TRANSCRIPT: AT ISSUE 07-10-2010: Peterson Trial

MANN: 56-year-old BB police officer Drew Peterson has been in jail for over a year
and has been in the media spotlight since October of 2007 when his 23-year-old
wife, Stacy, vanished without a trace. Peterson remains a suspect in her
disappearance and remains jailed as the trial for the murder of his third wife,
Kathleen Savio, is now on hold. I'm Julie Mann for political editor Craig Delamore
and this is At Issue.

Joining me to talk about the latest developments in the case against Drew
Peterson, former Cook County prosecutor, practicing attorney and legal analyst,
Terry Sullivan; defense attorney and Kent College of law professor, Richard Kling;
and legal affairs reporter for the Daily Herald, Christy Gutowski, who's been
following the Peterson case from the beginning.

Christy, I'm going to go ahead and start with you. Can you bring us up to date on
the most recent revelations in the Drew Peterson case? Obviously, we had all
expected it to go to trial on Thursday with jury selection and that didn't happen.

GUTOWSKI:Right, Julie. There's never a dull moment in this case, as you know as a
follower in this case as well. We were ready to go to trial. Media from across the
country was descending on the Joliet courthouse in downtown Joliet and Judge
Stephen White had blocked off the next several weeks of his court docket and
potential jurors were coming in for voir dire on Thursday and 24 hours prior Will
County State's Attorney Jim Glasgow filed a motion to appeal to third district
appellate court based on the trial court's earlier decision in May to bar several
hearsay statements that the prosecution really needs to clinch a conviction
against former police sergeant Drew Peterson because they lack a confession, a
murder weapon, or any physical evidence.

MANN: Actually, it had kind of been expected that once this ruling in the Eric
Hanson case had come down -- the appeal there and we'll get back to that little
later -- there was the potential for this appeal to happen but I just want to keep
going for one more minute with you Christy. The drama didn't stop there because
obviously there was calls of someone being chicken and someone not being a
chicken but also there was word that Drew Peterson might be freed based on the
fact that this appeal had been filed. What happened there?

GUTOWSKI:Yes, it was a nerve-wracking 24-hours in Joliet, to say the least.

Especially for the families of Kathleen Savio and Stacy Peterson, which obviously
don't want Drew Peterson to get out and on the flip side of that, Drew Peterson's
defense team who said that the law said he has to get out. I'll let my esteemed
attorney colleagues explain that better but really it was up to the trial court judge,
Will County judge, Stephen White, if he was going to let Drew out based on if the
State's Attorney could present a compelling argument that he should be left in.
Because, this appeal process can take anywhere from six to nine months up to a
couple years if they want to go all the way to United States Supreme Court. So,
the judge found -- without explaining his decision, because we're dealing with a
lot of sealed issues here -- that there is compelling reason to keep Drew Peterson
in jail. He showed no outward reaction. He sort of tapped his fingers and he was
much more subdued than the Drew we're used to. He looked at his attorneys but
in the words of defense attorney Joseph Lopez, he walked out of the courthouse,
addressed the media and said, "Ouch".

MANN: "Ouch". Was that appropriate, Richard Kling?

KLING: I'm not sure that that's an appropriate response. It obviously hurt his
client, but I'm not sure that Terry or I would have said that. But realistically, he
was concerned that his client was being kept in.

MANN: Compelling reasons. Obviously the judge thought, with a 20 million dollar
bond wouldn't there have been compelling reasons a year and...fourteen months
ago when they put Drew Peterson in jail?

