by JOSEPH HOSEY
One might think that Glasgow’s limited release of Blum’s findings, on top of Peterson being the only suspect in Stacy’s disappearance, was a damning development for her husband. Peterson’s frequent and sometimes cocky media appearances hadn’t helped to dampen the public outcry that he obviously had something to do with the death of one wife and probable death of another. The months dragged on and yet he remained a free man, fueling much speculation about why this was. Were the boys in blue protecting one of their own? Were the state police incompetent? Or did Peterson, as a savvy ex-cop, know how to get away with murder?
One attorney who has worked both sides of the street in criminal law—as a prosecutor and as a defense attorney—had a different, less sensational take: Mainly, the case against Peterson was a tough one to try.
“The biggest problem with the fourth wife is they simply don’t have a body,” said Chuck Bretz, one of the premier criminal defense attorneys in Will County. His courtroom experience is not limited to defending the accused; he was a Will County assistant state’s attorney from 1982 to 1986 and the first assistant state’s attorney—under Glasgow—from 1992 to 1994.
Without a body, Bretz said, there is no scientific evidence to work with, no proof anyone was in fact killed.
“There’s a lot of conjecture,” he said. “There’s marital problems. She’s getting ready to leave. ‘If anything happens, look at my husband.’ As far as she’s concerned, although it’s possible to prosecute a case without a body, certainly it’s the exception and not the rule.”
Bretz himself, however, was involved with such an exception. While a prosecutor, he brought a murder charge in 1993 against Gilbert Bernal in connection with the December 1988 disappearance of his wife, Joan.
There was no body, but Bretz did have an eyewitness who would testify to observing Bernal battering his wife and inflicting what could have been fatal injuries.
“There was no other physical evidence forthcoming,” Bretz said. “From the [witness’] description, it was apparent that there were no other witnesses.” Joan Bernal also supposedly told a relative her husband threatened that he could kill her, stuff her in a barrel and hide her where she would not be found. And Gilbert Bernal reportedly bought two barrels shortly before the disappearance; afterward, only one barrel was still in his garage. Unfortunately, neither the second barrel nor Joan Bernal was ever found, and almost a year later, soon after Bretz resigned from his post in the state’s attorney’s office, the charges against Bernal were dropped.
Another high-profile murder case without a body resulted in the 1996 conviction of Thomas Capano, a rich, well-known Delaware lawyer who was charged with killing his mistress, Anne Marie Fahey, the appointments secretary for Governor Thomas R. Carper. Her political connections likely ensured that her case, despite lacking a body, wouldn’t be brushed under the rug.
Capano’s own brother, Gerard Capano, testified on behalf of the prosecution that he and Capano took a boat off the coast of New Jersey and dumped a woman’s body into the water. Thomas Capano was condemned to death, but seven years later the Delaware Supreme Court sent the case back for resentencing. The prosecution did not go after the death penalty the second time, and Capano is serving a life sentence.
But that was Delaware. In Illinois, said Peterson’s attorney, Joel Brodsky, the laws make it very tough to prove a murder when no one can say for certain the victim is actually dead. Brodsky said his research shows prosecutors last succeeded in such a venture more than a hundred and fifty years ago, although this research seems to have missed the slaying of Stephanie Lyng and the murder conviction of her husband, Edward Lyng, seventeen years later. Nonetheless, Brodsky did not plan to represent the first man in a century and a half—that he knew of—to go down that way.
As it stood in the spring of 2008, Bretz did not believe the law would get as far with Peterson as he did with Bernal, for either the disappearance of Stacy or the death of Savio. That someone supposedly killed Savio seemed to be a compelling reason for prosecutors to charge Peterson with her murder. But, Bretz pointed out, switching hats to defense attorney, the finding alone is no proof that Peterson did it. If he were representing Peterson in such a trial, Bretz said he would call everyone from the initial investigation of Savio’s death to testify about how they somehow missed the signs pointing to a homicide.
