More than three months have passed since Durham County clerks were called to the witness stand in a Durham courtroom to describe how they had preserved evidence from the Mike Peterson murder case over the years.
That testimony is likely to be at the core of arguments that defense attorneys make for the former Durham novelist and newspaper columnist as he tries again to win dismissal of a murder case lodged against him almost 15 years ago.
Peterson, 73, remains accused of murder in the 2001 death of his wife, Kathleen Peterson. He was found guilty of first-degree murder in 2003, but Judge Orlando Hudson vacated that conviction in 2011 after ruling that a key prosecution witness had misled the jury.
On Monday, defense attorney Mary Jude Darrow will go before Hudson to argue that courthouse clerks, police and others have made it impossible for Peterson to get a fair trial 13 years after the first one.
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In a court document filed in Durham County Superior Court in May, Darrow and Raleigh attorney Mike Klinkosum argued that the first-degree murder charge against Peterson should be dismissed.
In the court document and at a hearing in August, Peterson’s defense team — different lawyers from the ones he went to trial with in 2003 — described finding evidence stored in disarray in several boxes in different storage locations.
Notes from another case were mixed in the boxes, and envelopes with “biohazard” labels on them had broken seals that left the evidence open to possible contamination.
The attorneys found garbage on a sweatshirt that could be key evidence.
Since December 2011, Peterson has been out of prison awaiting a new trial. Initially, he was under house arrest. But the judge has lessened his travel restrictions and bond over time.
The Peterson case has been featured in a documentary and was the subject of several episodes of “Dateline NBC.”
Though a jury convicted him 13 years ago, a verdict that brought a life sentence that has since been overturned, Peterson has never wavered in maintaining that he did not kill his wife.
Kathleen Peterson was employed at Nortel when she was found dead on Dec. 9, 2001, at the base of a staircase inside the expansive Durham home she shared with her husband.
Prosecutors argued that Kathleen Peterson had suffered a bludgeoning by her husband. They brought in evidence about a female friend of Mike Peterson’s who also was found dead at the foot of the stairs in an apartment in Germany 18 years before Kathleen Peterson’s death.
In the German case, Mike Peterson reportedly had walked the woman home after dinner on the night of her death. His attorney said Peterson was at home asleep when the woman suffered a fatal cerebral hemorrhage.
The cause of death in the German case initially was attributed to a stroke, but a 2003 autopsy after the body was exhumed ruled that death a homicide. Peterson was never charged with a crime in that death, but the incident loomed large in the prosecutor’s case in Durham.
Throughout his fight against the charges, Peterson has contended that Durham police focused on him early as a suspect and ignored details that might have led them to a different suspect and different conclusion about what happened to his wife.
Now Peterson contends that courthouse employees also have done shoddy work, allegations that prosecutors plan to argue against this week.
If the judge refuses to dismiss the charge against Peterson, the defense team has offered a hint in recent court documents about a strategy that could be used at trial — that intruders were responsible for Kathleen’s death.
“Within minutes and hours of arriving at the Peterson home,” the attorneys said in a May court document, “the Durham Police Department began treating Mr. Peterson like a suspect.”
To bolster the intruder theory, the defense team has included passages from newspaper columns and a failed campaign for Durham mayor in which Peterson was critical of city officials and talked about going after drug dealers.
“When considering the tone and rhetoric of many of Mr. Peterson’s columns, as well as his targets as a mayoral candidate, particularly individuals involved in the drug trade in Durham, it is not outside the realm of possibility that someone who felt severely threatened by Mr. Peterson and his statements came to the residence on December 9, 2001, to confront or harm him but, instead, confronted and killed Mrs. Peterson,” the request for dismissal states.
If the defense were to go that route, the May document states, Peterson’s lawyers would want to test or retest evidence
“Mr. Peterson’s right to inspect and test the evidence in this case has been violated to the extent that he cannot obtain valid and reliable forensic testing to determine whether someone else caused the death of Mrs. Peterson,” the request to dismiss states. As a result, the defense team contends, Peterson’s “rights have been flagrantly violated, causing irreparable prejudice to the preparation of his case such that there is no remedy but to dismiss this prosecution.”