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A DREW PETERSON DEFENSE

May 15 2009
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Legislators and State Prosecutors Attempting to Deny Confrontation Clause Guarantees, Presumption of Innocence
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

Former Illinois police sergeant Drew Peterson has been married four times. Wife three, Kathleen Savio, died under mysterious circumstances in February 2004 just weeks before her divorce settlement with Peterson was to become final. Her dead body was found lying face down in an empty bathtub. Her hair was soaked in blood from a head wound. A Coroner’s Jury ruled her death an accident.

But Savio’s family members from the beginning believed that Peterson was responsible for her death. It had been an abusive, violent marriage from the beginning. Who was responsible for the spousal abuse in the marriage is still a subject of considerable debate. Kathleen tried to have a domestic violence complaint filed against Peterson but he was never charged. Kathleen, however, was charged twice in 2002 with battery and domestic battery, although she was acquitted each time. Kathleen reportedly told her family members that if something happened to her, Peterson would be responsible.

But despite the unusual circumstances surrounding Kathleen’s death, there was never any serious law enforcement effort to charge Peterson with any kind of crime associated with her death. Then in 2007 Peterson’s fourth wife, Stacy, disappeared under peculiar circumstances. Stacy’s disappearance immediately drew virtual non-stop cable news channel coverage. Nancy Grace could barely contain herself. She rode that news pony to death until the Caley Anthony case broke in 2008 giving her another media pony to ride into the ground.

Stacy Peterson’s disappearance also gave the Savio family an opportunity to resurrect her death from the grave. They pressed for an exhumation and a new autopsy. There were so many sound bites and news spins that the 24-hour cable news cycle could barely keep abreast of the dizzying pace of the coverage. There were times when the Peterson case forced a historical presidential campaign to take a backseat to “breaking news” about some “new detail” discovered in the case. Chris Matthews was not the only cable chatterer who felt a “tingle” running up his leg.

The daunting media coverage in the Peterson case was not lost on Illinois politicians, particularly Will County state’s attorney James Glasgow. Within weeks of Stacy’s disappearance, Glasgow joined the Illinois State Police by naming Peterson a “suspect” in what they believed was a “homicide” instead of a disappearance. The Savio family capitalized on this media-driven turn of events to secure the exhumation of Kathleen’s body for a criminal autopsy. The results of that autopsy, photographs of the “crime” scene, and police reports convinced Glasgow that Kathleen Savio had been murdered.

But the county prosecutor had a problem. The physical evidence supporting the homicide theory was not conclusive; and all the statements by members of the Savio family based on what Kathleen reportedly told them and Kathleen’s own requests for protective orders would be inadmissible in a court of law under traditional hearsay rules of evidence.

But State Sen. A.J. Wilhelmi, D-Joliet, found a way around the hearsay rules of evidence by introducing a bill that would allow a judge to admit hearsay evidence in a first-degree murder case if prosecutors could prove the defendant killed the witness to keep him/her from testifying. The bill was enacted into law, even as Wilhelmi and others tried to say the law was not “in response to the Drew Peterson case.” Some Republican lawmakers disputed that claim.

Glasgow finally had what he needed to secure a first degree murder indictment against Peterson in connection with Kathleen Savio’s death. Peterson was indicted on May 7, 2009 in a two-count first degree murder indictment, charging that he killed his former wife by forcing her to inhale fluid. Glasgow immediately rushed before the news cameras, announcing: “In essence, what you’re basically allowing the victim of a violent crime to do is testify from the grave.”

One of Peterson’s attorneys, Joel Brodsky, was not impressed with this new legal reasoning. He said the law had been passed specifically to put his client behind bars based on nothing more than “rumor and innuendo” and that the law denied a defendant of his constitutional right to confront his accusers. “They’re changing the law, changing the rules, changing forensic findings to get [Peterson],” Brodsky told the media. “The law [is] not supposed to be made for a particular case.”

Brodsky may find a receptive judicial ear for his constitutional challenge based on a Sixth Amendment Confrontation Clause violation. The U.S. Supreme Court just last year confronted a similar confrontational issue in the case of Dwayne Giles.1/Like Peterson and Savio, Giles and his girlfriend Brenda Avie had a tumultuous relationship that came to a violent end when Giles shot and killed Brenda in the garage of his grandmother’s California house. No one witnessed the shooting, although Giles’ niece heard what occurred in the garage from inside the residence.

The niece told the authorities that she heard Dwayne and Brenda talking in normal conversational tones before Brenda started yelling “Granny” several times followed by several pistol shots. The niece and “Granny” ran outside the house where they saw Dwayne standing near Brenda’s body. Unarmed, Brenda had been shot six times. An autopsy report subsequently revealed that one of Brenda’s wounds was consistent with her holding her hand up in a defensive posture when shot, another wound showed she had turned to her side as if to flee, and a third wound was consistent with her having been shot in the back while laying on the ground.