“You would certainly want to bring everyone who was involved in the accidental death [determination] and parade them in front of the jury,” he said. “You would try to pull everyone you could involved in the first autopsy in front of the jury.”
And then he would do his best to poke holes in the credibility of the autopsy performed on Savio’s body after it spent three and a half years rotting in a grave.
“You would certainly want to use that to your advantage, and you’d want to hire your own expert to contradict the findings of the state’s experts,” he said.
“Any competent defense attorney would be able to get an acquittal. Particularly as to the fourth wife, and even to the third. You really just have speculation. Even with them saying it’s a homicide, you don’t have any evidence tying him to it.”
Switching back to the prosecution’s table, Bretz said he “would be analyzing very carefully all the statements [Peterson] has made, particularly the time frame of when Stacy disappeared. At some point in this type of investigation, what they’re hoping for is some kind of breakup, some kind of slipup.”
Even better, he said, would be some clue surfacing “that ties him to the scene” or “a witness stepping forward or a piece of forensic evidence.”
But based on what he’s seen so far, Bretz said, there’s not a whole lot to stock a prosecutor’s arsenal.
“Without knowing exactly what they have, at this point, it’s potentially a case we may never see indicted, unless some more comes into the picture,” he said.
With a high-profile case such as this one, which the national media pounced on within days of Stacy’s disappearance and months later showed no sign of releasing, public opinion and political consequences doubtlessly come into play.
“I’m not saying the prosecutor’s office is controlled by the press,” Bretz said. “But they’re certainly mindful of the press.”
Additionally, Glasgow was up for reelection in 2008, only adding to the pressure for him to pull the trigger on Peterson. But Bretz did not believe Glasgow would shoot recklessly.
“I don’t think a seasoned state’s attorney who has been around for some time now would do that,” he said. “He’s done fairly well in the polls without doing something like that. We don’t charge people unless we can prove them guilty beyond a reasonable doubt.”
After all, Glasgow, like any prosecutor, has but one opportunity to go after a target, so he’ll only want to head into the courtroom with a strong case.
“If you charge [someone] and go to trial and lose, then you have a double-jeopardy situation,” Bretz said, referring to the practice, prohibited by the Fifth Amendment to the U.S. Constitution, of trying someone twice for the same crime. “You only get one shot at it.” In Bretz’s opinion, voiced in late March 2008, the time had not yet come to take that shot. Glasgow, he said, had no case against Peterson.
“If they don’t have substantially more than what we’ve heard about in the media,” he said, “it would not surprise me if Peterson is not charged in either one of these cases.”
Even if police and prosecutors do not come up with substantially more than what has been heard about in the media, they might be able to dive through a loophole—so long as the Illinois House of Representatives is able to open one up for them.
In April of 2008, State Senator A.J. Wilhelmi of Joliet—with the support of Glasgow—sponsored a bill which would allow prosecutors to enter into evidence relevant statements from witnesses who were killed, threatened, or bribed to prevent them from testifying.
“We should be able to use the tools already available at the federal level and in nearly a
dozen other states to fully prosecute criminals,” said Senator Wilhelmi. “This bill gives prosecutors the ability to use evidence that a criminal defendant actively tried to eliminate. The goal of this legislation is to make sure that the full truth is heard by the jury.”
While neither Glasgow nor Wilhelmi has publicly said the legislation was cooked up specifically with Peterson in mind, some close to the case have come to call it “Drew’s Law.” And there were others who questioned its constitutionality.
Senate Bill 2718 had yet to become a state law by the summer of 2008, however, and Peterson was still a free man.
Looking at the case as neither a prosecutor nor as a defense attorney, but simply as someone stuck doing his or her civic duty, Bretz still does not think the evidence against Peterson holds water.
“If I was sitting on the jury myself and the evidence was as it is, I would have to find [him] not guilty,” he said.
