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Court mistake could set Drew Peterson free

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    Judge may declare mistrial over prosecution's botched questioning

  • Duration 5:18
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Mistake in court could said Drew Peterson -- -- the judge in Peterson's murder trial.

Will rule today on whether to declare on this trial because prosecutors botched the questioning of a witness.

Peterson is accused of killing his third wife Kathleen -- -- There are three possible rulings the judge could issue today.

He could just tossed the controversial testimony or declare a mistrial which means they have to start all over or the judge could declare a -- -- with prejudice which means Peterson walks free with no retrial.

Prosecutors say they're confident that won't happen.

We're confident that the trial resumes tomorrow morning we have a full complement of witnesses to fill the day.

And hopefully we'll finish strong -- Friday and this is a complicated case I started doing this in 1982.

This is a case first impression and -- be ready to go tomorrow.

I've discussed this with our legal panel and -- -- avoid a former federal prosecutor.

And Richard Roth a criminal defense attorney thank you both for joining us so yesterday prosecutors were questioning Peterson's neighbor -- -- to rally.

And he suggested that Peterson intimidated him by leaving a bullet in his driveway.

Well the judge stopped the trial said the prosecutors can't prove that Peterson left that bullet.

So every how serious is this.

Well it's it's quite significant I mean -- a prosecutor never want to be put into this position where they're now on their heels trying to make sure that the -- even proceed.

And this comes on the heels of them also having a mistrial motion may -- -- the day before.

Relating to some statements made during the opening statement for the prosecution is a little bit behind the eight ball right now going forward.

But the reality is hopefully the judge you'll be very unlikely for him to throw it out with prejudice however he could.

Potentially say that there be a mistrial and start from scratch again their only two days into the trial right now.

Or you know he he may throw out that testimony -- -- -- the testimony that's going to hurt the prosecution.

This is based circumstantial case there -- they need every little bit of evidence that they can get in right now and you don't wanna lose this testimony yeah Richard the prosecution says the defense opened the door.

To -- bullet topic and their own questioning.

So is there any way that the judge could decide -- let's just go forward.

The judge could decide to go forward what the prosecutor did in this case so far has been nothing short of outrageous I would say they're under the ambulance postal.

Behind the eight ball you don't an opening statement make it make it make a statement -- evidence will show.

That the mr.

Peterson actually had hired a hit man when that's just not -- -- -- -- to show that.

Nor do you put in before Jerry.

Evidence that the bullet was was placed in the drive when there's no there's just that you can't substantiate it.

It -- the jury could prejudice the jury on the my belief is what's gonna happen here -- is the judges that are probably throw punch released entire testimony out.

Which makes prosecutors look very bad and it puts a nice hole in their case so it's pretty strong what they did.

And Maria I get to that point I'm making the prosecution look bad I think the jury sees all of this back and forth going on with the judge Jackie was.

Angry at you he does or him out of the room for part of it.

But then they know that testimony has been thrown out Marcia Clark of the OJ Simpson.

A case -- it -- it's all very damaging.

Weakens the prosecution's authority do you agree with that absolutely especially when you have a very difficult case like this they can't put Drew Peterson at the scene.

And so they have to rely on the jury.

Buying into the fact that you know he likely could have gone in and so I -- -- it's it's it's been it's been tough case for them -- -- And so now when they're dealing with the front -- jury potentially looking at them saying the judge doesn't like the prosecution that's coming through apparently loud and clear.

That you know their rulings against the prosecution that may put.

Whether -- what they're being told by the prosecution is true we're not put that into question in the jury's mind crisis at the beginning remember.

All the defense -- to do is show there's doubt you know they have they they need beyond a reasonable doubt.

If if the prosecution can show beyond a reasonable doubt that he is guilty.

He walks so if there's any doubt in -- in the mind of the jurors and this helps put down there.

There's no question this is a real problem for the jury because it for the prosecution because if there's any doubt he's gonna walk away and he's gonna.

Walk away from this murder and the reality is.

Everybody knows the fourth wife is missing too so I mean this is just -- a travesty if this guy just walks.

-- -- of mistakes made by the prosecution.

So Richard if they just.

Reject all of -- to -- testimony and move ahead.

How damaging is that to the case I think it's very damaging to the case because as -- said it does -- the huge hole -- it makes the Jerry realize that what the prosecutor was trying to do was wrong and inappropriate.

What's worse is this is of this of the lull before the storm with the prosecutor's going to do -- try to put on statements.

From the third -- have you and from that fourth missing wife.

Which are clearly hearsay so.

This could result -- they -- trial the prosecutor has to walk very very gingerly here there's a lot of evidence they have what you should never be and should not be admitted.

And if they try to sneak more stuff than I would not be surprised this judge throws this whole case out.

Nice certainly.

Lot of stuff out there that people are drawing conclusions based on that the jury can't hear.

A lot of that all right we'll see what happens a big ruling later today we'll let you know what happens -- Mac envoy Richard Roth thank you both so much.

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