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Peterson attorney seeks new trial

Posted November 12, 2008
Updated December 3, 2008

— A Virginia attorney filed a motion Wednesday alleging prosecutorial and juror misconduct in the 2003 murder trial of Durham novelist Mike Peterson.

Attorney Jason Anthony, who practices in Richmond, Va., is seeking a new trial for Peterson, who was convicted of first-degree murder in the Dec. 9, 2001, death of his wife, Kathleen Peterson.

Kathleen Peterson was found dead in a pool of blood at the bottom of a staircase in the couple’s Forest Hills mansion. Mike Peterson has maintained his wife died in an accidental fall.

Mike Peterson, 65, is serving a life sentence at Nash Correctional Institution. Last November, the state Supreme Court upheld his conviction.

Anthony alleges in the motion that prosecutors withheld evidence of a tire iron during the murder trial, impairing the efforts of defense attorneys to argue that an intruder had killed Kathleen Peterson.

"This is the worst case of misconduct by the state that I have ever seen in my career," Anthony said. "Durham is going to have the same experience I think that it had before with the Duke case – here we are again."

Last year, state Attorney General Roy Cooper dismissed sexual assault charges against three former Duke University lacrosse players, saying there was no credible evidence to support the case. Former District Attorney Mike Nifong resigned and was disbarred because of his handling of the case.

"It has nothing to do with Duke lacrosse – nothing whatsoever," said David Saacks, who was appointed to replace Nifong as  district attorney.

Saacks also helped prosecute Mike Peterson.

"There was nothing intentional being withheld about any of this (in the Peterson case)," he said. "If there was an intentional withholding, obviously we wouldn't have given any kind of access to our files. We didn't have to do that."

The day after Kathleen Peterson’s death, William Larry Mitchell found a tire iron in his yard, which is a couple of blocks from the Petersons’ house. Mitchell didn’t know where the tire iron had come from, so he stored it under his house.

Police were searching the Peterson home at the time for a tire iron because one officer noted a bloody imprint in the stairwell looked like a tire iron, according to the motion.

Several months later, Mitchell realized the tire iron might be connected to the Peterson case and called police to tell them about it, according to the motion. Police didn’t send an investigator to talk with him about the discovery and take possession of the tire iron for more than a year, the motion states.

Prosecutors had the State Bureau of Investigation test the tire iron days after it was turned over to police, but they never shared the information with Mike Peterson’s former defense attorneys, according to the motion.

“The tire iron provides a key nexus between several other facts and items of evidence which support the ‘intruder’ theory,” the motion states. “Timely disclosure of the tire iron and other evidence supporting this theory would have made it possible for the defense to present a potent alternate theory of events that night, in addition to its primary theory. This would have made the burden on the state to prove their case against (Peterson) beyond a reasonable doubt a far more difficult obligation.”

Defense attorneys only learned of the tire iron this year – more than four years after Mike Peterson’s conviction – when Saacks gave them access to the prosecutors’ files in the case and they found notes about and pictures of the tire iron, the motion states.

“The state’s actions deprived the court and the jury of their right to consider all relevant evidence,” the motion states. “Had the jury had the opportunity to consider a defense which utilized the nature, date of discovery, location and significance of the tire iron, it is probable that a different verdict would have been reached.”

A murder weapon was never found in the case, and prosecutors alleged at trial that Mike Peterson killed his wife with a fireplace blow poke. Knowing about the tire iron would have allowed defense attorneys to challenge the 27 prosecution witnesses who testified about the blow-poke theory, the motion states.

The failure to notify defense attorneys about the tire iron also violated court orders for police and prosecutors to turn over all evidence in the case, according to the motion.

The motion also alleges that police botched the investigation by waiting more than a year to follow up on Mitchell’s call about finding the tire iron and to submit fingerprints found inside the Peterson house to the State Crime Lab for analysis.

Prosecutors also refused to test a blow poke provided by defense attorneys and were slow to turn over reports on tests on other evidence by the State Crime Lab, according to the motion.