Dwayne fled the shooting scene but was apprehended a couple weeks later. He was charged with murder. Without any eyewitnesses to the actual shooting, the prosecution introduced statements Brenda had made three weeks before her death to a police officer responding to a domestic violence report involving the couple. Brenda was crying at the time she reported to the officer that Dwayne had accused her of having an affair; that the couple had argued about this accusation; and that Dwayne had grabbed her by the shirt, lifted her off the ground and choked her. Brenda told the officer she managed to break free and fell to the floor at which time Dwayne started punching her about the head and face. She managed to get away a second time as Dwayne pulled a knife and threatened to kill her if he found out she was cheating on him.

Dwayne offered a different version of the relationship during his defense. He told the jury he acted in self-defense; that Brenda was jealous; that she frequently threatened people; that she had once shot a man; and that she had vandalized his home and car on several occasions. He said on the day of the fatal shooting Brenda called him threatening to kill him and his new girlfriend who Brenda had seen earlier that morning at his grandmother’s residence. Dwayne testified that Brenda showed up later at his grandmother’s house and again started making threats to kill him and his girlfriend. Dwayne said he walked out of the house into the garage where he retrieved a gun, took the safety off, and started walking back toward the house. He said Brenda came charging out of the house at him, and believing she had something in her hand, he closed his eyes and fired several shots at her. The jury was not impressed by the defense. It convicted him of murder.

During Giles’ trial, the prosecution called the police officer who testified about the statements Brenda had made to him several weeks before she was killed. The admission of those statements was clearly questionable under the Sixth Amendment Confrontation Clause which guarantees a person accused of a crime with an absolute right to confront witnesses who give testimony against him/her. California prosecutors argued that the statements were admissible evidence under an Sixth Amendment exception rule known as the “doctrine of forfeiture”—a doctrine rooted in the historical constitutional principle an accused forfeits his/her confrontation right if they engage in an intentional criminal act to make at witness unavailable at trial.

This prosecutorial tactic, and its approval by the trial court, was upheld through the state’s appellate process. The U.S. Supreme Court, however, agreed to resolve the issue based on a ruling it had made three years earlier in the case ofCrawford v. Washington.2/In the Crawford case the Supreme Court essentially held that it recognizes only those exceptions to the Sixth Amendment Confrontation Clause that were recognized at the time the U.S. Constitution was ratified. The Crawford analysis began with the basic principle that a witness who makes “testimonial” statements against a defendant must be made available at trial so the defendant can confront and cross examine that witness.

The Crawford court said the “doctrine of forfeiture” was a “founding-era exception” to the Confrontation Clause. The court also recognized the more widely known “dying declaration” exception popularized on film in many Hollywood murder mysteries. The latter exception clearly did not apply in the Dwayne Giles case and would not apply in the Drew Peterson case. As it was in the Giles case, the doctrine of forfeiture will also be a central issue in the Peterson case.

This common-law doctrine was referred to by the Supreme Court in Giles’ case as “forfeiture by wrongdoing.” The court was more comfortable with phraseology because the doctrine historically allowed the statements of witnesses who had been “detained” or “kept way” from a trial by “means of procurement” of a defendant. The doctrine was first recognized by a court of law in 1666 in theLord Morley’s Casewhere English judges held statements made by a witness at a coroner’s inquest could be read at a defendant’s trial if the prosecution could establish that the witness had been “detained by the means of procurement of the prisoner.”
English common law and American common law have interpreted this doctrine very narrowly in cases where it could be demonstrated that a criminal defendant engaged in conduct “designed to prevent the witness from testifying.” Legal scholars and court decisions wrestled for years to precisely define the terms “kept back,” “detained,” and “by means or procurement.” The Supreme Court in Giles was comfortable with the definition of the “forfeiture doctrine” expressed in an 1858 treatise that said the doctrine applies when a witness “had been kept out of the way by the prisoner, or by some one on the prisoner’s behalf, in order to prevent him from giving evidence against him.”3/The Giles court pointed out that it was not aware of any case where the forfeiture doctrine had been invoked absent the requisite showing that the defendant had engaged in conduct designed to keep the witness from testifying against him/her.

In a nutshell, the Giles court underscored the historical recognition that a defendant must “intentionally” engage in very specific conduct motivated by his/her desire to prevent a witness from testifying. This narrow interpretation meant that in cases where a defendant caused a person to be absent—such as killing the person as Giles had killed Brenda but had not done so with a specific intent to keep that person from testifying—any accusatorial statements by that person [such as the statements Brenda Avie made to the police officer several weeks before her death] could not be introduced into evidence against the defendant—unless the accusatorial statements fell into the “dying declaration” exception.