Any prosecutor hates losing a high-profile case, but Glasgow could feasibly go after Peterson and, if things fell apart, blame failure on his political nemesis.
Glasgow was not in office when Savio was found dead in her dry bathtub in March 2004. The state’s attorney at that time was his Republican rival, Jeff Tomczak, who soundly defeated Glasgow in the November 2000 election.
The vicious campaign left bad feelings on both sides, but four years later Glasgow rose from the ashes and took down Tomczak to win back his job. Tomczak’s campaign was hobbled when his father, former Chicago Water Department boss Donald Tomczak, was hit with federal charges alleging he had collected thousands in bribes from trucking firms. Donald Tomczak’s arrest came less than two weeks before his son faced off with Glasgow on Election Day.
The arrest of Tomczak’s father was not the only startling development to occur shortly before that election. Within a week of voters casting their ballots, detectives with the Will County Sheriff’s Department arrested Kevin Fox and charged him with the heinous sexual assault and murder of his three-year-old daughter, Riley. The day after the arrest, Tomczak said he was pursuing the death penalty for Fox. The unusual alacrity with which he came to that decision was widely denounced, and he was criticized for allegedly rushing the case to garner good publicity prior to the election.
If this was the case, it did not help. He still lost to Glasgow. Then, in June of 2005, Glasgow freed Fox after DNA testing performed by a private laboratory excluded Fox as the source of saliva found in Riley’s body. Fox and his wife went on to score a fifteen-and-a-half-million-dollar award in a civil case against the detectives and the county. Glasgow turned loose a man who a jury concluded should not have been arrested, who had been jailed under his rival’s regime, and the enormous settlement in the Fox civil suit must serve as a caution against proceeding hastily in a case. Certainly there’s also the fresh memory of Mike Nifong, who prosecuted three Duke University lacrosse players on charges of rape, kidnapping, and sexual offense, only to have the case blow up in court due to a lack of evidence and an accuser who changed her story. The three players were declared innocent, and Nifong was fired and disbarred.
In the Fox affair, Glasgow came out on top of Tomczak, but more than three-quarters of the way through the second coming of his administration, he has prosecuted no one for the little girl’s death. Likewise, by the spring of 2008, months away from another election challenge, Glasgow also was charging no one for the death of Savio or the disappearance of Stacy. Armed with Blum’s opinion that someone killed Savio, as well as with the testimony of her relatives, who insist she feared Peterson and predicted he would do her in, Glasgow could certainly jail Peterson, possibly right before election time, and charge him with his third wife’s murder.
If things go well for Glasgow in the courtroom and his office ultimately wins a conviction, he can say he is the man who stepped up and put away a killer, who did the job Tomczak should have done in 2004. And if Tomczak had done his job when he should have, Glasgow could crow, maybe Stacy Peterson never would have disappeared. In the event that Peterson is acquitted and walks free, Glasgow could blame Tomczak for the outcome. It would be easy to make excuses, to say the case was too hard to prove, considering the length of time between Savio’s death and the case being taken seriously by the state’s attorney’s office. As far as Stacy’s case, Glasgow could always point out that without a body it may not be prudent to proceed. As Bretz said, the prosecution gets but one crack at putting a killer away.
Bretz contends that Glasgow is above charging Peterson solely for the political punch it would pack in an election year. In any event, Glasgow does not appear to be in a tough reelection battle. His opponent, former Assistant State’s Attorney Judy DeVriendt, has run a strangely quiet campaign. In fact, for a political candidate, she’s been practically invisible.
Maybe DeVriendt wanted it that way. There were some who said she played a part in Glasgow’s loss in 2000. DeVriendt was working for Glasgow when the state’s attorney’s office had sheriff’s deputies remove a baby boy from the custody of his mother and hand him over to a man claiming to be his father. The case drew harsh criticism and led to DeVriendt’s suspension and termination. She fought to get her job back and was reinstated, but then resigned. The baby was reunited with his mother after a few days, but Tomczak used the case to hammer away at Glasgow in the 2000 election. After losing, Glasgow conceded that the baby case contributed to his downfall, even if the public perception—that he wrested a baby from the arms of his mother—was not the reality.
