The questioning of Art Holland continued with both
sides focusing on the blowpoke mystery. Finally, the defense rested.
In the middle of Dr. McElhaney's testimony, one of the jurors, Dorthea Waters, had contacted the judge. Dorthea, the wife of fabled Duke University basketball coach Bucky Waters, informed the court that she was once a neighbor of Dr. McElhaney thirty years ago when they all lived in West Virginia.
The morning after the defense ended its presentation, the judge dismissed Ms. Waters. He expressed his regret and emphasized the lack of misconduct by the woman who had given thirteen weeks of her life to this trial. She was replaced by the first alternate, a 70-year-old man who was retired both from the Navy and from his job as a Durham bus driver.
The next morning, another juror's head was on the chopping block. Wilford Hamm had spent the previous night in the Durham County Jail. He had gone to a mechanic to check on the status of repairs to his pick-up truck in an intoxicated state, with his red juror badge pinned to his chest. He was not pleased with what he was allegedly told and threatened to get a shotgun and shoot someone.
When the police arrived on the scene, Hamm had already departed, but they spotted him across the street brandishing a 24-ounce can of beer. Hamm, with a great deal of foul language, berated the officers and warned them that he was a juror in the Michael Peterson trial and, because of that, they could not mess with him.
The trial had taken its toll. After twelve years of
sobriety, Wilford Hamm had fallen off the wagon in a very public way. The officers took him to detention because of concerns that he would harm himself or others. However, no charges were filed and Hamm was released at 9:45 in the morning. A hearing was scheduled to consider his fate as a juror on the following Monday morning after closing arguments and before the instructions were given to the jury.
When that hearing did occur, Wilford Hamm was also dismissed. On the way out of the courtroom, he patted David Rudolf on the shoulder.
Throughout most of the trial, seats were available to anyone who wandered through the doors. On October 2, 2003, the difference was dramatic.
Michael Peterson's family and supporters jammed cheek to cheek in three rows behind the defense table. The family of Kathleen Peterson was out in full force on the other side of the room. Journalists with their notebooks and laptops bumped elbows as they took notes. Not another spectator could fit in the seats at the back of the courtroom. Michael Peterson wore a special token of good luck. He told his attorneys it was his “phoenix rising” tie.
As they all squirmed in their seats, David Rudolf, with a studied air of indifference, surveyed his audience as if he knew he was as ready as he ever would be. As if he knew he could not fail. Was it possible he was that sure of his case, or was he burying insecurity behind an air of nonchalance?
Rudolf began his closing argument by playing an audiotape of a portion of Jim Hardin's opening statementâthe portion where he revealed the blowpoke to the jury. Rudolf told them that the weapon advocated
by the state wasn't missing, it was just discarded. Still, he did not reveal any of the mystery behind the discovery.
Rudolf went on to dispute Dr. Radisch's testimony and to build up the opinions of the defense's biomechanical expert, Dr. Bandak. As he talked, he replayed the slick video of the fall.
He then moved to a discussion of the principles of burden of proof and reasonable doubt. He pointed out the imperfections in the justice system and the recent uncovering of numerous wrongful convictions across the state.
“What I want to do this morning and this afternoon [ â¦] is to focus on the reasonable doubts in this case. Since we are in the age of David Letterman and lists of ten, I've come up with a list of ten.”
First on Rudolf's list was: “The missing murder weapon isn't missing and it wasn't used in a murder.” Second: “There is no credible motiveâand you don't just decide to kill your wife for no reason.” Rudolf argued, “Your common sense tells you you don't decide to kill your wife in a first-degree murder for no reason.”
He accused the state of working backwardsâcharging Michael Peterson with the murder and then seeking a motive. “I am reminded of
Alice in Wonderland
,” Rudolf said, waving the book at the jury. “There's a great little line when the Queen of Hearts is having a trial over the stolen tarts and she says, all of a sudden, âSentence firstâverdict afterwards.' And that's sort of what happened here: Indictment firstâlook for the evidence afterwards. That is not how it is supposed to work.”
