Chicago Sun-Times Editorial - Despite Drew outrage, rule of law must be upheld

Chicago Sun-Times Editorial - Despite Drew outrage, rule of law must be upheld
Copyright by The Chicago Sun-Times
May 9, 2009
http://www.suntimes.com/news/commentary/1565584,CST-EDT-edit10.article


The problem with dead people is they're so hard to talk to. You can't ask them if they really said what people say they said.
You can't ask them where they said it and how they said and why.

You can't challenge their memories. You can't put them under oath.

And yet, short of holding a seance, that is precisely the problem facing Drew Peterson, the clowning ex-cop from Bolingbrook who was charged Thursday with the murder of his third wife, Kathleen Savio.

When Peterson goes on trial, the most damning evidence against him could be a slew of remarks supposedly made to others by Savio and his fourth wife, Stacy -- the wife who disappeared.

Obviously, his lawyers won't have much luck cross-examining those two women.

For good reason, "hearsay" evidence -- what one person claims another person said -- is almost never admissible in a criminal trial. Hearsay evidence denies a defendant his 6th Amendment right to confront his accusers in court.

If a judge allows the admission of such evidence in the Peterson trial, under cover of a new state law of debatable legal soundness, legal scholars widely predict a guilty verdict would be thrown out on appeal.

And we're inclined to agree.

If this sounds like a defense of Peterson, it is not. Our concern is for the rule of law, which must prevail even we are most outraged.

Will County prosecutors are optimistic that they will be allowed to present in court the "from-the-grave" words of Savio and Stacy Peterson because a state law enacted in November -- known as the Drew Peterson Law -- creates a new legal exception to the ban on hearsay evidence. The law's sponsor, state Sen. Arthur Wilhelmi (D-Joliet), tells us he crafted the bill as narrowly as possible to apply only in cases of "first-degree murder to prevent a witness from testifying."

But that, in our view, is precisely the problem: The logic of the law is utterly circular. It assumes guilt to prove guilt. It allows the court to presume that Peterson killed Savio so that her hearsay comments that he threatened to kill her can be used to prove he killed her.

The shaky logic grows shakier with respect to Stacy Peterson. Here, prosecutors may ask the court's permission to present even less reliable "double hearsay" evidence -- witnesses who will testify that Stacy told them that Drew told her that he killed Savio.

Got it?

DePaul University Law Professor Andrea Lyon said the introduction of the Stacy Peterson hearsay evidence would create a "double whammy" of unfairness. Not only would Drew Peterson, on trial for murdering Savio, be unable to confront his accuser, but the jury would get an earful of the theory that he also murdered Stacy.

The courts have upheld the introduction of hearsay evidence in cases in which a defendant may have murdered a witness, but only when the motive for the murder clearly was to keep the witness from testifying. An example might be a mobster who guns down a witness who is set to testify against him.

In a major ruling last June, the U.S. Supreme Court made that distinction clear, much to the possible disadvantage of the Peterson prosecutors down the road.

In the case of Giles vs. California, a Los Angeles man was charged with shooting and killing his girlfriend. He claimed self-defense, but a police officer testified at trial that three weeks before the murder, the victim had told her that her boyfriend had threatened to kill her.

A jury found the defendant guilty, but the U.S. Supreme Court threw out the verdict, saying the hearsay evidence given by the police officer should have been ruled inadmissable because there was no proof that the defendant had killed his girlfriend solely to keep her from testifying against him.

Prosecutors and legislators who crafted the Drew Peterson Law tell us that they were well aware of Giles vs. California, of course, and they feel confident the Illinois law meets the U.S. Supreme Court's standard.

Drew Peterson is far from the most popular guy in town, and many people already think he's guilty. But it would be wrong to use a constitutionally questionable law to convict him.

Any one of us could be next.