Continual coverage of the trial of Drew Peterson for the murder of his third wife, Kathleen Savio.
5 p.m. 'I will not testify,' Peterson says
Drew Peterson told Judge Edward Burmila he will not take the witness stand. Burmila, who had told Peterson on Tuesday about his right to testify or not testify, asked Peterson if he had reached a decision.
"I will not testify," Peterson responded.
"You will not?" Burmila said.
"That’s correct," Peterson said.
After jurors were brought back in, defense attorneys rested their case.
Burmila then reminded jurors to ignore any media reports about the case.
Court is adjourned until Thursday at 9 a.m.
4:15 p.m. Son questioned about mom's bath habits
Thomas Peterson said his mother sometimes liked to take hot baths and sometimes left her hair down in the bath, something prosecutors claim she never did. Kathleen Savio’s hair was down when her body was found.
On cross examination by the prosecution, Thomas Peterson said he did not recall telling a June 2008 grand jury that he didn't know his mother's bath habits.
He was asked on redirect by the defense if his mother ever took baths in the morning.
"That sounds highly unlikely, but I wouldn't know that either," he said.
4 p.m. 'I believe my dad is innocent'
Thomas Peterson said he noticed nothing unusual about his father's demeanor on the weekend his mother’s body was found in the bathtub.
"There was nothing out of the ordinary, I would remember if there was, but there was nothing out of the ordinary to my recollection."
When Kathleen Savio didn't answer the door Sunday evening, Thomas said his father "was a little bit concerned."
"I think we came to the conclusion that it was a three-day weekend. We'd forgotten it was a three-day weekend, so we figured she went out to dinner with a friend, so we went home."
He said they did not try to call her that night.
"We just assumed that because it was three-day weekend, that she was out, and we would just leave her to her business."
After they were unable to reach her at home on Monday, March 1, 2004, his father's demeanor changed, Thomas Peterson testified.
"He was definitely more concerned, because that was the day we were definitely supposed to go back with our mother. We had school on Tuesday.
"He was kind of like, how else to explain, he was more concerned about the situation. He told us to go to bed and said he would go and try to figure out what was going on."
Late that night or early on the morning of March 2, Thomas said their father woke them up.
"Well, when, as I remember my brother and I were both downstairs. He told us to come upstairs. He brought us into his room and said that our mother had died. He was very, very shaken up about it. I'd never seen anyone so sad. Especially for someone who didn't break down with emotion at all, it was very hard to see."
"He was sincerely shaken up by your mother's death?" defense attorney Joel Brodsky asked.
"Yes," Thomas Peterson replied.
Brodsky asked if Thomas had been subpoenaed to testify.
"I'm here voluntarily," he said.
When asked why, he said "Because I believe my dad is innocent."
The state objected, and the judge told the jury to disregard Thomas Peterson's answer.
3:40 p.m. Peterson's son takes witness stand
The defense called Thomas Drew Peterson, the defendant's 19-year-old son with Kathleen Savio, as their next witness.
Drew Peterson looked over at his son as he strode into the courtroom, clad in a dark suit, gray tie and white shirt, and was sworn in by the court clerk.
The son smiled and nodded at his father as he settled into the witness stand. Drew Peterson clenched his jaw slightly, resting his chin on his right hand.
"Have you ever suspected at any time that your dad killed your mom?" defense attorney Joel Brodsky asked.
"No I haven't," Thomas Peterson replied.
2:55 p.m. 'It was concealment of a homicide'
On cross examination, Harry Smith said Stacy Petersontold him that Drew Peterson was upset with her because he thought she told his son, Tom, that he killed Kathleen Savio
Smith said she told him that she believed her husband was spying on her and Smith told her to be careful.
"She said she had too much ... on him for him to do anything to her," Smith testified.
During the conversation, Smith said he heard Drew Peterson in the background.
"He called to her, asked her what she was doing and who she was talking to," Smith said, adding that the defendant called out to her a second time "to rush her off the phone or get her in."
Smith said Drew Peterson’s voice sounded as though he was some distance away from Stacy while calling for her.
"She yelled to Drew that she would be in in a minute," Smith said.
"Did Stacy say something to you about a GPS during that conversation?" Assistant State's Attorney John Connor asked.
