Can wife's words be part of Peterson case?

The U.S. Supreme Court doesn't look kindly on challenges to the Sixth Amendment. And that may not bode well for prosecutors looking to admit hearsay evidence against Drew Peterson, charged with murdering his third wife, Kathleen Savio.

The Sixth Amendment granting defendants the right to confront witnesses against them makes hearsay evidence inadmissible under most rules of evidence because the witnesses haven't been sworn nor cross-examined. Last year, however, Illinois legislators passed a law that allows a judge to admit hearsay evidence in first-degree murder cases if prosecutors can prove the defendant killed a witness to prevent him or her from testifying.

Essentially, the law allows a victim to testify from the grave, said Will County State's Attorney James Glasgow. To that end, Glasgow intends to introduce an order of protection Savio filed against Peterson in 2002 in which she expressed fears that her soon-to-be-ex-husband would try to kill her.

"He wants me dead, and if he has to he will burn the house down just to shut me up," she wrote.

Peterson's attorney, Joel Brodsky, said he will oppose in court any attempts by prosecutors to use Savio's statements about Peterson. Any attempts to introduce those statements will face a constitutional challenge, he said.

Local experts expect that will happen.

"There is a right to confront one's accuser and this may run afoul to that constitutionally protected right," said Woodstock research attorney Thomas Cynor. "It's about as absolute a right as it gets, though there are exceptions."

The challenge for prosecutors is that the Supreme Court has not looked kindly upon statutes promoting exceptions to the hearsay rule, said Marilyn Hite Ross, Winnebago County's deputy state's attorney and a constitutional law professor at Wisconsin's Concordia University.

The key to any challenge is whether the new rules comply with the Supreme Court's 2004 ruling in Crawford v. Washington, said Thomas Lilien, an attorney with Elgin's Second District Appellate Defender's Office. That decision barred most out-of-court statements unless the defendant has a chance to cross-examine the person making those statements, Lilien said.

"It might not survive a constitutional challenge based on Crawford," said Hite Ross. "There might be some serious issues with the statute."

Yet David Erickson, a former appellate court judge who teaches at Chicago-Kent College of Law, says he thinks the law will stand up and said at least 12 other states have passed similar statutes.

He also said the Illinois law and those of other states came in response to a U.S. Supreme Court decision that found the right of a defendant to confront his accusers has a key exception: if the defendant acted with the intent to prevent that person from testifying.

"Think of mob cases where they kill guys to keep them from testifying," he said.

State Rep. Jim Durkin, a Republican from Western Springs, said the concept isn't controversial, but the Peterson case helped the legislation pass quickly with hardly any opposition. "It became noteworthy because the Drew Peterson situation was starting to pick up some steam," said Durkin, one of the sponsors of the law.

On Friday, the 55-year-old Peterson appeared in court, a day after he was arrested and charged with killing Savio, who was found dead in a dry bathtub in 2004 with a gash on the back of her head.

Wearing a red jumpsuit, Peterson displaced his characteristic humor before entering court in handcuffs. "Three squares a day and this spiffy outfit. Look at all this bling."

A judge postponed his arraignment until May 18 because no Peterson attorneys were present at the hearing.

A former Bolingbrook police officer, Peterson, 55, has not been charged in the 2007 disappearance of this fourth wife, 23-year-old Stacy Peterson.

• Daily Herald news services contributed to this report.