Extraordinary hearing in murder case against ex-Ill. cop turning dress rehearsal for trial

Ex-Ill. cop’s hearing feels like real murder trial

JOLIET, Ill. — Family members, investigators, clergy and even a psychic have spent weeks testifying in a northern Illinois courtroom — and Drew Peterson’s murder trial hasn’t even started.

Billed as a preliminary step in the case, an extraordinary hearing to determine what hearsay, or secondhand, evidence jurors will be allowed to hear during the former police officer’s trial in his third wife’s death has turned into a sort of legal dress rehearsal.

The testimony has exposed serious flaws in the police investigation of Kathleen Savio’s death, Peterson’s deteriorating relationship with his missing fourth wife, Stacy Peterson, and perhaps most important: a possible motive.

But none of it may matter if the judge doesn’t allow at least some of the witnesses to testify during the real thing.

“If they don’t get the hearsay stuff in, then they don’t have a shot at this case,” said Terry Sullivan, a Chicago attorney and former prosecutor.

The hearing is the result of a new Illinois law that allows a judge to admit hearsay evidence — statements not based on a witness’ direct knowledge — if prosecutors can prove a defendant may have killed a witness in order to prevent him or her from testifying. The law was so closely linked to the Peterson case that some have dubbed it “Drew’s law.”

That means for Judge Stephen White to allow hearsay evidence — such as witness testimony that Savio said she feared Peterson would kill her and make it look like an accident — he must believe Peterson not only killed her but did so to keep her from testifying. The same applies to similar comments that witnesses attributed Stacy Peterson before she disappeared.

“(White) is going to have to struggle with the intent here — if he murdered them with the intent to cause their unavailability,’ said Herb Tanner of the Prosecuting Attorneys Association of Michigan. “It doesn’t have to be the sole intent, but it has to be in there.”

Peterson, a brazen former police sergeant, has pleaded not guilty to first-degree murder in Savio’s death. He is the only named suspect in the October 2007 disappearance Stacy Peterson, but has denied wrongdoing and has not been charged in that case. It was after she went missing that investigators exhumed Savio’s body and determined her death was a homicide.

Almost 70 prosecution witnesses have testified during the past 3½ weeks. Defense attorneys plan to begin calling about 20 witnesses next Wednesday to contradict statements made by people who said the two women feared Peterson.

Prosecutors have little physical evidence on which to base their case against Peterson and will likely have to rely heavily on statements that Savio and Stacy Peterson allegedly made to others. The testimony has included claims that Drew Peterson was furious Savio might get a large portion of his pension, and that Stacy Peterson suggested she could threaten to tell police that Drew Peterson killed Savio to squeeze extra money from him in a divorce.

Some legal scholars say the Peterson hearing has underscored the serious constitutional problems with the hearsay law.

“It violates the right to a fair trial because it calls for a judge to decide if a guy is guilty even before he stands trial, in open court where a jury pool can see it,” said Leonard Cavise, a DePaul University law professor.

Albert Alschuler, a Northwestern University law school professor, said he doesn’t think the law has “serious” constitutional problems. But he said it might keep statements out of the trial that should otherwise be admitted because it forces the judge to determine why someone was killed.

“It seems to me it is very difficult to find that a motive for killing was to prevent a victim from testifying as a witness,” he said.

The hearing has at times moved into areas that have little to do with hearsay. A state police investigator said he quickly decided Savio’s death was an accident after her body was found in a bath tub in 2004, so he collected no forensic evidence and didn’t even secure the scene. The pathologist who conducted the post-exhumation autopsy on Savio’s body three years later testified that bruises and the position of her body indicated she was killed after struggling with an attacker.

There was also a man who testified that Peterson asked him to find someone to kill Savio.

“That has nothing to do with the statute,” said David Erickson, senior law lecturer at Chicago-Kent College of Law. These (statements) are going in anyway, they’re admissions of guilt.”

The mix of those witnesses is part of a broader strategy to make the secondhand evidence more plausible and persuade the judge to allow as much as possible at trial, Sullivan said.

That’s likely why much of the hearsay evidence has focused on Stacy Peterson. A minister, for example, testified that Stacy Peterson told him she was afraid of her husband and that Drew Peterson was wearing black and carrying a bag of women’s clothes the night before Savio’s body was found.

Dozens of other witnesses provided small pieces of what prosecutors contend is a puzzle that will help jurors believe Peterson could have killed Savio.

Drew Peterson’s attorneys, meanwhile, have asked about medication Savio was taking and pointed to a doctor’s report that said Savio complained of dizziness. And while under no obligation to call witnesses in the hearing, they have now decided to do so.

Associated Press Writer Karen Hawkins contributed to this report.