Peterson lawyers cite attorney, judge mistakes in appeal

Drew Peterson continued the uphill battle to overturn his murder conviction this week, as his lawyers filed an appeal arguing that both his former defense attorney and the trial judge made mistakes that prejudiced the jury against him.

In a filing mailed to the 3rd District Appellate Court late Monday, Peterson's team states that Will County Judge Edward Burmila erred when he admitted controversial hearsay evidence and allowed a pastor to testify about conversations he had with Peterson's fourth wife, Stacy. It also criticizes Burmila for permitting divorce attorney Harry Smith to testify about a telephone call in which Stacy indicated Drew had killed his third wife, Kathleen Savio.

These errors, taken in their totality, stripped Peterson of his right to a fair trial, the appeal states.

"It is important to note at the onset that the state did not present a single eyewitness, physical evidence linking Drew with Kathleen's body, forensic evidence linking Drew with Kathleen's body, or a confession from Drew," the appeal states. "And while it is true there is no magic formula for a murder conviction, at least one of these pieces of evidence is usually present where an appellate court upholds murder convictions." 

Peterson, 60, was sentenced last year to 38 years in prison for murdering Savio in 2004. He remains the only suspect in the 2007 disappearance of his fourth wife, Stacy, whose case prompted authorities to reopen the Savio investigation. He denies harming either woman.

The 55-page appeal also accuses former lead defense attorney Joel Brodsky of ineffective counsel. In addition to criticism for calling Smith as a defense witness, it also accused Brodsky of putting his own desire for publicity ahead of Peterson's best interests.

Brodsky has repeatedly denied the claims. Burmila also dismissed the allegations before sentencing, saying Peterson received adequate representation.

To win an ineffective counsel claim, Peterson must show his representation fell below acceptable standards and the outcome might have been different because of it. It will be an arduous task, however, given that he had five other attorneys on the trial team, and that appellate courts rarely overturn convictions based on legal strategies.

The entire appeal, however, faces tough odds. Though there are thousands of criminal appeals filed in Illinois each year, only a small percentage lead to new trials.

"We feel confident about these arguments," Peterson attorney John Heiderscheidt said. "We look forward to getting this conviction reversed."

Will County State's Attorney James Glasgow repeatedly has said the conviction will withstand any challenges.

Glasgow spokesman Charles Pelkie questioned the appeal's complaints about pre-trial publicity, particularly given that Peterson's lawyers had given copies of the appeal to reporters before the 3rd District court or prosecutors received theirs.

"In addition to being confident in our case and the arguments we'll make, it's ironic that they would raise the issue of publicity given they have sought so much of it for themselves," Pelkie said.

Peterson remains incarcerated at Menard Correctional Center, a maximum-security prison. He is in protective custody, meaning he does not mix with the general population.

Since Peterson's arrest nearly five years ago, his son, Stephen, has been raising his four younger siblings in Drew and Stacy Peterson's Bolingbrook home. His two oldest half brothers — Kathleen Savio's sons — are in college. The two younger half siblings — Stacy's children — are in grade school.

The family's primary source of income is Drew Peterson's $79,000 pension from his nearly 30 years with the Bolingbrook Police Department. Village officials are examining whether to strip him of his retirement benefits after his murder conviction.

sstclair@tribune.com | Twitter: @StacyStClair