Drew Peterson and the Rhetoric of Hearsay

In Session correspondents, Beth Karas and Jean Casarez, yesterday reported that jurors in the
Drew Peterson trial were taking extensive notes during the testimony of hearsay witnesses. The implication was that the jurors were extremely interested in testimony that Kathleen Savio (deceased) had expressed fear of her ex-husband.

In my previous post, I noted that hearsay evidence can be very persuasive, but I neglected to say why. The reason is: jurors assume that the judge has vetted both the witness and the testimony. Jurors think the judge gives credence to a hearsay witness and believes his or her hearsay represents the actual words of someone who isn’t able to testify.

Attorney Steve Greenberg of the Peterson defense team said yesterday that jurors will eventually take the time to evaluate for themselves the credibility of the hearsay witnesses, as well as the credibility of Kathleen Savio when she supposedly made claims to several people about Peterson’s violence toward her.

I wish I could agree with Mr. Greenberg. But from my own jury experience I know that few jurors question the validity of any of the evidence presented in a courtroom presided over by an apparently impartial judge.

In my case, during deliberations I tried to question the supposed confession of the defendant, but the other jurors told me I had no right to do that, because the judge had admitted it as true. I kid you not.

In any trial where hearsay is admitted, the judge instructs the jury that it isn’t admitted for the truth of what is said but only as evidence of something else, such as in the Peterson trial evidence of the victim’s state of mind.  Unfortunately, the jury instruction will never outweigh the emotional impact of hearing that a victim said the defendant had attacked her several times and told her he was going to kill her and make it look like an accident. The refrain, “make it look like an accident” will stick in the jury’s minds and accumulate there until it solidifies, the way drips of water from a cave ceiling solidify into stalactites.

Note to Peterson legal team: You will need to be very, very clear in your closing arguments about the reason the judge admitted this evidence. You will need to explain that—in fact—the victim’s state of mind is completely irrelevant to their task, which is to determine whether foul play was involved in Kathleen Savio’s death and, if so, who killed her. Ms. Savio’s predictions have no more truth in them than Sybil the Soothsayer’s.

Sidebar: The more I hear about Ms. Savio’s predictions, the more I wonder how it would have been possible for Drew Peterson to make them come true. If he really did threaten to kill her and make it look like an accident (which is hearsay about hearsay, BTW), wouldn’t it have been stupid of him to follow through on the threat and kill her so that it looked like an accident? And even stupider to do it on a weekend when he had to visit her home to pick up and deliver their children—so that inevitably he would be the one to “find the body”? Frankly, I believe I can make a better case for him killing Stacey and making it look as if she ran away, because he was tired of hearing her threaten to accuse him of killing Kathleen (whether falsely or not).

It doesn’t matter whether Kathleen Savio was afraid or not. I’m afraid of elevators in skyscrapers and say so all the time, but that doesn’t mean that if I travel to the top of the Sears Tower in Chicago, the elevator will fail, and I’ll fall to a horrible, squashed death. And if I also claim I know an incompetent elevator engineer who works in the Sears Tower, and I fall to that horrible death, it doesn’t mean it was his fault.

Don’t get me wrong. I believe in the jury system. But I also believe the legal profession and case law are losing sight of reality. Truth in court is now shrouded by centuries of arcane case law and meddling legislators, like the ones we have in Illinois. The jury system lives in a perpetual fog of legalese these days.

Sidebar: It’s been awhile since I plugged my trial novel, THE JUROR HANGS. I haven’t even mentioned that now not only is it available from the Amazon Kindle store, but also from numerous other e-stores, including the B&N Nook, the Apple iBookstore, and others. It’s cheap, fun read—as attested by Amazon reviewers.

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Drew Peterson—Rumor has it. . . .

Rumor has it that Drew Peterson repeatedly told his ex-wife Kathleen Savio he would kill her and “make it look like an accident.” Her sister said that she said this repeatedly, and as proof of the truth of this hearsay, the sister said that she said Ms. Savio kept all her valuable papers in a briefcase in her car, where the sister could find it in the event that “something” ever happened to her.

Sidebar: I also keep all my valuable papers in  my car trunk, but not because I’m afraid “something will happen” to me. I keep them there because I have too many such papers to fit in my fire safe (literary manuscripts, for instance).

Rumor has it that Drew Peterson’s subsequent wife Stacey said to her pastor that Peterson had killed Kathleen Savio and made “it look like an accident.”

Sidebar: I, too, remember hearing from at least one woman friend going through a divorce that her ex was going to kill her. I wonder if this is a common fear or just a common way of slandering an ex?

