Listen: secretly recorded Drew Peterson prison conversations

Yesterday the secretly recorded conversations between Drew Peterson and prison snitch Antonio Smith were made public.

The hours of recordings were played in court last month during Peterson’s trial for solicitation of murder and helped the jurors decide to convict Peterson of attempting to put out a hit on State’s Attorney James Glasgow.

Glasgow was the lead prosecutor in Drew Peterson’s 2012 trial for the murder of Peterson’s third wife, Kathleen Savio.

Here are some clips.

Video: Drew Peterson murder conviction appeal oral arguments

Part 1: Argument for the appeal by attorney Steven Greenberg

Part 2: Argument for the appeal by attorney Harold Krent

Part 3: Argument against the appeal by assistant state’s attorney Marie Czech (1)

Part 4: Argument against the appeal by assistant state’s attorney Marie Czech (2)

Part 5: Rebuttal by attorney Steven Greenberg

Last week Drew Peterson attorneys Steve Greenberg and Harold Krent presented arguments to three Illinois appellate justices in hopes of overturning Peterson’s 2012 conviction for the murder of Kathleen Savio.

The appeal centered around a number of points – namely the admittance of hearsay statements under the forfeiture by wrongdoing exception, the question of counselor-client and lawyer-client privilege and allegations of conflict and ineffective counsel on the part of Joel Brodsky.

Last week also saw a change in date for Peterson’s murder-for-hire trial. Originally he had asked for a speedy trial and the date was set for July, but his attorney, Lucas Liefer, decided that they could not be ready by then. The trial is now set for August 28th.

Attorney Steven Greenberg who unsuccessfully defended Peterson against murder charges at trial in 2012, and is now one of his appellate lawyers, was interviewed about the oral arguments as well as Drew’s more recent murder case

Attorney Joel Brodsky, who is named in Peterson’s appeal as providing ineffective assistance and having a per se conflict of interest, replied to the charges via “The Publicity Agency”. The PR firm is run by Glenn Selig who is also named in Peterson’s appeal.

“I was amazed and shocked at the flagrant lies told, and the blatant hypocrisy demonstrated by Attorney Steve Greenberg during oral arguments before the Illinois Appellate Court on Drew Peterson’s appeal of his murder conviction. As to the accusations about my seeking publicity during the Peterson case, Steve Greenberg’s hypocrisy is beyond all bounds. The provable truth is that Attorney Steve Greenberg begged me to let him come onto the Peterson case to work for free and he wanted to do so for the publicity. He certainly did not want to work for free out of the goodness of his heart. Further, for Greenberg to complain about me seeking publicity from the Peterson case is the height of dishonesty when the provable fact is that I had to stop him from appearing on a truTV segment called “Karas v. Greenberg”, which he attempted to do during the trial! Rather than preparing for the days hearing or appearing in the courtroom during the trial, Greenberg was on truTV giving away the defense’s strategy while seeking publicity for himself. During the trial, he even used his daughter to set up his own personal media interviews. It is the height of hypocrisy for Attorney Greenberg to accuse me of wanting publicity.

Furthermore, Attorney Steve Greenberg told blatant lies during the oral argument. He stated that Drew Peterson’s media interviews were played during the trial and were used as evidence against him. Perhaps Greenberg was too busy doing the “Karas v. Greenberg” TV bits during the trial to remember, but not one video of Drew giving a media interview was ever played at trial. Not one. The only thing related to Mr. Peterson’s interviews that was used as evidence was a written transcript of three (3) questions that Drew was asked during interviews. The questions were as follows: (1) what happened to Kathy” (Drew said “I don’t know”), (2) Were you surprised that Kathy’s body was exhumed (Drew said “yes”), and (3) Were you separated at the time? (Drew said ‘yes”). Hardly evidence against Drew. This shows that Attorney Steve Greenberg lacks any credibility and engaged in gross misrepresentations and hypocrisy during his oral argument to the appellate court.”

