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Saturday, May 09, 2009

Law - "Illinois law allowing hearsay to shape Peterson case"

The ILB has no plans to cover the Illinois Drew Peterson murder case. However, this AP story today in the Washington Post had some quotes that caught my eye:

JOLIET, Ill. -- 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. * * *

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.

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 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.

Erika Slife, Matthew Walberg and Jeff Coen of the Chicago Tribune have this story today. Some quotes:
Will County State's Atty. James Glasgow called the case against Drew Peterson the biggest of his career, one he will prosecute himself.

But the evidence likely will be circumstantial. There are no known witnesses. And prosecutors are expected to rely on a new Illinois statute -- one that Glasgow sought for months and that some call Drew's Law -- to allow Peterson's slain ex-wife, Kathleen Savio, to "testify from beyond the grave."

Peterson's defense team has vowed to challenge the law -- which would allow a judge to admit certain hearsay evidence into court -- as unconstitutional. * * *

Under the new hearsay law, which took effect in December, Glasgow could ask a judge to admit Savio's letters and alleged statements to friends and family into court. He would have to prove to the judge by a preponderance of evidence that Peterson murdered Savio to keep her from testifying against him, that Savio's statements are credible and that the best interests of the court would be served if the statements were admitted into evidence.

"It allows testimony from the grave, so to speak, about threats of violence made toward the victim," said defense attorney Lawrence Wolf Levin. But he said Glasgow would be taking a risk by relying on a law that could face legal challenges. Opponents of admissible hearsay argue that it goes against the 6th Amendment, which reads, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." "Nobody really knows whether this law will stand up and what its final viability will be," Levin said. A higher court could see it as a denial of due process and strike it down, making the Peterson case even harder to prove.

Posted by Marcia Oddi on May 9, 2009 10:34 AM
Posted to General Law Related