Drew Peterson: Guilty as charged. Actually getting a jury to say so is just a technicality...

Drew Peterson is this week on trial for murder in the state of Illinois. But the trial feels like a mere formality, because he was convicted in the court of public opinion so very long ago.

Peterson is a retired cop who became a household name in 2007 when his fourth wife (a woman less than half his age and seemingly out of his league in the looks department) disappeared without a trace, leaving her two young children behind. As Stacy's disappearance became the missing white woman story of the month, a picture began to emerge of Peterson. A very ugly picture. He was cruel, abusive, controlling. Threatening. Stacy had been frightened for her life, had been planning to leave him, had been terrified about what and happened to wife #3.

Peterson's third wife, Kathleen, had died three years earlier, after the two had been embroiled in a bitter divorce, complete with custody battle. Kathleen's death had been ruled an accidental drowning and the case closed. Until Stacy disappeared and the idea took hold that Stacy had been killed by her husband because she knew too much about what had really happened to Kathleen.

The investigation into Stacy's disappearance became an investigation into Kathleen's death. Her body was exhumed, the initial autopsy reports reconsidered. The original police investigation was called into question with hints that the blue wall had helped Peterson get away with murder. He had been at her house when Kathleen's body was found, but had sent his companion upstairs to look while he searched the downstairs. Had he done this knowing what the companion would find upstairs? How had Kathleen drowned in a dry bathtub? Had she really been dead so long that all of the water could have drained away?

Sure enough, the new investigation concluded that Kathleen's death had not been an accidental drowning, but had been a homicide and Drew Peterson was charged in her murder. By this time, years had passed since his story had first reached the national stage. Hundreds of news stories had been published, complete with pictures of Peterson and his new girlfriend (was she even younger than Stacy?) and tales of his menacing behavior over decades. Generally, websites choose which pictures to use based on which picture best fits their narrative, so as the stories focused on Peterson's deplorable behavior toward the women in his life, his threats and intimidation, his near-certain involvement in the deaths of two of his wives, the pictures of him fit that narrative. He was often described as looking smug, arrogant, mean, murderous.

And then there was the tv movie. The movie was made long before a jury was ever selected to hear the actual, legal evidence against him in a court of law. I haven't actually seen that movie, but it's my understanding that Rob Lowe did not portray Peterson as a misunderstood, giant cuddly teddy bear of a guy.

One other twist that may have gone unnoticed by a lot of people is that the Illinois legislature actually passed a new statutory rule of evidence because of Peterson's case. (Most rules of evidence are statutory.) The prosecution had long had witness statements from people close to Stacy who reported she had told them Peterson had admitted to killing Kathleen. In 2004, the United States Supreme Court issued a landmark new ruling on the Confrontation Clause and lower courts are still now addressing the limits and ramifications of that ruling. One key area of debate was the continued viability of a doctrine called forfeiture by wrongdoing. Simply put, the idea is that a defendant cannot complain about his inability to cross-examine a witness if he himself is the reason that witness is unavailable. The Illinois legislature passed a statute on forfeiture by wrongdoing because of the Peterson case.

So after all that, after years of Nancy Grace coverage and tabloid stories and a tv movie and a new statute, this week, the state of Illinois finally proceeded with opening statements in the case of the State v. Drew Peterson. Web commenters from all over seem to think its a foregone conclusion that he is guilty. This trial is a formality, and one that, frankly, a lot of people think we should dispense with. I mean, after all, the guy is so obviously a murderer. Why, just look at his pictures!

What has become apparent through the first days of trial, sadly, is that the prosecutors also view this trial as nothing but a show with a foregone conclusion. Already, they have committed two egregious instances of misconduct. In opening statement, the time when the prosecution is supposed to lay out for the jury what the evidence will be, the prosecutor told the jury that Peterson had offered someone $25,000 to murder his wife. But that hearsay evidence is not admissible at trial, so the prosecution should never have mentioned it. The prosecution either knew or should have known that this allegation would not be allowed in front of the jury, but they mentioned it anyway.

The prosecution also didn't care that they weren't supposed to mention a neighbor's allegation that Peterson had shot a bullet into his driveway to scare him. The neighbor hadn't seen Peterson do this. Just found the bullet in his driveway and believed Peterson had been behind it. Well, that doesn't meet any standards for admissible evidence, either. But they mentioned it anyway.

On Thursday, the judge overseeing this trial refused to grant a mistrial. Instead, the judge will admonish the jury to disregard the two giant elephants the prosecution trotted out in front of them. And he will sternly wag his finger at the prosecutors. The trial will go on and jurors being human will not be able to put those elephants out of their minds and Peterson will be convicted and the prosecutors will face no consequences and the conviction will be upheld on appeal because appellate courts operate in a fantasy land where jurors always follow their instructions, no matter how often they tell us they don't or how physically impossible it is to do so. Sure, jurors who are now weighing whether this man has committed murder, just put these two specific but utterly unsupported allegations of him threatening people out of your mind as you judge his guilt or innocence. 'Cause that'll happen.

What I find so utterly disheartening about this is that not even the prosecution or the district court judge really care about making sure this man, who everyone decided was guilty 5 years ago, actually receives a fair trial. A proper consideration of the substantive evidence. Nope. Based on the prosecution's blithely introducing allegations it knows aren't admissible and the district court's wagging a finger while turning a blind eye to that misconduct, it's clear they're only interested in providing a show trial.