Showing ineffective counsel will be difficult for Peterson
BY MARK BROWN October 30, 2012 9:52PM
Updated: December 1, 2012 4:51PM
In the five years since Joel Brodsky turned up at Drew Peterson’s side on the “Today” show with Matt Lauer and did most of the talking, the previously unknown defense lawyer and the former Bolingbrook cop have been a media-hogging package deal.
That’s why some found it surprising when Brodsky withdrew Tuesday from Peterson’s defense team — insisting he hadn’t been fired — to help make way for an appeal of Peterson’s conviction on grounds he had a crummy lawyer.
The only real surprise was that Brodsky could set aside his own ego for the sake of his client, the legal practicality of him being replaced already plain for most to see.
If Peterson is to appeal his conviction for killing third wife Kathleen Savio at least in part on the basis that he received ineffective assistance of counsel during his trial — which some see as his best chance — he had to hire a new lawyer to make that argument.
After all, a lawyer can hardly ask to overturn his client’s conviction by telling a judge: I did a lousy job. Nor was Brodsky so inclined.
I’m not so sure that problem is entirely solved by Brodsky’s colleagues on Peterson’s backbiting defense team turning against their lead counsel, but it’s a start.
Personally, I don’t think the ineffective assistance of counsel argument will hold up.
The group of lawyers representing Peterson may not have qualified as “The Dream Team,” as they called themselves, but they put on an aggressive, spirited and overall competent defense.
In fact, I thought to myself at several stages during the trial that Peterson was getting a heckuva good defense — in comparison to a lot of criminal defendants — considering his lawyers were only being paid with free publicity.
Admittedly, Brodsky struck me as the weak link in the group, which included more experienced criminal defense lawyers Steve Greenberg, Joseph Lopez and Ralph Meczyk.
But I don’t see how you separate Brodsky’s behind-the-scenes decisions from his colleagues, even though he was the lead attorney — chosen shortly after Peterson went public in 2007 with a plea for someone who would represent him for free.
Brodsky’s biggest mistake, according to critics including Greenberg, was to call attorney Harry Smith as a defense witness, a move that backfired when Smith provided testimony some jurors later said helped clinch the prosecution’s case.
Smith testified Peterson’s missing fourth wife, Stacy Peterson, asked him shortly before her disappearance if she could get a bigger divorce settlement if she threatened to tell police about her husband’s role in Savio’s death.
Any argument for ineffective assistance of counsel will first have to be raised in post-trial motions with Will County Judge Edward Burmila, who presided over Peterson’s jury trial.
To prevail, a defendant must demonstrate that his lawyer’s performance was deficient and that the outcome would have been different if not for the lawyer’s unprofessional errors.
In addition, Illinois courts have ruled that any determination of whether a defendant was harmed by ineffective assistance of counsel must be made on the basis of the entire court record, not isolated instances.
Peterson might have a better chance cutting a deal in exchange for telling authorities where to find Stacy’s body.