Smith said Stacy told him she believed Peterson was tracking her via GPS through her cell phone, but that she had gotten a second phone.
"(She said) now I have a new one, and he doesn't know about it," Smith said.
On re-direct, defense attorney Joel Brodsky asked whether Smith warned Stacy to be careful because she could be charged with extortion.
"During that call, I did tell her to be careful, but it wasn't about extortion. It was concealment of a homicide," Smith replied.
"She said, 'Could we get more money out of Drew if we threatened to tell police about how he killed Kathy, and you to be careful because you could be arrested for extortion?" Brodsky said.
"No, that's not what I told her," Smith said.
The state had no further questions after Brodsky, and Smith was excused.
2:05 p.m. Defense challenges hostile witness
In a sidebar outside the jurors' presence, defense attorney Steve Greenberg accused Harry Smith of committing perjury, saying that in all his prior testimony he has said Stacy Petersonasked "if" they could get more money from Drew Peterson by threatening to tell police he killed Kathleen Savio.
"Now he gets up there and says, ‘He killed her.’ That's ridiculous, judge," Greenberg said.
The judge agreed and allowed defense attorney Joel Brodsky to treat Smith as a hostile witness.
The jury returned, and Brodsky immediately challenged Smith, asking why he never before had said Stacy said Drew Peterson killed Savio.
"I believe every time I've testified, I've said...'If we give this information that he did this, can we get more out of him,’" Smith replied.
In a contentious back and forth, Smith said Stacy asked him if she could use the information in the divorce proceedings to get more money, not to get her husband prosecuted for Savio's murder.
1:50 p.m. Stacy, lawyer talked before she vanished
Divorce attorney Harry Smith testified that he had a conversation with Stacy Peterson in October 2007.
"She wanted to know if the fact that he killed Kathy (Savio) could be used against him," Smith testified. "She didn't use the word leverage, but certainly that was the intimation."
Defense attorney Joel Brodsky asked why Stacy Peterson never retained him for the divorce, prompting a stammering response from Smith.
"Uh...uh...uh," he said.
Stacy Peterson vanished just days after the conversation with Smith. Drew Peterson is the sole suspect in her disappearance, but he has not been charged.
1:45 p.m. Judge warns defense attorney
After the state objected to defense attorney Joel Brodsky's leading questions to divorce attrney Harry Smith, Brodsky asked to treat Smith as an adverse or hostile witness so that he could ask leading questions.
Jurors were led out while both sides argued.
"We're entering into areas where I want to be very careful that I don't go into areas where the court has prohibited us or warned us about," Brodsky said.
The judge said the defense had not established the grounds to move forward that way. "There's no such thing as a state witness or a defense witness, there's just witnesses," Judge Edward Burmila said.
Burmila told Brodsky to rephrase questions and warned him not to make such a motion again in front of jurors.
"Do not again make that motion using the word adverse in front of the jury as if this witness was recalcitrant. Don't do that again." Burmila said.
1:35 p.m. Savio divorce attorney on witness stand
Attorney Harry Charles Smith is the first witness of the afternoon.
Smith, who was Kathleen Savio's divorce attorney, may testify about a conversation he had in October 2007 with Stacy Petersonin which she allegedly asked him whether she could get more money out of Drew Peterson in a divorce if she threatened to reveal his involvement in Savio's death.
Stacy Peterson disappeared later that same month.
1:30 p.m. Interview via text?
As the trial resumed after lunch, Judge Edward Burmila asked whether prosecutors were able to get the state police investigators who interviewed Tom Peterson into court to be questioned by the defense.
Prosecutors said that one of the officers would arrive at 2 p.m. but the other temporarily lost his voice due to illness and asked that the defense question him via text message.
"I don't know how they'll be able to ask him all they need to through text messaging," Burmila said.
"Not if we get my daughter in here," quipped defense attorney Steve Greenberg, prompting laughter from onlookers.
12:20 p.m. Another error, possible trial delay
The trial may be delayed after yet another misstep by prosecutors, who neglected to turn over a state police report on an interview conducted with Drew Peterson's son Tom Peterson in May.
Tom Peterson was expected to testify this morning, but that was delayed after defense attorneys told the judge that the state had handed them a copy of the state police report just this morning.
