Motion for Release - Drew Peterson - Justice Café -

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NO.: 3:10-513; 10-514; and 10-515

IN T H EA P P E L L A T E C O U R T O F T H E S TAT E O F IL L IN O I S

T H I R D J U D IC I A L D I S T R I C T

P E O P L E O F T H E S TAT E O F IL L IN O I S , Appeal from the C ircuit Court) of the 12th Judicial Circuit

Plaintiff-Appellant, W ill C oun ty, Il l inois

v. Indictment No. 09 C F 1048

D R E W P E T E R S O N ,) Honorable StephenD .White

Defendant-Appellee. Judge Presiding

M O T I O N F O R R E L E A S E O F T H E D E F E N D A N TF R O M J A IL D U R IN G T H E S TAT E 'S A P P E A L S

NOW COMESDefendant DrewPeterson,by al l couns el of record, request ing that this C ourt

order he be released during the pendency of any State appeals. Review is de novo. People v.

Wells ,279 litApp.3d 564, 654 N.E. 2d 660 (5 th Dist. 1996). In support of this request, Defendant

states the following:

1. Drew is charged with the murder of Kathleen Savio, whose death was found to be

accidental by a coroner's jury.

2. Notwithstanding a very public investigation, and a stated desire to bring charges, at

no time did Drew ever attempt to flee from the jurisdiction of the Court. The

prosecution has never claimed he is a flight risk. There would be no merit to any

suggestion that he would have the capacity or desire to flee if freed pending this

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3. There was absolutely no evidence presented to the trial court that Drew would be a

danger to the public, or any specific individual, if released. At the recent hearing for

release pending appeal the prosecution did not argue Drew was dangerous. A copy

of the hearing transcript is attached as Exhibit "A".

4. Recent ly, as the t r ia l date has approache d, Judge S tephen W hite , has issue d a ser ies

of rulings limiting certain evidence the State sought to introduce. His rulings have

been geared towards insuring that Drew be only tried for the murder of Kathleen

Savio, and to limit any prejudice from the disappearance of Stacy Peterson. The

rulings have also sought to prevent the State from introducing otherwise

inadmissible and prejudicial evidence. Specifically, the judge has:

a) Issued a ruling limiting the State's use of hearsay evidence. The

Court's original ruling was on May 18, 2010. As more fully set forth in Defendant's

Motion to Dismiss (See Appellate Case No. 3:10-514), the appeal from that ruling is

untimely;

b) The Court has limited the State's use of other crimes or bad acts

evidence. Before doing so, the Court heard extensive evidence regarding each of

the allegations, making a reasoned decision that the prejudicial effect outweighed

any probative value. Included amongst the excluded incidents were incidents that

did not involve Ms. Savio, and those that were found by the Court to be

extraordinarily remote (more than a decade old). The Court did not exclude all prior

bad acts; and,

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c ) n order prohibiting the State from h aving an attorney offer her

opinion predicting the outcome of the divorce proceedings be tween D rew andK athleen Peterson. The opinion was"It is unlikely that if this case had proceeded to

trial before the Honorable Judge O'Leary that the court would have deviated from

her previous pretrial recommendations based on my experience and knowledge."

Her opinion was supported, in part by, testimony given by M s. Savio-Pe terson's

divorce law yer in F ebruary of 2010 at a pre-trial motion in the murde r case, the

attorney's file, Bolingbrook police reports, and a deposition of M s. Savio-Peterson

that was not taken until after the pre-trial conference. The State wa s unable to

offer the court any legal authority for having a n attorney give an opinion as a n

expert w ith respect to the future outcome of a trial that never took place.

5. Literally, on the eve of trial, the State filed three (3) separate Notices of Appeal.

Eac h N otice was supported by a certificate of impa irment. Each certificate of

impairment confirms that the State's successful prosecution is presently impaired

w ithout the use of eviden ce that the Court has disallowe d. T he fact that the

prosecution now cites three (3 ) separate areas of impairment is itself substantial

evidence that they believe their prosecution lacks sub stance. T he scope of the

prose cution's problem is, in this case , time s three. Accordingly, unless the

prosecution prevails in all three areas of appeal their prosecution w ill remain

subs tantially impaired i.e., significantly weakened.