Oral arguments presented today in appeal of Drew Peterson’s murder conviction

Drew Peterson attorneys Steve Greenberg and Harold Krent presented arguments today to three Illinois appellate justices in hopes of overturning Peterson’s 2012 conviction for the murder of Kathleen Savio.

The appeal centered around a number of points – namely the admittance of hearsay statements, the question of counselor-client privilege and allegations of ineffective counsel on the part of Joel Brodsky.

The Chicago Tribune reported that,

A three-member panel of the 3rd District Appellate Court frequently interrupted the attorneys with questions about why the rest of Peterson’s legal team did not intervene if they disagreed with Brodsky’s actions and trial strategy.

They also appeared skeptical of claims that Peterson’s rights were violated when Burmila allowed Savio’s divorce attorney, Harry Smith, to testify that Stacy Peterson had called to ask what would happen if she did not reveal her husband’s role in Savio’s death.

Greenberg and Krent argued that Smith should never have been allowed to testify, because it violated attorney-client privilege.

But Justice Daniel Schmidt appeared skeptical.

“Is the privilege designed to protect the client or the person that killed the client?” Schmidt asked. “My guess is if I’m dead, I’m not going to mind if my attorney testifies about the guy that killed me.”


Will County Assistant State’s Attorney Marie Czech argued that the media rights agreement had expired before Peterson’s 2012 trial, and said Brodsky had nothing to gain by calling a witness that could sink his client’s case.

“There is absolutely no benefit to Mr. Brodsky for losing this case,” Czech said. “Winning this case brings new clients, brings fame. Losing the case, as we’ve seen with Mr. Brodsky, brings a loss of clients, ignominy.”

She also reminded the panel that Smith was called by the defense, not the prosecution.

After the nearly hourlong argument, Justice Mary K. O’Brien said the court would take the matter under advisement and would later issue a written decision. She did not say when that decision would be released.

Pastor Neil Schori attended today’s proceedings, commenting afterward about the allegation that his testimony violated Stacy Peterson’s right to privacy he said, “The defense continues to try to make this an issue. That Stacy wanted me to be quiet makes no sense.”

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.

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Will late medical examiner, Bryan Mitchell, speak from the grave at Peterson trial?

Yesterday, during an interview with In Session‘s Ted Rowlands, Attorney Steven Greenberg said that the State is going to try to introduce hearsay evidence from the late Dr. Bryan Mitchell into Drew Peterson’s murder trial–evidence that would go against the findings of his own autopsy report.

Mitchell, who passed away in March 2010, was the medical examiner who performed the original autopsy on Kathleen Savio in November 2007. In his report he noted that a 1-inch gash on her scalp might have been caused by a slip or fall.

A second autopsy was done on the exhumed body of Kathleen Savio in November of 2007 by Dr. Larry Blum. Blum believes that Savio’s body was in the tub when her head wound was inflicted, based on the flow of the blood.

It’s now being alleged that shortly before his death, possibly from his deathbed, Dr. Mitchell admitted that he had made a mistake in the Peterson case. This statement could possibly be admitted to Peterson’s trial, but I don’t know exactly which hearsay exception it might fall under. It remains to be seen. Needless to say, the defense does not want this testimony admitted.

Countering the hearsay statements

Attorney Greenberg also indicated how the Peterson defense may argue against some of the hearsay evidence to be introduced by the prosecution.

1. Kathleen’s complaint that Drew confronted her in her home and threatened her.
The defense intends to argue that Kathleen’s complaint was not spontaneous but was made the same day that she was served with papers for battery against Stacy Peterson. They will argue that she only filed the report in retaliation.

2. Savio’s letter sent to Asst. State’s Attorney Elizabeth Fragale and others.
The defense will attempt to demonstrate that the letter went through several versions and that the contents were “embellished”.

3. Testimony of Savio’s friend Mary Susan Parks that Drew had threatened Kathleen.
Defense will confront the witness and ask her why she did not come forward to authorities when Kathleen was found dead. Essentially, they’ll try to show that she is lying.

