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 accoutrements 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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