I dislike being an apologist for Casey Anthony or any defense lawyer, but…

By now everyone still obsessed with Casey Anthony knows that Orange County police admitted yesterday that they failed to find on the Anthony family’s computer a supposedly incriminating Google search dated on the day that little Caylee supposedly died. See the ABA Journal article

I have written extensively about why I think most computer-search evidence should be barred from courtrooms, so I won’t repeat it here. What I do want to point out is how exaggerated yesterday’s media coverage of this “discovery” was and how biased.

Since I’m no longer following the Casey Anthony reality show, I first learned about this story on Fox News’ The Five. All five of the five commentators declared that the search proved Casey’s guilt, because the search was conducted after the time when George Anthony had left for work and only Casey was in the house. Apparently, this time was established by a reporter named Tony Pipitone.

Please read what Pipitone had to say in the Orlando Sentinel before you read the rest of this post.

Another Interpretation or Two

There is another way to interpret Pipitone’s timeline, and it doesn’t require you to accept Jose Baez’s statement that the search was time-stamped at 1:51 instead of 2:51.

Sidebar: Baez’s computer forensics expert is Larry Daniel, a professional for whom I have the greatest respect. If he said the timestamp was 1:51, I believe him. Please read his post on this subject on his blog, Ex Forensis.

Let’s assume that Mr. Daniels is wrong about the time stamp and the search did take place at 2:51. By George Anthony’s sworn testimony, Casey took Caylee out of the house at 1:30.

If George was telling the truth, then Caylee was alive at 1:30. To have conducted the search at 2:51 Casey would have had to wait until her father left the house, then returned, searched for a way to “sufficate” her daughter in a foolproof way, then located information about duct tape, chloroform, and plastic bags, obtained all these substances, killed her daughter, wrapped her up, thrown her in the trunk of the car, and driven away before her mother came home from work that afternoon. Quite a swift accomplishment.

After that Casey would have had to leave the body in the car trunk long enough for decomposed bodily fluids to leak out of the plastic bag, which could only have been after Casey drove her friends around in the car some 2 weeks later (I believe). Then only when the car began to stink did she abandon it.

In other words, this computer search isn’t evidence of Casey’s guilt. It doesn’t matter who searched for suffocation methods or when they did. Whoever conducted the search that afternoon could as easily have been searching for a way to make the child’s death look like a kidnapping and murder, rather than an accident, because he or she was afraid of Cindy Anthony more than the cops. This person could have been terrified that if Cindy found out Caylee died accidentally in his or her care, she would literally scream bloody murder, and that would be the end of “the happy little family,” even if Cindy didn’t have the culprit immediately charged with negligence and manslaughter. (By the way, that’s in essence what she did when she called the cops about the stinking car.)

But, like Mr. Daniels, I believe this isn’t the issue. The outrage over the incompetence of the police is in this case is entirely justified. They were sloppy. And their sloppiness did lead to the acquittal of Casey Anthony. But that’s the way the American system of justice is supposed to work. The police have to be competent and honest, because incompetence and corruption can lead to false convictions as often as acquittals based on insufficient evidence.

“Ten guilty men should go free, lest one innocent man suffer.” The Bill of Rights protects you as well as Casey Anthony. And I’m sure you would never break the law. You could be arrested, though.

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“Presumed Guilty” by Jose Baez (Picking a Jury)

One of the most-striking revelations of attorney Jose Baez’s Presumed Guilty, Casey Anthony: The Inside Story is Chapter 23, “Picking a Jury.” At least it struck me, a former juror on a criminal trial, who was terrified during voir dire and who after the trial was so upset I wrote a novel about the jury experience (The Juror Hangs).

As most of you know, attorneys in high-profile criminal trials and high-stakes civil trials generally hire professional jury consultants to help them choose which jurors to challenge during voir dire. In my case, the trial was as far from high profile as you can get: although the trial was held in one of Cook County Criminal Courthouse’s largest courtrooms, with the judge elevated on a bench ten feet above the floor, during the three days of the trial, the only spectator was a man in a baggy suit whom I assumed to be a detective. Even the defendant wasn’t there, according to the judge because he “chose not to be present in the courtroom.” After the trial the jury learned he had also chosen not to be present in Chicago or Illinois: he had jumped bail. So, no one but the attorneys and the judge questioned me.

