Spoiler Alert! Spoilers for “The Staircase” ahead.
Chapter 8: The Verdict
Missing Murder Weapon, Or Dusty Relic?
Finding the blow poke created a dilemma for the defense. It was potentially critical evidence, and we couldn’t just ignore it. If it was in fact the “missing murder weapon,” and we did not disclose it to the prosecution, could we be accused at some point of concealing evidence and obstructing justice? But it had come to our attention as a result of our attorney-client relationship with Michael. We therefore didn’t believe we could or should disclose the discovery to the prosecution consistent with our ethical duty to our client. And, of course, if it wasn’t the “missing murder weapon,” it was extremely helpful to our defense. We would want to present it to the jury to rebut the prosecution’s theory.
But its discovery had to be carefully documented, and its condition maintained. We immediately hired a professional photographer to come to the house to take pictures of it exactly where it was found, covered with spider webs and dead bugs. Ron Guerette, our investigator, bought a plastic tube into which we could place the blow poke without touching it.
On that same Sunday morning, I called Judge Hudson at his home, told him we had an ethical dilemma, and asked if he would meet with us ex parte (without the prosecution’s knowledge). He agreed, and subsequently came to the Peterson house to observe the blow poke where it had been found. No one could accuse us of obstructing justice. But the judge understood that we could not ethically disclose the circumstances of our discovery to the prosecution.
Then, we had to determine if the blow poke was the “missing murder weapon” or not. If it was, we would have to consult with the N.C. state bar ethics counsel to determine if we had to disclose its existence to the prosecution without disclosing any privileged information (where it was found, who found it, etc.).
We therefore had one of our forensic experts, Tim Palmbach, carefully inspect the blow poke for damage consistent with it having been used to beat Kathleen, and test if for the presence of any blood that was not visible to the naked eye. His report – there was no evidence it had been used to attack Kathleen or anyone else. He placed it back into the plastic tube. Now we had to figure out the best way to present it to the jury.
Since Art Holland was the lead police investigator, we decided to call him as our witness, for the specific purpose of having him identify the blow poke we had found as the “mysteriously missing blow poke” the prosecution claimed was the murder weapon. It was unusual, and it carried risks, but we knew it was identical to the one the prosecution had gotten from Candace Zamperini and marked as its exhibit. And it avoided having to call our investigator to testify about its discovery. All we cared about was that the jury knew that the blow poke had been found covered with cobwebs in a dark corner of the garage (as shown in the photos authenticated by the photographer), that it was not missing, and that it was not the murder weapon. That became a critical part of my closing argument.
Thank you for taking the time to write your insights into this case. I served as Foreman of a jury for a two-month murder case in London, and what I wonder, at least from your commentsand watching the Staircase, is whether there would have been an acquittal – or at the very least a hung jury – had this been tried in a more liberal town/city. Without a want to stereotype, it strikes me that more rural communities in the US, especially in the South, might tend to lean towards the notion of ‘who’s more convincing’, rather than looking at a case from the perspective of proving reasonable doubt.
Any thoughts on this would be welcome, as this strikes me as a big contributing factor.
Hi David –
I was impressed by your “cool” passion that motivated your impassioned defence of Mr. Peterson. In watching the series on Netflix — up to this episode — I was in awe of your ability to maintain your composure and unflappability in the face of incredible decisions by the judge against your objections amongst many other issues…
But my question (?thoughts) lies in considering your words at the closing of this episode, which left me as bereft of the sense of “what is justice” as you seemed: How have you been able to reconcile your feelings of despondency to be able to carry on after this verdict? How can you not decide to quit the “whole damn thing” in disbelief and become a farmer or something?
And at the possibility of confabulating issues, I ask this because I don’t understand the jurors not having any sense of “disbelief” to question and, at the least, to arrive at a conclusion that the evidence did not rise to the level of “beyond a reasonable doubt”. And, in light of today’s political reality, I ask this as I try to understand — and reconcile — society’s current climate of suspended belief/beliefs to “just believe” in the absence of evidence or in the presence of evidence to the contrary, which appears to be leading to the tribalism so prevalent in our society today. . .
In my opinion a single instance altered the outcome of the trial, Freda Black’s flagrant appeal to the jury’s basest (“filth!”) instincts. That enabled and validated a primal and natural human impulse to unload on someone and feel morally or somehow superior in (the catharsis of) condemning another person
Black sent a message to the jury–yes, you can do that here, because I have stood up in front of everyone and done it myself and I’m a lawyer, public employee and officer of the court, in this context. The judge himself did in in subtler ways, admitting evidence he shouldn’t and making a crack (“not this judge”) during the testimony of Peterson’s potential liaison. It was about permission–permission for the jury, naturally inexperienced in the ways of the law, to go low.
I kept thinking about this trial during the last presidential election, for two reasons–the continual race baiting by one side and the other side’s unjustified confidence in the system and the America people. I understood your, David, position at the end because you knew the prosecution’s case was weak and a sham. Naturally you played it conservatively. Black sunk your boat, I believe, with dog-whistle bullshit, which plagues us all now to an terrible degree.
At some point while viewing the Netflix series I decided I was not convinced of Michael Peterson’s guilt; a fatal fall down the stairs seemed as feasible to me as a cold-blooded murder. I still wonder why a few things were not raised in court, such as Kathleen’s blood alcohol content, the chair lift, and the fact that head wounds yield a ton of blood. However, I was and remain appalled by the reality TV-style of the trial and the consequent bias allowed to develop and fester among jurors, who do not exist in isolation during a trial. Additionally, that the defendant and his sympathizers had unfettered and continuous access to the scene of the crime which was still in use to gather, support, and introduce evidence until literally the last days of the trial is flatly absurd to me. That jurors were paraded through this lived-in crime scene, that blatant discrimination toward homosexuality was plainly acceptable during this trial, and that prosecutors, representing the entire state of North Carolina, were allowed to project their personal values onto others while assuming said role, also left me stunned. I know they’re elected, and I know I’m idealistic, but so much for justice! It remains unclear to me whether I’d want either the likes of Hardin or Rudolf in, or opposing, my corner, because for each their main aim was not to facilitate justice but to be central to the attention and, as we see here, those two aims can be very much at odds. And as for the “coincidence” of Liz Ratliff, consider instead that: groups of souls reincarnate together over and over and over again, sharing commonalities, until each lives a life of right action and thereby returns to Source. Michael and Kathleen could indeed have been soulmates, and Michael liked having sex with men, and Kathleen was allowing of it, all in this incarnation. Last but not least, just because one knows his shadow, as Michael Peterson indicated in his writings, does not mean one lets it run his show. I am not sure he’s innocent, but I am sorely unconvinced he’s guilty. I look forward to viewing the remaining episodes.