From the beginning, I followed the Peterson case closely because I had meet Kathleen Atwater years ago when I lived in Durham. She was without a doubt a warm, bubbly women that did literally and figuratively light up a room with her presence. By all standards the Peterson case for me was just one of those cases that you couldn’t help but follow. One, because it was local and two, because it was fascinating case from various perspectives.

The latest judical move by Peterson’s new attorney, Jason Anthony alleging that prosecutors withheld exculpatory evidence from the defense during Peterson’s 2003 murder trial has the potential to be a legal checkmate. Why? Mike Nifong was the assistant District Attorney at the time Peterson was prosecuted. There has been rumblings in the local media after Nifong’s disbarrment that there maybe a need for an investigation into some of Nifong’s past prosecutions. The Nifong debacle has even lead to a new legal catch phase used by defense attorneys and clients, “you’ve been Nifonged.” This entire situation couldn’t have come at a better time for Peterson, granted it is a longshot but aside some reconsideration by the courts or some sort of Federal issue materializing, Peterson to date had exhausted his appeal options.

Peterson has filed two previous appeals both have been rejected by the court. The appeal on April 18th 2006, argued the trial court erred by allowing certain evidence to be heard. One key point on appeal was the 404(b) evidence concerning the 17 year old case of Elizabeth Ratliff, who died in Germany in 1985. She like Kathleen was also found at the foot of her staircase with muliple injuries to her head. At the time, the German police and U.S. military police concluded that Ratliff had died from an intra-cerebral haemorrhage.  People close to the case at the reported that Ratliff had been suffering from persistant, severe headaches in the weeks leading up to her untimely death.

The 404(b) rule used by Jim Harden, the prosecutor has come under fire. At the time, Harden wanted to show to the jury evidence of Peterson’s past acts or was it to allege other crimes committed by Peterson even though he was never charged in the Ratliff case? In essence Harden said to the jury the defendant (Peterson) has done this before, he knew what to do and he knew how to get away with it. The intial April 06, North Carolina  Court of Appeals’ ruling was not a unanimous ruling, so Peterson automatically had right to appeal his case to the North Carolina Supreme Court. On September 10, 2007, Tom Maher, Peterson’s court appointed attorney made his clients oral argument to the NC Supreme Court and on November 9, 2007 the Court announced that it had affirmed the decision of the Court of Appeals. The merits of the case remained unchanged.

The new motion filed today by Anthony has teeth especially when you consider that the alleged murder weapon was never truly discovered or disclosed. Would it really be so far fetched for the court or a jury to look at the past prosecutorial misconduct of Nifong and apply those actions to Durham’s District attorney’s office? One could argue Nifong had to learn or see those tactics somewhere and I believe this is the driving force for Peterson’s attorney and the cause of the motion for a new trial.  

WRAL– Anthony alleges in the motion that prosecutors withheld evidence of a tire iron, impairing the efforts of defense attorneys to argue that an intruder had killed Kathleen Peterson.

“The tire iron provides a key nexus between several other facts and items of evidence which support the ‘intruder’ theory,” the motion states. “Timely disclosure of the tire iron and other evidence supporting this theory would have made it possible for the defense to present a potent alternate theory of events that night, in addition to its primary theory. This would have made the burden on the state to prove their case against (Peterson) beyond a reasonable doubt a far more difficult obligation.

The day after Kathleen Peterson’s death, William Larry Mitchell found a tire iron in his yard, which is a couple of blocks from the Petersons’ house. Mitchell didn’t know where the tire iron had come from, so he stored it under his house.

Police at the time were searching the Peterson home for a tire iron because one officer noted a bloody imprint in the stairwell looked like a tire iron, according to the motion.

Several months later, Mitchell realized the tire iron might be connected to the Peterson case and called police to tell them about it, according to the motion. Police didn’t send an investigator to talk with him about the discovery and take possession of the tire iron for more than a year, the motion states.

Prosecutors had the State Bureau of Investigation test the tire iron days after it was turned over to police, but they never shared the information with Mike Peterson’s former defense attorneys, according to the motion.

Why this information was withheld from the defense remains to be answered. It is without doubt a miscarriage of justice regarding the rules of the courts. A change in procedure might have led to a very different result in this case and also in others.