Rudolf attacked the motives presented by the
prosecution. “Having failed to present a financial motive,” he said, “the state moved on to the other standby, sex. I submit to you that the testimony about gay pornography and bisexuality was masquerading as a motive, but it was really an appeal to bias. What it really was, was an attempt to get to your emotions to say, âOh, Man. God, the guy is bisexual. The guy has got pornography on his computer. Yuck.' That's what was really going on.”
Rudolf continued down his top ten list. “Reasonable doubt number three: Michael and Kathleen Peterson were happily married with no history of violenceâand spousal abuse generally doesn't start with murder.” Reasonable doubt number four: “Michael Peterson's grief and shock was sincereâand no one who was there disagreed.”
Number five: “Kathleen Peterson's injuries are not consistent with a beatingâno skull fractures, plus no other fractures, plus no traumatic brain injury equals no beating.”
Rudolf waved the blowpoke in the air to punctuate point number six: “You don't beat somebody and let them crawl around and die of loss of blood after thirty or forty minutes. That's not what happened.”
Number seven: The information and documentation from the scene is not reliable. “Sometimes it's referred to as âGarbage inâgarbage out.' Some of you may have run into that in your various fields of endeavor, but what it basically means is, the end product is only as good as what goes into making it. That's just good common sense.”
Number eight: The state relied on junk science. “You
know enough about blood spatter now,” he said. “You can tell whether he's lying or not. You don't need me. Just look at the picture.” Rudolf then launched his attack on the work of Dr. Deborah Radisch. “Even reputable scientists can engage in junk science.”
Number nine: “The state has relied on emotion, guesswork and conjecture.” He defended the autopsy performed by the osteopath, Larry Barnes, who “ ⦠came to the opinion that she died of a stroke. What's his dog in this fight? Why would he care? Investigators on the scene in 1985 saw no evidence of anything suspicious. [ â¦] What evidence is there that Michael Peterson had anything to do with that? None. Zippo.”
Rudolf ridiculed the prosecution's reference to coincidences. “Found at the bottom of the stairway. So, what, is he the stairway killer? The serial stairway killer? He continued down the state's list making disparaging comments about each one.
“Most of you are old enough to remember the Kennedy assassination. And some of you may even remember all those weird lists of coincidences. Lincoln-Kennedy. Lincoln elected 1846. Kennedy elected to Congress in 1946.”
“Objection to this, Your Honor,” Hardin interrupted. “I don't believe any of this was introduced in the trial.”
After an exchange of heated words between the attorneys, the judge sent out the jury. Judge Hudson viewed Rudolf's presentation and decided that he could display it to the jury but could not read off the whole list. Finally, Rudolf moved on to reasonable doubt number ten: “The state's investigation suffered from tunnel visionâindictment firstâevidence afterwards. From
December ninth on, the police weren't looking for all the evidence and evaluating all the evidence. They were looking for evidence that confirmed their theory. And if evidence didn't confirm their theory, they really weren't paying any attention.”
By now, it was 3 o'clock, the normal end of the court day, and Rudolf wrapped up his argument. “I want to give you an apology for a couple of things.” He first mentioned that he did not deliver all the evidence he promised in his opening statement. “You can hold that against me,” he said. “All I ask is that you not hold it against Michael Peterson.”
He then admitted being too aggressive, too competitive and too long-winded. “I apologize if I have offended any of you. Again, hold it against me, but please, please, please, do not, in any way, hold it against Michael Peterson.”
He asked them not to get sucked into the images created by the prosecution. “Has the state excluded, to a moral certainty, every reasonable hypothesis except that Michael Peterson beyond a reasonable doubt beat Kathleen Peterson to death with a blowpoke in that stairway? Because if they have notâif there is a reasonable hypothesis of innocenceâthen there is a reasonable doubt. And you must, under your oath, vote not guilty.”
He emphasized the importance of their decision. He acknowledged the impact of the trial on their lives, then told the jurors the effect on them would be fleeting. “But what you do will stay with Michael Peterson, Margaret and Martha, Todd and Clayton, Jack, his brother, and Bill, and everyone else associated with Michael, for the
rest of their lives. There will be no going back if you have reasonable doubt.”
Once again, Rudolf played the 9-1-1 tape. Once again, Michael Peterson cried. The only times he cried during the trial were when this tape was played or when words written by or about him were read aloud.