Defense attorney Joel Brodsky urged Judge Burmila to bar the state from using the report or a letter Tom Peterson wrote to his father regarding the interview.
"On the day we're going to call the witness, they say, 'Gee whiz, here's the report,'" Brodsky said. "To throw it in in the last minute is simply unacceptable."
Assistant Ssate's Attorney John Connor said it was his fault that the report was not turned over, saying he believed he had tendered the document to the defense some time ago. He said there was no intent to break the rules governing the sharing of evidence.
But an irritated Burmila took the opportunity to once again chastise prosecutors for their lapses.
"Every time there's a violation of a court order or a Supreme Court rule, someone else stood up and said, 'blame me this time,'" he said. "Clearly have a discovery violation here. They knew even last week that he (Tom Peterson) was going to be a witness, and just a few minutes before the witness was going to be on the stand, they turn over the report and say, 'Here you go.'"
But Burmila stopped short of barring the letter and report, saying the usual sanction for such violations is to grant the defense time to talk to their witness and the officers who interviewed him and prepared the report.
He ordered prosecutors to get the officers in court today to speak with Peterson's team.
"I want those police officers here no later than 5 p.m. today," Burmila said.
11:55 a.m. No evidence in Savio home in 2008
Illinois State Police Special Agent Eileen Payonk testified that she briefly led the investigation into Kathleen Savio's death after the case was reopened in 2008.
She said investigators returned to Savio's home — where another family was living — and took samples of the bathroom grout, the carpeting in the bedroom and stairway and tested the walls for any signs of evidence but found none.
The trial has recessed for lunch and will resume at 1:15 p.m.
11:10 a.m. Struggle might not leave evidence
On re-direct, Assistant State's Attorney Chris Koch asked retired investigator Patrick Collins if there are times when a physical struggle might not leave behind any physical evidence.
"That's possible, yes," Collins said.
10:30 a.m. No sign of struggle, investigator says
Former Illinois State Police Sgt. Patrick Collins is the first defense witness of the day.
Collins, who was one of the investigators who responded to Kathleen Savio's home after her death in 2004, testified weeks ago as a prosecution witness.
Defense attorney Steve Greenberg is leading him through a series of questions about the appearance of Savio's home the night her body was discovered.
Collins said he saw no signs of a disturbance, struggle or anything unusual in the home.
Collins, who retired in 2008, said he didn't recall seeing bags placed over Savio's hands, but said he asked the evidence technician, Sgt. Robert Deel, to cover her hands in case there was any evidence on them.
"I asked Sgt. Deel to take fingernail samplings, based on the chance that it there was some kind of struggle, she might have something on her hands," Collins said. "Going back to my earlier testimony, it was my first homicide, so it was a learning experience for me. I was assuming that was what they did."
9:30 a.m. Attorney can testify about talk with Stacy
Judge Edward Burmila ruled that defense attorneys can call Wheaton family attorney Harry Smith to testify that Stacy Petersonasked him about extorting money from Drew Peterson in her planned divorce by threatening to tell police what she knew about Kathleen Savio’s death.
But the judge said if the defense calls Smith his entire 8.5-minute coversation with Stacy Peterson is admissable. The defense hasn't yet said whether they will call Smith.
8:45 a.m. The color of the day
Jurors were spotted wearing orange and blue shirts as they took two elevators up to the 4th floor of the Will County courthouse this morning.
6:30 a.m. Peterson's son expected to testify
Thomas Peterson, the son of Drew Peterson and Kathleen Savio, is expected to be called to the stand today by the defense.
Thomas Peterson, valedictorian of his 2011 Bolingbrook High School class who is now studying at the University of Pennsylvania, was at his father's home the weekend Savio died. He has told the Tribune he believes her death was an accident.
"He'll be here to support his father and tell what he knows about his father's innocence," defense attorney Joel Brodsky said of the 19-year-old. "He has a lot of things to add to the story."
On Tuesday, the defense team offered jurors its theory of how Drew Peterson's third wife died, calling a pair of noted forensic pathologists Tuesday who testified that Kathleen Savio drowned in her bathtub after slipping and hitting her head.
Peterson's attorneys brought in well-known forensic pathologistDr. Vincent DiMaio, who has written several widely used pathology textbooks, and Dr. Jeffrey Jentzen, director of autopsy and forensic services at the University of Michigan's medical school, to rebut two state-paid expert pathologists who told jurors that Savio's 2004 death was a homicide.
