Durham, N.C. — Attorneys for Durham novelist and one-time mayoral candidate Mike Peterson argue in new court documents that state attorneys are less than forthright in their appeal of a judge's order granting him a new trial.
The Attorney General's Office filed a writ of certiorari in December, asking the North Carolina Court of Appeals to review Superior Court Judge Orlando Hudson's December 2011 decision to set aside Peterson's murder conviction, noting that a reversal would preclude the time and expense of a new trial.
In their response, which was filed Tuesday, Peterson's attorneys said any appeal could be based on saving money. Rather, they said, prosecutors are simply trying to avoid a new trial because they have a weak case.
"The state’s argument that it should be relieved of the expense and burden of a retrial through this appeal is belied by its argument in the appeal that its evidence is 'overwhelming,'” the motion states. "The fact is that the state wishes to avoid a retrial not because of the expense, but because of the reality that its case is far less strong without Agent Deaver’s 'scientific' opinions to bolster its theories."
Former State Bureau of Investigation blood analyst Duane Deaver was a key prosecution witness in Peterson's 2003 trial. Hudson ruled that he misled jurors about his expertise and used questionable tests on evidence found in the Peterson home after Kathleen Peterson's Dec. 9, 2001, death.
Deaver was fired by the SBI two years ago amid an independent review of suspect practices at the state crime lab.
Defense attorneys said state law precludes an appeal of Hudson's ruling because it was based solely on violations of Peterson's constitutional right to a fair trial. The state could appeal if it was based on newly discovered evidence, they said.
If the Court of Appeals decides to hear the case, it likely would be argued in June or July and a ruling made by the fall.
If the appeal is denied, Durham County District Attorney Leon Stanback would have to decide whether to retry Peterson, dismiss the case or try to reach a plea agreement.
After eight years in prison, Peterson has spent the last year under house arrest in Durham while awaiting his retrial.