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Prosecutor’s 2nd screwup a shocker

Will County Assistant State's Attorney Kathleen Pattleaves court Tuesday after day nine Drew Petersmurder trial concluded with possibility mistrial.

Will County Assistant State's Attorney Kathleen Patton leaves court Tuesday after day nine of the Drew Peterson murder trial concluded with the possibility of a mistrial. | Matthew Grotto~Sun-Times Media

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Updated: September 16, 2012 6:21AM

Will County Assistant State’s Attorney Kathy Patton blew it Tuesday, folding under the intense pressure of the Drew Peterson case to commit a courtroom blunder that again raised the specter of a mistrial.

Patton, a veteran prosecutor who has appeared rattled at several junctures in the trial under Judge Edward Burmila’s caustic treatment, shocked seemingly everyone — including herself — by pursuing a line of questioning the judge had ruled off-limits just hours earlier.

It was the second strike against Patton for violating a court ruling — and the third altogether against prosecutors in the judgment of Burmila — which makes it lucky for State’s Attorney James Glasgow that three strikes doesn’t add up to an automatic out.

Glasgow, facing re-election this fall, might survive losing the Peterson case on its merits but not if he loses on the basis of prosecutorial screwups.

As it stands, lawyers with whom I spoke believe Burmila will allow the trial to go forward again Wednesday, after finding some way to penalize prosecutors in recognition of the cumulative effect of their errors.

Defense attorneys for Peterson want Burmila to declare a mistrial with prejudice — meaning the former Bolingbrook cop would be set free and couldn’t be tried again for the murder of his third wife, Kathleen Savio.

That’s not going to happen, in my estimation, nor should it.

None of the prosecution mistakes thus far would prohibit Peterson from getting a fair trial, as indicated by the fact that the defense doesn’t want a mistrial without prejudice, which would result in starting all over with a new jury. They think they’ve still got a good shot at winning an acquittal at this point.

If they were to change their minds overnight, however, my guess is Burmila would grant a mistrial and go back to square one. He might do it anyway.

Given that there’s still plenty of touchy testimony ahead as prosecutors try to lay out their circumstantial case, the defense may conclude it would rather go forward and wait for another prosecution slipup that could force Burmila’s hand.

It was a head-scratching, even bewildering turn of events for those familiar with the track record of Patton, a highly experienced trial attorney with a reputation for fair play in the courtroom.

As the chief of the state’s attorney’s criminal division, Patton is not someone considered out of her element handling a big case (though it’s hard to remember one bigger in Will County in terms of media interest), nor is she considered the type of unethical prosecutor who would play games to put information before the jury she knew was out of bounds.

Patton, 65, started with the Will County state’s attorney’s office shortly after she graduated from law school in 1980. She spent eight years in the office during the 1980s, serving with Glasgow and under Burmila, before quitting to attend to the responsibilities of raising a newly adopted daughter.

Patton returned to the office in 2001 under then-state’s attorney Jeff Tomczak and would probably be considered the heavy-lifter on the prosecution team in light of Glasgow’s extended absence from the courtroom before deciding to try the Peterson case personally.

After two earlier miscues — one by Glasgow in his opening statement when he made reference to Peterson offering a co-worker money to kill Savio and another when Patton mistakenly solicited testimony from a Peterson neighbor about a bullet found in his driveway that he considered a threat from Drew — prosecutors have been more careful to preview their plans in advance with Burmila.

On Tuesday morning, it was just such an effort that led to the latest problem. Patton appeared nervous and flustered as she attempted to clarify what testimony the judge would allow from a Bolingbrook police officer who had taken a report from Savio about an alleged threat by Peterson.

Burmila wasn’t making it easy on Patton, but he eventually sided with the prosecutor on the major points while forbidding her from inquiring about whether Savio had sought an order of protection.

That didn’t seem like such a big deal until just after lunch when shortly into her questioning of the witness, Patton asked about the order of protection.

The reaction was universal: Holy cow, she did it again.

Those who think more conspiratorially than I wondered if Patton was doing it intentionally so the prosecution could get a mistrial and start over — perhaps after the election.

The judge made clear he didn’t think it was intentional, and reporters in the courtrooom said Patton was obviously crestfallen as she made excuses for her mistake, asking the judge to sanction her personally rather than the prosecution team.

Nice try, but as Glasgow knows: The buck stops with him.

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