In a case built on circumstantial evidence and hearsay, the explanation of how Savio ended up dead in the tub — whether she was attacked or simply fell — is critical. The case may hang on how jurors view the dueling experts.
State's Attorney James Glasgow said he doesn't believe the experts will simply cancel each other out, but some observers disagreed and said that in the end, jurors will end up relying on their personal knowledge. Another expert said the defense's witnesses may create doubt in jurors' minds.
But defense attorneys say the state's case will fail based on lack of evidence. Savio's death was first treated as an accident until Peterson's fourth wife, Stacy, vanished in 2007.
"The point isn't whether we create reasonable doubt; the point still is whether they've proven anything," defense attorney Steve Greenberg outside court. "And you've got explanations that it was an accident. It's always been an accident, it's still an accident, it'll be an accident when we do the closing arguments and it will be an accident when the jury comes back."
Competing experts have been a long-debated courtroom reality, especially in cases like this one where the evidence is circumstantial, said Jennifer Mnookin, professor of law at UCLA.
In a 1901 Harvard Law Review article, prominent judge and scholar Learned Hand described the trouble with expert testimony, worrying about "setting the jury to decide where doctors disagree." Despite a century of complaints, the practice has persisted, in part, because science doesn't always produce certainty, Mnookin said.
"Competing experts are an old problem, a serious problem and a problem that we have never really found a good solution for," Mnookin said.
On Tuesday, DiMaio and Jentzen explained to jurors how they viewed the same pattern of injuries on Savio's body and her body's position in the tub but drew the opposite conclusion from the state's experts.
Prosecutors have highlighted to jurors the fact that Savio's right foot was wedged against the bathtub with the toes nearly hyperextended — a sign, they believe, that she was struggling against an attacker.
They also have called an expert witness who testified that the horizontal gash on the back of Savio's head couldn't have been caused by a fall in her bathtub — which their expert contended would have produced a vertical wound.
But DiMaio told jurors that both factors were brought about by "pure chance" and therefore meaningless. He told jurors that people fall in varied ways, and that Savio's rounded head hitting a concave surface could produce either type of wound.
"What you're looking for is a pattern of injuries, because one injury on a hand could be due to anything," he said. "But when you see the pattern, you have to go by the whole pattern of injuries. The pattern is up and down the left side of the body. This is the pattern of a fall — not an assault."
None of the injuries that prosecutors have focused on — a bruise on Savio's backside, what seemed to be one on her diaphragm and others on her upper chest — is an actual wound, the defense experts said. Some bruises are artifacts of decomposition, they testified.
Both experts testified that Savio either suffered a concussionor was stunned when she slipped and struck her head on the tub. They took direct aim at state witness Dr. Mary Case, a neuropathologist who testified that there were no signs that Savio suffered a serious head injurythat would have left Savio unconscious.
On that issue, Jentzen told jurors he "vehemently" disagreed with Case, a colleague with whom he has written several scholarly papers. He said concussions typically leave no trace unless a person survives at least two hours after the injury.
"It's basically unbelievable that that opinion would be rendered," Jentzen said, calling Case "wrong."
Kathleen Zellner, a prominent medical and legal malpractice lawyer who heard the expert testimony, said she believes the jury will not rely on any of the pathologists' opinions.
"It has been my experience that they cancel each other out," Zellner said. "They'll go in there and use their common sense. They'll think about how people actually fall in the tub, and they'll apply it to this case."
The pathologists who testified Tuesday helped Peterson's attorneys accomplish something prosecutors so far have failed to do: Detail to jurors their theory of the events leading up to Savio's death.
Prosecutors long have accused Peterson of subduing Savio with a chokehold and putting her in the bathtub, where he allegedly drowned her and struck her over the head with a blunt object. However, the judge has prevented the jury from hearing some testimony supporting that claim, ruling that the prosecution has not introduced any evidence proving Peterson was at the crime scene and therefore could not have witnesses theorize what he did there.
After Tuesday's testimony, Judge Edward Burmila asked Peterson to stand and explained to him about his right to testify or not testify in his murder trial. It is a standard practice in Burmila's courtroom.
"I understand, your honor," Peterson said.
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