The Drew Peterson case, involving the murder conviction of his third wife, Kathleen Savio, and the unresolved disappearance of his fourth wife, Stacy Peterson, remains a landmark case in legal circles. As Joel Brodsky, lawyer for Drew Peterson during the tumultuous trial, I found myself at the epicenter of a legal storm, particularly concerning the controversial “hearsay evidence” related to Stacy Peterson’s disappearance. This evidence ultimately played a significant role in Peterson’s conviction, sparking intense debate and scrutiny.
Recently, during a local news interview discussing Ed and Anne Burke’s influence over judicial elections, I mentioned contemplating revealing information about Stacy Peterson’s fate. This statement ignited a firestorm of reactions, primarily from legal commentators and fellow lawyers. Accusations of potentially breaching the sacrosanct attorney-client privilege were rife, with some even suggesting such an action could destabilize the legal system itself. However, to borrow from Shakespeare, these protests seemed to “doth protest too much.”
There exists a compelling argument for allowing the disclosure of my knowledge regarding Stacy Peterson’s disappearance, an argument rooted in the nuanced understanding of attorney-client privilege and its inherent limitations.
Just as the right to free speech has boundaries – one cannot falsely yell “fire” in a crowded theater – so too does the attorney-client privilege have justifiable exceptions. Recent events involving President Trump’s legal team highlight this very point. Federal courts have ordered several of Trump’s attorneys to testify before grand juries concerning their communications with the former president. Furthermore, Michael Cohen, Trump’s long-time attorney, published a book detailing numerous conversations he had with his former client.
Before delving into why disclosing information about Stacy Peterson should be considered an exception to attorney-client privilege, it is crucial to define and understand the scope of this privilege.
Understanding Attorney-Client Privilege: What It Really Means
The attorney-client privilege is designed to protect communications between a lawyer and their client, preventing the attorney from being compelled to disclose what the client shared for the purpose of obtaining legal advice or representation. It is essential to recognize that this privilege is not as broad as commonly perceived.
Firstly, a valid attorney-client relationship must exist. Confiding in someone who happens to be a lawyer you just met socially does not automatically invoke privilege. Secondly, even within a legitimate attorney-client relationship, not all communications are protected. Information shared with a lawyer that is not for the purpose of seeking legal advice or representation falls outside the scope of privilege. For instance, boasting to your criminal defense lawyer about marital infidelity, unless it is relevant to a divorce case, is not privileged. Context also matters significantly. If a third party, even a spouse, is present during a conversation, the privilege may be waived. The intricacies of attorney-client privilege are vast, filling entire legal volumes, and extend beyond the common understanding of casual conversations with legal counsel.
Exceptions to Attorney-Client Privilege: Balancing Interests
Numerous exceptions to the attorney-client privilege exist, demonstrating its conditional nature. The “crime-fraud exception,” recently prominent in legal discussions, dictates that if legal advice is sought to facilitate a crime or fraud, the communication is not privileged. Other exceptions include the “common interest exception,” the “testamentary exception,” and the “intention-competence exception,” among others. A unifying principle underlying all these exceptions is a “balancing of interests” test. This analysis weighs the potential harm caused by disclosing privileged information against the benefits gained from disclosure. In each exception, a harm-benefit analysis determines whether the societal or individual benefit of disclosure outweighs the potential harm to the attorney-client relationship.
In the specific context of the Stacy Peterson case, and considering the current circumstances of Drew Peterson, this balancing test becomes particularly compelling.
Drew Peterson, now 68 years old, is serving a 38-year sentence for Kathleen Savio’s murder and an additional 40-year sentence for soliciting the murder of the Will County State’s Attorney. These sentences are consecutive, meaning he must serve a minimum of 72 years, even with potential good behavior credit on the latter sentence. Having served 11 years as of 2023, he faces another 61 years behind bars.
Peterson’s conviction for Kathleen Savio’s murder has been exhaustively reviewed and upheld by the Illinois Appellate Court, the Illinois Supreme Court, and the U.S. Supreme Court declined to hear his appeal. The U.S. District Court also denied his Petition for a Writ of Habeas Corpus, finding his arguments meritless and precluding further appeals. A total of twelve judges have unanimously affirmed the competence of Peterson’s legal representation and the fairness of his trial in the Savio murder case. Similarly, his conviction and 40-year sentence for solicitation of murder were affirmed on appeal, and the Illinois Supreme Court rejected his subsequent appeal in March 2021. Peterson has exhausted all avenues of appeal concerning this second conviction.
The reality is stark: Drew Peterson will spend the rest of his natural life in prison. He will die incarcerated long before his sentences conclude. Given that Illinois does not have the death penalty, any further criminal charges and convictions would have no practical impact on his sentence. No additional prison time would be served, regardless of further convictions.
Hypothetically, disclosing information that a convicted murderer, already serving a life sentence, committed another murder of a missing person, leading to the recovery of the victim’s remains, would inflict negligible harm upon the convicted murderer. Unless the state could somehow grant him a second life to forfeit, further convictions would not extend his imprisonment. While one might argue reputational harm, such an argument lacks weight given his current status and irreversible incarceration.
Conversely, significant benefits could arise from allowing an attorney to disclose information about a missing person’s fate when the former client is serving a life sentence with no remaining appeals, and habeas corpus review has been denied. If, hypothetically, Stacy Peterson were murdered, revealing this information could lead to the recovery of her remains, allowing for a proper burial. This would offer immeasurable closure and peace to her father, sister, brother, and children, knowing their loved one was not simply discarded. The psychological and emotional benefit to the victim’s family cannot be overstated. Furthermore, in a case that captivated public attention, resolving the mystery surrounding Stacy Peterson’s disappearance would bring a sense of finality and closure to the wider community.
A Proposed Exception for Missing Persons Cases
Therefore, I propose the consideration of a new exception to attorney-client privilege specifically for missing persons or unsolved murder cases. This exception, requiring court approval, would apply when the former client faces no significant additional punishment from disclosure, and the disclosure would provide substantial benefit to the victim’s family, loved ones, and the public. In situations where a former client is imprisoned for life, all appeals are exhausted, habeas corpus review is denied, every legal argument for reversal has been made, and court approval is granted, attorney-client privilege should not bar an attorney from revealing information about a missing victim’s fate.
This nuanced approach seeks to balance the fundamental principles of attorney-client privilege with the compelling need for justice, closure, and peace for victims and their families in the most tragic of circumstances.
Joel A. Brodsky
Chicago, Illinois
December 12, 2023
