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Judge in Drew Peterson murder case mulling mistrial — again

Drew Peters(left) is trial death his third wife Kathleen Savio.

Drew Peterson (left) is on trial in the death of his third wife, Kathleen Savio.

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Updated: September 16, 2012 6:13AM

It happened again. Another critical mistake by Will County prosecutors Tuesday prompted Drew Peterson’s attorneys to angrily ask for a mistrial -- a move that could precipitously end the ex-cop’s murder trial.

It’s the third time in less than three weeks of testimony that Peterson’s attorneys have sought a so-called “mistrial with prejudice” after errors by prosecutors introduced evidence already barred by Judge Edward Burmila.

“They keep repeatedly striking these foul blows,” defense attorney Steve Greenberg said as he urged Burmila to consider the previous missteps by prosecutors in ordering a mistrial. “At some point, it gets to be too much.”

If Burmila agrees Wednesday to take that extremely rare legal step of ordering a mistrial with prejudice, it could block prosecutors from retrying Peterson for the 2004 drowning death of his third wife, Kathleen Savio.

An irritated Burmila indicated he was fed up with mistakes by prosecutors that began literally in the opening minutes of the trial and have resulted in jurors hearing about evidence Burmila had blocked as too prejudicial to Peterson.

“We continually have a situation where the court makes a ruling and it’s ignored by the state,” Burmila said after sending jurors out of the courtroom Tuesday. “The state just decided they weren’t going to do what I said.”

Assistant State’s Attorney Kathleen Patton triggered the latest call for a mistrial when she questioned a former Bolingbrook police officer about a 2002 meeting with Kathleen Savio.

After former Bolingbrook Police Lt. Teresa Kernc recounted Savio’s claim that Peterson threatened her at knifepoint in her home, Patton asked Kernc whether she had discussed with Savio obtaining an order of protection.

Less than two hours earlier, Burmila had specifically ordered prosecutors not to mention that discussion because it would be prejudicial to Peterson since Savio never did seek such an order against her estranged husband.

Defense attorneys instantly objected and called for a mistrial.

A chastened Patton took the blame for the question, saying she had forgotten that Burmila had just blocked questions on the issue.

“I would like to apologize to the court for my error,” Patton said stiffly in the courtroom after a brief recess for attorneys to prepare arguments on the mistrial. Her error was a “huge mistake,” a legal expert said.

“You can’t make a mistake of this magnitude after the judge specifically told you not to go into that issue,” said Richard Kling, a law professor at Chicago-Kent College.

Patton, a career prosecutor who has been practicing for more than 30 years, earlier in the trial angered Burmila when she questioned one of Savio’s neighbors about finding a .38-caliber bullet in his driveway shortly after Peterson warned him not to help Savio with household chores.

Peterson’s attorneys called for a mistrial then, and Patton conceded she would not have been able to prove Peterson put the bullet in the driveway. Burmila, though, ultimately decided simply to order the jury to ignore the portions of the testimony dealing with that incident.

Will County State’s Attorney James Glasgow triggered the first call for a mistrial during his opening statements when he started to tell jurors that a former co-worker once claimed Peterson offered him $25,000 to kill Savio.

Burmila barred any mention of that allegation, though prosecutors have filed a request to raise the murder-for-hire issue again.

The disputed actions by prosecutors are a deliberate attempt to introduce improper evidence to smear Peterson, defense attorneys contended outside the courtroom.

“No doubt about it,” said defense attorney Joel Brodsky, blasting prosecutors for relying on “an avalanche of prejudicial and illegal evidence” to try to convict the 58-year-old Peterson.

In court, prosecutors denied any of the mistakes were intentional.

Assistant State’s Attorney Chris Koch argued Patton’s question about an order of protection wasn’t harmful to Peterson because his attorneys objected before it was answered.

Glasgow wouldn’t comment outside the courtroom, but in a statement defended his office.

“My office always stands ready to protect the integrity of the process in every case,” he said.

Burmila could opt for sanctions other than a mistrial with prejudice, including striking the testimony offered by Kernc.

He also could declare a “mistrial without prejudice,” and order that the trial start over with a new jury — a move that Peterson’s attorneys said they didn’t favor.

That seemed to irritate Burmila.

“I’m frankly surprised Mr. Peterson would urge on the court a mistrial -- but only ‘the mistrial I want,’” the judge said, paraphrasing the request.

“Either he’s been deprived of a fair trial, or he hasn’t,” Burmila said.

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