“We ask you, after considering all the evidence in this case, to return a verdict that will speak the truthâa verdict of not guilty of first-degree murder.”
With those words, court adjourned for the day.
As it was yesterday, every seat in the small courtroom was filled and the air was electric with anticipation. Many had longed for this day, but none more than the members of Kathleen's family, who sat on the prosecution's side of the room. Small smiles of hope crossed their lips. Small furrows of worry cratered their foreheads. This was the day they believed that the state would connect all the pieces of the puzzle and bring them the justice they so devoutly desired.
The judge took his place. The jurors filed in. Freda Black was center stage. Some had called her “the Dragon Lady.” Many said her intensity was over the top. But to the families of victims in any trial, those attributes are a strong and lasting comfort.
She was the epitome of Southern motherhoodâfull of warmth, comfort and homilies for those in need, but with a tongue as sharp as a knife for those who deserved it. The pitiless lash of that tongue was about to fall with relentless determination on everyone connected with the case presented by the defense.
She paused to make sure the eyes of every juror were on her. She was angry and full of righteous indignation.
She knew loosing reins on these emotions would open her to criticism, but she did not care. She stomped on her caution and commenced a passionate soliloquy.
“Soulmates say these types of words to each other: âI, Michael, do take thee, Kathleen, to be my lawfully wedded wife. To live together in marriage. I promise to love you, comfort you,
honor
you, keep you, for better or worse, for richer or poorer, in sickness and in health,
and forsaking all others
be faithful
only
to you, so long as we both shall live.'
“Soulmates make these types of promises to each other. Some of you may have made that type of promise to another person at one time in the past. Michael says that Kathleen is his soulmate. His lawyer told you that, yesterday. Did he honor her? Did he keep her? Did he forsake all others? And was he faithful only unto her? You all know the answers to those questions. The answer to every one of those questions is âNo.'” Her eyes flashed with a challenge no one could deny.
Black walked the jurors through the arrival of the first responders at 1810 Cedar Street and their realization that there was too much blood for a fall. She talked about their difficulties at the scene. They were unable to get any information from Michael Peterson. “Then there's Todd,” she said with a disgusted curl on her lips. “He's the one with the attitude. He's belligerent. He won't follow simple instructions to be quiet. He won't stay in one place. [ â¦] They've got Benâwell, Ben's drunk. Ben is just plain drunk. Ben Maynor,” she repeated with a disdainful and dismissive tone usually reserved for the discovery of sugar ants in the kitchen. “They've got to contend with that drunk person. Then theyâthey've
even got growling dogs to contend with. They've got a ten-thousand-square-foot house, and a ladyâpoor lady lying there, deceased, and it appears to them that she's been dead for some period of time, but then, they're confused about this call they've received. So that's what they start out with.”
She then dismissed the defense allegation that the crime scene was contaminated. “Now to hear them tell it, there was luminol that was done in one portion of that stairwell. Well, if you believe that, then you're just gonna have to believe that Duane Deaver is just a
liar.
” Ms. Black jutted her chin forward and raked the jury box with her gaze. “And he has no reason in the world to come up here and lie to you. So there's been no credible evidence that anything was done to alter that stairwell.”
She told the jurors that what was important was what was done prior to the arrival of the authorities. “Nothing was really done to refute the testimony of Dr. Bouldin. I argue to you he's one of the most important witnesses that you heard from in this case. Dr. Bouldin told you that in his area of expertiseâand he is a qualified expert with impeccable credentialsâthat the average time for those red neurons to be found would be two hours. That he's never seen anything in less than two hours. What that means to you is: Kathleen was unconscious for at
least
two hours. That gives Mr. Peterson at
least
two hours to do things,
before
the 9-1-1 call is placed.”
In the audience, the ashen face of Caitlin Atwater followed every word of Freda Black's presentation. Her eyebrows tensed inward. Dark smudges beneath her eyes testified to sleepless nights. Her mouth was pulled so tight her pale lips seemed to disappear.
On the other side of the courtroom, a small smirk fought to gain possession of David Rudolf's face as he stared past Jim Hardin at the faces of the jury beyond him.