Rumor has it that if the pastor is permitted to testify against Drew Peterson under “Drew’s Law” (Illinois legislation that overturns centuries of common law rules of evidence and permits hearsay evidence if the supposed speaker is dead and apparently a homicide victim), the pastor will also say that Stacey said she saw Drew come home dressed in black in the wee hours of the morning when Kathleen Savio is believed to have died.

Rumor has it that Stacey’s sister will testify and say that Stacey said to her that she was afraid of Drew and possibly also say that she overheard an argument between Stacey and Drew in which one of them said something about or to the other that was incriminating.

Sidebar: Rumor has it that Stacey harassed Kathleen Savio during the weeks before her death. Having a devious mind (I write murder mysteries), it occurred to me that maybe Stacey is the one who was trying to deflect suspicion from herself by telling this tale to so many people. Maybe the reason Drew insisted on sitting in on Stacey’s police interview two days after Kathleen Savio’s death was to protect her, not himself.

Rumor has it that several months before Kathleen Savio died, Drew Peterson said to someone (a cable installer, I think I remember someone saying) that he would pay him $25,000 to kill Kathleen Savio and make it look like an accident. Rumor also has it that a second man said he heard Drew say this. Rumor also has it that both men knew Drew was a cop (and I think I heard someone say he was in uniform at the time he made this offer “to hire a hit man”).

Sidebar: Judge White, the previous Peterson trial judge, excluded this evidence (I think I heard someone say) as inadmissible “prior bad acts.” Now the prosecution has filed a motion with Judge Burmila to admit the evidence. However, I don’t see how this could possibly have been anything bad other than a bad joke. Why would a known police officer seriously try to hire a hit man? Is the cable guy well known to be a hit man on the side? And would a real hit man take an offer like that from a cop, or wouldn’t he assume it was a set up? Not to mention that if the cable guy thought it was a genuine offer, he ought to have reported it to the police immediately—maybe not the Bolingbrook police, but to the county sheriff or state police.

Rumor has it that Drew Peterson attended Kathleen Savio’s funeral and sat in the rear laughing and joking. In other words, Kathleen Savio’s brother says that Drew said inappropriate things and behaved inappropriately at the funeral.

Sidebar: The brother’s grief for the loss of sister is very real. I know how he feels. However, memory is a very slippery thing. In retrospect nothing ever appears the same. “In evidence” of this fact, the New Jersey Supreme Court recently ruled that judges must instruct juries in great detail about the pitfalls of eye-witness accounts. No matter how acute an observer, no matter how detailed a memory, time and emotions always change memories—especially memories of stressful events.

Hearsay evidence is very powerful. Having sat on a jury and heard the ultimate hearsay evidence (a forced, trumped-up confession), I know that hearsay can convict anyone of anything, given believable witnesses. For this reason, I’m beginning to suspect that Drew Peterson will be convicted, even if his defense is extremely skillful at proving a negative (that is, proving there is no proof of guilt and therefore he must be found not guilty—not necessarily innocent, but not guilty).

So, let me be the first to spread the rumor: Drew Peterson Found Guilty of Murder.

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Does the Drew Peterson Jury Object to Objections?

Stephen White, former Peterson trial judge, said today on In Session, that jurors are disturbed by constant objections and tend to think the objector is trying to prevent the other side from letting them hear about something.

I disagree, as long as it’s the defense’s objections to the prosecution’s case against their client. Jurors expect defense counsel to put up a good fight. In my single experience as a juror on a criminal trial in Cook County, IL, in fact, I couldn’t understand why the defense didn’t object to anything. If the prosecution had objected constantly to the defense, though, I would have been irritated.

In the case in which I was a juror, the defendant was on trial for kidnapping and aggravated sexual assault of a 13-year-old girl. Can you think of a less sympathetic character than that? Even Drew Peterson seems like a jovial neighborhood cop in comparison.

However, the defendant was “defended” by a public defender, that is, someone the taxpayer was paying for—and that included me. In his opening statement he literally said the defendant was guilty of aggravated sexual assault, just not of kidnapping.

After that, when a white assistant state’s attorney in the witness box read an English-language confession supposedly “written” by a Mexican who had a translator at his side when he was in court, the defense did not object. Nor did the defense object when the witness said she had taken down the statement at 2:00 a.m. long after the defendant’s afternoon arrest, when he was supposedly drunk out of his skull.

So, is the Drew Peterson jury irritated by defense counsel’s constant objections to the prosecution’s questions and witness testimony? I suspect only if they have already made up their minds that Peterson is guilty.

And that’s something they swore not to do.