4. Testimony from Neil Schori that Stacy told him she saw Drew loading the washer with women’s clothing on the night that Kathleen died.
Defense will argue that Pastor Schori has given several different versions of the story. They will ask the jury to consider why an experienced police officer would risk bringing the victim’s clothes home to wash them rather than disposing of them. As for the argument that he wanted to launder the clothes to remove any traces of his own DNA, Greenberg’s response was “That’s why God invented fire”.

According to Attorney Greenberg, the biggest challenges to the defense will be scientific testimony, Neil Schori’s hearsay evidence, and anything that involves Stacy Peterson.

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Why can’t jurors see the tub where Kathleen Savio died?

GRAPHIC CONTENT: Click the photo below to view the unblurred version.

Kathleen Savio lies dead in her tub on March 1, 2004

Kathleen Savio lies dead in her tub on March 1, 2004

On Tuesday, Judge Edward Burmila ruled that the bathtub in which Drew Peterson‘s third wife drowned can not be brought into court at his trial for her murder.

State police had removed the tub in 2008 after Kathleen Savio‘s body was exhumed and a second autopsy found her death to be a homicide. Prosecutors expected it would be a key piece of evidence at trial time. “The bathtub is now essentially the murder weapon,” Assistant State’s Attorney John Connor argued in court, to no avail. The defense successfully argued that there was little value in jurors viewing the tub out of the context of its bathroom setting.

I’m not sure why the judge is keeping the tub out of the courtroom. Obviously, there is evidentiary value in jurors seeing the pace where the victim of a suspicious death was found.

The bathroom where Kathleen was found dead (under new ownership)

There’s nothing unusual about bringing bathtubs into courtrooms, either. It happened just February of this year, during the murder trial of Maryland man in which the victim was found in her bathtub. The tub was brought in to demonstrate where a hand print was found in proximity to where the victim’s head was positioned in the tub.

In the famous Ohio case of Ryan Widmer, a tub was also brought into the courtroom during trial by the prosecution to show that Sarah Widmer was forcibly drowned by her husband. Ryan Widmer was convicted of her murder and remains in prison after being tried three times. Widmer claimed that his wife simply fell asleep during a bath.

It’s possible that by barring the tub, the judge in Peterson’s case is trying to avoid courtroom theatrics like those that occurred during closing arguments in the trial of John Wayne Gacy, when the prosecutor tossed the photos of 22 victims through Gacy’s actual crawl space door which had been brought into the courtroom for that purpose. Burmila stated on Tuesday, “As far as the tub being dramatically brought in–that’s not going to happen under any set of circumstances,”

Although barring it from the courtroom, Judge Burmila did cede that jurors could possibly view the tub if it was re-installed in the bathroom of the house on Pheasant Chase Drive where Kathleen Savio died, so that it would be seen in context.

The Chicago Tribune reports that the homeowners at 392 Pheasant Chase Drive have yet to replace the tub in their bathroom as they have a separate shower in that room which they have been using. It’s possible that they would be amenable to having the tub put back into place for viewing by the jurors.

The bathtub where Kathleen’s body was found. (under new ownership)

Family members, friends and neighbors who have been in that bathroom have expressed disbelief that Savio could have hit her head, lost consciousness and then settled into the position she was found in the tub and these opinions were formed by their knowledge of the specifics of that room and tub. At least two forensic pathologists have concurred.

Considering that during the bungled investigation which took place after Kathleen’s death, so little evidence was actually gathered from the room, one would think that a field trip to view the scene would have a great deal of evidentiary value.

Let the jurors visit the scene, see the bathtub, touch it, even get in the tub if they want to. It’s only fair.

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Drew Peterson trial and hearsay evidence. What you need to know.

The public: Three years smirk and swagger free

It’s been almost three years since Drew Peterson was arrested and charged with the murder of his third wife, Kathleen Savio.