If any defendant needed the help of a good jury consultant, it was Casey Anthony, but, as Baez explains in chapter 23, Baez’s jury consultant, Richard Gabriel, resigned shortly before the trial. (While Baez gives no reason, I can’t help but wonder if he was getting out of the case while the getting was good, since he must have been concerned about the change of venue, which proved to be very problematic for jury selection.)

By the time it came to pick a jury, everyone in America had seen Casey’s narrow face and big eyes peering through a jailhouse window at her family, who did half the prosecution’s job for them by asking her incriminating, leading questions on video. They also helped make Casey America’s most-hated defendant since O.J. Simpson.

According to Baez, other people also helped to make the choice of objective jurors extremely difficult. Judge Belvin Perry granted Baez’s request for a change of venue to a locale other than Orlando, but he refused to move the trial and instead chose to select jurors from a nearby Florida jurisdiction, St. Petersburg/Clearwater, which is virtually a suburb of Orlando. The judge’s idea was to ensure that the jurors could easily be bused to Orlando, where the trial and voir dire took place.

Besides the proximity of the two cities, Judge Perry put another landmine in Baez’s path: he refused to tell either legal team where the prospective jurors would come from until a week before the trial—a week. That meant that neither the prosecution nor the defense would have time to review the jury questionnaires in consultation with jury consultants.

Of course, by that time Baez had no jury consultant, so he had to come up with some clever means of vetting the Clearwater jury pool. For instance, his legal team went to Clearwater, where they convened at a local restaurant. Baez left his colleagues at the table and sat down at the bar, where he chatted with the locals gathered there. To his surprise, he discovered that Clearwater wasn’t as obsessed with Casey Anthony as Orlando was. One woman he spoke to didn’t even recognize him, although she claimed to watch the news avidly. “I was shocked,” Baez writes. “I’m not getting the dirty looks I get in Orlando.”

After that, with jury questionnaires in hand, attorney Dorothy Clay Sims and interns from the College of Law at Florida A&M turned to the web, where they investigated the backgrounds of the potential jurors through social media and even by reading book and product reviews the prospective jurors had written on Amazon.com. It turned out that one of the prospects had recently purchased a toy “action figure” seated in an electric chair.

I wrote about voir dire in the Casey Anthony trial at the time: incredibly, it was televised. While the TV cameras weren’t permitted to photograph the jurors’ faces, they did pick up their voices. They were clearly identifiable to their family, friends, and coworkers. However, the spectacle also gave us court-watchers a great deal to ponder. For example, Juror Number One said that a trial was “about solving a mystery.” I gasped. Jurors are expressly forbidden from conducting investigations on their own (hence the URL of this blog: http://cfc.309.myftpupload.com) or from interpreting the evidence in any novel way.

After she made the remark Baez said to the juror:

“’This is the prosecution’s show . . . and if we sat back and did nothing and if the prosecution failed to deliver the goods, you cannot convict.’ During my entire jury selection I wanted to educate the  jurors about the burden of proof and about what it meant to be certain of guilt beyond a reasonable doubt. While questioning them, I wasn’t looking for answers as much as I was educating them about the fact that the defense didn’t have to prove anything.”

If I had been Baez, I wrote in this blog, I would have dismissed this woman ASAP, not only because of that remark but also because she was a nurse. Baez, however, believes that nurses make good jurors, because they are “nurturing.” That is true, but in my experience nurses are also know-it-alls who like to give medical advice that ought to come from a doctor and are never happier than when they’re telling other people what to do: “Roll up your sleeve.” It seemed to me that Juror Number One would listen to the testimony of the medical experts and then decide that she knew better (which, I suppose, was just as well, given the prosecution’s biased pathologist witnesses).

