Timely Objections Blog

Drew Peterson's Verdict, Appeal and the Cranes of Ibycus

By R Tamara de Silva

September 10, 2012

         Every so often, Lady Justice allows in her hallowed halls occupants, making up in sheer bluster what they wholly lack in gravitas-seemingly more worthy of inhabiting a circus side show than the halls of justice.  So it happened in the case and trial of Drew Peterson, who was convicted on September 6, 2012 after a mere fourteen hours of deliberation of the first-degree murder of his third wife, Kathleen Savio.  According to the jury that returned the guilty verdict, much of the most damning evidence came in the form of out of court utterances by Peterson's fourth wife, Stacy Peterson and his third wife.  Even before the trial of Peterson began the defendant's proclivity to lose wives and solicit the media, was outmatched by a team of lawyers, who would court the Media with all the subtlety of an obsessed stalker.  At one point, Peterson's lawyers gleefully mocked the fate of Peterson's fourth wife, Stacey Peterson, who has been missing since 2007 and is presumed dead.  Yet despite all the limelight, poor taste and unrelenting braggadocio of the defense, it was Stacey Peterson, perhaps from beyond some grave, put on the stand by Peterson's own lawyers, who would convict Peterson.  

        Drew Peterson's verdict is reminiscent of the tale of the poet Ibycus who lived around 500 B.C.  According to Greek myth, Ibycus was blessed by the god Apollo in song, was on his way to the chariot races when he was killed by two thieves somewhere near Corinth.  As he lay dying and alone, he saw cranes flying overhead and begged them to bear witness to the world as to what had been done to him and to seek justice.   Friedrich Schiller's poem tells the rest about a vast crowd watching an enactment of the Furies when someone from the audience remarks,

"See there, see there, Timotheus! Behold the cranes of Ibycus!"

The heavens become as black as night,

And o'er the theatre they see,

Far over-head, a dusky flight

Of cranes, approaching hastily.

"Of Ibycus!" - That name so blest

With new-born sorrow fills each breast.

As waves on waves in ocean rise,

From mouth to mouth it swiftly flies:

"Of Ibycus, whom we lament?

Who fell beneath the murderer's hand?

What mean those words that from him went?

What means this cranes' advancing band?"

And louder still become the cries,

And soon this thought foreboding flies

Through every heart, with speed of light - [1]

        The cranes of Ibycus had told the world what the thieves had done and saw that vengeance upon the murdered poet was dealt.

        Kathleen Savio's voice was heard from the grave in statements in the form of a letter she had written to an assistant State's Attorney in Will County about Peterson's violence against her, along with statements to many co-workers and family who spoke of Kathleen's fears of Peterson and her being certain that Peterson wanted to kill her. 

        However, according to the jurors it was Peterson's fourth wife, Stacey Peterson, and her voice also possibly from the grave, that convinced the jurors that Peterson was guilty.   When the jurors began deliberating, they only asked for two pieces of evidence-not for the testimony of the competing pathologists or any of the investigators-but the testimony of Stacey Peterson's pastor, Neil Schori and her divorce lawyer, Harry Smith.  Neil Schori testified that Peterson returned to their home dressed in black with a bag of woman's clothing on the late morning of the day that Kathleen was found dead and also coached her about being an alibi witness for him.[2]

        According to the jury foreman, Eduardo Saldana, the key piece of evidence against Peterson, the testimony of Harry Smith, was offered not by the state but by Peterson's own lawyers.[3]  One of Peterson's lawyers who always wears sunglasses and calls himself "The Shark," Joe Lopez, remarked that, "[I]t's a dark day in America when you can convict someone on hearsay evidence. A very dark day."   Then why provide the jury with the hearsay evidence yourself unless you are working against your client?

        It is inexplicable that it was Peterson's own lawyers, Joel Brodsky and Joe Lopez who would allow the jury to hear the one piece of evidence most damning of their client.   Harry Smith testified on the stand that Stacey Peterson, "wanted to know if, in my opinion, that the fact he [Peterson] killed Kathy could be used against him in the divorce proceeding."[4]  This was the first time, the jury would hear, because of the defense lawyers, Stacey Peterson say that her husband had killed Kathleen Savio.

Hearsay Evidence and Forfeiture by Wrongdoing

        By way of some background, the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."  This part of the Sixth Amendment is called the Confrontation Clause.   The Founding Fathers recognized the fundamental importance of cross-examination in discovering the truth.    The right to confront and cross-examine witnesses is one of most crucial safeguards of individual liberty and a sine qua non of due process. 

        The Confrontation Clause requires that the prosecution produce live witnesses so that the jury can see their expression, their demeanor upon cross-examination, watch them take an oath and in every other way, weigh and measure their credibility in the flesh.  The Confrontation Clause helps to ensure the reliability of the evidence used to take away someone's right to life and liberty.  It also allows the accused to see his accuser face to face and in so doing guard against the government ever using secretive "trial by affidavit. "[5]  Confrontation protects the dignity of the accused and preserves the Constitution's  paramount regard for procedural due process.

        This said, there have long been exceptions to the Confrontation Clause in the various types of hearsay evidence that are permitted at trial, wherein the defendant does not get to confront or cross-examine a witness against him.  

        Criminal defense lawyers are widely considered the best cross-examiners in the law because it is most often only through cross-examination that they can discover a witness' bias, confusion and truth-telling ability.  Criminal defense lawyers do not usually get to take depositions, propound interrogatories or requests for production.  In the criminal justice system, the prosecution has the power of a grand jury and all the resources and investigatory powers of the government.   By contrast, the defense attorney has virtually little pretrial discovery.  The most effective and lone tool available to the defense lawyer, is the ability to cross-examine a witness for the prosecution.  It is solely through cross-examination that a defendant can show a jury what a witness may be hiding, their motives, their confusion, their bias, and  reveal the weaknesses of the evidence offered by a prosecution witness-why what they are seeming to say may simply not be true.

