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Mistrial ‘mess’ could have huge impact on Drew Peterson trial

Updated: September 3, 2012 1:13PM

The jury’s in. The jury’s out.

Objection follows objection.

And now, for the second time in the first two days of this blockbuster murder trial three years in the making, the threat of a mistrial is hanging over the heads of Drew Peterson’s prosecutors.

They landed a “low blow” in court Wednesday, Will County Judge Edward Burmila said.

So with barely two witnesses questioned, the lawyers will return to Burmila’s courtroom Thursday anticipating one of at least three possible rulings: The judge could toss the entire testimony of one witness. He could also scrap the trial and start all over again. If he does, it’s not clear when they’d start again.

Or he could declare a “mistrial with prejudice.” That’s what Peterson’s lawyers sought Wednesday. And however unlikely that ruling might be, legal experts say if it happens the former Bolingbrook cop could walk free.

Peterson lawyer Joe Lopez summed it all up on Twitter: “This is a real mess.”

Giving Burmila the night to sleep on it can only help prosecutors. The judge ripped into Assistant State’s Attorney Kathleen Patton for her questioning of Savio neighbor Tom Pontarelli.

Pontarelli testified Peterson warned him not to change the locks at Savio’s house after the couple split.

“Any friend of hers is an enemy of mine,” Pontarelli said Peterson told him.

But then Patton set off the firestorm after she prompted Pontarelli to testify in front of the jury about a .38-caliber bullet later found in his driveway.

That comment turned a day of mundane testimony on its head. Defense lawyers objected. Burmila sent the jury away. And then the judge forced Patton to admit she can’t prove Peterson put the bullet in the driveway.

Patton tried to explain herself. She said she wanted jurors to know Pontarelli felt intimidated by Peterson. And had she not been interrupted, she said she would have asked Pontarelli if he knew who put the bullet there. His answer likely would have been “no.”

“I was going to have him say he had no idea who put it there,” Patton said.

Calling the questioning “completely troubling,” the judge said it would have left the jury to think either Peterson put the bullet there — he was a cop with access to bullets after all — or Pontarelli can’t be trusted.

Burmila didn’t buy it.

“It makes no sense whatsoever,” he said of Patton’s explanation.

Defense attorney Steve Greenberg sought the mistrial, saying the testimony about the bullet was the latest attempt by prosecutors to sneak in evidence that already had been barred by prior court rulings.

“This is intentionally bringing before the jury evidence the court has excluded,” he said.

Peterson’s legal team said prosecutors should be barred from retrying Peterson for Savio’s death.

“They shouldn’t be able to benefit from goading us into asking for a mistrial,” Greenberg said.

They asked Burmila to grant a mistrial “with prejudice,” meaning Peterson could not be tried again on the charges. He could grant that motion, deny it, or declare a mistrial “without prejudice,” meaning the trial would have to start over.

The judge promised a dramatic afternoon ruling on the defense attorneys’ mistrial motion. Peterson, in jail since his May 2009 arrest for Savio’s murder, was “shocked” and “in disbelief” over the turn of events, defense attorney Joel Brodsky said.

As the hearing began, Peterson stared directly at the judge.

Instead of ruling, though, the judge offered an alternative: He said he could throw out all of Pontarelli’s testimony. He met privately with the lawyers to talk about the idea, and when they emerged defense attorneys asked if they could mull it over until morning.

Burmila obliged, sending the jury of seven men and five women home for the night but warning them not to watch the news.

Ordering a mistrial would be a drastic step in such a high-profile trial, but Burmila is within his authority to take it, especially if he believes prosecutors intentionally tried to offer improper evidence, legal experts said.

“That’s intentional misconduct,” said Leonard Cavise, a DePaul University law professor. “It’s highly prejudicial, it can’t be proved and you just can’t do it.”

He echoed Burmila’s skepticism that prosecutors let Pontarelli testify about finding a bullet to show he was afraid of Peterson.

“That’s a pretext,” Cavise said. “How is his state of mind even relevant?”

Even if Burmila orders a mistrial with prejudice, prosecutors have the option to immediately appeal that legal ruling, though they would have the burden of convincing an appellate court the judge erred in his decision.

“If he declares a mistrial, I would say the case is virtually over,” said attorney Sam Amirante, who once defended mass murderer John Wayne Gacy and later served as a Cook County judge.

But the situation is rare enough that legal experts differ on the chances Peterson would quickly be released from custody.

Cavise believes Peterson could be released within hours if Burmila makes that ruling.

Others, including Amirante, said a prompt appeal by prosecutors likely would keep Peterson behind bars for at least a day or two while attorneys wrangle over reducing -- or tossing out -- his now $20 million bail.

Peterson’s team sought a mistrial during the first day of the trial on Tuesday, too — just minutes into Will County State’s Attorney James Glasgow’s opening statements, in fact. So Brodsky chose to needle the prosecution after court Wednesday.

“You’ve got two serious motions for a mistrial,” Brodsky said. “That’s got to be a world record.”

DuPage County defense attorney Kathleen Zellner, who represented former Will County resident Kevin Fox when he was charged in 2004 with the murder of his 3-year-old daughter, said it is somewhat unusual to have mistrial motions two days in a row.

“You should know exactly what you’re going to ask (witnesses) and it should be very clear what you cannot do. I don’t think it’s off to a great start for the prosecutors,” Zellner said.

But she said the tension of the first two days likely will not mean an end to the trial.

“It would be too extreme to say, ‘Oh the whole case is lost, might as well just forget it and walk away.’ That’s not going to happen,” she said. “You can get off to a rocky start and still win. Cases are won on circumstantial evidence. It happens all the time.

“What I’ve found over the years is, once someone’s charged with a crime ... people presume they’re guilty. You start out behind the eight ball as the defendant,” Zellner said. “I would say right now these things have evened the playing ground, but I don’t think things have tipped one way or another.”

Burmila has already barred prosecutors from telling the jury about an alleged $25,000 offer by Peterson to a co-worker to help him kill Savio, as well as Savio’s 2002 arrest in her front yard. Several legal hurdles remain for Glasgow’s team, including a likely battle over whether jurors can hear some contested hearsay evidence.

Glasgow kept mum after court Wednesday, refusing to talk to reporters about Burmila’s criticism of Patton. He only said he expects the trial to continue.

But reporters pressed on. So Glasgow offered one more thought.

This, he said, is “a complicated case.”

Contributing: Janet Lundquist

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