DURHAM, NC -- Herald-Sun, January 22, 2006
Call for new Peterson trial criticized
By John Stevenson
DURHAM -- The way the N.C. Attorney General's Office sees it, a former chief justice of the state Supreme Court butted into off-limits territory when he recently asserted that Durham novelist Michael Peterson deserves a new trial for the 2001 fatal beating of his wife.
The one-time chief justice, James G. Exum Jr., and Durham lawyer Kerry Sutton wrote three months ago that Peterson was wronged in his first trial. They said a judge unconstitutionally allowed jurors to hear evidence about the 1985 death in Germany of another woman connected to Peterson, even though Peterson never was charged with or convicted of killing that person.
The comments from Exum and Sutton were filed with the state Court of Appeals in October -- exactly two years after Peterson was found guilty of first-degree murder and sentenced to life in prison without parole for killing his wife, Nortel Networks executive Kathleen Peterson. Exum and Sutton argued that, as a result of the alleged judicial mistake, Peterson was entitled to another day in court before a new jury. Writing as attorneys for the N.C. Academy of Trial Lawyers, they voiced their contentions in a so-called friend-of-the-court brief, endorsing Peterson's appeal of his 2003 murder conviction.
But in an answer to the appeal filed last week, state attorneys branded Exum and Sutton as something other than friends. They wrote, in essence, that the two were trespassing on legal ground where they didn't belong. The state's rebuttal to Exum and Sutton has not previously been publicized. It said friends of the court are "not entitled to frame the issues" for consideration on appeal. "That is the job of the parties," two assistant attorneys general wrote. Specifically, they said Exum and Sutton were off base with their contention that Peterson's constitutional rights were violated by evidence about the 1985 death in Germany.
Peterson's appeal did not raise a constitutional issue, so Exum and Sutton "should not be allowed to make up the difference," Assistant Attorneys General William B. Crumpler and John G. Barnwell said. "Consequently, there is no constitutional issue for this court to resolve, and the constitutional contention of [Exum and Sutton] should be disregarded."
The state attorneys conceded that, for evidence about the 1985 incident to be admissible, prosecutors had to link Peterson to the alleged murder in Germany of Elizabeth Ratliff. But they said the link was sufficiently established through testimony that Peterson had "opportunity and motive" to kill Ratliff, and also through suspicious statements Peterson made at the scene.
A teacher at an American military base in Germany, Ratliff was a friend of Peterson when he lived in Europe during part of the 1980s. Evidence indicated he was with her the night before her body was discovered. Like Kathleen Peterson, Ratliff was found dead at the bottom of a stairway. Authorities initially concluded that she suffered a fatal stroke and toppled down the stairs. No criminal charges were filed against Peterson or anyone else. But prosecutors had the body exhumed from a Texas cemetery and autopsied in Chapel Hill not long before Peterson's Durham trial. This time, forensic physicians decided Ratliff had been murdered.
Defense lawyers argued all along that evidence about Ratliff should be excluded because it was too remote in time, irrelevant and "prejudicial" to Peterson. Superior Court Judge Orlando F. Hudson ruled, however, that the evidence was admissible to show "intent, knowledge and absence of accident" in the death of Peterson's wife.
Even Exum and Sutton acknowledged in their October brief that there were "striking similarities" between the deaths of Ratliff and Kathleen Peterson. "But striking similarities are not sufficient ...," they wrote. "In this case, the evidence that Mr. Peterson was involved in Ms. Ratliff's death is so thin that its admission ... was a clear abuse of discretion."
Without taking the witness stand, Peterson contended through two trial attorneys -- David Rudolf and Thomas Maher -- that his wife died from an accidental fall on a steep, narrow, dimly lit stairway in the couple's Forest Hills mansion on Cedar Street. But jurors accepted prosecution arguments that she was fatally beaten with a blunt object, perhaps a fireplace poker.
