Common Law, Take 2: Were The Hearsay Statements In Drew Peterson’s Trial Admitted In Compliance With Giles?

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

So, as established by my previous post, at the Drew Peterson trial, the prosecution admitted statements by Drew Peterson’s third and fourth wives pursuant to the common law doctrine of forfeiture by wrongdoing and not “Drew’s law.” Accordingly, if Peterson is going to be successful on appeal, it will be based upon the statements being inadmissible under the common law doctrine as interpreted by the Supreme Court in Giles v. California and not based upon the statements being inadmissible under “Drew’s law” (and not based upon the unconstitutionality of “Drew’s law”). So, is Peterson likely to be successful?

Well, let’s start with People v. Peterson, 968 N.E.2d 204 (Ill.App. 3 Dist. 2012). According to the court,

The State asked the circuit court to conduct a hearing to determine the admissibility of these hearsay statements under both the statute and the common law doctrine of forfeiture by wrongdoing and sought the admission of the statements under both the statute and the common law. In January and February 2010, the circuit court held an evidentiary hearing on the State’s motion. The State argued, inter alia, that the defendant killed Kathleen with the intent of preventing her testimony at the hearing on the distribution of the marital property. The State also argued that the defendant killed Stacy with the intent of preventing her testimony not only at a future divorce and property distribution hearing, but also at a trial for Kathleen’s murder. Seventy-two witnesses testified at the hearing, including three pathologists. Two pathologists testified for the State that Kathleen’s death was a homicide. The defense’s pathologist disagreed with the State’s pathologist’s conclusions and testified that Kathleen had drowned accidentally.

The circuit court took the matter under advisement and issued its written ruling on May 18, 2010. Applying the statutory criteria, the court found that the State had proved by a preponderance of the evidence that: (1) the defendant murdered Kathleen and Stacy; and (2) he did so with the intent to make them unavailable as witnesses. Further, the court found that, pursuant to the statute, 6 of the 14 proffered hearsay statements contained sufficient “safeguards of reliability” and that the interests of justice would be served by the admission of those statements into evidence. However, the circuit court excluded the remaining eight hearsay statements proffered by the State because it found that those statements did not meet the statutory standard of reliability and that the interests of justice would not be served by their admission.

As noted in my prior post, the Appellate Court of Illinois reversed with regard to the eight excluded statements, finding that “Drew’s law” did not in any way abrogate the common law doctrine of forfeiture by wrongdoing, which allowed for the admission of the statements without a showing of reliability. But the prosecution did still have to show that Peterson intended to render wives #3 and #4 unavailable to testify at trial. That was the holding in Giles, in which the Court held that the doctrine of forfeiture by wrongdoing only applies when the defendant caused a witness to be unavailable at trial and “intended to prevent the witness from testifying.”

Now, what does this mean for the inevitable Peterson appeal? Well, the problem for Peterson is that, at the time of Kathleen’s death, there was pending litigation in which Kathleen was going to testify. These were the divorce proceedings between the two, with a hearing on property distribution, pension, and support scheduled for April 2004. Kathleen died in March 2004, so the court’s conclusion that Drew killed Kathleen with the intent of rendering her unavailable for that hearing seems to hold water.

But what about Stacy’s statements? The two were discussing divorce, but neither had yet filed for divorce. And Drew wasn’t arrested for Kathleen’s death until 2009, with Stacy disappearing in 2007. So, could the court find that Drew killed Stacy with the intent of rendering her unavailable at a potential divorce trial or a potential murder trial? I discussed this issue a bit in the immediate wake of Giles (see here), and my conclusion is that a possible future trial isn’t good enough to satisfy the intent requirement on the forfeiture doctrine. So, in my opinion, the admission of Stacy’s statements could form a viable basis for an appeal.

-CM