Peterson could return to court

DURHAM -- Convicted murderer Michael Peterson could get another day in court.

Orlando Hudson, Durham's chief resident Superior Court judge, has decided to hold a hearing to weigh whether prosecutors withheld crucial evidence during the trial.

The Durham County District Attorney's office might be represented by the state attorney general's office, Hudson said.

In a three paragraph release today, Hudson announced his decision to order a pre-trial conference to narrow the issues to be heard at the evidentiary hearing. That conference, Hudson said, will be in January or February.

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 in mid-November to file a large binder full of documents for the judge to read.

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.

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.