Local News

Next Peterson trial likely to be far different from first

Posted December 16, 2011

— 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.

Mike Peterson trial image Fewer bombshells expected in Mike Peterson's retrial

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.

40 Comments

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  • itsmyownopinion Dec 16, 7:56 p.m.

    "Really? Three times and they are still alive? I hope if there is another trial your not on it!"
    annforeveryoung

    You must be an owl, you certainly attack, and for what, because I offered a helpful answer. If you're on it, I hope you have learned the distinct difference between your and you're.

  • bgcoving Dec 16, 7:53 p.m.

    Annforeveryoung, I'm glad someone else out there sees it too. I don't know what is worse, the fact that prosecutors deliberately misbehave to the detriment of the system or the fact that people I read on this forum expect them too, and are willing to tolerate it to satisfy their blood lust and to balm their lack of understanding of what this does to our freedom. What's even worse is when the prosecutors get caught, and something like this happens, whether it's anew trial or an exoneration, the people out here still castigate the defendants as guilty and blame the defense attorneys for understanding and respecting the judicial system more than they do. It's a sad situation.

  • annforeveryoung Dec 16, 7:46 p.m.

    I don't have an exact count, but there have been some. Two men say an owl has attacked them three times outside their Apex office. And they have video to back up their claims.

    Really? Three times and they are still alive? I hope if there is another trial your not on it!

  • itsmyownopinion Dec 16, 7:40 p.m.

    "Are you so narrow minded that you might believe the steps were swept clean of any debris? How many other raptor attacks have been reported in that area?"
    twc

    I don't have an exact count, but there have been some. Two men say an owl has attacked them three times outside their Apex office. And they have video to back up their claims.

    www.wral.com/news/local/story/2357513/

  • annforeveryoung Dec 16, 7:35 p.m.

    bgcoving; The NC defense attorney's association has been fighting for years over the fact that prosecutors routinely withhold exculpatory evidence, coach witnesses, and otherwise circumvent defendant's rights as a matter of practice, if not policy. In a case like this misconduct isn't even an assumption, it's a given.) I have worked in law enforcement for years.. and unfortunately I have to agree with you.. It's a sad but true. However; having said that I only incurred this behavior in Durham NC. I'm sure it's all over and I'm glad I'm retired from it all and wasn't exposed to more of it in my career. My heart goes out to all of those just venturing into the world of local city government careers.

  • bgcoving Dec 16, 7:29 p.m.

    Are you so narrow minded that you might believe the steps were swept clean of any debris? How many other raptor attacks have been reported in that area? -- twc

    Two men were attacked by a juvenile barred owl approximately 18 months ago in Apex. One of them was hit pretty hard and said he felt like he'd been hit with a baseball bat. Maybe you don't remember but a couple of springs ago, a mockingbird terrorized pedestrians on Jones St. right out in front of the legislature and sent one person to the ER with cuts. THAT was just an 8-oz songbird.

    My mind is quite open, particularly when the prosecution claims that a hollow brass blowpoke that would have folded like a soggy ramen noodle inflicted fatal injuries, especially when said blowpoke was found and obviously NOT the murder weapon. I remember you, everyone is guilty, right? Talk about one being born every minute....

  • westernwake1 Dec 16, 7:27 p.m.

    "I think you gave me a clue I had overlooked. I recall there were some leaves stuck to her hair. She was attacked by a tree. I saw something similar in a cartoon once." - twc

    So it was Professor Tree in the Yard with a Stick.

    // This game has endless possbilities.

  • twc Dec 16, 7:21 p.m.

    bgcoving, I think you gave me a clue I had overlooked. I recall there were some leaves stuck to her hair. She was attacked by a tree. I saw something similar in a cartoon once.

  • bgcoving Dec 16, 7:21 p.m.

    There were no feathers at the crimescene. Mike Nifong had very little input if any on the first trial.. It was Jim Hardin and Freda Black that ran that horse and pony show..--annforeveryoung

    There were, apparently, down feathers (tertiaries)in a hank of bloody hair that was sent to the SBI lab, and of course, disclosed to the defense after the trial was over. Someone (I don't know who) has said they were consistent with owl feathers. I for one would like to see them tested, if for no other reason than to discount the hypothesis (testing the null hypothesis). As for whether or not it was Nifong, Black or Hardin running the show is irrelevant. The NC defense attorney's association has been fighting for years over the fact that prosecutors routinely withhold exculpatory evidence, coach witnesses, and otherwise circumvent defendant's rights as a matter of practice, if not policy. In a case like this misconduct isn't even an assumption, it's a given.

  • twc Dec 16, 7:18 p.m.

    "Owl feathers are usually found attached to owls, which are in fact raptors. If you step on one, it's on your shoe. If you fall on one, it might be stuck to your clothing. If the owl feather is in a hank of bloody hair found in the hand of a dead woman with gouges in her skull and no associated skull fracturing or brain tissue trauma associated with blunt force injury, it begs the question of how the dead woman's hair came into contact with the feathers of a raptor. Your argument is invalid."
    bgcoving

    In spite of the made-up story, the feathers could very well have made contact with the hair, the blood, or anything else it came in contact with.

    Are you so narrow minded that you might believe the steps were swept clean of any debris? How many other raptor attacks have been reported in that area?

    The only owl involved in that murder is the one who is trying to hoodwink the people. Wise, maybe, but not smart.

    But, like they say, there is one born every minute!

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