Under questioning by Brodsky, Smith told jurors that Stacy Peterson had asked him a question before she vanished: Could she squeeze more money out of her husband in divorce proceedings if she threatened to tell police that he murdered Savio three years earlier?
Brodsky hoped Smith's testimony that Stacy Peterson allegedly sought to extort her husband would dent the credibility of statements she made to others that Drew Peterson threatened to kill her.
But during his testimony, Smith kept stressing how Stacy Peterson seemed to sincerely believe her husband had killed Savio. Prosecutors could barely contain their joy, with chief state's prosecutor James Glasgow calling it "a gift from God." And some jurors said later that Smith's testimony convinced them to convict Peterson.
Judges rarely grant retrials, even in egregious cases of missteps. And when they do, it is usually because an attorney didn't make a certain argument or call a witness who might have exonerated a defendant, explained Kathleen Zellner, another Chicago-area defense attorney.
Peterson himself will also be hard-pressed to say he didn't appreciate the pitfalls, since Burmila took the exceptional step during the trial of telling defense attorneys — with jurors out of the room — that calling Smith was risky.
"It's usually not for something an attorney did but for what they did not do," she said.
But seemingly nothing can be ruled out in the Peterson case, which has been full of oddities since it first made headlines in 2007. His trial was the first in Illinois history where prosecutors built their case on hearsay thanks to a new law tailored specifically for the case, dubbed "Drew's Law."
Savio's drowning death was initially deemed an accident, a freak slip in the tub. But after Stacy Peterson vanished, Savio's body was re-examined and her death was reclassified as a homicide.
Still, most legal observers agreed the motion for a new trial is a longshot — at best.
"Nothing in this case has been usual," Pissetzky said. "But the chances for this motion to success are slim to none — and slim just left the building."
Follow Michael Tarm at www.twitter.com/mtarm