The guilty verdict was announced in the Drew Peterson murder trial yesterday. As you probably heard by now, he was convicted of murdering his 3rd wife. What you probably haven’t heard is why lawyers know he is really guilty.
The facts of Drew’s case are weird but so are the facts of every contested murder case. His third wife was found face down in a dry bathtub. Her thick, black hair was bloody and she had a two-inch cut on the back of her head. Originally her death was ruled an accidental drowning and thought to be from a fall in the tub. Years later a second autopsy ruled her death a homicide but without any real proof. The prosecutors said Drew killed her because their large divorce settlement was going to be final in a few weeks and it was going to ruin him financially. The prosecutors pointed to a number of factual issues like the condition of the bathroom but it was probably the statements the Judge allowed into evidence from Drew’s third and fourth wives that tilted the jury toward conviction. Some of the jury members actually said it was the statements but it’s hard to tell when you only hear from a couple of them.
It was an odd thing to admit those statements, though, because they were supposedly made by his dead third wife and his ‘missing’ fourth wife. Normally statements from people aren’t allowed in court unless they show up themselves and are subject to cross examination right there in front of the defendant. Since wife #3 was dead and wife #4 has been completely ‘missing’ for some time, it’s unusual for a Judge to let witnesses say the things those women supposedly said about Drew. It will be an interesting issue for the court of appeals.
But back to why I know Drew really did kill his 3rd wife:
His lawyers never leaked it to the press that he passed a bunch of polygraph and a psych exams.
You see, the 5th Amendment’s protection against self incrimination means that a guy like Drew can twenty polygraph exams and just hide the results if he keeps failing. He doesn’t have to hand any of the polygraph reports over to the prosecutors if they show he is guilty. Now, the first one is not going to work out because you have to figure he’s going to be really nervous and upset about the whole thing. The needles are going to be going all over the place because of the stress – not because he’s lying – and that makes it too difficult to determine if he’s telling the truth or not. Generally that kind of thing is called an ‘inconclusive result.’
But after a few experiences with the polygraph machine and a few months staring at the ceiling in solitary confinement at the county jail Drew’s going to be calm enough for the test to be accurate. If he had nothing to do with the death of his 3rd wife, he should make it through a skillfully done polygraph. His defense team undoubtedly had enough money or could get the money to hire a couple of first rate polygraph examiners from somewhere in the U.S.
In fact, a really good polygraph examiner is going to spend a lot of time with Drew before and then right there with Drew as he administers the polygraph test. They’re not two minute affairs, people. They usually have to be done in ten or fifteen minute increments because the equipment can cut off blood flow but you can keep going practically all day if you take breaks. Have the polygraph guy start off with good lead-in questions to establish a rapport and a baseline. Then have him ask some standard questions for a while to establish a real solid baseline for responses that are honest answers. Zing Drew with a surprise question about the murder when he’s distracted. If he passes, slowly lead him through the murder piece by piece and see if he starts lying. It’s not simple by any means, but if it’s done skillfully it works.
Of course, the best way to do it is to also have an extremely good criminal psychologist on hand during the polygraph. One of these psychologists is going to want to spend maybe a month meeting with Drew to get a good feel for him beforehand, but during the polygraph they will sit there and watch for signs of deception and personality disorders. If they put together a thirty page detailed report saying that they agree with the successful polygraph exam, the prosecutors are going to be forced to take a hard look at the case.
Passing a couple of polygraph tests, though, is not going to be enough for the prosecutors to drop Drew’s case. The police are going to want to put Drew through their own battery of interrogations and polygraphs. This is a high profile case so they undoubtedly will also want to have him interviewed by their own criminal psychologist. If he really has nothing to hide, he should pass those exams, too. His lawyers will be there in the room with him during it all so if things start to go weird they can stop it. They seem like they were pretty high caliber so I doubt they would have any trouble with this one. The truth should have set Drew free.
You’re probably thinking that you heard polygraph exams are not so good, they’re not trusted by the courts as evidence, etc. You’re basically right. They have about a 60% to 80% reliability rate, depending on who you ask, and that’s pretty lousy. The general standard in criminal court is ‘beyond a reasonable doubt’ and 60-80% doesn’t come close. There are lots of reasons for false results such as health conditions, mental illness, medications, etc. and no Judge wants a jury to put a lot of faith in something that is flat wrong 20 to 40% of the time. But, passing a polygraph exam administered by a well regarded examiner combined with a highly trained psychologist monitoring everything is a great start.
Then, you get special court permission for Drew to go take one of the new fMRI based exams. Its cutting edge technology, folks. There are two companies in the U.S. doing these things right now. One is called ‘No Lie MRI’ and the other is called Cephos. They use something called a functional MRI (fMRI) that tracks multiple 3D snapshots of areas of your brain during questioning to determine if you are telling the truth or not. The process doesn’t take very long but I’m sure they could spend a lot longer on a high profile case like Drew Peterson’s to make sure they got it right. The ‘No Lie MRI’ company’s literature says they believe accuracy is 90% and could be 99% when they’re done perfecting it. Cephos says their scientific accuracy is 97%. I would think both companies would kill for the kind of publicity they would get from proving a cop was set up for murder.
