A judge said Wednesday he wants to question an attorney before deciding whether the man can testify in the murder trial of former Bolingbrook police sergeant Drew Peterson.

Harry Smith maintains that Stacy Peterson, Drew Peterson's third wife, told him Peterson was angry because he thought she'd revealed he killed Kathleen Savio, who was found dead in a bathtub in 2004.

Peterson’s lawyers want Will County Circuit Judge Edward Burmila to bar Smith’s testimony arguing that he violated attorney-client privilege when he testified at an evidentiary hearing about conversations he had with Savio and Stacy Peterson.

Burmila said those conversations would have been covered by attorney-client privilege, but he also said Savio might have waived that privilege -- which would bar Smith from disclosing what she told him -- when she supposedly told the lawyer, "If I die, you have to go to the authorities and tell them that Drew did it." 

Burmila added he was concerned Smith hadn't shared information that could be helpful to Peterson and would meet privately with Smith, at another time, to hear what sort of additional information he’s withholding and decide whether it should be revealed publicly.

Peterson, dressed in a blue prison jumpsuit, wearing glasses and a thin beard, sat quietly in the courtroom Wednesday as attorneys on both sides sifted through a number of legal motions in preparation for his upcoming murder trial. Peterson chatted briefly with Will County Sheriff Paul Kaupas before the hearing started.

Judge Rejects Call for New Jury

Earlier in the day, Burmila rejected a defense motion on the potential pool of jurors. About 175 potential jurors previously filled out a questionnaire and were admonished not to follow news of the case. Peterson’s jurors likely will be picked from the original pool set aside in 2009, despite objections from his defense attorneys

Peterson’s attorneys argued that members of the jury pool, knowing that they could be participating in the case, would be more attracted to the media coverage. Defense attorney Joel Brodsky likened it to telling somebody to stand in a corner and not think about a pink striped elephant.

"They’re going to go to the corner and they’re going to think about the striped elephant,” Brodsky argued

Burmila, however, said there’s no reason to think the potential jurors aren’t following the original judges instructions and denied the motion.

Other Motions

• Burmila sided with the prosecution in ruling that evidence Peterson owned a lock pick is admissible in court. The defense said said there was an inference that Peterson used it and said there is no information as to how the Savio's killer got in the home.
• Burmila partially sided with the defense regarding the admission of TV interviews Peterson had given. Three videos were denied while four were deemed admissible. The videos are from various news outlets.
• Burmila gave a partial victory to the defense in banning, for now, testimony about a demonstration an expert did with a woman of Savio's size to recreate how she died. The judge said an expert's testimony will be limited to his observations of the bathtub.
• Burmila cleared the courtroom of media during arguments over whether statements from Rev. Neil Schori will be allowed in the trial. Prosecutors said they want Schori to testify that Stacy Peterson told him she saw Drew Peterson return home late, dressed in black and carrying a bag of women's clothing shortly before Savio was found dead. Burmila said he'll rule on that question next week.
• Burmila ruled that prosecutors must provide a daily notice of potential witnesses.

Preferential Treatment?

After Wednesday's hearing, Mitchell Doman, Savio's brother-in-law, complained Peterson was getting "Joe Hollywood" treatment in court. He said he saw Peterson joking with Sheriff Paul Kaupas before the hearing and said he saw Peterson handcuff himself after it was over, the Chicago Tribune reported.

Peterson's attorneys said their client isn't getting preferential treatment.

Copyright SunTimes / NBC Chicago

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