About 13 months after Drew Peterson's fourth wife vanished in October 2007 and five months before he was jailed in May 2009 on charges he murdered his third wife, a bill crafted by former state Sen. A.J. Wilhelmi and Will County State's Attorney James Glasgow was passed into law.
The law allowed judges to admit hearsay evidence from witnesses who were made unavailable to testify, so long as the statements were deemed reliable.
Eight months after Peterson's arrest, the new law was put into use during a landmark, month-long hearing to determine what, if any, hearsay evidence could be used at Peterson’s murder trial. Dissatisfied with the decision by Judge Stephen White to prohibit eight of 14 hearsay statements presented to him, Will County State’s Attorney James Glasgow brought the matter to the Third District Appellate Court.
Nearly two years later, the appellate judges overturned White’s ruling and gave Glasgow all his hearsay statements.
But in winning his appeal, Glasgow had to ask the court to disregard the law he helped create in favor of the state’s common law, which doesn’t include the reliability requirement, a fact not lost on the appellate judges.
“This change in the State's position is puzzling,” Judge William Holdridge wrote in the appellate court’s decision.
“If the legislature intended to facilitate the successful prosecution of criminal defendants who intentionally prevent witnesses from testifying (as the statute’s legislative history suggests), it is unclear why it passed a statute that imposed restrictions on prosecutors that are not found in the common law,” Holdridge wrote. “Regardless, after passing a more restrictive statute, one would expect the State either to enforce the statute as written or act to repeal the statute, not urge the courts to ignore it.”
And Holdridge wasn’t the only one to find Glasgow’s change in course puzzling.
“There’s irony, foremost,” said Harold J. Krent, the dean of IIT Chicago-Kent College of Law, who noted that Glasgow was “actually potentially undercutting the power of prosecutors” when he passed his new law.
“The common law’s power was broader,” Krent said.
But Glasgow’s spokesman, Charles B. Pelkie, pointed out that the new law was put together and passed before the state supreme court rejected an appeal by Naperville murderer Eric Hanson, who shot his mother and father in the head and bludgeoned to death his sister and brother-in-law.
Hanson appealed his conviction on the grounds that hearsay cannot be used as evidence under the common law. The state supreme court denied this, upholding Hanson’s conviction and giving Glasgow the grounds for his appeal of Judge White’s ruling.
The Hanson decision came less than a month before Peterson’s trial was to start and a more than a year and a half after the bill sponsored by Wilhelmi, D-Joliet, passed into law.
“If it wasn’t for the supreme court’s decision on Hanson, there would have been no appeal and the trial would have been over a long time ago,” Pelkie said.
Regardless, criminal defense attorney and Chicago-Kent Professor Daniel Coyne expected the appellate court’s decision on the Peterson case to be challenged at some point.
“It’s the first step in going back to the (state) supreme court,” he said of the ruling handed down Thursday.
Peterson’s attorneys can appeal to the state supreme court but it does not seem likely that they will. For one thing, Peterson attorney Joseph “Shark” Lopez questioned the importance of the hearsay statements and the very existence of prosecution evidence. For another, Drew Peterson has already spent close to three years in jail while he awaits the start of his trial.
“Sometimes you have to be patient to exercise your rights,” Coyne said.
Whether the defense appeals or not, Krent believes Peterson’s team has a chance to prevail at trial.
“They have a real shot at winning,” he said. “I don’t think anyone would be surprised if Drew is acquitted.”
For now, Glasgow has his hearsay evidence, but at the cost of urging the appellate court to ignore his new law, and the appellate court agreeing to do so.
“It’s just so weird,” Krent said. “The (appellate) court has made a dead letter of Drew’s Law.”