Thursday, February 21, 2013

Banging my head on the Drew Peterson wall

Drew Peterson is back in court and thus back in the news this week. His defense team has fractured and some of them are now arguing Peterson should get a new trial because the others royally screwed up. And throughout all the news coverage remains this crazy misperception that this case involves some novel hearsay issues.

Peterson's trial was the first in Illinois history where prosecutors built their case on hearsay, thanks to a new law tailored specifically for the case, dubbed "Drew's Law."

I'll give all the criminal attorneys a few minutes to stop laughing and wipe the tears from their eyes.

Are you good now? No? Ok, another minute.

That might just be the most outrageous, ridiculous, hyperbolic nonsense I have ever read in any article ever about any criminal law issue. Maybe I'm overstating it a bit. But not by much.

Apparently not everyone read my previous post on the Drew Peterson case and my efforts to educate the public about hearsay in general and this case in particular have failed. But, goodness, I would still expect any decent reporter or editor to grasp that no, this case is most definitely not the first time a prosecution in Illinois has built its case on hearsay. Quite the opposite, in fact. If any of you can point me to a single criminal trial that did not involve hearsay, I would be amazed. Hearsay comes in all the time. ALL. THE. TIME. I think it would be virtually impossible to have a trial without hearsay. Hearsay is  not some big, bad wolf of non-evidence that must be kept out of court at all costs. The vast majority of evidence, in fact, involves some form of hearsay. 'Cause hearsay is just a statement made outside of court, so every document in the world is hearsay.

It's making me crazy the way people continue to act as though this case is some rare outlier, raising novel issues. It isn't. Not even a little bit. But the lawyers involved and the journalists who quote them are allowing this wrong perception to be widely held, which just means that people are thinking there is some grave injustice here when there isn't. Believe me, if there were a terrible, novel, unjust application of law here, I would be the first one to say so. I would scream from the rooftops. I think I have established my ability to rant about injustice, including a lot of things that a lot of people would think were just minor, petty grievances. I have a special ability to rant about Confrontation Clause issues, which are my specialty.

It seems to me that the job of a journalist shouldn't be to take the word for it of the people involved in a situation. Especially when it is acknowledged that those involved parties have a vested interest in things being a certain way. But when things really aren't that way, it ought to be incumbent upon the journalists reporting on the story to point that out.

If a journalist would actually do that in Peterson's case, perhaps we could get away from the silly, and utterly false, claim that hearsay has never before been the basis of a trial in Illinois!

Or that Drew's Law was some radical change in the law! (It wasn't: it just codified a doctrine that had existed in common law forever. And the statute is actually more protective of a defendant than the doctrine.)

Or that Drew's Law was even the basis for admission of any of the hearsay statements that were admitted at his trial! (It wasn't! Applying the statute, the trial court found the statements were inadmissible, but the appellate court said the less protective common law doctrine should apply and thus the statements could come in at trial.)

But none of these facts are being reported. And they are facts, not just my opinion or interpretation. Too bad you'll never read any of it in a news article about the Drew Peterson case.

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