Peterson's Law is no silver bullet
http://blogs.chicagotribune.com/news_columnists_ezorn/2008/11/petersons-law-is-no-silver-bullet.htmlThis print column is a version of a blog entry from Friday. That entry has source documentation and a longer discussion of the legal issues.
Last week, the General Assembly passed a law aimed squarely at one man: Drew Peterson.
Senate Bill 2718 is an amendment to the criminal code that broadens the circumstances under which courts can admit hearsay evidence against an accused person.
Basically, if a suspected evildoer kills a witness to prevent that witness from testifying against him, then previous statements that witness made to others may be introduced as evidence.
The bill was widely known as "Drew Peterson's Law" because its biggest advocate was Will County State's Atty. James Glasgow, whose office is trying to build a case against former Bolingbrook Police Sgt. Drew Peterson. The 2004 death of Peterson's third wife, Kathleen, was ruled a homicide this year, and the 2007 disappearance of his fourth wife, Stacy, remains a mystery. He has not been charged in either case.
Before Stacy disappeared, she reportedly told others of incriminating statements made by her husband, including that he was responsible for Kathleen's death. And though Glasgow and legislative sponsors of the new law won't say so directly, it's clear that their theory is that this reform will make it easier to get those statements admitted into evidence and to prosecute Drew Peterson.
I wouldn't bet on it.
The 6th Amendment to the U.S. Constitution guarantees that a person accused of a crime has the right "to be confronted with the witnesses against him."
This guarantee is to give the accused the "opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury," as the U.S. Supreme Court wrote in 1895. It allows the jury to "look at [the witness], and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief."
The 1895 case was one of many in which the high court has tried to define exceptions to the general prohibition on hearsay. One of them, as suggested by Drew Peterson's Law and already part of our common law, is that a defendant gives up the right to confront a witness if he has committed an act, such as murder, intended to prevent that witness from testifying.
The key here is intent. It's circular to argue that a defendant murdered his victim to prevent his victim from testifying at his murder trial. And it's perverse to presume someone guilty of murder in order to slip in evidence designed to prove him guilty of murder.
Just last summer, the U.S. Supreme Court ruled that a California court erred in admitting into evidence statements that a fearful woman had made to a police officer about her ex-boyfriend three weeks before she was murdered, allegedly by that ex-boyfriend.
Given that opinion, it looks as though the only way Drew Peterson's Law can be used against Drew Peterson is if prosecutors can convince a judge that Peterson killed Stacy, the missing fourth wife, in order to prevent her from testifying that he told her he killed Kathleen, his third wife.
The problem with that theory is Kathleen's death was still considered an accident and her case was long closed when Stacy disappeared. Establishing witness elimination as a motive under those circumstances will require so much speculation that it will resemble a newspaper column more than a court hearing.
It'll take more than Drew Peterson's Law to nail Drew Peterson.
ADDITIONAL NOTES FROM INTERVIEWS FOR THIS COLUMN:
Ill. Rep. James Durkin (R-Countryside) was one of the cosponsors of the bill in the house. He pointed out that there has long been a principle in common law that a defendant may forfeit his "confrontation" right by related wrongdoing. But under the Supreme Court's Crawford decision (2004) that wrongdoing must be designed to prevent the witness from testifying.
Durkin, a former prosecutor, said the new law -- which he did not call Drew Peterson's Law -- would therefore be unlikely to be used to prosecute Peterson for the murder of his missing wife, Stacy:
"But if they can show that [Peterson's] missing wife made a statement that would implicate him in the murder of [his third wife], they might be able to argue that he killed her to keep her from testifying in that case," Durkin said.
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Ill. Rep. Careen M Gordon (D-Coal City), also a former prosecutor, was the chief sponsor of the bill in the House.
She said that even though hearsay evidence has been allowed into cases under common law in Illinois, it was "necessary" to write the permission and provisions into the statutes in order to give guidance and reassurance to trial judges. She said it would provide "an important new tool for prosecutors," but stressed that it was an idea "that had been around for a few years" and wasn't directly releated to the Peterson case.
DePaul University Law School professor Leonard Cavise told me he believes that Drew Peterson's Law "is a violation of Crawford (v. Washington, a 2004 U.S. Supreme Court case.
That case, Cavise said, "singlehandedly changed the analytical framework" in which courts are to view the 'confrontation clause." Prior to that, the 1980 case of Ohio v. Roberts was controlling, and that was comparatively loose and allowed in to evidence statements that appeared trustworthy.
"Giles [v. California 2008] made Crawford even stronger as far as defendants are concerned," Cavise said.
To get hearsay testimony into evidence now, Cavise said, the Supreme Court has laid out a two part test. "Part one, did the defendant cause the unavailability of the witness. And Part two, if he did cause it, did he do so with the intent to prevent that witness from testiffying."
Cavise noted the irony that the author of these strong protections for defendants was Justice Antonin Scalia, "who, nine times out of ten will interpret the rules to allow things into evidence when there's a dispute, really stepped up on this issue. And the liberal justices have been on the other side."
Will County State's Attorney James Glasgow disagreed with Cavise that Drew Peterson's Law (my term, not his) would not pass muster with the Supreme Court.
He said he attended the oral argument in Giles v. California and in his reading of the ruling, the court is providing just the sort of roadmap for prosecutors who want to put hearsay testimony into evidence that's spelled out in Drew Peterson's Law. He called the new law "a phenomenal tool," though actually fairly narrow in application.
He would not discuss his evidence or plans in the Peterson case, but assured me that the new law would be applicable to old cases.
I asked him if he would be attempting to use the law to introduce the alleged statements of Stacy Peterson (the missing 4th wife) in a prosecution of Peterson for the murder of Kathleen Savio {the slain third wife).
"If he did kill Stacy Peterson, he killed his alibi in Kathleen Savio," Glasgow said. He advised those interested in gaining insight into Drew Peterson's character to watch the movie "Internal Affairs." "The character played by Richard Gere is a window into Drew Peterson's soul," he said.