State win right to have witnesses testify from the grave against Drew Peterson

People v. Peterson, 2012 IL APP (3d) 100514-B, 2012 Ill. App. LEXIS 269 (April 12, 2012)

In this opinion the Appellate Court addresses the admissibility of hearsay statements allegedly made by two of Drew Peterson’s former wives, Kathleen Savio and Stacy Peterson.

Kathleen Savio was allegedly murdered by Drew Peterson to prevent her from testifying during a divorce proceeding concerning the distribution of marital property.  While Stacy was allegedly murdered by Peterson to prevent her from testifying in future divorce proceedings and from testifying at Peterson’s trial for murdering Savio, even though Peterson was never charged with Savio’s murder until after Stacy’s disappearance.

The opinion is interesting not so much because of the holding of the court which allows all 14 hearsay statements proffered by the state to be admitted, assuming they are not inadmissible on other grounds but because the statute drafted to permit the admissibility of these statements actually made their admissibility less likely by requiring an additional element of reliability and requiring that the unavailable witness be killed opposed to some lesser form of restraint preventing that witness from testifying.

The Will County State’s Attorney James Glasgow claims he wrote the statute that added the requirement of reliability to afford defendants additional protection.  Which shows good initiative but bad judgment, as least as to the state’s prosecution of Peterson.  Glasgow was trying to do the right thing in both pushing for the passage of the statute and by filing the appeal to try to get the statements admitted under the common law hearsay exception.  The majority opinion takes a swipe at the State’s Attorney without naming him, while the concurring opinion rightly rejects the commentary on the State’s Attorney’s actions.

But to summarize this opinion, there are two grounds for the admissibility of these hearsay statements. First, the statute, 725 ILCS 5/115-10.6, which states that a “statement is not rendered inadmissible by the hearsay rule if it is offered against a party that had killed the declarant . . . intending to procure the unavailability of the declarant as a witness in a criminal or civil proceeding.”  The statute also requires that the statement have sufficient safeguards of reliability. The common law hearsay exception, known as the doctrine of forfeiture by wrongdoing, provides an exception to the hearsay rule if the defendant intentionally makes the witnesses unavailable from testifying.  Here there is no requirement that the witness be killed or that the statement have sufficient safeguards of reliability.

The appellate court found that the statements the trial court would not admit under the statute are admissible under the common law hearsay exception.

As for whether these statements are going to add anything to the prosecution of Peterson, we will have to wait and see.