6. A l th o u g h n o t s u g g e s t in g t h e u n d e r s ig n e d i s p o s s e s s e d o f th e s a m e c l a i

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the prosecution's attorney-expert, it is unlikely the prosecution w ill prevail in all

three appea ls. On e is untimely, and in the others they are requesting that this

C o u r t f in d t h e t r ia l ju d g e a b u s e d h is d i s c r e t io n in m a k i n g h is p r i o r ru l i

that this C ourt find a misapprehension of the law or conduct ade nova review of

some other legal issue.

7. While the State certainly has the right to appeal two (2) of the rulings, one m ust be

suspect as to whether their efforts are truly in good faith. T hese 11thhour filings

mak e one w onder if the State is motivated, at least in part, by a desire to avoid

going to trial before Judg e Wh ite, w ho is retiring in Oc tober. In mak ing this

evaluation, this C ourt should take into account the fact that the State must have

know n that their N otice of Appeal w ith respect to the hearsay issue w as late, and

accordingly jurisdictionally defective, and that their odds of prev ailing on the other

i s s u e s a r e s l ig h t .

8. T he fact that this appeal by the State may be nothing more than an attempt at

f o ru m s h o p p in g i s a fa c t o r in f a v o r o f r e le a s e . B y a p p e a l in g , t h e S t a t e h

delay. According ly, the law presum es release as the remed y for the State's

requested de lay.

9. At this stage the ev identiary hurdle for continued detention is m ore than the

preponderance or probable caus e standard that previously applied. Instead, the

standard is one of compulsion, which has been likened to"proof as evident or the

presumption great that a defendant indeed committed the crime of murder."

People v. Wells 279 III.App.3d 564, 654 N.E. 2d 660 (5 th Dist 1996). This is a far

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higher burden.

10. The only evidence the State offered in support of detention was the trial courts

hearsay ruling, which embraced a far lower burden of preponderance, similar to the

low standard for an indictment. If that were all that was required, no-one would

ever be released.

11. The State made no attempt to offer other evidence, and the Court did not cite any.

Rather, like the State, the Court relied on the earlier ruling. (Transcript, pg. 27).

12. The presumption is that Drew should be released, and the burden is upon the

prosecution to overcome that presumption. People v. W ells, 279 III.App.3d 5 64,567

(1996 ) ("Gene rally, it/s anticipated th at defend ant's will enjoy comp lete freedo m

during a delay occasioned by interlocutory app eal.")

13 . There is no evidence that Drew would be a danger to himself or others if released.

Regardless of whatever the general perception may be, or any gut feelings

regarding his past activities may be, the fact remains that at best there has never

been more than a mere finding of probable cause. This is, at this point, a case

without any physical evidence tying the Defendant to this crime, and without any

confession. It is instead premised solely upon hearsay statements, not init ially

recounted until years after Ms. Savio-Peterson's death, and exhumation autopsies,

which reached different conclusions than the original.

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14. This case is based upon questionable forensics. The death of the alleged victim was

originally found to be accidental by the Will County and other investigating

authorities (in fact the death of Kathleen Savio is still listed as an accidental death).

The allegation that the death of Kathleen Savio is a homicide is the result of a

second autopsy being conducted four (4) years after burial on a corpse that was

described by a private pathologist who witnessed the autopsy as being badly

deteriorated, decomposed, and damaged by water. Defense has well credentialed

experts who disagree.

15. De fendant D rew Pe terson is 56 years old and is a l ife long resident of I ll inois . He h as

no history of any criminal convictions. He has lived in Bolingbrook, Will County,

Illinois since 1977, and before that lived in Lombard, Illinois.

16. A veteran, having served in the United States Army from 1974 to 1976, Drew was

based in Washington D.C., and served in the Military Police unit out of Arlington,

VA. Part of his duties was to provide security for dignitaries, including the President

of the United States. On occasion, Mr. Peterson provided security for President

Gerald Ford. Mr. Peterson was granted an Honorable Discharge from the U.S. Army

in 1976.

17. Since 1977, Drew has lived in Bolingbrook, Will County, Illinois. His current

residence is 6 Pheasant Chase Circle, Bolingbrook, Illinois.

