UPDATED 08/14/12 – 5:49 p.m.
JOLIET, Ill. (CBS) — The judge in the Drew Peterson murder trial has sent jurors home early for the day, as he weighs a new request by defense attorneys to declare a mistrial. The judge said he will rule on the request Wednesday.
Defense attorneys had asked for the mistrial Tuesday afternoon, after prosecutors began questioning a witness about whether the alleged victim, Kathleen Savio, considered getting an order of protection against Peterson — evidence which the judge had previously ruled inadmissible.
WBBM Newsradio’s Mike Krauser and CBS 2’s Mike Puccinelli report Will County Judge Edward Burmila asked prosecutors to explain how they would suggest he could “fix this” after prosecutor Kathleen Patton asked a former Bolingbrook police officer if she ever suggested Savio get an order of protection filed against Peterson.
LISTEN: WBBM Newsradio’s Mike Krauser reports
Patton asked that question only two hours after Burmila had warned her not to do so.
Patton apologized, and took the blame for what she claimed was an inadvertent mistake.
The judge was clearly furious over the error, but seemed to give Patton the benefit of the doubt.
“If I thought you did that purposely, I could hold you in contempt right now. I’m not doing that because I don’t believe you did it consciously,” Burmila said.
The judge went on to say, “we can’t have a situation where the court makes a rule, and it’s ignored by the state.”
Patton brought up the subject of an order of protection while questioning Teresa Kernc, a former Bolingbrook police officer. Kernc had been testifying about an incident in 2002, when Savio called police and told her Peterson had pushed her onto the stairs and called her a “mean bitch,” because she wouldn’t speak to him when he called.
Peterson is accused of killing Savio in her bathtub two years later.
Kernc had testified Savio told her Peterson spent 3 1/2 hours haranguing her about their life, saying everything was her fault. Kernc said Savio claimed she got tired of sitting on the stairs and told Peterson to go “or do what you came here to do, kill me.” She said Savio claimed Peterson asked her “where do you want it?” and Peterson said, “in the head.”
Kernc said Savio told her Peterson took out a knife and told her to turn her head, but then said, “I can’t hurt you.” Savio, however, did not file a police report. At that point, Patton asked her about the order of protection and defense attorneys sought a mistrial.
Defense attorney Joel Brodsky argued the only two possible remedies for the prosecution’s mistake would be declaring a mistrial with prejudice — effectively ending the case against Peterson — or striking all of Kernc’s testimony entirely.
After a brief recess, Patton apologized to the judge for asking Kernc about the order of protection, and said he should sanction her alone for the mistake, not the entire prosecution team.
Prosecutor Chris Koch said the judge should simply instruct the jury to ignore the question, since it was not answered. He said the defense’s suggested remedies were too extreme.
But defense attorneys argued the judge cannot view the mistake as inadvertent, given it’s not the first time prosecutors have tried to bring up statements that have been barred, in an effort to convict Peterson by smearing him.
At two other points in the trial, the judge has instructed jurors to ignore part of a witness’ testimony, because prosecutors began touching on subjects the judge had already ruled inadmissible.
Prosecutors argued the judge should ignore those previous mistakes when determining a remedy for their latest error, but defense attorneys said the judge must look at the trial as a whole, calling the mistakes by prosecutors “an avalanche … of prejudicial error.”
Defense attorneys are seeking a mistrial “with prejudice,” meaning Peterson could not be tried again, as opposed to a mistrial “without prejudice,” which would allow prosecutors to retry Peterson with a new jury.
It’s the third time defense attorneys have asked for a mistrial because prosecutors have mentioned statements the judge had deemed inadmissible or otherwise prohibited since the trial started three weeks ago.
CBS 2 Legal Analyst Irv Miller said, although it’s the third time the judge is considering a mistrial over improper statements from the prosecution, this error seems to be the least damaging to Peterson , and not severe enough to prompt the judge to declare a mistrial.
“I don’t think we’re there yet,” he said. “Frankly, this third time was the least prejudicial of the three. I think he’s going to slap the prosecutors on the wrist tomorrow.”
However, Miller said the continued errors by the prosecution could cost them the case if they continue.
“It’s getting to the point where the judge is going to have to throw up his arms at some point, and say ‘What else are you guys going to do to deprive Drew Peterson of a fair trial? And, no matter what I, as the judge, tell this jury, it can’t undo it,” Miller said.
If the judge does not declare a mistrial, Miller said the prosecution’s repeated mistakes could provide solid ground for an appeal, should Peterson be convicted.
“The more they do this kind of stuff, it’s going to make an appeal more and more viable, as far as a new trial coming down the line in this case, if there is a conviction,” Miller said.
Earlier Tuesday, a forensic toxicologist testified about tests done on the body of Kathleen Savio.
The jury heard from Dr. Christopher Long, who testified that there were no traces of anti-depressants in Savio’s body. The defense tried to show the testing was incomplete, but the witness stood his ground.
“I don’t know, that type of stuff puts me to sleep,” said Peterson defense attorney Joel Brodsky. “There were a few issues. He didn’t do all the testing he could have, so sometimes you never know what gives a jury doubt.”
With the jury out of the room, Will County Judge Edward Burmila decided against allowing testimony from two witnesses who said they had heard Peterson say he had learned as a police officer to kill and make it look like an accident.
One of those proposed witnesses was Candace Aiken, the aunt of Peterson’s fourth wife, Stacy, who has been missing since October 2007.
Burmila is allowing another Bolingbrook police officer to testify that he heard Savio say Peterson held her at knifepoint two years before her death.
“This man had her at bay for three hours, intimidated her in incredible fear for three hours, and said and did what he did with her for three hours,” said Pam Bosco, a spokeswoman for Stacy Peterson’s family. “I can’t imagine the fear that this woman lived with daily with this man.”
Peterson is charged with killing Savio, whose body was found in a dry bathtub on March 1, 2004.
Savio’s death was ruled an accident at first, but after Peterson’s fourth wife, Stacy, vanished, authorities exhumed Savio’s body. After a new autopsy, two pathologists ruled her death was a homicide.
Prosecutors are trying to convince the jury that Peterson killed Savio. But Peterson’s attorneys say they will call their own medical experts.
The pathologist who conducted the first autopsy died two years ago.
Still, the defense team is expected to fight the new autopsy findings, arguing that Savio’s body had deteriorated severely in the coffin which would have altered the findings, and then re-affirm that Savio’s death was an accident.
The testimonies by various pathologists and experts are going to be critical and at times very graphic, as they share their findings with the jurors.