SULLIVAN: I think Julie, yes, to answer that. But, I think what most people don't
understand is that there is something called Supreme Court Rule 604 which the
professor is well aware of here and the wording of that is...it simply says that if
the state decides to appeal a motion before trial, then -- and I've got it right in
front of me -- then a defendant "shall not be held" and to Richard and I the "shall
not" we've argued may times because "shall" is a big word, a short word but a big
word in the legal community and it's a presumption, more than a presumption
that a somebody should be let go. In other words, he is being held, he is certainly
an unsympathetic character -- that's one of his problems -- but the fact is that
when you have a law like this he still is presumed innocent and he is being held in
pretrial detention. He's not been convicted of anything yet, despite what the
public thinks. So, I anticipate that they're going to be taking this to the appellate
court to try to get bond. I thought they would do that yesterday but apparently
they decided maybe they'd better do it the right way. But I it think interesting,
Julie, and nobody said anything -- as Christy says, all these things have been
sealed -- but there is an end to the 604 that says unless compelling evidence is
found by the judge. This judge is put in a tricky position because this is the very
first time that this "Drew's law" has actually been used. Obviously. It was created
for him. This judge had to make a finding, though he didn't release it, that he was
finding, by less than reasonable grounds, but he was finding that Drew had killed
his third wife. So having made that finding, I feel for this judge. He had to go back
and face supreme court rule 604 and at the same time say to himself, my god,
how do I release somebody like that when I have already found him guilty but I
haven't told anybody because we didn't want to taint the jury.

KLING: One of the interesting reasons, as Christy said, is he didn't articulate what
the compelling reasons are. The statute allows him to keep him in for compelling
reasons. I'm sure that's one of the issues in front of the appellate court. What are
the compelling reasons?

MANN: So that would be the basis of their appeal for the defense attorneys? That
they didn't know what the compelling reasons...
KLING: It may be that an appellate court would remand it back to him to say OK,
you've kept him in. You have a right to do that if there are compelling reasons, tell
me what the compelling reasons are and then he's going to have to articulate,
Well I found that he got rid of the two wives. I found that there's an autopsy that
indicates that it was murder. But without that on the record that's going to be a
problem for the appellate court.

MANN: Quickly, the unsympathetic character. That played into this role. If Drew
Peterson had been what people would think was a normal murder defendant and
kept his head low and he was quiet and stood behind his attorneys all this time,
that this may have played out differently for him.

SULLIVAN: I think the sympathy or unsympatheticness of a character always plays

into judges' decisions as much as they don't like to say that. The bottom line is
he's charged with one murder and there's a question whether he's responsible for
another murder. There's evidence regarding hearsay statements, there's evidence
regarding an autopsy, in addition to which he was the unsympathetic character
goading the state before he was arrested into charging him, having the "date
Drew Peterson shows" and all the other craziness that was going on. I'm sure
that's one of the factors that this judge is thinking. If I let him out, what's going to
happen in terms of the media?

MANN: Sympathetic character. You've been following DP, Christy. He really has not
behaved as a quote unquote normal defendant would. You've covered many many
court cases. He explains it how? He's kind of goofy when he was out of prison, out
of jail...

GUTOWSKI:He says that's his defense mechanism. He makes jokes. We all have
our own mannerisms and he says that that's just the way he is. However, in the
last year -- he was charged in May of 09 and he's been in jail on a 20 million dollar
bond in Joliet for more than...fourteen months -- he is much more subdued and I
think that that's by design. I think that he's been told that he needs to cool it.

MANN: He's in solitary...not solitary confinement, but he's secluded from the rest
of the population?

GUTOWSKI:Correct. He is.

SULLIVAN: I'm not so sure how his demeanor...it's interesting because his, as
Richard said, his goading the prosecution especially during his time out. But now
you have him being more subdued, yet yesterday or the day before the defense
team is goading still, aren't they Richard, the prosecution by saying that they're
chicken.

KLING: I think they are and I hate to agree with the state's attorney of Will County.
I'm not usually in that position, but the fact of the matter is, when he said this is
not a joke, it is not a joke. There is one person who is dead we know as a result of
murder, or at least the judge has found probably as a result of murder. There's
another gal who is missing. There is trauma for the families.. I don't know how,
regardless of his defense mechanisms, somebody who is locked up and being
charged with a murder where he may face the rest of his life in the penitentiary is
going to be kidding around. It definitely is not a kidding issue.