In the end, after the verdict Baez congratulated himself on how well he had educated the jury during voir dire. I don’t know whether other trial attorneys take this stance, but if they don’t they ought to. It clearly worked in Jose Baez’s defense of Casey Anthony.

The verdict was “Not Guilty,” not “innocent”: All of Baez’s detractors ought to take a step back. The state should not be permitted to take anybody’s life without proof beyond a reasonable doubt. And even then I believe America would be a better place without the death penalty.

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CHALK GHOST—When your neighbor dies and nobody notices

Chalk-Ghost-KindleOne mystery that haunts me all year, not only on Halloween but all the time, is how a person can die in a home or apartment surrounded by neighbors, but no one notices for days and days and days.

Since 2009 I’ve worked on a mystery story called CHALK GHOST. At first it was a short story, which I posted as a serial on www.textnovel.com, where it co-won the Grand Prize. After that I tried to expand the story to novel size and failed until I realized that a novel required something very different: my nightmare evolved into SNOW GHOST, a work still in progress. But CHALK GHOST refused to die. Now I’ve finally finished the novella, and it’s available for free on Amazon Kindle for Halloween through November 1. After November 1, 2012 CHALK GHOST is available for a mere pittance of $0.99 or the equivalent at Amazon U.K., Germany, and elsewhere. In late January it will be available in most ebook formats.

Please download a free copy of CHALK GHOST . Review it! Comment here! A U.K. reviewer gave CHALK GHOST 5 stars and wrote: “Excellent book for a quick read’ good story line. Downloaded this to my phone. Would recommend it.”

Indian Country Justice—Part V

I know I’ve been wrong many times, but recently I learned just how very wrong I can be: I learned I’ve been wrong all my life about who I am.

In July 2011, my mother Wanda Jean Granot Cole passed away and left me to serve as the executor of her estate, which was promptly challenged in probate court. Since then there have been endless negotiations, an extensive inventory of personal property, and numerous third-party appraisals of the unexpectedly large collection of artworks, fine crafts, and historical documents my mother collected. In the process I’ve had to finger through 87-years worth of my mother’s papers, which include extensive genealogies she prepared for both sides of my family. A few times this dusty digging through her papers has turned up rather sad memories, but more often it has produced fascinating glimpses into the past.

Among my mother’s papers are about 100 letters written by and to my father Elmer Bob Cole while he served in the Army during World War II and after that in the Army of Occupation. My mother always told me that my father fought in the Battle of the Bulge—but that simply wasn’t true. Instead he served in the 103rd Division (Cactus Division) of the Third Army, field artillery, and fought in the Battle of the Upper and Lower Vosges.

I did a little research and learned that, like my father, mystery writer Tony Hillerman also served in the Cactus Division. Like my father, Hillerman was born in a small town in Oklahoma. So I bought a copy of Hillerman’s memoir, Seldom Disappointed, which includes vivid tales of  the war in Central Europe—very similar to the tales my father wrote home about. I also learned that Hillerman is of German ancestry, not Native American, as I had thought.

My mother left dozens of notebooks filled with her genealogical research, including a little research into her mother-in-law’s family, the Atteburys. I am named after my father’s mother, Katherine Attebury. Granny, as I knew her, believed herself to be as much as one-eighth Cherokee, because her father Thomas claimed to be (according to my mother) either “one-quarter or one-third” Cherokee (the math is my mother’s, not mine). My father also firmly believed himself to be at least one-sixteenth Cherokee—and so did I and everyone else in the family—both sides—so much so in fact that it was a source of friction between my proudly all-white Scots-Irish grandmother and my father.

To give myself a break from probate hell, I joined www.Ancestry.com and began to track my great-grandfather Attebury’s roots. It didn’t take long for me to find him in a pre-Civil War census in Arkansas (Indian Country) with a child slave in his household. This didn’t surprise me (although it offended me) because I knew that Cherokees were slave owners.

Then, several months ago, Ancestry.com began offering its subscribers DNA tests for ethnic origins. I got on the waiting list, and one day received a package in the mail with instructions to spit into a tube and then mail my spit to a DNA testing lab. I wanted to know just how much Cherokee I had in my DNA.

