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Drew Peterson Sentenced

AP has this story on the sentencing of Drew Peterson for killing his third wife. He got 38 years -- to age 97 -- which should be sufficient.

One ground for appeal will be Illinois' revised hearsay law:

The hearsay -- any information reported by a witness not based on the witness' direct knowledge -- included a friend testifying that Savio [the victim in this case] told her Peterson once put a knife to her throat and warned her, "I could kill you and make it look like an accident."
This is one case where the Supreme Court's revamp of the Confrontation Clause may help the prosecution.  It would have been easier to argue that this hearsay is unreliable and not within any recognized exception under the old Ohio v. Roberts doctrine.  Arguing that it is "testimonial" under the current Crawford v. Washington rule is a tougher argument.

And of course there is always the ineffective assistance claim.  Defense counsel called a witness who ended up hurting his case.

A turning point at the trial came when the defense called a divorce attorney who said he spoke to [wife #4] Stacy Peterson before she vanished. Rather than blunting her credibility, the witness stressed to jurors that Stacy Peterson seemed to truly believe her husband killed Savio.

This is a case where the ineffectiveness claim can be resolved on direct appeal.

Earlier Thursday, Judge Edward Burmila denied a defense request to grant Drew Peterson a retrial. Peterson's current attorneys contended his former lead attorney, Joel Brodsky, botched the initial trial and had been the one to decide to call Smith to the stand. Brodsky stepped down from the defense team in November, as his quarrel with Peterson's current lawyers worsened.


A hypothetical ineffective rep claim should be denied. If ineffective rep gets probative evidence in front of the jury, then that has no impact on the fair trial right of the jury. Whoops, that obvious point is undone by Frye and Lafler.

We should change "reasonable probability of a different result" to "reasonable probability of an unjust result"?

There are a few exceptions to the "reasonable probability" standard in that direction already. "I could have gotten off by committing perjury, but my lawyer wouldn't let me" doesn't fly.

Unfortunately, as good as it sounds, changing the basic rule is probably not realistic in the foreseeable future, and, yes, Cooper/Frye was a huge disappointment along these lines.

If I were the prosecutors in that hypo, I would argue that on the next go-round, the evidence is going to be there anyway, and since there is no legal basis to distinguish between the first jury and the hypothetical next jury, the appellate court should simply say that there is no remedy.

Frye/Cooper was a very very bad decision. The majority didn't bother to deal with the footnote in Cronic which should have foreclosed the criminals' claims.

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