GUTOWSKI:Right. I just interviewed the families again yesterday of both women

and Sue Doman, which was Kathleen's, they call her Kitty's, older sister by eight
years just visited her grave. It would have been Kathleen's 47th birthday on
June...uh, a couple of weeks ago. And she visited her grave in Hillside and left her
a note saying, "I'm never going to stop fighting for you - even if it takes forever".
So even though we're all caught up in some of the legal wrangling and the sound
bites and things like that, this is a very very real case to many many people who
are personally connected.

MANN: It's a real case but there doesn't seem to be any...there's no physical
evidence tying Drew Peterson to the murder, 2004 murder of Kathleen Savio. So,
it is based on these hearsay statements. Explain to us, and I'm not sure who
wants to take this question, this "Drew's Law". Some people think it should be
called "Kathleen's Law". The law that was passed by the Illinois legislature and
obviously, the Will County State's Attorney, right after it was passed, charged
Drew with Kathleen Savio's murder. What's the essence of this hearsay law?

KLING: The essence is, it's called forfeiture by wrongdoing. Normally defendants
have the right to confront witnesses against them. Whenever hearsay is
introduced, they're losing that right because somebody is repeating somebody
else's words. What forfeiture by wrongdoing says, essentially, is that if you get rid
of a witness intending to deprive them of the ability to testify you can't come in
later and complain that I couldn't confront them. I think the problem with Drew's
Law is going to be, or at least with the procedures that have been employed,
there's a case that came down a couple of years ago from United States supreme
court...Let me give you the background on forfeiture by wrongdoing very briefly. If
I beat you up and you file charges against me and then I kill you to stop you from
going to court, that's the whole purpose of forfeiture by wrongdoing. If I'm just an
evil person and kill you, forfeiture by wrongdoing doesn't apply. I still have a right
to confront the witnesses against me.

MANN: And that's been around forever.

KLING: That has been around for years and years and years. It goes back to
England. The common law doctrine of forfeiture by wrongdoing.

MANN: Then why do we need this hearsay law?

KLING: I really don't think that we did. I think that the hearsay law complicated a
whole bunch of things. I think it was easier under the Hanson decision, which we
can talk about for a moment, although I think there's problems with the Hanson
decision as well. But I don't think we need the Drew's Law to get in forfeiture by
wrongdoing.

MANN: What do you say about the prosecution's case at this point? We can go
back to the statements that Drew Peterson's attorneys made to the WC state's
attorney saying he chickened out at the last minute. Obviously, we'll talk about
this Hanson ruling. The timing of it seemed appropriate for them to file this appeal
underneath this Hanson ruling.

SULLIVAN: Well yeah, The SA probably did the right thing. Having been a
prosecutor for twelve years I can tell you I probably would have done the same
thing. I think the professor's saying the same thing. If you're sitting there and
you're saying we've got this case and it's a big media case, in Joliet and
elsewhere, in fact throughout the country, and the judge has said OK I'll let this in
but I'm keeping this out. Well, we want the whole bundle because otherwise we
feel that we may lose this case. Whether or not the SA office felt that we're gonna
lose it without having these things or that they just wanted the whole bundle of
hearsay, if in fact there's going to be a Drew's Law or even as the professor points
out, the common law, I think that they obviously think that their case has been
weakened. And that's one of the arguments that is used in many of the cases
when you go for bond, after the state appeals a case. So, yeah, I think it's been
weakened and I think they probably did the right ting looking from a prosecutor's
stance.

KLING: I'll tell you one up side for the prosecutor's office that nobody has talked
about, as well. It gives them another six, nine, twelve months, maybe a year-and-
a-half to investigate and I'm sure they are going to have their teams out there
investigating areas that haven't been investigated before. They may find more
evidence as well.

MANN: And that area could include the continued search for Stacy Peterson where
they were downstate, Christy Gutowski, not too long ago, ISP looked like they had
a promising lead where they were digging on some property.

GUTOWSKI:Yes, in the Peoria area I believe. We've talked to Peterson's defense

team and they've been rather forthcoming with saying that they're not concerned
at all.

MANN: They've dismissed that outright.

GUTOWSKI:When you ask them how would they know, there's no comment.

