Drew Peterson's third wife will have a chance to "testify from the grave" under an Illinois law passed amid the media frenzy over his missing fourth wife, but some say prosecutors could be on shaky legal ground if they plan to build their murder case around that testimony.
Peterson appeared in court Friday, the day after he was charged with killing Kathleen Savio, his third wife who was found dead in a dry bathtub in 2004 with a gash on the back of her head.
Wearing a red jumpsuit, the 55-year-old Peterson showed off his handcuffed hands and told reporters: "Three squares a day and this spiffy outfit. Look at all this bling." A judge postponed his arraignment until May 18 because no Peterson attorneys were present at the hearing.
Prosecutors have not said much about the evidence they have against Peterson in Savio's death, but it's clear they want to use the law to let Savio tell jurors why Peterson wanted her dead.
"In essence, what you're basically allowing the victim of a violent crime to do is testify from the grave," Will County State's Attorney James Glasgow said Thursday in announcing the charges against Peterson.
The Illinois law allows a judge to admit hearsay evidence in first-degree murder cases if prosecutors can prove the defendant killed a witness to prevent them from testifying. It passed last year amid attention to the October 2007 disappearance of Peterson's fourth wife, 23-year-old Stacy Peterson.
'Rumor and innuendo'
Possible evidence in the Savio case includes letters of protection in which she said Peterson would kill her to shut her up and her sister's testimony to a coroner's jury that Savio told her family it would be no accident if she died.
Peterson's attorneys have vowed to challenge the constitutionality of admitting such evidence. The Constitution guarantees criminal defendants the right to confront his accusers, something they can't do with an absent witness.
Joel Brodsky, one of Peterson's attorneys, has said that allowing Savio's statements would amount to the court allowing "rumor and innuendo" as testimony.
Brodsky also said he could argue that the law was passed specifically to put Peterson behind bars, which is also unconstitutional.
"They're changing the law, changing the rules, changing forensic findings to get this guy," he said. "The law was not supposed to be made for a particular case."
The law's sponsors were careful never to link it publicly to Peterson. State Sen. A.J. Wilhelmi, D-Joliet, said the law wasn't designed for any single case, but one Republican analysis of the Democratic bill noted that it was introduced "in response to the Drew Peterson case."
The law requires a judge to hold a pretrial hearing to study whether the evidence shows that the defendant killed a witness and did so to prevent the witness from testifying. The judge would also have to decide whether the hearsay is reliable and whether admitting it would be in the best interests of justice.
The process alone puts the law on shaky ground, according to Joseph Tacopina, a defense attorney whose clients included a suspect in the 2005 disappearance of American teenager Natalee Holloway in Aruba.
Tacopina said the judge's decision to admit statements would indicate to a jury that the judge thinks the suspect is guilty.
David Erickson, a former appellate court judge who teaches at Chicago-Kent College of Law, believed the law will stand up and said at least 12 other states have passed similar statutes.
He also said the Illinois bill and those of other states came in response to a 2004 U.S. Supreme Court decision that found the right of a defendant to confront his accusers has a key exception: if the defendant acted with the intent to prevent that person from testifying.
"Think of mob cases where they kill guys to keep them from testifying," he said.
State Rep. Jim Durkin, R-Western Springs, said the concept isn't controversial, but the Peterson case helped the legislation pass quickly with hardly any opposition.
"It became noteworthy because the Drew Peterson situation was starting to pick up some steam," said Durkin, one of the measure's sponsors in the state House.
Savio's cause of death, initially ruled an accidental drowning and later reclassified as a homicide, also will figure prominently in the trial.
"It definitely provides a lot of fodder for a criminal defense lawyer when you have a changed opinion," Brodsky said. "Why not change it again, and again?"