published Thursday, August 2nd, 2012

Drew Peterson judge to decide on mistrial motion

Drew Peterson lead defense attorney Joel Brodsky leaves the Will County Courthouse in Joliet, Ill. after the second day of the murder trial of Peterson. Peterson, 58, is charged with killing his third wife, Kathleen Savio, in 2004. Her body was found in a dry bathtub in her home, her hair soaked with blood. He is also a suspect in the 2007 disappearance of his fourth wife, Stacy Peterson.
Drew Peterson lead defense attorney Joel Brodsky leaves the Will County Courthouse in Joliet, Ill. after the second day of the murder trial of Peterson. Peterson, 58, is charged with killing his third wife, Kathleen Savio, in 2004. Her body was found in a dry bathtub in her home, her hair soaked with blood. He is also a suspect in the 2007 disappearance of his fourth wife, Stacy Peterson.
Photo by Associated Press.

DON BABWIN, Associated Press

MICHAEL TARM, Associated Press

CHICAGO — A judge is set to decide Thursday whether to declare a mistrial and put an end to Drew Peterson's murder trial just days after it began, and legal experts say the ruling could result in the former suburban Chicago police sergeant going free, though that remains unlikely.

The expected ruling by Judge Edward Burmila follows several blunders by prosecutors, who are seeking to prove the 58-year-old Peterson killed his third wife, Kathleen Savio, in 2004. He also is a suspect in the 2007 disappearance of his fourth wife, Stacy Peterson, but has never been charged in her case.

A furious Burmila admonished prosecutors Wednesday after the second witness in just their second day of testimony began talking about finding a .38-caliber bullet on his driveway. Thomas Pontarelli, a former neighbor of Savio's, hinted in his testimony that Peterson may have planted it there to intimidate him.

Prosecutors later admitted under tough questioning by the judge that there was no evidence to support the claim. And Burmila wondered aloud about whether the testimony made Peterson appear menacing in jurors' eyes and undermined his ability to get a fair trial.

In addition to declaring a mistrial, Burmila also could possibly find the state deliberately entered testimony explicitly barred in advance of the trial — a ruling that would mean Peterson can't be tried again for murder in Savio's death and would be freed, according to Gal Pissetzky, a Chicago defense attorney with no ties to the Peterson case.

"Mistrials are rarely granted, and rulings that an error was done deliberately is almost unheard of," Pissetzky said. He added that any such motion would be a monumental embarrassment for prosecutors and for Will County State's Attorney James Glasgow.

Glasgow himself nearly triggered a mistrial during his opening statement Monday when he referred to an accusation Peterson once tried to hire a hit man for $25,000. Burmila said there was no proof of that, either, but stopped short then of declaring a mistrial.

Peterson, who was a police officer in the Chicago suburb of Bolingbrook, has pleaded not guilty to first-degree murder in Savio's death. He also has said he wasn't responsible for his fourth wife's disappearance.

The legal snafus are just the latest twist in a case long plagued by problems, including a botched initial investigation that left prosecutors with no physical evidence and forced them to rely heavily on normally prohibited hearsay.

The mistrial decision comes before prosecutors have even presented the most delicate of the hearsay evidence, including Savio's alleged remarks to others about Peterson threatening to kill her before her body was found in a dry bathtub at her Bolingbrook home.

On Thursday, Burmila must decide if he will wipe out Pontarelli's testimony and then let the trial go on — something he said he could do as an alternative to canceling the trial.

As he left the courthouse Wednesday, Glasgow tried to sound upbeat, saying, "We're confident that the trial will resume tomorrow morning."

But whether that's good for what is the highest-profile case of his career — maybe in the history of Will County — remains to be seen.

Legal experts say what has unfolded so far has damaged the case.

"It's bad news if a judge is chastising prosecutors so much, because it tells the jury, 'I don't trust this prosecutor, I don't approve of this prosecutor,'" said Marcia Clark, Los Angeles' lead prosecutor in the O.J. Simpson murder trial. "It's a scary place to be as prosecutor."

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