From the moment that the disappearance of his fourth wife, Stacy, was reported in the fall of 2007, Peterson alienated the public. Rather than using media coverage to help find his missing wife, he first insisted that he was a jilted husband and then assumed the persona of a bad-boy celebrity. He did the morning radio show circuit joking distastefully and disparaging his wives and their families. A year later, with his current wife still missing, Peterson was engaged to a 23-year-old and offered video packages to the media for a price. He shopped around for an opportunity to appear on a reality TV show and was about to audition for one based on a Las Vegas brothel, “Cathouse”. At the time of his arrest, Drew Peterson’s popularity was at an all-time low. The public couldn’t wait to see the smirk removed from his face at trial. But that was three years ago.

For the last three years, Peterson has remained in the medical unit of the Will County Adult Detention center. Unable to pay his $2 million bail or to win motions that would let him wait out his time to trial at home, he’s been housed away from the general population for his own safety in a solitary cell. During this time his defense team and the prosecutors for the state have prepared for his trial – a lengthy process of appeals, motions and hearings. The most contentious part of these preparations has been in regards to hearsay testimony, or rather statements made by Stacy Peterson and Kathleen Savio to other people or in writing that could point to Peterson being responsible for Savio’s death.

While the prosecution has battled in court to get these statements admitted, Peterson’s defense and PR people have peppered the gossip columns and news shows with misleading statements about “gossip, rumor and innuendo”. These statements coupled with the “poor me” letters from Peterson that are published along with pro-Peterson editorials in a certain less-than-respected paper (Chicago Sun-Times), plus the long wait to trial have led to a measure of turn-about in the public’s feelings about Drew Peterson. As the memory of Peterson’s smirk and swagger fade, the comments threads following news stories have begun to include a number of sympathetic sentiments about the father of six, locked away so long to await his trial. A common thread in these sympathetic comments is a total misunderstanding of the hearsay evidence to be admitted.

Let’s address some of the misconceptions:

“Hearsay sucks! It means that any Tom Dick or Harry can say that someone told them something bad about me and it will be admissible in court! That’s not constitutional!”

Under the hearsay rule, Tom, Dick or Harry’s second-hand statement would not be admissible. Why? Because it would be considered unreliable evidence as it was not stated under oath, cannot be observed by the jury and judge, and cannot be cross-examined and questioned for inaccuracy and ambiguity. However, first-hand testimony from the “someone” who talked to Tom, Dick or Harry would be far more reliable and the court might want them to testify and be cross-examined.

But what if for some reason that person couldn’t testify because the accused did something to make sure that “someone” wasn’t available to testify? Well, the court makes an exception for that and perhaps Tom, Dick or Harry will get to testify after all. It’s called “Forfeiture by Wrongdoing” and it means that the accused forfeits their right to confront a witness if they themselves have done something to keep that person from testifying.

In other words:

The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntary keeps the witnesses away, he cannot insist on the privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.

Kathleen and Stacy’s comments to others are being admitted because the judge believes to a sufficient degree of certainty that Drew Peterson made them unavailable to testify.

“But hearsay is always wrong! There’s a rule against it!”

One major misconception about the hearsay rule is that hearsay is never admissible in court.

The Hearsay Rule prevents most out of court statements from being used as evidence in court. Hearsay can be written, spoken, or even gestures… There are numerous exceptions to the Hearsay Rule, including dying declarations, spontaneous statements, descriptions of medical history, official records, and reputation of a person’s character…

Despite what a Sun-Times editorial might say there is no “nearly universal prohibition against hearsay evidence”.

“The prosecution made up a new law to go after Drew Peterson and that’s the only reason this hearsay is getting in to his trial!”

In November 2008 Public Act 095-1004 was passed into Illinois Law. Dubbed “Drew’s Law” by the media, it addressed a certain kind of hearsay exception. In essence it made an exception for hearsay statements when it could be shown to a reasonable extent that the accused had killed a witness in order to keep them from testifying at a trial.

Glasgow relied heavily on this statute in trying to get evidence admitted to Peterson’s trial but when eight statements were deemed unreliable due to the higher standards of reliability that the statute required, he then asked the court to consider the evidence under the common law hearsay exceptions. Ultimately the eight statements were considered “on their own merits” by a panel of three appellate justices and were deemed reliable and admissible. The new statute was not the criteria for their decision. Ironically, “Drew’s law” almost kept a majority of the hearsay evidence out of the trial.

