After two years of delays brought on by appeals over hearsay evidence, jury selection is scheduled to begin today for Drew Peterson’s murder trial.
But there is a possibility that the same lingering issue — whether the jury can hear some hearsay statements — could lead to the trial once again being delayed if prosecutors seek relief from a higher court, attorneys involved in the case said.
The chance that such an effort would succeed is remote, experts said.
But prosecutors argue that the hearsay statements are important to allow Peterson’s wives to speak. Peterson, a former Bolingbrook police sergeant, is charged with murder in the 2004 drowning death of his third wife, Kathleen Savio, in her bathtub. He is the sole suspect in the disappearance of his fourth wife, Stacy, but has not been charged.
Jurors could hear some hearsay statements Stacy made to others before she vanished — including that she saw Peterson arrive home dressed in black carrying a bag of women’s clothing around the time of Savio’s death — but others were previously barred. A judge ruled that a pastor who counseled Stacy cannot testify that Peterson told her he had killed Savio, then struck her on the head to make it look like an accident. The pastor also cannot testify Peterson told Stacy what to tell police so the slaying would be “the perfect crime.”
Because Judge Edward Burmila hasn’t actually ruled on whether reliability issues preclude the statements from being heard, there is nothing yet for prosecutors to appeal. The state could seek the extreme remedy of asking the Illinois Supreme Court to order Burmila to issue his ruling before the trial begins.
Defense attorney Richard Kling, who teaches evidence at Chicago-Kent College of Law, said he saw little chance for a delay to the start of the trial, even if prosecutors are able to get the higher court to intervene.
“The lawyers would love to know ahead of time what a judge is going to do, but the judge can’t really rule until they see the context of the statements,” Kling said. “I don’t think the appellate court would touch (a motion by prosecutors to force Burmila to rule), and I don’t think (Burmila) is going to stay the trial if they try.”
Last week, Burmila chided prosecutors for seeking a hearsay ruling at the final pretrial hearing just days before jury selection was to start.
“You don’t tell me when I’m going to rule and the circumstances,” he told Assistant State’s Attorney Colleen Griffin. “This is an issue you’ve known about for two years.”
Burmila said he didn’t think he had to rule before the trial and said he could potentially rule on the hearsay statements individually during the course of the trial. He has previously said in court that prosecutors must still lay a proper foundation or the statements won’t be admitted.
The previous judge overseeing the case, Stephen White, had ruled some statements inadmissible because of questions about their reliability, Burmila noted. He set a Friday deadline for prosecutors to file a brief citing case law that would allow him to overturn White’s decision. Peterson’s attorneys were to respond over the weekend.
At a brief news conference outside the courthouse Wednesday, Glasgow told reporters he would not rule out the possibility of an appeal if Burmila blocked the statements.
Peterson’s attorneys said they expected the trial to start Monday.
“The judge has indicated he is going to follow the law, which means that factually unreliable evidence will not be allowed simply to poison the jury,” said defense attorney Steve Greenberg. “That threshold applies to all evidence, not just hearsay.”
“We believe the trial will start Monday, and are itching for the public to finally hear the real facts,” he said.
Opening statements in the trial are expected to begin July 31.
