05.08.09

Drew Peterson's Cold Heart

Sure, the former cop with all the missing wives, could be innocent. But he also knows a lot more than the rest of us about how to get away with murder. Following yesterday's arrest, noted attorney Wendy Murphy analyzes the case against him.

Sure, the former cop with all the missing wives, could be innocent. But he also knows a lot more than the rest of us about how to get away with murder. Following yesterday's arrest, noted attorney and Daily Beast contributor Wendy Murphy analyzes the case against him.

Former Illinois Police Sergeant Drew Peterson cracked a joke when he was arrested yesterday on two counts of first degree murder in the death of his third wife, Kathleen Savio, who was found dead at home in a bathtub in 2004. "I guess I should have returned those library books," he quipped, as cops took him into custody.

I missed whatever was funny about being accused of murder, but then this is the same guy who smiled every time he was asked about the October 2007 suspicious disappearance of another of his wives, number four, Stacy Peterson. With a $20 million bond now holding him behind bars, I'm guessing his smirk will start to fade real soon.

Savio's family was reportedly not surprised by the arrest and had been told many times over the past several months that charges were forthcoming. The grand jury that issued the indictments is still investigating the Stacy Peterson matter, which means additional charges are possible in that case—though Drew Peterson's attorney, Joel Brodsky, said he doesn't think charges will ever be filed because "there is no body and no crime scene." Oddly enough, he contrasted this lack of evidence with the relative strength of the case involving Savio. He's right about the evidence—but it's weird for a defense attorney to showcase the relative strength of a prosecutor's case against his client.

Kathleen Savio will testify from her grave, a likely reference to the fact that she told her sister many times that she feared Peterson would kill her and make it look like an accident.

Peterson's arrest was a bit of a shock to people who weren't close to the case and who doubted that a conviction could be won in the Savio's matter given that the original autopsy said the victim died of "drowning" and that the manner of death was "accidental." Her body was exhumed after Stacy Peterson's disappearance raised new questions about Savio's death. A new autopsy confirmed that Savio indeed had died of drowning, but that the manner of death was not "accident" but "homicide."

Brodsky emphasized that the original autopsy will be a significant piece of evidence for the defense, and that his own forensic expert, Dr. Cyril Wecht, saw no evidence of "homicide" in the original autopsy.

Fair enough, but Wecht hasn't seen the new autopsy, yet, so we can't possibly know whether his opinion might change.

In any case, Peterson has bigger problems to worry about.

The grand jury's indictment identifies two different types of first degree murder charges. They allege that Savio died of an intentional killing and/or that Peterson created a risk of great bodily harm that led to her death, e.g., he gave Savio drugs or otherwise knocked her out at a time when she was in the bathtub, rendering her unconscious and thus unable to protect herself from drowning. This latter charge means the prosecutor doesn't have to establish with precision exactly what happened. They can proceed under both theories, and the jury can select either or both options.

To prove his case, the prosecutor announced that Savio would effectively be allowed to "testify" at trial. In an eerie moment during the press conference related to Peterson's arrest, the state's attorney announced that Savio would testify from her grave, a likely reference to the fact that Savio told her sister many times before she died that she feared Peterson would kill her and make it look like an accident. Such statements are often admissible under exceptions to the law that otherwise forbids the use of hearsay at trial.

Peterson's own statements will also likely be used against him, even if he never takes the stand. Things he said to family members and others, inconsistent statements, and even the comments he has made to the press, will help to build a circumstantial case for conviction. It might even be possible for the state to use evidence of Stacy's disappearance to prove the case involving Savio because prosecutors are allowed to use "prior bad acts" to show motive, intent, state of mind and "pattern" or "common scheme" of conduct. This legal doctrine applies whether or not the "prior bad acts" led to a prosecution or conviction. If evidence in Stacy's case is allowed in at trial, the jury may well hear things like the fact that a relative of Peterson's helped him dispose of a large Rubbermaid-style bucket around the time that Stacy went missing. This relative has reportedly told law enforcement that he believes the bucket contained Stacy Peterson's body because it weighed well over 100 pounds. This type of evidence can help prove guilt by establishing that Drew Peterson had a similar state of mind, and intent to kill, in both cases.

In an interesting development that may also help the prosecution, and be related to the timing of Peterson's arrest, Savio's family filed a wrongful death lawsuit against Peterson last month. That case was delayed because Savio's family had to file a different lawsuit against Peterson for the right to control Savio's estate and the appellate court did not finally rule in favor of Savio's family until earlier this year. Gaining control over the estate may have allowed certain evidence to be obtained by the family—and thus shared with police and the grand jury. Things like medical records and other personal files that might reveal a history of violence, for example, may have been unavailable during the time that Drew Peterson controlled his dead wife's estate.

Even the statements of Stacy Peterson might be admissible to help prove the case involving Savio because Stacy was involved with Drew Peterson at the time of Savio's death, and Stacy told cops that she could not account for Peterson's whereabouts at the time Savio died. Peterson claimed he was not with Savio when she drowned, but whether he has a viable alibi is very much in dispute. Stacy also told people that Peterson admitted to her that he killed Savio.

Notwithstanding all this evidence, Peterson has denied hurting either woman and he is entitled to the presumption of innocence. But his denials have a "protest too much quality" that just doesn't ring true.

When asked what he believes happened to Savio, Peterson told Larry King he didn't know, and then he denied that he'd ever gotten physical with his wife. He then added, without even being asked, "I challenge you to find anyone to say they have ever even seen me mad."

That's quite a challenge considering that I can't think of anyone who could truthfully say that nobody has ever seen them angry. Which got me to thinking that he may be telling the truth that nobody has ever seen him angry, but that doesn't make him a peacenik. Having worked with victims of domestic violence for decades, I can assure you that some of the most prolific batterers never hit women in front of other people. And in any case, Peterson didn't say, "I never get mad." He only boasted about how he hides it.

Maybe the guy is innocent. And maybe he's guilty, but will be acquitted anyway. After all, he's a former cop who knows a lot more than the rest of us about how to get away with murder.

One thing seems certain. The guy has a cold heart, not only because he smiles and laughs during conversations about murder, but also because he uses his children as tools in his defense strategy.

Peterson has custody of his four children, two of whom are the children of Kathleen Savio.

No doubt those poor children are suffering terribly after losing their mother, but Peterson didn't care. He put one of them (who looked to be about 10 years-old) on national television to say that he did not believe his father was guilty of killing his mother.

It's one thing to put a child through such a painful experience when a detective needs to solve a murder, or during trial when children—like all citizens—are obligated to take the stand. But putting your own son on television to gain a strategic advantage in a murder case where you are suspected of killing your son's mother is beyond unconscionable.

At least Peterson will be separated from his children now that he's in jail awaiting trial. And thankfully he didn't marry his fiancé before his arrest or she might have been granted legal custody of Peterson's children in his absence. I know it's hard to kill from behind bars, but wife number five might not have lasted very long and let's just say, the kids don't need to lose another mother.

Wendy is a former child abuse and sex crimes prosecutor who teaches at New England Law/Boston. Wendy is an impact litigator who specializes in the representation of crime victims, women and children. She also writes and lectures widely on victims' rights and criminal justice policy. Her first book, And Justice For Some , was published in late 07 and is a scathing expose of the American legal system. A former NFL Cheerleader, Wendy lives outside Boston with her husband and five children.