Defense Drops Motion for Drew Peterson Mistrial

Judge denies request to toss hearsay testimony

By Charlie Wojciechowski, Lisa Balde and BJ Lutz
|  Wednesday, Aug 15, 2012  |  Updated 8:17 PM CDT
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Trial of accused murderer was in jeopardy after line of questioning from prosecutor. Kim Vatis reports.

Trial of accused murderer was in jeopardy after line of questioning from prosecutor. Kim Vatis reports.

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Drew Peterson's attorneys have withdrawn a motion for a mistrial following a prosecution blunder the day before. Attorney Joe Lopez told the judge Wednesday Peterson wants the current jury to decide his case.

"He does not want to forfeit his rights to this particular jury," Lopez said, asking that prosecutors strike the offending testimony and the judge bar further hearsay testimony.

In response to the overnight change of tune, Judge Edward Burmila questioned Peterson in court and asked him to confirm that he agrees with his attorneys.

"Yes, your honor," Peterson replied.

Burmila ultimately denied the request to bar hearsay testimony.

During his instructions to jurors, Burmila said the prosecution violated a court order by asking whether Kathleen Savio requested an order of protection. The judge told jurors Savio did not seek an order of protection involving an alleged incident between her and Peterson.

Tuesday's motion marked the third request for a mistrial in the case, which entered its third week. The defense previously demanded the case be thrown out with prejudice after prosecutor Kathleen Patton broached a prohibited subject during her questioning of Teresa Kernc, a former police department colleague of Peterson's.

"Did she tell you she wanted to get an order of protection?" Patton asked, referring to an alleged knife-point argument between Peterson and Savio that the judge had barred from testimony.

"There was one thing I told you not to go into and that's exactly what you did," Burmila said.

Patton, visibly shaken, apologized to the judge, explaining the question mentioning the order was on a prepared list that she began reading inadvertently. Though Patton asked that she, alone, be held accountable for the blunder, Tuesday's court was adjourned overnight ahead of a decision.

"It's almost impossible to get a fair trial from this jury at this point," Attorney Steve Greenberg said Wednesday before court.

A ruling of mistrial without prejudice would have allowed prosecutors to re-try Peterson with a new jury. A mistrial with prejudice means the murder charges would have been dropped.

Two weeks ago, Burmila considered another motion for a mistrial after prosecutors asked a question the judge said they should not have asked. At the time, the judge said he thought Peterson could still get a fair trial.

Savio was found dead in a dry bathtub in her home in 2004. Her death was initially ruled accidental. Following the disappearance of Peterson's fourth wife, Stacy Peterson, Savio's body was exhumed and the death ruling amended to a homicide.

Drew Peterson denies he had anything to do with his fourth wife's disappearance, long maintaining that she left him for another man. He hasn't been charged with any crime involved in that case but does remain a suspect.

Any presumption that Stacy Peterson is dead was not allowed during this trial.

NBC Chicago has reporters in the Will County Courthouse for the trial. During proceedings, follow along with our Drew Peterson Trial Live Blog or follow gmarshall_jr on Twitter.

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