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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