DURHAM — Convicted killer Michael Peterson is hoping to use a tire iron to open prison doors that banged shut on him five years ago.
After exhausting all but the slimmest hopes of winning a new trial, Peterson is trying again with a new twist on an old case.
Jason J. Anthony and J. Burkhardt Beale, the newest attorneys to take on the novelist's case, allege that prosecutors trying the Peterson case withheld crucial evidence about a tire iron from defense lawyers.
They drove from Richmond to Durham on Wednesday to file a large binder full of documents for a judge to read.
"Durham is going to have the same experience it had before with the Duke [lacrosse] case," Anthony told a small crowd of reporters on the courthouse steps Wednesday afternoon. "This is the worst case of misconduct by the state that I have seen in my career."
Peterson, convicted in October 2003 of murdering his wife, is serving a life sentence in Nash Correctional Institution in Nashville.
Kathleen Peterson was found dead at the bottom of a staircase in the couple's large Durham home on Dec, 9, 2001.
A neighbor found a tire iron in his front yard several days later, according to the court documents filed Wednesday by the Richmond lawyers. He called police several weeks later after hearing about the investigation into Kathleen Peterson's death.
Investigators told the neighbor they "did not think" the tire iron was the murder weapon but said they would come to his home and take a look, according to notes uncovered in one of the 30 boxes of case evidence stored on the Durham County courthouse top floor.
More than a year and a half passed, though, before a Durham police officer made the trip, the Richmond lawyers claim in their motion.
In August 2003, when the trial was coming to a close and no murder weapon had been found, investigators went to the neighbor's home and collected the tire iron, according to the motion.
District Attorney David Saacks, a prosecutor who helped with the trial, said investigators logged the tire iron into evidence and then tested it as a possible murder weapon. Saacks said recently that after doing the tests, investigators had ruled out the tire iron as the instrument that caused Kathleen Peterson's death.
Prosecutors claimed Mike Peterson had beaten his wife with a fireplace poker, causing the trauma and head wounds that medical examiners reported as the cause of death.
No mention of the tire-iron testing was made to defense lawyers, Anthony said.
Had the defense team known about the evidence, Anthony and Beale said in their motion, they might have tried a different trial approach.
Defense lawyers are now suggesting that an intruder with a tire iron might have killed Kathleen Peterson and that defense lawyers should have been able to argue this theory at trial.
Orlando Hudson, Durham's chief Superior Court judge, planned to pick up the motion asking for a new trial late Wednesday afternoon. Without reading the materials first, Hudson said he did not know whether he would schedule a hearing on the matter.
To win a new trial, law professors say, Peterson's attorneys would have to show that the evidence withheld could have provided a reasonable probability of a different trial outcome.
An appeal to the U.S. Supreme Court and motions such as the one filed Wednesday are Peterson's only avenues for a new trial.
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