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 of Crawford 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 the Lord Morley’s Case where 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. Woodcock and King 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.




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 Evidence 166 (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 Evidence 140141 (1756)

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