In attempting to get hearsay statements admitted in Drew Peterson’s murder case, Will County prosecutors today found themselves arguing against the very law they helped create.
Saddled with a botched police investigation several years ago, State’s Attorney James Glasgow had pushed for a state statute that would allow hearsay statements against Peterson at trial. Dubbed Drew's Law by legal experts and legislators, he hailed the bill's passage as a way of letting Peterson's third and fourth wives speak from the grave.
The proceedings — which were televised live, a first in state history — focused on prosecutors’ desire to admit several hearsay statements at trial.
Glasgow’s statute requires judges to consider two things: whether the statement is reliable and whether the bulk of the evidence shows that the defendant made the witness unavailable to testify.
After a landmark hearsay hearing last year, Judge Stephen White sided with prosecutors in finding that the preponderance of evidence suggested Peterson killed his third wife, Kathleen Savio, and caused his fourth wife Stacy Peterson's disappearance. The “preponderance” standard does not imply that Peterson would be found guilty at trial because the burden of proof is lower than the beyond-reasonable-doubt standard imposed on juries.
Though he ruled in the state's favor on that point, White still barred the majority of hearsay witnesses because they did “not provide sufficient safeguards of reliability.”
On the eve of trial, Glasgow announced he would appeal the judge’s ruling to help convict Peterson and let Savio speak from the grave. He argued that the judge's decision — made under the guidelines established by Drew's Law — should have adhered instead to less-restrictive common law.
Peterson’s defense team likened the move to changing the rules in the middle of a game.
“They went out and wrote the law,” defense attorney Steve Greenberg said. “Now they want to apply a different standard.”
Appellate Judge Robert L. Carter acknowledged the prosecution’s change of heart during Glasgow’s arguments.
“What do you want to hang on now?” he asked. “The common law or the statute?”
The common law, Glasgow said, as some in the gallery laughed.
Peterson, 57, is charged with killing Savio, who was found dead in a dry bathtub in 2004. Officials initially ruled the death an accidental drowning, but authorities reopened the case after Stacy vanished in October 2007. He remains a suspect in her disappearance but has not been charged.
During a 50-minute hearing, judges peppered both sides about the application of common law and the timeliness of the prosecution’s appeal. They suggested that even if common law does not require a judge to consider reliability, the court can still bar testimony for that reason.
One judge said that he could not order the judge to admit the statements.
“Just because a statement is admissible under one doctrine doesn’t mean a judge can’t preclude it (under another),” Appellate Judge Daniel L. Schmidt said.
Peterson, who has a history of mugging for cameras, did not attend the hearing; defendants typically do not in such appeals. He remains in Will County Jail on $20 million bail.
Stacy Peterson’s siblings, Cassandra and Yelton Cales, attended the hearing, as well as Savio’s sister, Susan Doman. “Justice will prevail,” Cassandra Cales said. “It's just a long emotional roller coaster ride. We'll get there someday...I believe in my heart justice will be served."