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UPDATED 08/02/12 – 4:38 p.m.
JOLIET, Ill. (CBS) — The judge in the Drew Peterson murder trial has denied a motion for a mistrial by the defense Thursday, although testimony by a witness the day before made him furious at prosecutors.
The testimony had left open the remote possibility Peterson’s trial for allegedly killing his third wife, Kathleen Savio, could have been brought to a halt and Peterson could have gone free — had the judge upheld the defense’s request for a mistrial with prejudice, meaning prosecutors could not try him again.
Will County Judge Edward Burmila said prosecutors knew what they were doing when they began questioning Savio’s neighbor Thomas Pontarelli about finding a bullet in his driveway — which Pontarelli believed Peterson had placed there to intimidate him. Prosecutors had admitted they have no proof Peterson put the bullet there.
Sources told CBS 2’s Mike Puccinelli that, behind closed doors, the judge slammed the prosecution for that line of questioning, and said he was close to granting a mistrial. However, in the end, he chose not to take such a drastic step.
Burmila had earlier called the line of questioning “a low blow that should not be presented.”
However, the judge said he did not believe prosecutors were trying to prompt a mistrial as defense attorneys had suggested.
“I do not find that the question was asked with the intention of causing a mistrial, so the motion for a mistrial is denied,” Burmila said.
Instead, Burmila instructed jurors to disregard Pontarelli’s testimony about the bullet he found in his driveway. The judge said he was confident jurors could ignore that testimony and Peterson could still get a fair trial.
Defense attorneys had accused prosecutors of scheming to get a mistrial called so they could start over.
“They’d like to get a do-over. They’d like to start from the beginning,” said Peterson attorney Joel Brodsky. “They’d like to get a new jury, and in order to do that, they’d have to get a mistrial without prejudice, meaning they could restart. And I think that may be what they want to do.”
LISTEN: WBBM Newsradio’s Mike Krauser reports
Will County State’s Attorney James Glasgow called the claim “absolutely false, and it’s unprofessional, and the wrong tactic. The statements they make in public are wrong.”
The trial resumes Thursday.
CBS 2 Legal Analyst Irv Miller says a mistrial could have had worse consequences for Peterson than going ahead with the trial and seeing him acquitted, assuming it was a mistrial with, rather than without, prejudice.
“Do they want to continue to go ahead with this mistrial request, with the possibility that gives the prosecutors the ability to go to a higher court, and have Drew sit for months while that goes on?” Miller said.
Defense attorney Joel Brodsky said the defense team was pleased the judge did instruct the jury to disregard Pontarelli’s testimony about the bullet.
“Mistrials are rare. To get one the second day of a trial is probably almost unheard of,” Brodsky said.
Once the trial resumed, prosecutors called paramedic Louis Oleskevich to the stand. He testified Savio was cold to the touch, and had no pulse when he examined her lying face down in her tub.
He also said he found it odd that there was no bathmat or towel in the bathroom at the time. And he said a towel seen in an evidence photo was not there when he left her bathroom on the evening of March 1, 2004.
Defense attorney Joe Lopez said, “if you listened to what Mr. Pontarelli said, he was with Drew the whole time until paramedics came, so Drew didn’t put that towel there.”
Also Thursday, the locksmith who let Peterson and Savio’s neighbors into her home the night her body was found testified about the moment when Savio’s body was found.
Robert Akin said, “There was a lot of commotion and screaming. I was standing in front of Mr. Peterson. He looked at me and said, ‘I gotta go.’”
Peterson’s attorneys said they believe there is no way Peterson can get a fair trial at this point, because of all the missteps by the prosecution.
“We don’t believe that Drew can get a fair trial, and as we’ve said, no matter what you think of Drew Peterson, he’s entitled to a fair trial. Certainly, the judge agrees with that concept, and has done everything he can to make sure that Drew gets a fair trial. But the prosecution so far has just been a series of innuendos that he’s a bad guy,” Greenberg said.
This was the second time defense attorneys for Peterson have requested a mistrial since the case started Tuesday.
Miller says the prosecution is struggling in the Peterson case, and Judge Burmila easily could have ended the case on Thursday.
“I think the prosecution started poorly. They’re hoping to end big,” Miller said. “I think we all know what the evidence is in this case, and I’ve got to tell you, a lot depends on what ruling comes from this judge. He could have ended this case today. He could have granted a mistrial. He could have said, ‘I’m letting Drew Peterson go home today.’ That was a possibility.”
Miller said he earlier that was stunned by the prosecution’s lapse.
“I can’t tell you how surprised I was that they went with that piece of evidence – totally prejudicial. The judge called it a low blow, and frankly, it was a low blow. Prosecutors aren’t supposed to do those kind of things,” he said.
The defense is clearly ahead in the Peterson trial, and their posture and body language is enough to prove it, Miller said.
“They’re ahead, and you can tell just by looking at their faces and looking at the prosecutors’ faces, and you can see they’re ahead in this case,” Miller said.
Peterson, a former Bolingbrook police sergeant, was charged May 2009 with the murder of Savio, whose body was found in a dry bathtub in March 2004.
Initially, Savio’s death was ruled an accidental drowning, but her body was exhumed after Stacy Peterson, Drew Peterson’s third wife, vanished in October 2007. After a new autopsy, officials concluded that Savio’s death was a homicide.
Prosecutors and Illinois State Police believe Stacy Peterson is dead, and Drew Peterson has been named a person of interest in her disappearance. But he has not been charged in that case.
Sometime soon, Kathleen Savio’s divorce attorney, Harry Smith, is expected to testify for the prosecution. Smith, it is believed, can testify that Savio once told him that Drew Peterson threatened to kill her. It’s classic hearsay evidence.
Burmila has promised to review such testimony and decide whether it can be heard by the jury. Peterson’s legal defense team is expected to fight hard to keep it out of the trial.