Durham, N.C. — Mike Peterson retrial likely won't include the drama of his highly publicized 2003 murder trial, legal experts said Friday.
A novelist and one-time Durham mayoral candidate, Peterson was granted a new trial Wednesday when Superior Court Judge Orlando Hudson ruled that a key prosecution witness in his trial eight years ago gave false and misleading testimony, depriving him of his right to a fair trial.
Peterson was released Thursday on a $300,000 bond and is under electronic monitoring at a friend's home in the Colony Park neighborhood of Durham, where he will remain until his new trial.
He was convicted of first-degree murder in the Dec. 9, 2001, death of his wife. Kathleen Peterson, a Nortel Networks executive, was found dead in a pool of blood at the bottom of a staircase in the couple's Durham mansion.
The 13-week trial included bombshells involving a male escort and a suspicious death in Germany, but Duke University law professor Tom Metzloff predicts that a retrial will be far tamer.
"You can't do the surprise plays, like you might in a big football game, again. The other team is expecting it and knowing it, so it will be a different trial," said Metzloff, who said he followed the 2003 trial closely.
"I think some of those peripheral issues – the sexuality question, the Germany issue – some of that is not going to come in (as evidence) this time," he said.
For example, the North Carolina Supreme Court ruled in 2007 that a search warrant that led to the discovery of emails between Mike Peterson and a male escort was "woefully inadequate" because investigators didn't present any probable cause to search Peterson's computers.
Prosecutors used the emails and testimony from the escort to suggest the Petersons' marriage was troubled and provide a possible motive for murder.
Although the court ruled at the time that invalidating the search warrant wasn't enough to overturn Peterson's conviction, it would preclude all testimony about the escort and any other evidence taken from the computers to be introduced in a new trial.
Prosecutors also were able to present evidence in the 2003 trial about the 1985 death of Elizabeth Ratliff. A family friend of Mike Peterson, Ratliff was found dead at the bottom of a staircase at her home in Germany, and a neighbor said she saw Peterson leaving the area about the same time.
Authorities had Ratliff's body exhumed in 2003, and a medical examiner said she had the same type of injuries found on Kathleen Peterson.
Defense attorney David Rudolf repeatedly objected to jurors hearing about Ratliff's death, saying it wasn't relevant to the case.
Rudolf, who also represented Mike Peterson during the week-long hearing to win a new trial, said Wednesday that much of the blood evidence from the first trial also would be suspect in a retrial.
In his request for a new trial, Peterson argued that former State Bureau of Investigation analyst Duane Deaver misled jurors about blood evidence found in the Peterson home.
Rudolf relentlessly attacked Deaver's credibility during the hearing. An SBI official testified that Deaver was known to be biased in favor of prosecutors, and blood evidence experts said the tests he conducted in the Peterson case were flawed.
The SBI fired Deaver last January.
"Nothing that happened at the scene once he got there can be trusted, and that severely limits what kind of evidence any blood-stain pattern analyst by either side can say at the next trial,” Rudolf said.
The evidence jurors saw during a visit to the Peterson home also wouldn't be available in a retrial because the house has been sold.
"There still is a case here, and there are still are defenses here," Metzloff said.
He said prosecutors would likely build a new case around Dr. Deborah Radisch, the chief medical examiner for North Carolina. She performed the autopsy on Kathleen Peterson and testified in 2003 that she thought the death was a homicide.
"The No. 1 witness that the prosecution had is still available, and that's the medical examiner," Metzloff said. "I think her testimony was the most significant to the jury."
Interviews with jurors after the 2003 trial indicate that they relied heavily on evidence from Radisch in reaching a guilty verdict.
WRAL News tried to contact jurors this week after Peterson was granted a new trial. Some couldn't be reached, and others declined to comment.
Prosecutors were never able to produce a murder weapon in the first trial, but they suggested it was a fireplace blowpoke.
"I would think, perhaps, the prosecutor wouldn't even talk about the blowpoke (in a retrial) because they don't have it and they saw that that almost came to backfire in the prosecution (of the first trial)," Metzloff said.
Peterson said in an interview several years ago that he regretted not testifying in his defense, so he might take the witness stand in a retrial.
In addition to the evidence and testimony, the cast of characters would be different in a second Peterson trial.
Former Durham County District Attorney Jim Hardin is now a judge, and assistant prosecutor Freda Black is in private practice. Current District Attorney Tracey Cline has said she would ask the North Carolina Attorney General's Office to handle the prosecution.
Hudson, who presided over the 2003 trial, has said that he plans to ask the state Administrative Office of the Courts to appoint another judge for the retrial. Rudolf said he hasn't decided whether he plans to continue representing Peterson.
Before any retrial, however, Hudson's decision to grant a new trial has to go through the appeals process. Metzloff said he thinks the ruling won't be overturned.
"It's unlikely. Judge Hudson had been there during the original trial, and he's probably the best one able to determine the significance of Mr. Deaver's testimony, and the appellate courts normally defer to the trial judge, who kind of knows the witnesses and the significance."
Kerry Sutton, a member of Peterson's defense team, suggested Thursday that there might not be another trial.
"I believe we might be able to come to some sort of a resolution that is something short of a trial and put an end to this," Sutton said, declining to elaborate whether a plea deal could be negotiated.