“Within an hour of (Mike Peterson’s) 911 call on Dec. 9, 2001, the state decided that Mrs. Peterson had been murdered by her husband,” the motion states. “From this point on, the investigation was focused on proving the use of a particular weapon by Mr. Peterson, rather than being a wide-ranging investigation of other possible suspects or circumstances.”

Saacks said he wouldn't comment until any evidentiary hearing is held on Anthony's motion to try and recreate a time line of the Peterson investigation.

In addition to not turning over evidence to defense attorneys, the motion alleges that Mike Peterson’s right to a fair trial was violated because prosecutors used a questionable expert witness during the trial.

Saami Shaibani testified about blood spatters in the stairwell where Kathleen Peterson was found to support the prosecution’s case that she couldn’t have died from an accidental fall.

Jurors were later told to disregard his testimony because he lied on the witness stand about being a professor at Temple University.

The motion alleges that Shaibani also falsified other aspects of his background and that the judge should have done more than simply telling jurors to disregard his testimony. Some jurors questioned after the trial said Shaibani’s analysis of the case seemed plausible to them, according to the motion.

“Dr. Shaibani’s testimony was prejudicial because it synthesized all other expert testimony presented for the prosecution into a quasi-scientific matrix. Although lacking in any kind of scientific value, his experiments purported to be rigorous, impartial and the work of an expert. The conclusions he drew from them were plausible on the surface, and they were presented in an appealing and easily digestible manner to a jury exhausted by a string of scientists contradicting each other with dry arguments that were often incomprehensible,” the motion states.

Finally, the motion alleges that at least one juror decided during the trial to convict Mike Peterson for racial reasons. Prosecutors never investigated the allegation, despite learning of it in a letter a few weeks after the trial ended, according to the motion.

"I am not coming to Durham to make friends," Anthony said. "I've met with the Peterson family. I have seen his daughters cry."

36 Comments

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  • Dr. Dataclerk Nov 13, 2008

    Simply put, he do not like being in prison and will try anything to get out. Not going to happen. lol lol His sentence will stay. I give him credit for trying, though. Such determination. How is he paying his attorney?

  • maddie Nov 12, 2008

    Angora 2: you need to read the autopsy report for the correct information.

  • bs101fly Nov 12, 2008

    i thought he fell down some stairs and died.

  • Starling Nov 12, 2008

    I see a follow up to the movie "Staircase Murders" coming.

  • angora2 Nov 12, 2008

    Kathleen P had deep cuts in her scalp. A tire iron would have cracked her skull, but wouldn't have made those deep gouges.

  • seankelly15 Nov 12, 2008

    Raleigh - Nifong was not a detective on the Peterson case; he was an ADA. Do you know anything about the trial? Do you know anything about the appeals that have been files? I have looked at the websites you suggested - not entirely independent observers - and I still don't see anything other that the fact that Nifong worked as one of many ADAs under Jim Hardin. There is no mention of the role that Nifong supposedly played. You cannot get a new trial by claiming someone in the office later had ethics charges. So, this particular claim is not going to fly without proof; what is your next reason?

  • tiblet Nov 12, 2008

    There was blood spatter INSIDE his shorts....

  • maddie Nov 12, 2008

    I can't believe the defense did not know about the tire iron. I read about it in the newspaper!!!!

  • angora2 Nov 12, 2008

    Did any of you Mikey supporters follow the trial closely? This guy is guilty as sin, no doubt about it. And did any of you see the documentary that was produced by a French company? It included personal interviews with Mikey and his brood. This was not shown on American television but you can find it online. Watch that and tell me he's innocent ... you won't be able to. He REALLY showed his true colors in that documentary and it's a shame it wasn't shown over here.

  • FE Nov 12, 2008

    "I too thought he would have been found not guitly. My guess is so many people are homophobic and the jury was caught up in Ms. Blacks making it a moral judgement." - St Ives

    ONCE AGAIN, you need to listen to what the jurors stated in public, i.e. that all of the noise about Peterson's alternative life style had NOTHING to do with their verdict. For all intents and purposes, other than TV theatrics and sensationalism, that portion of the trial was a waste of time.

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