Drew Peterson’s bid to overturn murder conviction could spark fireworks in court
BY DAN ROZEK AND JON SEIDEL Sun-Times Media February 17, 2013 11:14PM
Drew Peterson arrives at the Will County Courthouse in Joliet in May 2009.
Updated: February 18, 2013 12:10AM
Will County State’s Attorney James Glasgow could be called to testify on Drew Peterson’s behalf as the former Bolingbrook cop fights to overturn the murder conviction Glasgow won against him last September.
And Peterson’s former defense attorney, Joel Brodsky, could be called as a witness by prosecutors trying to block that effort.
Even Peterson, 59, might finally take the stand as part of his last-ditch attempt to throw out his murder conviction for the 2004 bathtub drowning death of his third wife, Kathleen Savio.
Those courtroom fireworks all could erupt Tuesday when Peterson seeks a new trial, arguing that Brodsky single-handedly botched his defense during his five-week trial last summer.
If Judge Edward Burmila rejects Peterson’s request, his ruling would clear the way for the former police officer to be sentenced immediately to a hefty prison term for killing Savio nearly nine years ago.
That’s what legal experts say is likely to happen, though many acknowledge nothing has been clear or easy during Peterson’s long-running legal saga.
Still, convictions are rarely overturned because of allegations of ineffective counsel during trial — particularly when there are multiple attorneys involved, said legal experts not connected with the case.
During his trial, Peterson was represented by Brodsky and five other lawyers.
“It’s a tough sell with one lawyer. It’s a tough sell especially in this case because there’s six lawyers involved,” said Richard Kling, a professor at Chicago-Kent College of Law.
In their formal request to toss Peterson’s murder conviction, his reconfigured legal team placed the blame solely on Brodsky — an allegation Brodsky has bitterly disputed and one that spurred him to file a defamation lawsuit against former co-counsel Steve Greenberg and several media outlets.
Peterson’s filing contends that Brodsky alone called as a witness divorce attorney Harry Smith, who offered bombshell testimony that Peterson’s now-missing fourth wife, Stacy, told him that Peterson had killed Savio. Several jurors said after their guilty verdict that Smith’s testimony clinched their decision.
Peterson’s conviction should be overturned because Smith’s dramatic testimony potentially changed the outcome of the trial — a requirement for winning a new trial, Peterson’s attorneys argued.
“I think the facts and the law are on our side,” said Greenberg, contending that the number of lawyers on Peterson’s legal team doesn’t change what happened during the trial.
“If a decision was bad, it was bad,” said Greenberg, one of Peterson’s attorneys. During the trial, he publicly defended the decision to call Smith.
Other experts said it’s not so clear-cut.
Tactical trial decisions — including which witnesses to call — typically don’t result in verdicts being overturned, some experts noted.
“I don’t think it’s enough,” said Brian Telander, a former prosecutor and DuPage County judge now in private practice. “It was trial strategy, and even bad trial strategy doesn’t mean his counsel was ineffective.”
“Attorneys make decisions like that all the time. Sometimes they work, sometimes they don’t,” agreed attorney Kathleen Zellner, whothinks Peterson doesn’t have “even a slight chance” of winning a new trial.
Arguments over that issue could see defense attorneys trying to call Glasgow — who led the prosecution against Peterson — as a witness on his behalf.
Glasgow has been notified by Peterson’s attorneys that they may call him to testify, although Peterson’s attorneys won’t say why.
Last week, Glasgow sought to bar Peterson’s attorneys from making him testify. That issue hasn’t been settled.
“Our position is they want to go fishing — and that’s not appropriate,” said Charles Pelkie, a spokesman for the Will County state’s attorney’s office.
Glasgow couldn’t be required to testify about the investigation or prosecution tactics, so the only possible reason would be to question him about events that occurred outside the courtroom, experts said. Glasgow exulted outside the courtroom that Smith’s testimony was “a gift from God,” but his statement had no bearing on the verdict and likely wouldn’t lead to a new trial.
“It’s not an issue,” Kling said.
Brodsky, who left Peterson’s legal team in October, after the trial, also could be called as a witness on that issue — but by prosecutors.
He confirmed that he had been subpoenaed by prosecutors for the hearing, but would say little else, except to contend that he has emails showing that Greenberg and defense counsel Joe Lopez supported the decision to call Smith as a witness.
Greenberg would say only that “I expect that Mr. Brodsky will be testifying.”
But he was evasive when asked whether Peterson — who didn’t testify during his trial — might take the stand to detail whether he had a say in putting Smith on the stand.
“You’ll have to see,” Greenberg said of Peterson.
Calling Peterson to testify poses risks because the sometimes cocky, sometimes abrasive former cop probably could offer little that would help convince Burmila to toss his conviction, but he might say something that could irritate the judge just before he rules. With authorities still investigating his Stacy Peterson’s disappearance, the impulsive Drew Peterson also might blurt out something that could become evidence if he’s ever charged in that case.
“They should keep this guy quiet,” said Paul DeLuca, a former Cook and DuPage County prosecutor now in private practice.
If Burmila rejects the request for a new trial, Peterson faces an immediate sentencing hearing that will end with him receiving a 20- to 60-year prison term.
Prosecutors could push for a sentence on the higher end of that range by offering evidence linking him to the still-unsolved, 2007 disappearance of Stacy Peterson. He’s has been named a suspect by investigators but has never been charged.
But experts generally agree Glasgow has little to gain by disclosing whatever evidence authorities have tying Peterson to Stacy’s disappearance.
That could give Peterson’s attorneys another issue to raise when he appeals his murder conviction and could complicate matters if Peterson is later charged with Stacy’s disappearance and presumed death.
And at Peterson’s age, any prison term he receives — and most experts predict he’ll be sentenced to at least 40 years — means that without a successful appeal, he’ll die behind bars.
“They don’t need it,” Kling said. “Why jeopardize the case on appeal? I don’t think they need to bring it up.”
Peterson also will have a final chance to speak before Burmila imposes his sentence.
Despite his previous silence, he might take the opportunity to speak simply to maintain that he didn’t kill Savio — and because prosecutors won’t have a chance to cross-examine him.
“I think, because he’s claiming his innocence, that he probably will want to say something,” Zellner said.