IMHO, these days jurors are sensitive to the overreaching powers of the state. Before the state deprives any citizen of his rights—no matter how notorious or obnoxious he may be—they expect the state to make a very, very good case. The Illinois state legislature is one of the most-overreaching in the country. They even passed a law specifically designed to circumvent standard rules of courtroom evidence, a law that permits hearsay against a defendant when the speaker of the hearsay evidence is dead, but said it to someone who’s still living and can serve as a witness. It’s popularly known as Drew’s Law, because it was designed specifically to permit Peterson’s “missing” 4th wife to testify that she saw Peterson do some suspicious things around the time his third wife died.

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Drew Peterson—Bad Rhetoric v. Bad Behavior

On the first day of the Drew Peterson murder trial, Will County State’s Attorney James Glasgow stupidly attempted to discuss inadmissible hearsay evidence during his opening statement. On the second day of the trial, an assistant state’s attorney elicited a completely unsubstantiated accusation against Peterson from a clearly biased friend of the deceased woman.

When will lawyers take the time to study the 3,000-year old art of rhetoric?

Even the ancient Greeks understood that it is possible to argue convincingly for any position. They devised “rules” to help debaters convince an audience, which we now call “rhetoric.” The Greeks knew that the more-skillful debater at applying these rules to an argument was sure to win over his or her audience.

The adversarial system of jury trials is nothing more nor less than two opposing sides arguing before an audience of 12 jurors.

The defense team in the Peterson trial clearly understand this. In their opening statement, they did what Jose Baez did in the Casey Anthony trial: first, they explained Peterson’s bizarre behavior; second, they described the ex-wife’s anger and attributed equally bizarre behavior to her; and only then did they assert that there is little evidence of any crime being involved in her death and absolutely no evidence of Peterson’s guilt.

The rhetoric of the State’s case in the Peterson trial, though, is certainly not what they intended. They are saying: We’re desperate; we have no evidence; we have no choice but to repeatedly defy the judge’s admonitions against presenting flimsy hearsay to this jury.

Trust me: More than one juror has gotten this message loud and clear. So, even if Judge Edward Burmilla permits the trial to continue today, the best the State can hope for is a hung jury.

Sidebar: Judge Burmilla has also gotten this message loud and clear, I’m sure. If the trial continues, I wouldn’t be surprised if, after the prosecution rests and the defense asks for a summary judgment of not guilty, he grants their request.

By committing rhetorical errors, the Peterson prosecution has not only angered the judge, but also has warned the jury that if, instead of trying to pull one over on the judge, they simply tried to present step-by-step what they can prove happened, they would have to admit that all they know is this:

A divorced couple hated each other. All their friends knew it. One day, after a weekend of visitation with his children, the ex-husband took them back to their mother’s house. She did not answer the door. The ex-husband repeatedly called her home phone and received no response. The next day, rather than break into his ex-wife’s house, he asked neighbors for help in finding her. Eventually, a locksmith opened the door and admitted the neighbors to the house, where they found the wife’s lifeless, naked body in a bathtub. After an investigation, a coroner’s jury was convened. The coroner’s jury could find no evidence of foul play, although—as in many accidental deaths—there were several odd things that could not be explained. Years later, the body was exhumed after a media-frenzy involving the man’s fourth wife. Publicity-hungry pathologists claimed to find evidence of homicide on the embalmed remains.

It’s all rhetoric, folks. It’s all about the way you make your argument. If you clearly have to cheat and lie—meaning, it’s clear to the jury that you’re cheating and it looks as if you’re possibly lying—then you will never convince a jury of anything.

BTW: I dislike Peterson. I suspect he’s guilty of something, but the more I hear about his ex-wives the more I wonder if he’s actually telling the truth about what he knows or doesn’t know about their fates. Even so, as I write, I find myself trying to formulate a proper argument for Peterson’s guilt. After all, I did just say it’s possible to argue convincingly for anything. But it isn’t that easy. The prosecution needs to show that Peterson had the opportunity to kill his wife on the morning of the day he returned his children to her house. They also need some forensic evidence that someone other than his wife was in the house that morning.They claim the death scene was “staged” to look like accidental drowning—but as in the Casey Anthony trial they can’t prove exactly how else she must have died.

I guess the point is: you can argue convincingly for anything if you have at least a few convincing facts to rely on.

Sidebar: One of the In Session commentators for the Peterson trial is IL lawyer Stephen White, the retired judge who presided over all the pre-trial “hearsay hearings.” While Mr. White is doing his best to provide objective commentary on the proceedings, I can’t help but wonder if he has a fairly strong opinion about the case. The rhetoric of his retirement, IMHO, suggests that he knows the State’s case is based on nothing but hearsay and innuendo—and he didn’t want to preside over the inevitable fiasco.

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