SULLIVAN: But then again, what happens during these nine months, and I think it
could be a lot longer than that by the time it goes up to supreme court, etc. etc.,
But what happens if Stacy shows up? What does that do to all these theories
about hearsay? That puts the whole hearsay law back into question - whether it's
common law or whether it's Drew's Law. You have all of these problems where if in
fact you're not able as a defense attorney to cross examine somebody, you've got
big problems. What if he's convicted? What if he's sentenced to life? What if he's
sentenced to death if that were possible and then Stacy just happens to have run
off with somebody else and comes back and that's why we have the sixth
amendment. That's why the United State's Supreme Court has said, that in fact,
the only way to comply with the sixth amendment is confrontation. Confrontation
simply means the ability to cross-examine whoever' is going to accuse you and
that's a big point. The professor probably has some opinions as to whether or not
Drew's Law is going to stand up under the US supreme court.

MANN: I think you've already said that it's unconstitutional.

KLING: I think there's problems with it to the extent that a defendant is presumed
innocent when you go into a trial and yet under the so-called Drew's law, the
judge has to make pre-trial findings that the guy is probably guilty. I don't know of
any other law in existence that allows a judge, before a trial occurs, in which a
defendant is presumed innocent, to make conclusions. Whether they are released
to the public or not, this judge has to conclude, in order to allow the evidence in
pretrial, this guy is probably guilty.

GUTOWSKI:Let me play devils' advocate for a second. You explain this to me

because I'm not a lawyer. In our system of law, don't we already have the
standard in preliminary hearings and indictments this preponderance of evidence,
aren't we already doing this?

KLING: Certainly there's evidence in terms of whether the guy probably did it but
the judge in front of whom the trial is, does not make pretrial findings that the guy
is probably guilty. There's enough evidence to take him to trial. The judge in front
of whom the case is pending does not make a pretrial ruling that he is probably
guilty of this murder.

GUTOWSKI:But isn't that what a judge does in a preliminary hearing? He's saying
that there's enough evidence that he more likely did it or not, so let's go forward?

KLING: There's enough evidence to bring it to trial. It's a completely different

ballgame than when the judge that's presiding over the case is going to pretrial
decide this guy is probably guilty of the offenses. It is even more complicated in
Illinois, because in Illinois the defendant has a constitutional right to a bench trial.
How does a defendant take a bench trial in front of a judge who has pretrial,
decided he's probably guilty?

GUTOWSKI:Here's something interesting to think about, Julie. So, if I understand

quote unquote Drew's Law -- and the SA hates when you call it that -- correctly,
we've had this long-standing forfeiture by wrongdoing doctrine Glasgow decided
and before him Burkett tried to pass a similar state law that we needed to give
Illinois judges a road map so he creates this law and he thinks that he's doing,
making it, by insuring constitutional rights are protected, he's creating this
reliability hearing standard. That's actually a bit better for the defense than the
long-standing doctrine. But what judge white said in his courtroom yesterday
when we were discussing this Hanson issue, and of course he's got to be careful
because he can't get into a lot of the sealed statements, although some of us
through our sources have reported what is in and what is out. He said what you
have to keep in mind for Hanson is Drew's law was not in place. I ruled solely,
regarding my decision with hearsay with this Drew's law. But Hanson, Illinois
supreme court didn't do Drew's Law so there's different things that are going on
here.

MANN: So let's quickly go over what the Hanson ruling is. We're speaking of Eric
Hanson who was convicted of murdering four family members in the Naperville
area, in the Aurora area. Christy, you covered that case extensively. What was the
ruling regarding Eric Hanson's case that flipped this all upside down for DP?

GUTOWSKI:Right. It just came down from Illinois Supreme Court held Eric Hanson,
he's on death row, he's thirty-three years old, they upheld his conviction in late
June so that's why this trial was delayed now. Because really, Judge White's
hearsay ruling came down in May. With Hanson, there was a lot of evidence with
Hanson. There was physical evidence. There was DNA. No confession but his
sister, his surviving sister, she testified that her Des Plaines sister, three weeks
before she was killed told her that Eric threatened to kill her if she told their father
that he had been stealing, he'd been doing credit card fraud from his parents to
the tune of more than eighty-thousand dollars. So the Du Page County trial court
judge allowed that statement in and Hanson argued that his rights were violated.
He should have gotten a new trial and be taken off death row.

