RALEIGH — State prosecutors weighed on Tuesday whether to seek further review of an N.C. Court of Appeals ruling upholding a judge’s 2011 decision to grant a new trial in the Mike Peterson case.
Peterson, a Durham novelist accused of killing his wife, Kathleen, has been suspended between a state of freedom and captivity for nearly 18 months.
In December 2011, Orlando Hudson, Durham’s chief resident superior court judge, vacated the 2003 murder conviction that put Peterson behind bars for eight years.
The N.C. Court of Appeals issued a 16-page ruling on Tuesday that upheld Hudson’s decision to grant Peterson a new trial.
In a unanimous decision, three appeals court judges – Robert C. Hunter, Donna Stroud and Sam J. Ervin IV – ruled that new evidence that has surfaced about one of the prosecution’s expert witnesses warranted a new trial.
That witness, Duane Deaver, a former State Bureau of Investigation blood analyst, was forced out of his job several years ago after an independent review of the state crime lab revealed problems with some of his cases.
Hudson ruled that Deaver conducted unscientific experiments and misled the jury about his experience and credentials. Hudson tossed out the murder conviction over the objections of Tracey Cline, Durham’s district attorney at the time.
Peterson was found guilty on Oct. 10, 2003, after one of the longest trials in North Carolina history, of murdering his wife, Kathleen, in their Durham home.
‘Deaver was central’
Deaver, according to the appeals court ruling, testified that Kathleen Peterson, who was found dead at the base of a staircase inside the Durham home she shared with her husband, was struck “a minimum of four times with a blowpipe prior to falling down the stairs.”
Deaver further stated at trial that “based on his bloodstain analysis,” Mike Peterson attempted “to clean up the scene, including his pants, prior to police arriving.”
Counsel for the state Attorney General’s Office submitted documents to the appeals court in December seeking to reinstate the murder conviction, arguing that such an action would save the state the expense of a new trial.
Special Deputy Attorney General Robert Montgomery argued there was plenty of other evidence presented during the 2003 trial that would have led jurors to reach the same verdict without Deaver’s testimony.
The three-judge panel said in the Tuesday ruling: “Due to the importance of Agent Deaver’s testimony, the evidence concerning his qualifications would have completely undermined the credibility of the State’s entire theory of the case.”
The appeals court panel further stated that while prosecutors offered “other expert testimony concerning Ms. Peterson’s death, the testimony of Agent Deaver was central to the state’s case. He was the only witness to describe to the jury how he believed defendant killed his wife.”
Moreover, the appeals court panel said, “Deaver was the only witness to testify that the bloodstains indicated that defendant had tried to not only clean up the scene but was also close to Ms. Peterson at the time she sustained injuries.”
Jim Cooney, the Charlotte defense attorney representing Peterson on appeal, argued in March that “the state would not be harmed by having to retry the defendant without using the false and perjured testimony of an SBI agent.”
Cooney further contended that a retrial would be an assurance that a new verdict was rendered fairly.
“The expense needed to come to that judgment is a small price to pay given that imprisonment for life is the penalty for this crime,” Cooney stated in his motion to dismiss the state’s appeal to reinstate the trial.
Shortly after receiving the Court of Appeals ruling Tuesday, Cooney praised the decision.
“It’s a ringing declaration that trials have to be fair and trials aren’t fair when police lie,” Cooney said.
Possible appeal in case
The state attorney general and the Durham district attorney could ask for a review of the appeals court decision by the state Supreme Court.
A spokeswoman for the attorney general and Leon Stanback, the acting Durham District Attorney, said on Tuesday that several options were being reviewed.
Stanback said he will decide in a few weeks what course to pursue. He also could offer a plea deal to Peterson.
He called one of Kathleen Peterson’s sisters on Tuesday morning to confer with her. The family’s wishes, Stanback said, would also weigh heavily in the course his office chooses to pursue.
“We’re keeping our options open,” Stanback said.
Thomas Metzloff, a Duke University law professor, said Tuesday that for the most part he was not surprised by the ruling.
“At some level it was exactly what I thought,” said Metzloff, whose career activities include a focus on legal ethics.
Metzloff said he was surprised, though, by the judges’ stated conclusion that “the jury would probably not have unanimously agreed on a guilty verdict” had jurors known at trial that Deaver overstated his qualifications as a blood analyst. But to grant a new trial, the appeals judges would have to reach a conclusion that new evidence could have led a jury to a different conclusion.
Since Peterson’s conviction, the state Supreme Court has found that other trial evidence should not have been admitted.
The state’s highest 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 try to portray the Petersons’ marriage as faltering – a possible motive for murder.
Although the state Supreme Court ruled at the time that invalidating the search warrant wasn’t enough to overturn Peterson’s conviction, it would preclude testimony about the escort and any other evidence taken from the computers to be introduced in a new trial.
”There’s so many complexities to this trial,” Metzloff said
Since his release in December 2011, Peterson has been restricted by a pre-trial release agreement. He must be in his Durham home from 11 p.m. to 7 a.m. and may not travel outside Durham, Wake or Orange counties without permission.