I imagine you can guess the answer. Exactly zero.

All my ancestors (except 2% unknown) are from the British Isles, Scandinavia, and Central Europe. I’m a Celt by way of the British Isles and Scandinavia and a Viking by way of the British Isles, Scandinavia, and Europe around the Baltic. Even my Jewish grandfather (whose name was Sephardic) seems to have had nothing but Central European origins.

It’s really a shock. As a child I grew up very proud of my Cherokee heritage (in those days I didn’t know they were slave owners). I also suffered from several humiliating incidents involving my racist grandmother, who thought I was “a dirty Indian.”

Now the mystery I have to solve is: Why did Thomas Attebury, a Confederate Civil War veteran, tell everyone in Oklahoma that he was at least one quarter Cherokee?

I have several speculations, but it’s going to take some in-depth research to uncover the truth.

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“If the law makes you a witness . . .”

“If the law makes you a witness, remain a man of science; you have no victim to avenge, no guilty or innocent person to convict or save. You must bear testimony within the limits of science,” said Dr. Paul Brouardel (1837-1903). 

Of course he said it in French over one-hundred years ago. In modern English it would probably be “Forensic-science expert witnesses must bear witness to nothing but the truth.”

If only the “hired gun” expert witnesses in high-profile trials of the past decade had followed Brouardel’s admonition. (Cable TV’s Dr. G springs to mind. Remember how she declared that poor little Caylee Anthony had to have been murdered because of the proximity of her skeletal remains to a black, plastic garbage bag? A pronouncement like that is hardly within “the limits of science.” Dr. G clearly thought she had a victim to avenge.)

I learned about Brouardel from a video lecture series sold by www.TheGreatCourses.com.

Review of The Great Courses “Trails of Evidence,” by Elizabeth A. Murray

“Trails of Evidence” is a 36-part series of half-hour video lectures by Dr. Elizabeth A. Murray on all aspects of state-of-the-art forensic science, which I highly recommend to all trial lawyers and trial watchers. Brouardel’s admonition lies at the core of all of Dr. Murray’s forensic science investigations and teaching (she’s Professor of Biology at Mount St. Joseph College of Cincinnati).

Throughout the series, Dr. Murray cautions against foundationless forensic science. For example, in lecture 22 (“Decomposition—From Bugs to Bones”) she questions the usefulness of cadaver dogs, which of course were critical to Scott Peterson’s conviction and were also employed in the Casey Anthony investigation to prove that Caylee’s corpse had once been in the Anthony’s back yard, among other places.

Dr. Murray points to a case in which she located a clandestine grave by crawling on her hands and knees over a suspect patch of earth, which had previously been sniffed by cadaver dogs without success. She located the grave based on changes in the ground level and other soil indications. A body was buried there, but the cadaver dogs couldn’t even sniff out that a corpse had ever been near the place. In addition, Dr. Murray recounts the tale of dishonest dog handler, Sandra Murray, who involved herself in many high-profile cases but was eventually convicted of planting evidence for her dogs to find.

If the Drew Peterson jury had listened to Dr. Murray’s lecture 28 (“Human Memory and Eye-Witness Accounts”), they could not have convicted Peterson of murdering his ex-wife. Dr. Murray explains very clearly what is wrong with hearsay evidence, even when it’s presented from the witness stand by a pastor: human memory is a personal construct. No one remembers anything exactly as it happened. No one remembers any conversation word-for-word. The further in the past an event occurred, the less likely it is that anyone will remember it correctly.

Sidebar: Recently, Donna Bridge, a post-doc at Northwestern University’s Feinberg School of Medicine, published in the Journal of Neuroscience her recent findings about the way human memory works. Bottom line: The more often a person recalls a past event, the less accurate the memory becomes. That’s right, the more often an eye-witness to a crime, for instance, is asked by the cops and the lawyers to repeat what he or she saw, the less accurate the testimony becomes. This explains why Judge White (the first judge in the Drew Peterson case) found one hearsay witness not to be credible, but trial Judge Burmila did: by the time she took the stand she had repeated her story so often that she was convinced it was accurate—and her “conviction” convinced the jury.

