By Cynthia Dizikes and Stacy St. Clair, Chicago Tribune –
CHICAGO — Drew Peterson’s jury has a lot to forget about him and his ex-wife Kathleen Savio.
There’s the bullet found on the driveway of Savio’s neighbor that the neighbor believed to be a warning from Peterson. There’s also talk of the pathologist who hopped into the tub where Savio died, and the protection order Savio may or may not have considered against her ex-husband. And there’s also the suggestion that Peterson solicited a hit man to kill his third wife for $25,000.
All four topics have been improperly introduced by prosecutors during the trial, prompting an annoyed judge to instruct jurors to disregard the statements.
Whether they can do it, however, is impossible to know. In courtrooms across the country, lawyers often wonder whether judges’ orders to ignore testimony are in the best interest of justice or merely call more attention to a forbidden topic.
“There’s no way to tell if jurors can put it out of their minds because there is no way to measure someone’s ability to compartmentalize information,” said Marcellus McRae, a former federal prosecutor. “It’s very hard to do, especially when you’re being instructed to do it again and again and again. It’s like they’re putting a spotlight on the barred testimony, then underlining and then putting it in bold.”
Jurors from both of the objection-laced Rod Blagojevich trials acknowledge that it was impossible to forget statements and testimony that they were later told to ignore.
“When it’s stricken, it’s even more memorable,” said Jessica Hubinek, who sat on the panel for Blagojevich’s 2011 retrial, in which he was convicted on corruption charges. “It is a really sneaky tactic to get that information into the jurors’ heads, despite whether you are supposed to (consider) it, because then it is there.”
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Stephen Wlodek, a juror in Blagojevich’s first trial, recalled that the defense team in that case, despite being told not to do so, kept dropping references to other audio recordings that had not been allowed in as evidence. When it came to deliberations, Wlodek said those remarks planted seeds of doubt in some jurors’ minds, leading one juror to speculate whether there might be a recording out there proving Blagojevich’s innocence.
“It kind of plays with your mind,” Wlodek said. “People start to question what they have heard or what else could be out there.”
To help cull what could be considered from what could not, some jurors said they would cross out stricken statements in their notebooks. Others would simply not transcribe the comment.
“Even though you know it was said, you don’t use it to weigh the outcome,” Hubinek said. “When it comes to weighing the evidence, guilty or not guilty, you have to really put it to the side, as best you can.”
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Stricken statements have become a persistent issue in the Peterson trial, where several gaffes by Will County, Ill., prosecutors have tested Judge Edward Burmila’s temper and prompted him to issue so-called curative instructions to the jury. On several occasions, he has told jurors that the state wrongly introduced irrelevant evidence and asked them to disregard it.
Peterson, 58, is charged with killing Savio, 40, who was found dead in a dry bathtub on March 1, 2004. Officials initially ruled the death an accidental drowning, but after his fourth wife, Stacy Peterson, disappeared three years later, authorities reopened Savio’s case and determined she had been killed.
Peterson has not been charged in Stacy Peterson’s disappearance, though he remains a suspect. He denies wrongdoing in both cases.
Given the largely circumstantial nature of the Savio case, Peterson’s defense attorneys worry the forbidden testimony could creep into deliberations, at least subconsciously. The retired Bolingbrook police sergeant, however, waived his right to a mistrial after one gaffe last week, saying he did not want to go through a second trial.
“It’s impossible for people to wipe something from their minds just because they’ve been asked to do so,” Peterson defense attorney Steve Greenberg said. “You can’t unring a bell once it has been heard.”
A spokesman for Will County State’s Attorney James Glasgow declined to comment.
The introduction of barred statements — whether by accident or on purpose — will not necessarily benefit the Peterson prosecutors. Though most of the judge’s reprimands have been done outside the panel’s presence, McRae said jurors can read body language and gauge tension in the room. If they sense state prosecutors are being chastised repeatedly for breaking the rules, they could start to doubt their integrity.
“A prosecutor’s greatest asset is the ability to wear the white hat,” McRae said. “You don’t want to keep flicking dirt on that white hat or else you’re going to make the jury think that the defendant needs to be protected from you.”
In the end, only the jury will decide what role the barred statements will play in their deliberations.