But with DeVriendt’s lack of visibility and most famous case an embarrassment that led to her getting fired, Glasgow does not appear to have significant reason to worry about his reelection chances. Not enough, at least, to do anything as rash as arresting Drew Peterson before he feels he has a strong enough case.
DeVriendt, it should be noted, was not the only one who left Glasgow’s office under a cloud. Bretz did himself, after getting tangled up in a scandal with former Judge Patricia Schneider, with whom he had worked in private practice, and her brother, developer Edward Mattox, whom Bretz represented.
Soon after he started as the first assistant state’s attorney in December 1992, Bretz authorized a felony sex abuse charge against a twenty-year-old man, who had gotten Mattox’s teenage daughter pregnant. While a felony charge required the man to be at least five years older than the girl, and he was only a little more than four, he was still arrested and jailed.
As a result, Bretz was convicted of the misdemeanor charge of “attempted official misconduct.” He was convicted of a second count of the same charge in connection with assisting a friend of Schneider and Mattox during an investigation of illegally stored hazardous waste at an auto repair shop. In this unrelated incident, Bretz kept the case file in his office, resulting in the probe being suspended.
Schneider was convicted of felony official misconduct and was disbarred. Bretz took a three-year suspension. He returned and rose to prominence in the local legal community.
As a defense attorney, Bretz was puzzled by the way Peterson’s lawyer handled matters.
“The one thing that has been somewhat surprising to me is that his attorney has not told him to keep a lower profile,” Bretz said.
“I don’t know if they’re just trying to counteract the negative press and trying to personalize him.” If so, Bretz doesn’t think it’s working, because he sees Peterson coming off as “arrogant and shallow.”
“I would have insisted he put a stop to that long ago,” he said. “And I’m not the only one who thinks that. I’ve talked to other seasoned criminal defense attorneys out of Chicago. They’re saying, ‘What’s up with his attorney?’ I don’t know. They wonder if he’s into it for the publicity. I don’t know what their fee arrangement is.”
Regardless of how much or how little Peterson is paying for Brodsky’s services, Bretz did not seem to think Peterson was getting his money’s worth. Peterson would be much better served by a lawyer who instructed him to mouth such non quotes as “
No comment” or “We’ll win the day in the end.”
“Whether he had nothing to do with the death of his third wife and the disappearance of his fourth, people would expect you to be more somber about it, and he has clowned around,” Bretz said, pointing out the ardor with which Peterson spoke about the radio-show dating game.
“A lot of people found that distasteful,” Bretz said. “I could see the police and the prosecutors almost coming unglued about that thing.
“If anything, I think that the police and the prosecutors will almost be more driven by the arrogance of the whole thing. If you perceive, as a police officer or a prosecutor, that someone is talking to you or acting like he’s above the law, it only makes you dig deeper to be more aggressive and look under every rock.”
Bretz doesn’t need to channel his past as an assistant state’s attorney to imagine how he would react to Peterson’s antics. They get under his skin now.
“As a human being, when you see a person clowning around, when the best case scenario to him, his wife has taken off and abandoned her kids, it’s not really a laughing matter,” he said. “I’m sure that if I was handling the case, that would be sticking in my craw, so to speak.”
If he were in Brodsky’s shoes, Bretz would attempt to portray Peterson in a positive light, as “a good father or something to that effect,” but the key to his strategy would be keeping Peterson quiet and doing the talking for him.
“The traditional school of thought in criminal defense is, you don’t want your client to make any statements to anyone about anything,” Bretz said. And you particularly don’t talk to the police.
“I usually tell my clients, whether they offer you the winning lottery ticket or stick a gun to your head, I tell them not to say anything without their attorney present.”