Black contended that in addition to Peterson's odd behavior of removing his shoes, he also tried to clean up, positioned Kathleen's body and attempted to wash his hands. “And somewhere he put a weapon. Was it the blowpoke? We can't be absolutely certain, and we're not required to be absolutely certain, but that weapon went somewhere.
“But now, why did he do all these things? And you need to keep in mind, we're not dealing with the average individual over here,” she said, swinging her arm back toward the defendant. “We're dealing with a
fictional
writer. Some people even say he's a
good
fictional writer. He is a person who knows how to create a
fictional
plot. And in this case, he has tried to create one. He tried to sell it to the EMS workers. [ â¦] He tried to sell it to his family.” Black paused and looked hard at the jurors. “And in this courtroom, he's tried to sell it to youâa fictional plot.”
Black turned her comments to Liz Ratliff and Rudolf's ridicule of the commonalities between the two cases. Then she moved on to other defense contentions. “Is he really a grieving spouse? [ â¦] Why didn't he try to give her CPR? You ever ask yourselves that?” Black then turned to Peterson's email use in the hours after Kathleen's death. “Would you really be checking your emails if your spouse was lying out in the hallway with blood everywhere?”
Black questioned why Peterson did not help with the
funeral arrangements and why he boarded up the stairwell. “You don't find it strange that he has had his deceased wife's blood in his stairwell, right there? You all saw it. For eighteen months! Isn't that strange?”
The prosecutor then took aim at the star witness for the defense, Dr. Henry Lee, criticizing his attack of Deborah Radisch, his lack of a final report and the way he laughed and made jokes on the witness stand. “And Mr. Rudolf said that state experts had engaged in junk science. Well, what do you call spitting ketchup across the courtroom? Throwing red ink? What do you call that?” Bending from the waist, she leaned toward the jury, her chin jutting at them in defiance. “Does that seem scientific to you? I call that junk science. Spitting ketchup over toward the state's table.”
Black pointed to Dr. McElhaney's testimony, which refuted the defense theory of a fall. “Now, who else did the defense bring to you? Major Palmbach.” She said his name with as much revulsion as any Southern belle reserved for a carpetbagger. “Well, according to Major Palmbach, we need to brace ourselves in Durham,'cause we've got problems.”
Black summarized the state's financial testimony and then moved on to the most sensational of all witnesses, “Brad”âBrent Wolgamott. “Do you really believe that Kathleen knew that Mr. Peterson was bisexual? Does that make common sense to you? That it was okay with her to go to work while he stayed at home and communicated by email and telephone with people he was planning on having
sex with
? Does that make sense? âGo on off to work, honey, I'm gonna be talking on the computer with some of my boyfriends.'”
She picked up the pack of pictures of Brad and waved them in the air. “He's got his pictureâhe's downloaded his picture, front-side up and backside upânaked.”
Across the room, Mike Peterson's eyes twinkled and his lips pursed as he struggled to hold back that smile that wanted to dance across his lips.
“I asked Brad what they were gonna do. He told you. And I don't mean to offend anybody but he
did
say they were gonna have anal sex. Do you really believe that was okay with Kathleen? [ â¦] The only reason that meeting didn't take place was because of Brad. It wasn't because of Mr. Peterson. He was fired up and ready to go. Even got the price right. [ ⦠T]hat's not the way that soulmates conduct themselves.”
Freda Black brought her fiery argument to a close. Her high energy was still outwardly displayed, but around her eyes, weariness from the long fight had left its mark. “We do thank you. All of our lives have been disrupted. But it's worth it, to find the truth and to seek justice. Not just for Michael Peterson, to seek justice for Kathleen. She's the one that died a horrible, brutal death. Nobody deserves that. Not even a
dog
deserves to die like the way she had to die. Can you imagine the pain and suffering she endured? You can just look at the pictures of the back of her head and just try to fathom that thought.”
She stared straight into the eyes of the jurors. She extended an index finger as she spoke, elongating the sentence for her last declaration. “Michael Peterson is guilty of first-degree murder.”
Behind the prosecution desk, Candace Zamperini wiped away tears.