Mike Peterson, a former Durham newspaper columnist and novelist, on Monday lost his latest attempt to have his murder case dismissed.
A second trial is slated for May on allegations that he killed his wife in December 2001 inside the couple’s Durham home.
Much has changed since then for Peterson, 73, who has maintained throughout that he did not kill Kathleen Peterson, a Nortel employee who had been his wife for the five years prior to her death. Peterson was convicted of her murder in 2003, spent eight years in prison, then won a new trial and was released in 2011.
Judge Orlando Hudson, Durham County’s chief resident superior court judge, issued the 2011 ruling. It was Hudson again Monday who told Peterson’s new defense lawyers that they had failed to meet their burden of proof to have the case dismissed outright because of the way evidence had been stored after the trial.
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Mary Jude Darrow argued that Peterson had lost one avenue of defense for his second trial because of the difficulties she would have securing new DNA tests of any significance.
“Our hands are now tied as a result of what happened to the evidence,” Darrow told Hudson. “The investigation was not done properly. We can’t present a defense in this case other than ‘He didn’t do it.’ ”
That was what Peterson’s high-profile defense team argued in 2003. They contended that not only had police done a sloppy investigation that quickly focused on Peterson as the prime suspect, but also argued that Kathleen died after tumbling down the stairs in an inebriated state.
Not so, prosecutors argued.
They contended that Mike Peterson, amid financial and emotional stress, swung a blow poke at her head with such force that it left a claw-like fracture.
Blood and DNA
Darrow inherited the case from a team of lawyers who focused on different strategies over the years. During the hearing and in motions, she offered a glimpse of what she had hoped to argue.
Peterson often was critical of the Durham Police Department and the city’s drug problems in his newspaper columns. Darrow suggested in court documents that perhaps intruders had been in the Peterson home to scare or exact revenge on him.
There have been many advances in DNA science and testing since the 2003 murder trial, and Darrow had planned to retest some of the evidence to see whether investigators might have overlooked the presence of someone other than their prime suspect. Kathleen Peterson’s clothes were not tested by the State Bureau of Investigation for the first trial.
Problems with the SBI’s involvement in the case led to the judge’s decision to vacate the verdict nearly five years ago. Hudson ordered the new trial after finding that Duane Deaver, a blood analyst from the SBI had conducted flawed tests in the case and misled the jury.
After the hearing Monday, Darrow said she had focused so heavily on DNA because she thought that what prosecutors would rely on.
Hudson pointed out before the ruling that he expected Darrow to raise questions about collection and storage of the evidence at trial – questions that could be weighed differently by jurors in a time where high-profile wrongful convictions and questions about police fairness have more prominence than 13 years ago.
A crime-scene analyst and reconstruction expert who testified at Peterson’s first trial testified Monday and criticized the way evidence from the murder case had been stored.
Darrow described finding clothes from Kathleen Peterson and her husband mingled in boxes stored in several 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.
Timothy Palmbach, a professor and chair of forensic science at the University of New Haven in Connecticut, said the co-mingling of evidence was a problem for future testing, as was not keeping the evidence in tightly sealed bags or boxes.
Assistant District Attorney Jim Dornfried played clips from the 2003 trial that was covered gavel to gavel by Court TV. Dornfried homed in on segments of the trial that seemed to support what the defense was arguing.
David Rudolf, Peterson’s lawyer in 2003, stood before witness Dan George, a police investigator.
Trying to raise questions about the Durham investigation, Rudolf held up Mike Peterson’s shorts. The attorney had no gloves on his hands, as crime scene analysts often do during their testimony to prevent contamination.
Dornfried tried to stress that the evidence could have been co-mingled during the trial, not by the clerks in the Durham County courthouse.
Darrow persisted. “Is it possible to get new DNA evidence in this case at this point in time with the evidence in the condition it’s in?” she asked Palmbach after Dornfried showed the trial clips.
“No,” Palmbach responded.