The Supreme Court drew support for this constitutional position from two famous English common law cases decided in the late 1700s. In both cases—King v. WoodcockandKing v. Dingler—the English courts recognized dying declarations as an exception to the right of confrontation but held that statements made to investigators by two murder victims (one 48 hours prior to death and the other 11 days prior to death) were not “dying declarations” because the victims had not perceived that they were going to die. These two cases formed the basis of the American common law jurisprudence that a murder victim/witness must be aware that death is imminent and inevitable for his/her statements to be considered “dying declarations.”4/

The State of California, and the dissenting justices in the Giles decision, reasoned that Brenda Avie statements were properly admitted under the traditional legal “maxim that a defendant should not be permitted to benefit from his own wrong.” The State and dissent invoked Gilbert’s 1756 Law of Evidence that stated if a witness was “detained or kept from appearing by the means and procurement,” the witness testimony could be read at a defendant’s trial because a defendant should “never be admitted to shelter himself by such evil Practices on the Witness, that being to give him Advantage of his own Wrong.”5/

The Giles majority opinion written by Justice Antoine Scalia was not swayed by this legal reasoning. Justice Scalia pointed out that the “wrong” and “evil Practices” cited by Gilbert referred to intentional conduct by a criminal defendant “designed to prevent a witness from testifying.”

Prosecutors in the Drew Peterson case will have to prove with convincing evidence that Peterson murdered Kathleen Savio to keep her from testifying against him in some criminal matter. That will be an impossible hurdle. There were no pending criminal charges against Peterson at the time of Kathleen’s death. The fact that Peterson may have killed Kathleen Savio—just as Dwayne Giles undeniably killed Brenda Avie—is not enough, standing alone, to allow prosecutors to use any statements she may have made to her family members or that she in fact made in court documents requesting a protective order in a criminal prosecution him.

Justice Scalia stressed there was no sound constitutional basis for diluting the “doctrine of forfeiture” prerequisite that there be a showing that a criminal defendant engaged in intentional conduct “designed” to prevent a witness from testifying against him/her in order to use hearsay statements a witness made to another person. “The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial,” Scalia wrote in Giles, “on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to ‘dispensing with jury trial because a defendant is obviously guilty.”

Swayed by the media fanaticism led by the likes of Nancy Grace and non-stop “Just In” or “breaking news” coverage on the cable news channels, the Illinois Legislature passed a “Drew Peterson Law” designed to usurp him of the essential constitutional right of confrontation because of the popular public belief that he is “obviously guilty.” The Illinois Legislature does not have the legal authority to undermine Drew Peterson’s established and clearly recognized right of confrontation guaranteed by the U.S. Constitution.

As with most Americans, we do not know if Drew Peterson is in fact guilty of killing his third wife Kathleen or whether he was criminally responsible for the disappearance of his fourth wife Stacy. What we do know, and what we will never relinquish to media hysteria, is our belief that Drew Peterson, like every individual accused of a crime, enjoys a constitutionally-protected presumption of innocence which Illinois legislators and state prosecutors are attempting to deny him. What we believe, and truly hope, is that the Illinois Legislature has set up a constitutional confrontation that will end with the U.S. Supreme Court striking down the “Drew Peterson Law” just as it struck down Dwayne Giles’ California murder conviction.

SOURCES:

1/Giles v. California, 128 S.Ct. 2678 (U.S. 2008)
2/Crawford v. Washington, 124 S.Ct. 1354 (U.S. 2004)
3/E. Powell,The Practice of the Law of Evidence166 (1st Ed. 1858)
4/King v. Woodcock, 1 Leach, at 500, 168 Eng. Rep. at 352;King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791)
5/G. Gilbert,Law of Evidence140141 (1756)

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

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    If you are in trouble and need a lawyer, contact the John T. Floyd law firm. Some of the best lawyers in Texas work there! Understanding and helpful lawyers and staff that will do all … More they can to help you 😊
  • Avatar It’s Me ★★★★★ 3 years ago
    He gave me one of the most honest answers I have received in a very long time about any issue I was having with anything. Legal or not legal. I highly recommend giving him a call and … More will be referring him to friends and family if they have any issues in the future.Positive
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  • Avatar I’m Home ★★★★★ 3 years ago
    He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
  • Avatar Tad Nieschwietz ★★★★★ 3 years ago
    Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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  • Avatar Maher Abbara ★★★★★ 3 years ago
    Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
  • Avatar Thomas McLaughlin ★★★★★ 3 years ago
    Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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  • Avatar Zarrie Adkins ★★★★★ 3 years ago
    He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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  • Avatar Keisha Gaches ★★★★★ 3 years ago
    He was very truthful and honest with us very great man I would recommend him and we would use him again
  • Avatar Samyra Carrasquillo ★★★★★ 3 years ago
    Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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  • Avatar Raul Perez ★★★★★ 3 years ago
    I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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  • Avatar Johnny Johnson Jr ★★★★★ 3 years ago
    This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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  • Avatar Dana Adkison ★★★★★ 3 years ago
    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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  • Avatar Crecencio Fabian ★★★★★ 3 years ago
    He explained my case better then any other lawyerPositive
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  • Avatar Barry Lewis ★★★★ 3 years ago
    Very informative
  • Avatar Ismael Flores ★★★★★ 3 years ago
  • Avatar Haley Danielle Lummus ★★★★★ 3 years ago
  • Avatar Eddie Villarreal ★★★★★ 3 years ago
  • Avatar Neil Productions ★★★★★ 4 years ago
    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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