MANN: So, where do we go from here? Terry Sullivan what is your best advice at
this point...

SULLIVAN: To whom?

MANN: Either to the defense or prosecutors. What do you expect to see happen
here next? Obviously, there'll be an appeal as promised by Drew's defense team
that they are going to try to get him out of jail. But where do we go from here? Do
we just have to wait for this appeal to run its course?

SULLIVAN: You're talking about several appeals. You've got trains running on
different tracks. You've got the appeal that the state took on the judge's ruling.
That's going to the third district in Ottawa. That court is going to have to
determine how fast that's going to move and after that's done, depending on the
ruling, either side could probably take that to the supreme court or could try to
take it to the supreme court. The other one is the appeal of the bond or the lack
of bond. We keep talking about bond but actually supreme court rule 604 doesn't
even talk about bond very much. It just says a person should be released. I think
that I am not the person to be giving advice to either side. I would pick up on
exactly what Rich said and that is that both sides are going to get out there and
bust their butts with further investigation of this thing and I bet the defense better
not sit back because the prosecution is liable to get a heck of a lot more evidence
during this time that they've got the delay and I think that's an important point
that the professor made.
MANN: Richard Kling, you were on our panel for the Blagojevich trial conversation
we had heron At Issue a couple of weeks back and you said there are teachable
moments in the Rod Blagojevich federal corruption trial. There are also teachable
moments for your students in the Drew Peterson murder trial?

KLING: This is an evidence teacher's dream come true. Every issue that's involved
with Drew Peterson I go over with my course in evidence. The students have been
going to the Blago trial and coming back and we've been talking about that. We
haven't gone out because Peterson's in Joliet, but the issue of forfeiture by
wrongdoing is on the front page of the newspaper and on the front page of their
text books. Every one of the evidence issues is covered in class.

MANN: I suppose what can't be lost is the fact that there's one mother of two who
is gone and deemed murdered at this point; one mother of two who is still
considered missing not dead. i don't think they've ever declared Stacy Peterson as
dead. So, Christy, what do we need to keep in mind here when we think about this
case, when we remember the victims? I know that the sister...they're still out
there looking for Stacy.

GUTOWSKI: Correct, and I think there's something else here as well. I've asked
several legal professors what's important here? We're all obsessed with this case
but is that our own Jerry Springeresque interest in this case, is there something
precedent-setting? There was one gentleman who gave me a really good response
that I thought about. He said you know Judge White is in a tough box here. He's
trying to protect the record, keep a tight record to make sure Mr. Peterson's rights
are protected but it's also very very important that the media is there and that the
public is kept aware of what's going on in this case because this involves a thirty-
two year police officer. We entrust our police officers with so many rights and
powers and the public needs to know that the system is working, win or lose, as
it's supposed to, within the confines of the law. Ensure that he gets the same sort
of treatment that we would get. It's no better treatment than we would. And I
think that's so important in protecting the integrity of our criminal justice system.

SULLIVAN: But that's the whole point. You're absolutely right but for people like
the professor and I who are trying to hold the law to the fire, the fact of the matter
is that this guy, and I'm not taking his side, just because he happens to be a
defendant, he is entitled under American law to all of the rights and under the
constitution and a lot of those he probably hasn't gotten at this particular point.
So that's why we're not losing sight of it. I think the fact of the matter is just that
this is just for lawyers a cornucopia of legal issues and what a pleasure it must be
for somebody to be in your class right now professor because they're never going
to get a better time to cover cases when you have this one and you have
Blagojevich going at the same time. Their heads must be swimming.

KLING: Their heads are spinning. They're asking questions like crazy and we're,
between Hanson coming down a couple of weeks ago and this case and
Blagojevich and Giles versus California, which was the hearsay case with the US
Supreme court. It's a time to be a law student.

