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Motions seek to keep sensational evidence out of Mike Peterson's retrial

Posted December 2, 2016

Mike Peterson listens to legal arguments during a Nov. 14, 2016, hearing as to whether a murder charge against him in his wife's December 2001 death should be dismissed.

— A day after returning to Mike Peterson's defense team, Charlotte attorney David Rudolf filed motions Friday seeking to keep some of the most sensational testimony from Peterson's original murder trial out of his retrial next year.

Peterson was found guilty in 2003 after one of the longest trials in North Carolina history of killing Kathleen Peterson on Dec. 9, 2001, but the conviction was overturned eight years later when Superior Court Judge Orlando Hudson ruled that a key prosecution witness, former State Crime Lab blood analyst Duane Deaver, had lied on the stand.

Peterson, a 73-year-old Durham novelist and one-time mayoral candidate, has always maintained his innocence, arguing that his wife died after falling down a staircase.

During the initial trial, prosecutors introduced evidence that Mike Peterson was fascinated by gay pornography and had swapped emails with a male escort to suggest a motive for Kathleen Peterson's death – that Mike Peterson was angry she had discovered his bisexual proclivities. Prosecutors also exhumed the body of Elizabeth Ratliff, a Peterson acquaintance from the 1980s who, like Kathleen Peterson, had been found dead at the bottom of a staircase, to suggest that he had carried out a similar crime in the past.

One of Rudolf's motions said all of that evidence would be far too prejudicial in the retrial. It would take on greater weight since much of the other prosecution evidence from the original trial, including Deaver's blood spatter analysis, cannot be used again because it is tainted, according to the motion.

"The primary issue at the retrial will be the cause of Kathleen Peterson's death. The state will need to prove, beyond a reasonable doubt, that her death was due to a beating and that Michael Peterson was the person responsible. Evidence of his bisexuality and of Elizabeth Ratliff's death in Germany 15 years before Kathleen Peterson died are of marginal relevance to those two issues," the motion states. "The danger of unfair prejudice, of confusing the issues and of misleading the jury with such evidence is extraordinarily high."

The second motion seeks a pretrial hearing to rule on the admissibility of evidence taken from the Peterson mansion three days after Kathleen Peterson's death.

Police had already searched the home twice when a third search warrant was issued, and the state Supreme Court later ruled that that third warrant was unconstitutional since no adequate reason for an additional search was provided. During that third search, police seized computers from the home, which included emails and gay pornography that prosecutors later used to support their theory that Mike Peterson killed his wife over financial concerns and his anger that she had discovered his bisexuality.

"In short, the direct evidence seized pursuant to the unconstitutional December 12 warrant went to virtually every aspect of the state's case," the motion states. "But in addition to this direct evidence, the evidence seized as a result of the December 12 search, just two days into the investigation, undoubtedly affected how the investigation was conducted thereafter, and therefore tainted other evidence as a result, including the testimony of a number of witnesses on related matters."

Rudolf said the pretrial hearing would determine whether investigators were able to obtain any evidence the prosecution plans to use in the retrial independent of the illegal search. Any evidence that wasn't obtained independently would need to be excluded from the retrial, according to the motion.

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