to explain it away to the best of his ability.

    But Defendant’s are given the right to avoid self-incrimination. The presence of a 2000 lb elephant, makes a mockery of this right by effectively compelling the defendant to take the stand in order to protect himself from triple inference-based potentially faulty logic. This would inevitably provide strong grounds for subsequent appeal.

    So maybe Judge Burmila, why appearing to be unsympathetic to the State, is actually doing the right thing and working to secure a verdict that will survive the inevitable barrage of appeals.

  5. So, it comes down to the difference between deduction and speculation? Hmmm. OK. Thanks for asking about the issue Oxymoran, as I’m sure we’ve all learned from delving into the matter more deeply – even if we don’t like the Judge’s decision.

    On the other hand, we do know exactly who was on the scene and if they all have said that they did not place that towel, except for Drew Peterson…I say let the jury hear it and decide for themselves is the testimony is credible.

    BTW, Sun-times says that Harry Smith will most likely only be testifying to divorce-related issues related to Kathleen Savio.

    Judge B already barred him from testifying what Stacy Peterson told him (which was much like what she told Rossetto and Neil Schori), but he may not even be testifying about Kathleen’s fears that Drew would kill her.

  6. Juries make these kinds of inferences all the time. Case in point, there was a trial last summer in Florida in which a mother was accused of killing her daughter. The state gave evidence to the jury that the defendant had used a computer to search for “how to make chloroform” and that a large amount of chloroform was found in the trunk of her car along with evidence of decomposition.

    Now, the jury had to infer, based on the evidence, that the defendant made that search, wanted to possess chloroform, did possess chloroform, and then used it in the homicide of her daughter. The jury was given this evidence, and it was not disallowed because of the multi-layers of inferences the jury had to make.

  7. @ Robert…agree this is a very grey area…but let me try to distinguish between the Florida case and the Peterson case.

    Key differences
    1) The evidence about the computer search was rebuttable by a witness other than the Defendant…ie Casey’s mother. The Judge knows only Drew can rebut the evidence about the blue towel

    2) The internet search evidence required a singe inference. The presence of chloroform in the Defendants car was supported by forensics along with evidence of decomposition. The evidence about the blue towel requires inference to be piled on top of inference. There is no forensics or eye witness testimony to place the towel in Peterson’s hand.

    3) The internet search evidence was used to complete a chain of actions that were central to the state’s theory of the murder…most of which was supported by forensics….although obviously not to the satisfaction of a Florida jury. The Blue towel evidence is tantamount a Straw Man….the State doesn’t know how Peterson murdered Savio…so instead its trying to prove he interfered with the crime scene and use it to suggest it proves he murdered his wife. Thats why i think the Judge is stopping the questioning…the building of a straw man through inference threatens to give Peterson Hobson’s choice when it comes to a decision about whether to take the stand.

    One final thought…as i write this response and make the comparison its unsettling to think that even with a much stronger case, Florida was unable to convict Casey Antony.

    That’s why its critical that the prosecution finds a good reason for the judge to allow the “Hitman” evidence into the case…it seems that juries are willing to convict ‘murder for hire’ defendants on the flimsiest of evidence. Although Peterson is not on trial for MFH maybe some of that willingness to convict will convince this jury to hold Peterson accountable for his actions.

  8. I like your points, oxymoran, but must take some exceptions.

    1) The evidence about the computer search was rebuttable by a witness other than the Defendant…ie Casey’s mother. The Judge knows only Drew can rebut the evidence about the blue towel

    There really was no one to rebut the evidence of the searches since the witness in that case lied on the witness stand about making the search. I do not know if either the defense or the prosecution were aware of this before it happened, but the prosecution did have to address it in rebuttal. The evidence of the search was allowed even though neither one of the entities may have been aware that the defendant’s mother was going to make the claim she did about making the search before she actually did it on the stand. This is an option that is open to Peterson. He can always get someone on the stand to say they put the towel there. This is probably impossible for him since there is no one who is willing to commit perjury for him as Cindy Anthony was willing to do for her daughter.

    2) The internet search evidence required a singe inference. The presence of chloroform in the Defendants car was supported by forensics along with evidence of decomposition. The evidence about the blue towel requires inference to be piled on top of inference. There is no forensics or eye witness testimony to place the towel in Peterson’s hand.

    Partially agreed, but the fact remains that the prosecution presented evidence of the search as evidence for the jury to infer that Anthony a) did make that search, even though there was no direct evidence that she did, b) that she wanted to possess chloroform, and c) that she used it in the homicide of her daughter. Yes, that she did possess the chloroform was proven scientifically, and there was no inference required on that front. There are still numerous inferences required to get from the internet search to the homicide however.