        Much of the evidence against Peterson was in the form of otherwise inadmissible hearsay and its use in the Peterson trial will likely be a basis for appeal.   Hearsay evidence during the Peterson trial included the testimony of what Kathleen Savio and Stacey Peterson had allegedly said to other people but were not available to say in court, during the trial.  No defense counsel can cross-examine Kathleen Savio and Stacey Peterson, even as they seemed to speak from the witness stand.

        In 2008, Illinois enacted a piece of legislation called the Hearsay Exception for Intentional Murder of a Witness that allowed for the admission of reliable statements by an out of court declarant (witness) if the reason the declarant is not available to testify in court is that the defendant has murdered them.[6]  This law called, Drew's law, named after Drew Peterson is a state level codification and counterpart to the pre-existing Federal Rule of Evidence 804(b)(6).[7] 

        There is also an older doctrine that mirrors the 2008 Drew's law and Federal Rule of Evidence 804(b)(6)-the common law principle of forfeiture by wrongdoing.  Forfeiture by wrongdoing in a principle in the common law that was first recognized by the United States Supreme Court in Reynolds v. United States.[8]  The Court in Reynolds recognized the forfeiture by wrongdoing rule- which according to the principles of equity did not allow someone to use the Confrontation Clause to profit from their own wrongdoing,

The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away.  The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts.  It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege.  If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.[9]

        In other words, under the doctrine of forfeiture by wrongdoing, you forfeit your right to confront witnesses against you in a criminal matter if your own behavior has resulted in their being unavailable to testify.

        Justice Scalia in the 2008 Supreme Court case Giles v. California, found that the common law doctrine of forfeiture by wrongdoing, dated back to 1666 and Lord Morley's Case.[10] 

        The Court in Giles v. California required that the doctrine of forfeiture by wrongdoing only applies to allow the statements of a Stacey Peterson and Kathleen Savio, if it can be shown that a defendant like Peterson, "intended to prevent the witness [in this case Stacey and Kathleen] from testifying."

        The requirement of showing intent on the part of a defendant to prevent a witness from testifying before application of forfeiture by wrongdoing is a topic worthy of another article-probably several.  It is also odd.  Consider for the example a cocaine trafficker who is accused of murdering one of his co-conspirators because they were about to testify against the drug trafficker in court.  Before being murdered, the co-conspirator tells several people, including Federal agents, that he is afraid because the drug trafficker has ordered a hit on him and will try to have him killed.  In determining whether to admit the testimony of the co-conspirator to Federal agents and others, the courts will use the standard of a preponderance of the evidence.  A court will decide whether by a preponderance of the evidence, the drug dealer killed the co-conspirator-the same act for which he is on trial.  This determination seems at odds with a defendant's presumption of innocence.  It is also bootstrapping because the testimony being judged for reliability [hearsay] provides the basis for its own reliability. 

Peterson's Appeal on Ex Post Facto Grounds

        Many professional court pundits have remarked that Peterson' case will undoubtedly be appealed to and then overturned by the United States Supreme Court because Drew's law is a violation of the prohibition against the passage pf Ex Post Facto laws.  I disagree because the trial court did not utilize Drew's law in ruling that the testimony of Kathleen Savio and Stacey Peterson were admissible-the court used the common law doctrine of forfeiture by wrongdoing.

        Article I, Section 10 of the United States Constitution declares that, "no State shall pass any ex post facto Law.''   In other words, laws cannot be made to be retroactive in effect.

        The cloak of the presumption of innocence was always trying to fall off Drew Peterson perhaps because his demeanor, actions and words seemed to scream of something altogether unsavory.  The conduct of his counsel at times, joking about the death of his fourth wife did nothing to bolster their side's credibility.  That said, it would be far more odious and far more reprehensible for the Illinois legislature to pass a vindictive law just to convict Drew Peterson.  But this may not be the case.

        The Appellate Court for the Third District of Illinois found the statements of Kathleen Savio and Stacey Peterson admissible against Peterson not because of Drew's law but the pre-existing common law doctrine of forfeiture by wrongdoing, which was in effect at least one hundred and thirty years before the enactment of the 2008 Illinois law called Drew's law,

If the legislature intended to facilitate the successful prosecution of criminal defendants who intentionally prevent witnesses from testifying (as the statute's legislative history suggests), it is unclear why it passed a statute that imposed restrictions on prosecutors that are not found in the common law.8 Regardless, after passing a more restrictive statute, one would expect the State either to enforce the statute as written or act to repeal the statute, not urge the courts to ignore it.

Nevertheless, because the statute neither trumps nor supplants the common law, we must reverse the circuit court's judgment.[11]

        The cranes of Ibycus in the Peterson trial appear to have been sent by Stacey Peterson for Kathleen Savio.  It remains to be seen whether they will return for Stacey Peterson.   During a pre-trial hearing Peterson's second wife testified about Peterson pulling a gun on her and saying that he would kill her and make it look like an accident.[12]  The cranes of Ibycus signify the triumph of justice over murderers.  There is a sense of justice in this case that must not prevent vigilance towards the dangers of extending the doctrine of forfeiture by wrongdoing any further.  There is something profoundly disturbing, were it anyone other than Drew Peterson, in having a judge make a preliminary determination about whether a defendant charged with murder, actually murdered the victim in order to allow the victim's statements to be used as evidence to convict the defendant of murder.  It is difficult to contemplate having to find a basis to appeal a decision based entirely upon circular logic, if that were to become also the norm.^@

R. Tamara de Silva

Chicago, Illinois

September 10, 2012

R. Tamara de Silva is a securities lawyer and independent trader