Throughout “Trails of Evidence” Elizabeth Murray’s refrain is: To be a good forensic scientist you must first become a rigorous scientist. In fact, she recommends that would-be forensic scientists not study forensics or criminal justice in college, but instead major in one of the biological or physical sciences, then go on to graduate school and get a Ph.D. in forensics-related science before becoming an applied scientist, that is, a scientist who specializes in forensics. That’s what she did: she studied biology, anatomy, and anthropology before she became a criminal investigator.

COMING JUST IN TIME FOR HALLOWEEN: Chalk Ghost, a novella: “a mystery that only the dead can solve.”

Drew Peterson Jury—What are they thinking?

Today the Drew Peterson jury is hearing closing arguments and soon will retire to the jury room to deliberate. Media analysts are at this very moment trying to read the jurors’ minds. As a former juror, I can tell you one thing about the juror’s minds for certain: most of the jurors made up their minds during the trial.

Sidebar: Lawyers like to think jurors make up their minds after the opening statements, but this is not true. After the opening statements, jurors make up their minds only about what the most important evidence should be. In the Peterson trial that was likely the evidence proving the death was homicide.

Closing arguments do not make or break a case for either side. All that closing arguments accomplish is to provide a vocabulary and set of phrases for jurors to use in their deliberations. One side or the other in the Peterson trial has already won, and their closing arguments will be repeated in the jury room to help convince any undecided juror to join the majority. I really can’t believe that more than one juror is entirely convinced Peterson is guilty. It’s more likely that most jurors don’t believe the prosecution met the burden of proof. They may suspect Peterson has done some “bad things,” but they can’t say with confidence that they know what they were.

Sidebar: Personally, the more I heard about Stacy Peterson during the trial, the more I wondered if she’s the only wife Drew did away with. It seems she wanted a divorce and began to spread rumors that Drew had killed his former wife. If so, Drew might have “snapped” and closed her rumor-spreading mouth permanently. However, that doesn’t mean that Stacy really believed or knew he killed Kathleen Savio.

It’s impossible to tell from outside the courtroom which of the sides has already won. Since I have a bias in favor of the Bill of Rights and in favor of Blackstone’s admonition that it’s better that ten guilty men go free than one innocent man suffer, from what little I know of what went on in the trial, if I were on the Peterson jury I would vote “not guilty because of a reasonable doubt.”

Reasonable doubts in the case seem to include whether Kathleen Savio’s scalp wound was sufficient to have knocked her out long enough to drown in the bathtub; just how much water was in the bathtub at the time she injured her scalp; when her death occurred and, consequently, whether Drew Peterson has an alibi for the time of death. Those are significant lacunae in the evidence and, therefore, produce significant and reasonable doubts in my mind as to whether it was an accidental death or a homicide. Even if the jury concludes on the basis of evidence about which I know nothing that it was homicide, they still have overcome the hurdle of knowing when she died and whether Drew Peterson had the opportunity to have killed her.

Much has been made of the Peterson jury’s “bonding.” They coordinated their outfits on a few days, once apparently dressing in the Chicago Bears’ colors, blue and orange. This is also a clue to me, a former juror. The more bonding a jury does, the easier it is for them all to agree on a verdict. Given that the Peterson jury demonstrated its cohesion in such a light-hearted way tells me they aren’t worried about having to send a former police officer to the slammer for life. Believe me, when you’re worried about having to convict somebody of a capital crime, you don’t dress up like your favorite sports team. You’re anxious, can’t sleep, and if you’re female you cry a lot at home.

For court-watchers curious about what goes through jurors’ heads I recommend Dr. Sunwolf’s Practical Jury Dynamics and Practical Jury Dynamics 2.  Or, for a less-intellectual insight into jurors, please download a copy of my The Juror Hangs from Amazon Kindle or B&N Nook (an ignore the lone disgruntled reader who gave me a bad review. I know who she is).


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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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