“They are trying to get all this hearsay evidence into the trial because they don’t have any concrete evidence!”

Sadly, Kathleen Savio’s death scene was not treated as a crime scene. Those first on the scene didn’t follow the protocol for the possibility of a homicide. Beyond that, Drew Peterson was given special consideration as a police officer. His body was never examined for bruises or scratches. He was interviewed in the lunch-room of the police station where he worked. At Kathleen’s inquest, the jurors were not given the option of “undecided” as manner of death, one member of the coroner’s jury knew Peterson and told the others that he was a great guy, the ISP officer who testified was never present at the scene of Kathleen’s death. He even took it upon himself to inform the jurors of the exact location where Savio had hit her head on the tub (when it’s never been proven that she did hit her head on the tub). Kathleen Savio’s death investigation was mishandled and bungled in every possible way.

As the State’s prosecutor in this case, James Glasgow has done what he can to get as much evidence admitted to this trial as he can. If this was your mother, your daughter or your friend wouldn’t you want to see a prosecutor fight for every shred of evidence that might convict her murderer?

Possibly the strangest thing to me in regard to the opposition against these 13 hearsay statements is that those who seem the most incensed over them, never make any specific references to them. Do the opponents know what they are railing against or are they just having a knee-jerk reaction against hearsay, in general?

I have printed this list before, but I think it’s really important that people realize these are not the typical statements that are made during contentious divorces, as Peterson’s attorneys would have you believe.

So, once more here are the hearsay statements that have been deemed reliable and admissible (to the best of our knowledge):

1. Kathleen Savio’s letter to then-Will County Assistant State’s Attorney Elizabeth Fragale complaining of Drew Peterson’s abuse, including an alleged July 2002 attack when he put a knife to her throat.

2. Kristin Anderson’s testimony that Savio told of her fears that Peterson would kill her while her family briefly rented Savio’s basement in 2003.

3. A fellow student at Joliet Junior College, Mary Park’s testimony that she saw red marks on Kathleen’s neck that Savio attributed to Peterson in 2003.

4. Savio’s co-worker, Issam Karam’s testimony that Savio told him Peterson came into her home and held a knife to her throat.

5. Kathleen’s sister, Susan Savio’s testimony about her sister’s fears that Peterson would kill her.

6. Kathleen’s sister, Anna Doman’s testimony that shortly before she died, Savio asked Doman to care for her children if she died, saying Peterson wanted to kill her.

7. Savio’s handwritten statement attached to a Bolingbrook police report on the July 2002 incident.

8. Six audio excerpts from a June 13, 2003, taped conversation Savio had with an insurance company over a claim she put in for allegedly stolen jewelry.

9. Savio’s Aug. 6, 2003, statement to the insurance company.

10. Savio’s divorce attorney, Harry Smith’s testimony that Stacy contacted him about divorcing Peterson shortly before she vanished.

11. Stacy’s friend, Scott Rossetto’s testimony that she told him Peterson coached her as an alibi witness in Savio’s death.

12. The Rev. Neil Schori’s testimony that Stacy told him Peterson returned home dressed completely in black and carrying a bag of women’s clothing in the early hours of Sunday morning. Stacy also told him Peterson coached her to provide his alibi.

13. Stacy’s Joliet Junior College classmate, Michael Miles’ testimony that Stacy told him before Savio’s 2004 death that Peterson wanted to kill his ex-wife but that Stacy talked him out of it.

So, if you want to support Drew Peterson, go nuts. But please don’t pretend that he’s not getting a fair deal legally. Hearsay evidence is evidence and there are no precedents being set here (scary or otherwise).  Peterson has the benefit of a six-man legal team all working hard to make sure that Peterson gets a fair shake–something most defendants can only dream about.

Forfeiture By Wrongdoing: An Evidence Concept, by Leonard Birdsong
History of the Hearsay Rule
Hearsay in United States law

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