Discredited SBI agent at crux of Peterson appeal

Peterson, a novelist and one-time Durham mayoral candidate, was convicted in 2003 of murdering Kathleen Peterson in their upscale home, but Superior Court Judge Orlando Hudson set aside the conviction in December 2011 and ordered a new trial, citing false testimony by a key prosecution witness.

The Court of Appeals likely won't rule on the case until mid-summer.

Blood analyst Duane Deaver, who was fired two years ago by the State Bureau of Investigation amid a review of suspect practices at the state crime lab, testified during Mike Peterson's trial that blood spatters in the stairwell where Kathleen Peterson's body was found showed she had been killed. Defense attorneys argued that she died after falling down the stairs.

Hudson determined that Deaver overstated his experience and the scientific accuracy of his tests, misleading both him and jurors as to the validity of his expert testimony.

Jim Cooney, a Charlotte attorney handling Mike Peterson's appeal, told appellate judges that Deaver's lies and exaggerations violated Peterson's right to a fair trial, so they must uphold Hudson's ruling.

"Is it reasonable to believe, if Michael Peterson's jury had known then what we know now about Agent Deaver, that it wouldn't have had any material impact on their four days of deliberations? Of course not," Cooney said. "Duane Deaver was essentially a fraud, and if they had known he was a fraud during this trial, it of course would have had a material impact."

Special Deputy Attorney General Robert Montgomery asked the judges to reinstate Peterson's conviction, saying Durham County prosecutors didn't know Deaver was lying and shouldn't be held responsible for it.

"There's no way something that happened in the future could be discovered and disclosed at trial," Montgomery said, adding that ruling otherwise would require prosecutors to start conducting exhaustive searches on the background of every witness.

Assistant Attorney General Derrick Mertz also argued that Deaver was merely one of many witnesses who testified during the 2003 trial that Kathleen Peterson's death was a homicide and not the result of a fall.

"The defendant's theory that this was an accident is completely implausible," Mertz said. "Even removing Deaver's testimony altogether, there was overwhelming evidence that it was not an accident."

Cooney responded by dividing the transcript of Peterson's trial into two file folders. The folder containing Deaver's testimony was thicker than the one containing all other testimony.

"Agent Deaver was not only the critical witness, he was by far the largest witness, the most significant witness, the most important witness of this trial," he said.

Whether prosecutors knew that Deaver wasn't telling the truth on the witness stand is irrelevant, Cooney argued, noting that false testimony from an SBI agent undermines the judicial process and cannot be allowed.

"We have a law enforcement officer who lied, and that is fundamentally wrong and it violates due process," he said.

Montgomery said state attorneys don't defend Deaver's testimony, but they still believe Peterson got a fair trial.

"That's very important in our system that defendants receive a fair trial, but there's no right to a perfect trial," he said. "It's also important to have some finality to cases, and where there does not need to be a new trial, there should not be a new trial."

If Hudson's decision is upheld, Durham County District Attorney Leon Stanback, who attended Wednesday's court hearing, 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 16 months under house arrest in Durham while awaiting a retrial. He also was at the hearing, flanked by attorneys Kerry Sutton and David Rudolf, but he declined to comment afterward.

Kathleen Peterson's sisters, Lori Campell and Candace Zamperini, sat on the other side of the courtroom from Peterson.

"We're here because Michael murdered our sister," Campell said. "We haven't forgotten, we haven't forgiven, and we miss her every day."

"If there is a second trial, we'll relive Kathleen's death again, but we are going to get justice for her," Zamperini said.