Lawyers for accused wife-killer Drew Peterson are asking for a mistrial for the third time in only nine days—and a goof by the same prosecutor has prompted the judge to go home early and figure out whether the case can go on.
"It was my fault," said Assistant State's Attorney . "I don't know why I asked that question. There's no excuse."
Patton asked retired Bolingbrook police Lt. Teresa Kernc—who is now the mayor of Diamond—whether she advised Peterson's third wife Kathleen Savio to seek an order of protection against her estranged husband.
Less than two hours earlier, before taking a midday recess, Judge instructed prosecutors not to ask questions about the protective order, which Savio did not choose to pursue.
"I was absolutely specific," the judge said.
"You interjected 'order of protection' into the case when I specifically said not to do that," Burmila said. "There was only one thing I told you not to go into and that's exactly what you went into."
On just the second day of the trial, Patton caused Burmila to call a halt to the proceedings and go home for the day so he could ponder whether or not to call a mistrial. On that occassion, Patton asked witness Thomas Pontarelli, who lived next-door to Savio, about Peterson supposedly trying to intimidate him by placing a .38-caliber bullet nose-up in his driveway.
After Patton elicited testimony about the bullet from Pontarelli, defense attorney leaped to his feet and demanded a mistrial. Greenberg pointed out that Peterson has denied placing the bullet in Pontarelli's driveway and said there was no way prosecutors could prove he put it there.
Burmila ended up merely instructing the jury to disregard the last part of Pontarelli's testimony.
This time, Greenberg again asked Burmila to declare a mistrial with prejudice against the prosecution so that Peterson cannot be tried again.
"I don't know how we can wipe this from the jurors' minds," Greenberg said as he accused prosecutors of repeatedly "trying to get in this prejudicial innuendo."
"And we're supposed to be the slimy defense lawyers," Greenberg said.
Greenberg's co-counsel argued that Peterson can no longer get a fair trial and Burmila needs to kill the case—but only in such a way that prevents prosecutors from bringing the murder charges against Peterson again.
"So you only want the mistrial that you want?" said Burmila, who later added, "You only partially want a mistrial?"
That seemed to be what Brodsky was thinking, as he said Peterson "Does not wish to start again."
If the judge declined to clear the way for Peterson to leave jail a free man, Brodsky said he wanted Burmila to strike Kernc's entire testimony and tell the jury that prosecutors have purposely violated the judge's instructions due to the weakness of their case.
Burmila did not embrace the idea of "directing (the jury) to find the defendant not guilty given the shenanigans of the prosecution."
If he allows the trial to continue, Burmila might simply instruct the jury to disregard Patton's question.
Before her misstep brought the trial to another screeching stop, Patton was questioning Kernc about what she said Savio told her about Peterson supposedly breaking into her home in July 2002 and menacing her at knifepoint.
Peterson—clad in his black SWAT uniform—was wearing black gloves and armed with a knife when he ambushed Savio, knocking her down on her stairs and pushing her down again when she tried to get up, Kernc said Savio told her.
Savio said Peterson called her a "mean b---h" for refusing to speak to him, Kernc said, and he then kept her there on the stairs for the next three hours as he shared his feelings and blamed her for their failing marriage.
Savio eventually told Peterson to "go on, do what you came to do," Kernc said, and he asked her "Where do you want it?"
Kernc said Savio told her she asked Peterson to put the death blow in her head.
Peterson brandished his knife and ordered Savio to turn her head, but then said, "I can't hurt you," according to Kernc.
"I was afraid to do anything," Kernc said Savio told her.
Peterson then "threw down (Savio's) garage door opener and removed the earpiece from his ear and he quickly left the residence," Kernc said Savio told her.
Savio did not call the police until nearly two weeks after the alleged incident.
"She thought the defendant was too unstable and he told her if she did in fact report it he would deny what she said," Kernc said.
Burmila will decide how to handle Patton's error Wednesday morning.