Lawyers fight tooth and nail over the admissibility of evidence in a typical case.  The reason they fight is simple: There’s evidence to be had and rules to apply in determining its admission.  Thanks to Mr. Richardson, we can argue the nuanced points all day long. 

Some cases, however, have no competent evidence. Drew Peterson’s is one.  As it’s about to go to trial, what’s going before the jury?  The answer is another in that long line of dirty secrets of the system.  Peterson, by some accounts, a 29 year veteran cop (what courts like to call “seasoned” when blindly adopting their testimony as beyond impeachability) and frequent loser at love, is suspected of murdering his third and fourth wives.  The trial is over the third, Kathleen Savio.  She’s no longer available to testify.  Neither is Stacy Peterson, his fourth wife.  One dead wife too many.

What happens between man and wife is often behind closed doors.  Outside knowledge of it comes by stories told.  Many people tell some stories about our private lives to friends, religious advisors, psychiatrists, but they’re the stories we want them to know, told the way we want to tell them. 

At best, they are told through one person’s eyes.  At worst, they are told to give the impression the story teller wants to give.  If one wants sympathy, one tells sympathetic stories.  If one wants to be admired, one tells stories that make them look good.  Sometimes there are germs of truth.  Other times, they are wholesale fabrications.  The recipient of the story may believe or have doubts as to the accuracy of the story.  No matter, they can’t prove it, one way or the other.

From the Chicago Tribune, the case against Drew Peterson is revealed.

Without physical evidence or a confession, prosecutors have largely built their case around pathologist findings and 13 hearsay statements that they say will allow the women to speak from the grave. Sources told the Tribune that statements from several of the women’s friends have been barred, including some testimony about the July 2002 incident in which Peterson is accused of breaking into Savio’s house and holding a knife to her throat.

The alleged home invasion was a major focus of the hearsay hearing held earlier this year, with at least seven witnesses testifying about it. One of Savio’s former co-workers told the judge that Savio said Peterson, clad in all black and carrying a knife, snuck into her home, pinned her on the stairs and then balked at killing her because it would be “too bloody.”

Though the co-worker’s account and some statements related to the incident have been barred, Brodsky suggested in court that the incident may be mentioned in other testimony. If the allegations are brought up, Brodsky told reporters, he would like jurors to hear recordings of statements Savio made about the incident — in which she does not mention a knife — to an insurance company investigating her claim that jewelry had been stolen from the house.

Prosecutors make an impassioned plea for Kathleen Savio to speak from the grave.  This happens through the stories she told others.  The argument carries a great deal of emotional appeal, particularly when coupled with the “he can’t get away with this” argument, guilt presumptively established.

Stories can’t be cross-examined, challenged, questioned, when the witness is merely repeating what someone else told them.  The only question is whether the story was in fact told, as they have no actual knowledge of anything else.  It’s a difficult cross, since they need only insist that they remember the story like it was yesterday, no matter how embedded in the myth of memory.  By the time they take the stand, the story is embedded in concrete, as absolute and certain as the earth is round, no matter it has more to do with remembering it over and over for the media and the prosecutors rather than because it actually happened.  They don’t tend to break on the stand.

If there was any hard evidence, this flagrant hearsay would be tossed out, rejected.  No judge is unaware of the poverty of this evidence, the inability to test the veracity of a second- or third-hand story.  Have they ever heard of Crawford in in Chicago?  Apparently, the caselaw from Washington is less of a concern than the caselaw from Illinois.

The judge’s ruling on important witnesses for the state follows a landmark hearing under a new Illinois statute — dubbed Drew’s Law — that allows certain types of hearsay at trial. The full decision is being kept under seal until after the trial, which is expected to begin next month.

All those rules that Mr. Richardson struggled to put on paper go out the window when you have a defendant who everyone has decided is really bad, but evidence that’s even worse.   Rules may be rules, but when they stand in the way of getting the guy who needs to be gotten, it’s time to make new rules. 

One of the most damning pieces of evidence is a confession to Savio’s murder that Peterson allegedly made to his fourth wife, Stacy.  According to Stacy’s pastor, she spilled the story to him.  The judge’s ruling as to admissibility, given that Stacy, like Savio, it dead, might draw the concern of lawyers with virtual practices:

He also banned statements made during marriage counseling sessions at the Petersons’ home and in Peterson’s squad car. In both locations, White said, there was an expectation of privacy.

White ruled that the jury could hear about the false alibi discussion, in part because it took place at a Starbucks where anyone could have overheard the conversation. By sharing her deepest secret there, Stacy Peterson essentially waived her right to keep conversations with her religious adviser private, the judge said.

This Starbucks Rule, that conversations over a vente cappuccino are not, by dint of location, privileged, shouldn’t be ignored.  Attorney/client privilege, like priest/penitent, is waived along with the non-dairy whipped topping, a consideration that even an iPad can’t overcome.

Prosecutions alleging domestic violence are fraught with arguments, and decisions, that wreak havoc with the rules of evidence.  Proponents argue that the nature of the relationship, private and personal, precludes the availability of reliable evidence, and thus gives rise to a different set of rules that should permit evidence that would otherwise be laughed out of court.  The use of rampant hearsay evidence is indefensible, but proponents contend that a murderer shouldn’t get away with it just because they’ve killed the only competent witness. 

The only thing truly required to feel comfortable with the concept of convicting in the absence of good evidence is the certainty of the defendant’s guilt, thereby justifying anything needed to obtain the verdict to validate that belief.  When the defendant’s guilt is prejudged, the absence of good evidence gives way to the admission of bad.  After all, we can’t let a man like Drew Peterson get away with it.