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.