How Can the Same Thing Happen to the Same Guy Twice?: How the Stacy Peterson Case Brings to Mind the Doctrine of Chances

Today, officials exhumed the casket of Kathleen Savio, the third wife of Bolingbrook, Illinois Police Sergeant Drew Peterson.  Savio was found dead in her bathtub in 2004.  Now, with Peterson's fourth, current wife, Stacy Peterson, having disappeared two weeks ago, officials reopened Savio's case and recently called for the exhumation of Savio's casket to see whether they could unearth any evidence of foul play.  State's Attorney General James Glasgow has claimed that the evidence suggests that someone killed Savio and then tried to make it look like an accident.

Hearing this story on a loop today made me think about the classic case of Rex v. Smith, which introduced the doctrine of chances.  Generally, prior bad acts by an individual are inadmissible to prove that the individual has a propensity to act in a certain manner and that he acted in conformity with that propensity at the time of the alleged crime.

Rex v. Smith, however, introduced into evidence law roughly the same sentiment expressed by John McClane in "Die Hard 2":  "How can the same thing happen to the same guy twice?"  In Rex v. Smith, the defendant's wife died when she drowned in the bathtub, and the court allowed the prosecution to introduce evidence that two of his prior wives died when they drowned in the bathtub to rebut the defendant's claim that the drowning was accidental.  The court reasoned that the past acts were admissible not to porve propensity/conformity, but instead because the court could infer from the unusualness of the occurrence and the number of times it was repeated that the drowning was not accidental.

This doctrine, however, is rarely applied.  A quick Westlaw search shows that Illinois state courts have only mentioned it 13 times, and only twice since 1930.  Furthermore, unless Stacy Peterson turns up dead in a bathtub, a court hearing Drew Peterson's case would almost certainly lack a reason to apply it.  If however, Stacy Peterson turns up dead in a manner that looks like her killer tried to make it appear like she died as the result of an accident, the doctrine might just apply. See,e.g., People v. Brown, 557 N.E.2d 611, 621 (Ill.App. 1 Dist. 1990) (applying the doctrine of chances when the crimes to be compared were similar, but not identical).

-CM