So why is a polygraph/psych eval combo or one of the new fMRI exams so important to Drew’s case?
Three reasons:
1. Innocence really does matter to prosecutors
Say what you want about prosecutors. They’re tough people and they can take it. But every single one I have ever met was serious about only prosecuting guilty people. It’s a strong American theme in our culture and it extends to them too. Prosecutors take their jobs seriously and they don’t want to hurt an innocent person. Prosecutors in California recently dropped murder charges in a high profile case against tennis referee Lois Goodman, reportedly because she passed “polygraph tests conducted by a former FBI polygraph examiner” according to the news article you can read here.
Also, if the polygraphs and the psych evaluation say you have the wrong guy in jail, then the actual killer is still out there. A prosecutor doesn’t want to be responsible for wasting precious time and money putting an innocent guy through a trial when a person who clearly has the capacity to kill is out there preying on other innocent victims. The public gets really mad about that kind of thing.
There’s also a slightly different issue in Drew’s case. He used to be on the police drug teams and was involved in a lot of serious undercover work. The prosecutors don’t want to go after Drew if he was set up by some guy who hates him for his work as a police officer. You can’t let that happen. If the prosecutors are wondering if Drew is innocent, the police will start looking for the guy who is framing one of their own.
2. Passing a polygraph and a psych evaluation will come out
While the rules of evidence generally prohibit discussing polygraph exams during a trial, you can almost always discuss them during the sentencing phase. When the defense in a really big trial now starts talking in open court about the psych evaluation and the complex scientific evidence supporting actual innocence, two things happen.
First, the public gets upset and that can really put a lot of pressure on prosecutors. The news reporters pick up on the story and it turns into a circus, especially in a trial with very little hard evidence and no witnesses like Drew’s case. Despite what you may think, a nasty scandal about putting an innocent guy through the wringer hurts. The prosecutors look like they don’t care about the truth and are playing dirty to win at all costs. It makes the trials coming up more difficult to win and people start to get cynical about cooperating with the police.
The other thing is that the prosecutor’s pleas for long sentences fall on deaf ears once the Judge or the jury hear about all the scientific evidence pointing to the guy actually being innocent. The jury was told to only convict if they were convinced ‘beyond a reasonable doubt’ of his guilt and now they are hearing about things that tell them they really blew this call. Even if polygraph exams are only right 60 to 80% of the time, that’s a lot of reasonable doubt. The Judge can reverse the verdict in some states or sentence a person to time served and release them. The jury might reach out to the defense team and give them info to seek a mistrial. All sorts of things can happen and they all look bad for the prosecutors.
3. The bad publicity hurts criminal justice in general
The black eye the prosecutors get from going after some guy that real experts and scientific tests are saying is innocent is bad enough. But before that happens, all it takes to taint the jury pool before a trial is for some reporter to get a leaked copy of the defense team’s motion to admit the fMRI results. Those motions always have the actual test results and the long, detailed reports from the highly qualified psychologist attached as exhibits. The motion was probably going to fail in the first place but we both know that it was prepared just so that it could get leaked.
This kind of really bad publicity raises all kinds of bad questions. First and foremost it makes the public wonder if the prosecutors are knowingly prosecuting other innocent people. If they can do it to one they might be doing it to others. Is this a political prosecution because of pressure from the victim’s family? We are only supposed to go after guilty people. Prosecutor’s credibility in the eyes of the public is extremely important and something like this can really kill it. No pun intended.
Another bad question comes up when the potential jury members out in the community hear about how the guy passed a bunch of polygraph tests and some big name psychologist says he isn’t being deceptive. They show up for jury selection wondering why in the heck are they getting called in from work. The case is probably dead on arrival.
Also, the prosecutors in many counties are elected. They are generally not too political but they do have to frequently talk with the local mayors, councilors, commissioners, etc. The rumors that they’re pushing to convict a guy that passed a bunch of polygraphs makes life difficult to say the least. Budgets are tight all over the place. Then if the word gets around that the prosecutors won’t even put the guy through the state’s own polygraph examiners on the payroll to confirm he is innocent, things can get really hot.
So I think the bottom line here is that no news is bad news from Drew’s team about a polygraph and a psych exam. This was a really high profile case and it is extremely doubtful that his attorneys didn’t think of doing this stuff. My educated guess is that they actually did put him through a few and the news wasn’t so good. We would have heard about it if he passed even once.
There were a number of mistrial motions made by the defense and all were denied. There will undoubtedly be an appeal on those issues as well as the hearsay statement issues related to both wives. There’s no way this case is finished but it’s good to see the jury did the right thing.
Once the appeals are over it will be interesting to see if Drew cuts a deal regarding the death of wife #4. My guess is the offer will be something like “Tell us where her body is for a concurrent sentence.” Basically it would mean a second murder conviction but no more prison time in exchange for some closure to her family. Take the deal, Drew.
-Samuel Owen
Lawyer Rant 