By Steve Schmadeke, Matthew Walberg and Andy Grimm, Chicago Tribune –
CHICAGO — After angrily upbraiding prosecutors for improperly introducing evidence, the judge presiding over the Drew Peterson murder trial abruptly halted the proceedings, sent the jury home, and said he will rule Thursday on whether the case will continue.
It was the second time in as many days that the judge appeared to seriously consider granting the defense’s request for a mistrial. Despite the seemingly made-for-TV cliff hanger, prosecutors, defense attorneys, experts and even the judge indicated that stopping now was unlikely.
Calling the state’s attempt to elicit testimony that prosecutors acknowledged they could not prove — that Peterson left a bullet in a neighbor’s yard to intimidate him — a “low blow,” Judge Edward Burmilla nonetheless said he’s inclined instead to strike the witnesses’ entire testimony, which lasted about half a day.
The judge then granted the defenses’ request for a recess till Thursday to weigh legal options.
Peterson is on trial for the 2004 drowning death of his third wife Kathleen Savio, who was found in her Bolingbrook bath tub. He is the sole suspect in the 2007 disappearance of his fourth wife Stacy, but has not been charged.
The rocky start to the trial and apparent missteps by prosecutors has some legal experts scratching their heads.
“This is about as bad as it gets,” said IIT Chicago-Kent Law school professor Richard Kling, who teaches the rules of evidence and has followed the Peterson case closely. “It’s mind-boggling that the prosecutor got into two areas he absolutely, positively knew he wasn’t going to be allowed to say.”
A judge has several options if he decides to declare a mistrial. He could toss the case completely, what is called mistrial with prejudice. Or, he could opt to declare a mistrial without prejudice, which would allow the state to retry him with a new jury, experts said.
Throwing the case out completely is extremely rare, experts said.
Attorney Bill Gamboney said that he has been involved in more than a thousand trials over the course of more than 30 years as both a Cook County Assistant State’s Attorney and criminal defense attorney, but has never been part of a trial that has ended in a mistrial with prejudice.
“Its an uphill battle,” said former Cook County state’s attorney Dick Devine, now in private practice. “Most judges are reluctant to declare a mistrial after going through all the trouble to schedule a trial, clear their docket and pick a jury.”
Instead, judges generally rely on less drastic measures.
“Obviously you can’t unring the bell, but the court can admonish in very strong language and tell the jury to disregard the testimony.”
Prosecutors said in court that they believed they were on solid legal ground when they brought up the statements.
Will County State’s Attorney James Glasgow, who nearly triggered a potential mistrial during his opening argument Tuesday, said Wednesday he was “confident the trial will resume tomorrow.”
“This is a complicated case,” he said. “This is a case of first impression and we’ll be ready to go tomorrow.”
Trailed by a crush of reporters, Peterson defense attorney Joel Brodsky, walking with co-counsel Steve Greenberg, would not comment on whether he believed Peterson’s trial could continue. “The ball is always in the judge’s court,” he said.
In court Wednesday, tensions came to a head during the questioning of Thomas Pontarelli, who lived next door to Savio. He testified that Peterson was angry that he helped Savio move some of Peterson’s belongings out of Peterson’s old home.
“‘Any friend of hers is an enemy of mine,’” he said Peterson told him.
But Pontarelli then testified under cross-examination that he and Peterson had remained friends after the exchange.
Assistant State’s Attorney Kathleen Patton then asked Pontarelli several times whether he had ever felt “intimidated” by Peterson. Pontarelli replied that he once told Peterson that he’d got his “message” when he found a .38-caliber bullet upright on his driveway.
Defense attorney Greenberg objected and Burmila immediately ordered that jurors be removed from the courtroom. The judge then angrily asked Patton, “Are you going to be able to demonstrate that the defendant put a bullet in the driveway of Mr. Pontarelli?”
“No, judge, no,” Patton replied.
Patton argued that the state’s questioning would have pointed out that Pontarelli could not be sure Peterson put the bullet there and that Peterson had denied it.
She said “the point” of her question was to elicit Pontarelli to say he felt intimidated.
“It makes no sense whatsoever, the argument that the state just put forward to the court,” Burmila said.
Further admonishing the state, the judge warned that prosecutors should not seek a conviction “at any cost and under any set of circumstances.”
“There is no doubt in my mind that this was a low blow,” he said.
Some experts warned that if the prosecution errors continued, the judge may feel more and more inclined to declare a mistrial.
“These things can accumulate to the point where the judge says, ‘There’s been too many errors, too many things that have happened and I don’t feel comfortable any longer with continuing to ask the jury to disregard these,’” said Joliet defense attorney Chuck Bretz, a former Will County prosecutor.
The trial is scheduled to resume in Joliet Thursday morning.