    3) The internet search evidence was used to complete a chain of actions that were central to the state’s theory of the murder…most of which was supported by forensics. The Blue towel evidence is tantamount a Straw Man….the State doesn’t know how Peterson murdered Savio…so instead its trying to prove he interfered with the crime scene and use it to suggest it proves he murdered his wife. Thats why i think the Judge is stopping the questioning…the building of a straw man through inference threatens to give Peterson Hobson’s choice when it comes to a decision about whether to take the stand.

    This is your strongest point and one i am going to have to ponder a bit before addressing. It is quite late and impossible for me to do that at this time. On it’s face, it does appear to provide the discrepancy between that case and the Peterson case that provides the most rationale for the judge’s decision, but let me study it a bit.

    Have a good night.

  9. Interesting discussion and in light of it I’m going to repost my list of differences between the cases:

    Casey Anthony vs Drew Peterson

    1. A body decomposed to the point of skeletonization (no way to determine manner of death) vs. a body only 10-48 hours old with visible injuries and manner of death determined to be drowning.

    2. Vague motive that can only be guessed at (wants the Bella Vita?) vs. Big Motive (50% of shared assets, a million dollar life-insurance policy, control of the children, etc.)

    3. No testimony that she considered hurting the victim vs. people who can testify that Drew tried to pay them to kill Kathleen

    4. Can’t place Casey at the murder scene vs. Drew is the first one in the house, shoos people away and rearranges death scene.

    5. No one to testify (even second hand) that she killed Caylee vs. Pastor Schori’s testimony that Stacy told him Drew had killed Kathleen, which is admissible and will be heard (if we’re lucky).

    6. Caylee never told anyone that she was afraid of her mother vs. numerous letters and statements from Kathleen stating that Drew was going to kill her and make it look like an accident.

    I’d ask everyone to not dwell too much on the Casey/Caylee Anthony case.

    I think we need to acknowledge that the circumstances, motive, etc. are not the same.

    I do agree that the “hit man” evidence will be important. It is not hearsay and it involves not only Pachter but the man he contacted about doing the hit. The defense would be hard pressed to show that both of them were lying. Lopez says that Pachter has some sort of insurance fraud thing standing in his way. Bring it.

    Tomorrow is another trial date. I’m looking forward to your comments and your insights.

  10. I agree, facs, the cases are vastly different. What we were doing, however, was focusing on the Peterson’s judge’s rationale for barring certain evidence that appears to be allowed in other cases. It’s just incidental that I used that case because I know that case. I was not using it in any way to suggest that these cases were in any way similar, just to provide an example to oxy of what appears to be a dissimilar ruling by another judge in another case.

  11. Obviously Drew Peterson did not carry out the perfect crime. That became apparent to him when the neighbors on the scene wondered where Kathleen’s clothing was, where’s the bath mat and towel.

    It must have dawned on him that he had made the bathroom too perfect and had failed to make it look like Kathleen was preparing to take a bath.

    So, it’s likely that at the first opportunity he placed that blue towel on the side of the tub.

    Either way, I see a problem. The lack of a bath mat, towel, and lack of any clothing removed to take a bath presents a problem, but so does that blue towel, nicely folded and placed on the side of the tub.

    If Kathleen had slipped and fallen in the tub, a person instinctively puts their arms out and tries to break their fall, grabbing at things. In the process, it’s likely that towel and any of the items around the tub would have been swept off the sides of the tub.

    If Drew wanted to make it look like an accidental fall………he should have placed that towel on the floor.

  12. Understood, Robert.

    My point is just that people shouldn’t despair because of the outcome of the Casey Anthony trial. I’ll cede that they are both difficult to prove, but still different.

  13. And why would that towel be dry, Molly, given the amount of water displacement caused by 150 pounds of dead weight (she was knocked cold, right?) falling down in that tub?

    Yet it looks just as fresh and fluffy as if someone had just taken it down from the linen closet…

  14. I certainly hope that Judge Burmila allows the hitman testimony. It doesn’t fall into the category of hearsay. It’s direct evidence that Drew offered money to kill his wife, and Pachter can testify to his conversation with Drew.

    The only possibility that remains is that the judge may rule it too prejudicial. Or does this fall into the category of “prior bad acts?”

    I see it as directly tied to this case as Drew offer to pay for someone to kill his ex-wife, which shows his desire to see his ex-eife dead. And when this deal doesn’t materialize it’s only a matter of months before Kathleen dies.

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