SULLIVAN: And don't you think that with the Hanson case coming down and our
supreme court 7-0 ruling on that, and being very careful to take into consideration
the US supreme court cases before, have carved out this new law for the state of
Illinois as they say in one of their sentences. Don't you think that still they're at
loggerheads as we sit here, with the US supreme court?

KLING: I think there's a problem with Hanson. I think there's a problem with
Hanson and later Giles versus California which came down three years ago, which
wasn't mentioned with Hanson, surprisingly enough.

SULLIVAN: I think you should tell everybody what that was about because that
was the same sort of a case in California, correct?

KLING: Again, what Giles says, what the US Supreme court says is if you kill
somebody jut because you kill him, hearsay is not going to be allowed in. You still
have a right to confront the witnesses against you. If you kill them in order to
keep them from being a witness in a proceeding then hearsay's going to be
admissible and one of the problems I see with Hanson is there was no proceeding.
She may have been killed because she was going to tell her father is the
argument in the case but I don't know that that's the type of witness that would
deprive a defendant an opportunity of confrontation that Giles was looking to...

SULLIVAN: So what Christy has said is absolutely true but Julie I think what you
see here is you see an enactment of what was already on the books in common
law to protect people and at the same time you've got the fact that we've got a
constitution that somebody has to protect because it's the only thing this country
still has that we were built on and I think there's a big big conflict.

GUTOWSKI: If we were a federal rules state this wouldn't even be an issue, right?
Because in federal courts this hearsay issue isn't contested.

KLING: Under 804 B6, which is the federal rule which was dealt with under Giles...

MANN: Quickly. We've only got a few minutes left, can you give us a cast of
characters in the courtroom. We've got...Will county state's attorney James
Glasgow who, we should mention, is trying this himself. He's forefront in the court
room. The defense attorney, Joel Brodsky. Does it matter that it's his first murder
trial that he's had?

GUTOWSKI: He has a great team with him as well. Listen, they're bringing it in the
courtroom. This is a definite fight. He's got at least two attorneys who are first
chair death penalty qualified. This is not a death penalty case but there's a lot of
legal experience on both sides.

MANN: Including Steve Greenberg who...

GUTOWSKI: Right. Steve Greenberg...

MANN: ...you might recognize from the Brian Dugan /Jeanine Nicarico case. He
was handling Brian Dugan's defense in that. A lot of power in that courtroom and
a lot of antics and a lot of practical zinging back and forth because we know Will
county prosecutor, James Glasgow, Richard said that this is a very serious case.
He's a very serious attorney and the other three I think like to be a little more
jovial in the courtroom, not jovial but a little bit more antical. I worry that we set a
precedent with the Drew Peterson case, with the Rod Blagojevich case that usually
you see a defendant who does keep his head down, her head down, that stays
behind the shadows, that isn't seen on the Today show. Is this going to set a
precedent if somehow he is found not guilty? That the best way to defend yourself
is to go out there and talk to anybody who is willing to listen?

KLING: Yeah. I don't anticipate what's going to happen in terms of the guilty or not
guilty. I think Drew's biggest problem is from the beginning probably he should
have issued a statement saying, I grieve the missing wife -- my children, this is a
personal matter. I'm not going to comment on it anymore and then just gone into
his house and leave it alone.

GUTOWSKI: Like Craig Stebic. Before the Peterson case broke there was that
Plainfield case where his wife is missing and he hasn't said one word and he's not
under indictment.

SULLIVAN: Look at the Blagojevich case. Now you're talking about somebody
who's out there and coming up and shaking people's hands and saying hi like he's
just supremely confident. You make a good point, Julie. What if he or somebody
else, DP, what if they're found not guilty. Is that going to become a wave of the
future, that maybe you are able to influence people through the media nowadays
and find a jury pool that's going to be a lot more receptive to you. We don't' know
but it will be interesting to talk about later on.

MANN: We've got so much to watch,not only with the trial of rod Blagojevich but
also with the upcoming trial of Drew Peterson to be announced at some point in
the future and we know that there is a status hearing on that in August.