Peterson judge to decide on mistrial motion


Judge Edward Burmila's blistering rebuke came after prosecutors' second witness suggested Peterson may have put a .38-caliber bullet in his driveway to intimidate him, which prompted Burmila to worry aloud in court whether the former police officer could get a fair trial.

The 58-year-old Peterson is charged with first-degree murder in 2004 death of his third wife, 40-year-old Kathleen Savio.

"What is the purpose of you trying to tell the jury that this man (Peterson) put a bullet on the driveway?" the judge said, his voice booming, after sending jurors out of the courtroom. "This is completely troubling ... it makes no sense whatsoever."

Later, before announcing he would only rule on a defense motion for a mistrial Thursday, Burmila added, "The testimony (prosecutors) presented was a low blow in this case."

It was the latest twist in a case plagued by problems for years -- including a botched initial investigation that left prosecutors with no physical evidence and forced them to hang their case on hearsay evidence, which is typically barred.

The mistrial decision comes before prosecutors could even present the most delicate of hearsay evidence: "From the grave" statements, as attorneys for the state described them, that Savio allegedly made to others about Peterson threatening to kill her well before her body was found in her bathtub.

Peterson's attorneys will surely challenge those statements, as well as some made by Peterson's fourth wife, Stacy Peterson, before she vanished in 2007. She also allegedly told friends and relatives that her husband said he could kill her and make it look like an accident.

But Burmila has ordered the prosecution to stay away from some of those hearsay statements, including a pastor's claim that Stacy Peterson told him Drew Peterson admitted he killed Savio. If the pastor says that on the stand, it would certainly prompt defense attorneys to again ask for a mistrial.

On Thursday, Burmila must decide if he will wipe out the testimony of one of Peterson's neighbors, Thomas Pontarelli, and then let the trial go on -- something he said he could possibly do as an alternative to effectively cancelling the trial.

Prosecutors' first blunder came barely 10 minutes into their opening statement Tuesday, when Will County State's Attorney James Glasgow began to tell jurors that Peterson once allegedly offered $25,000 to someone to kill Kathleen Savio.

Burmila told prosecutors Tuesday that they had no business introducing an allegation for which there was no proof and which could taint jurors' view of other evidence.

Glasgow looked shaken Tuesday after his misstep. And after the legal drama Wednesday, he tried to sound upbeat, saying to reporters outside court, "We're confident that the trial will resume tomorrow morning."

But whether that's good for what is the highest-profile case of his career -- maybe in the history of Will County -- remains to be seen.

Legal experts say what has unfolded before the jury so far certainly has damaged the case.

"It's bad news if a judge is chastising prosecutors so much, because it tells the jury, `I don't trust this prosecutor, I don't approve of this prosecutor,' " said Marcia Clark, Los Angeles' lead prosecutor in the O.J. Simpson murder trial. "It's a scary place to be as prosecutor."

In that light, Joe Tacopina, a prominent defense attorney in New York, said the best thing that might happen for Peterson's defense team is for the judge to order the trial to continue.

He said if the judge declares a mistrial, the message to the general public will be that prosecutors are either incompetent or had been "playing dirty."

That very point was made in the defense's mistrial motion filed Wednesday.

"This is intentionally bringing before the jury evidence (that this court) had excluded," Steve Greenberg said, citing testimony about the bullet, hinting at a hit man and other incidents. "It can't be reckless. It is intentional."

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