18. Drew has extensive family contacts in the Will County, and Northern, Illinois area,

and has no family outside of Northern, Illinois.

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19. Drew's six (6) children, (1) grandchild, and four (4) nieces and nephews, all live in

Northern, Illinois. There are Lacy, age 5, Anthony, age 6, Kristopher, age 15, and

Thomas, age 17 who live at his Bolingbrook address. Then there is his son Stephen

Peterson, age 30, who lives in Oak Brook, Illinois, with his wife and child (who is

Defendant Peterson's grandchild). Drew's oldest son, Eric, is 31. Drew's mother,

Betty, is 86 years old and lives in Westmont, Illinois. His sister Laura, lives in

Naperville, Illinois, and his brother, Paul, lives in Montgomery, Illinois, with his wife

and four (4) children (the Defendant's nieces and nephews).

20. Drew owns real estate, a single-family residence at 6 Pheasant Chase Court,

Bolingbrook, Will County, Illinois. The residence is paid for, and is not the subject of

any mortgages, other than a line of credit on which no money is owed. Drew does

not own any other real estate. Drew has owned homes in Will County, Illinois for

the past twenty-five (25) years.

21. Drew is currently retired, and his only source of income is his pension from the

Bolingbrook Police Department, which is approximately $6,000.00 per month. He

has no substantial savings or investment accounts.

22 . Drew worked in Will County, Illinois since 1977 as a law enforcement officer. He

was hired by the Bolingbrook Police Department in 1977, and became a Sergeant in

1997. He was police officer of the year in 1979, and received numerous

departmental commendations for his work over the years. Further, in the 1980's,

for a five (5) year period, Mr. Peterson was assigned to the Metropolitan Area

Narcotics Squad (MANS), where he put his life on the line on a daily basis as an

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undercover narcotics officer. In 1981, Mr. Peterson received a department

commendation for his drug arrests. Also during this period, he worked with the

Federal Drug Enforcement Agency on dangerous undercover operations.

23. As stated above, Drew is not a flight risk. He was the publicly announced subject of

an investigation into the death of Kathleen Savio, the alleged victim in the above-

referenced indictment for eighteen (18) months. Drew, and most of the public,

knew that the Will County State's Attorney's office expected to bring charges.

During this period, Drew traveled to Los Angeles, California (approximately 100

miles from Mexico), New York, which borders with Canada, and Florida (from which

several Caribbean, and Central American, non-extradition countries can be reached

by boat or plane).

24 . Drew is a U.S. Citizen, and is not a citizen of any other country. His U.S. Passport is

in the custody of the Illinois State Police, having been taken when he was arrested.

He does not want it back until after this case is resolved.

25. Drew should be released.

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W H E R E F O R E ,for all of the foregoing reasons, Defendant requests that this Court order he

be released during the pendency of any State appeal, and for such further and other relief as this

Court deem just.

Respectfully submitted,Drew Pe te r son,Defendant

By:ne of His Attorneys

A F F I D AV I T

I, StevenA.Greenberg,certify under penalties of perjury that the statements set forth inthe foregoing Motion for Release of the Defendant from Jail During the State's Appeals are trueand correct except as to matters therein stated to be on information and belief and as to suchmatters the undersigned certifies as aforesaid that he verily believes the same to be true.

Steven A. Greenberg

Signed and Sworn to before methis day of July, 2010

Notary Public

StevenA.GreenbergStevenA .Greenberg, Ltd.At torney for Defendant-Appel lee820W. Jackson, Sui te 310Chicago, Illinois 60607

J o s e p h R . L o p e zAttorney for Defendant-Appel lee53 W .Jackso n Boulevard, Suite 1122Chicago, Illinois60603(312) 922-2001

J o e lA.BrodskyAttorney forDefendant-Appellee8 S .M ichigan Avenue, Sui te 3200Ch icago, Illinois(312) 701-3000 60603

Ralph MeczykDarryl GoldbergAttorneys for Defendant-Appel lee111 W. WashingtonStreet, Su ite 1025Ch icago, I l l inois 60602(312) 332-2853

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Motion for Release - Drew Peterson - Justice Café -