At issue this time -- the testimony of forensic pathologist Dr. Larry Blum, who performed an autopsy on Kathleen Savio three years after he death. He told the jurors he crawled into the tub where her body was found during the investigation. Judge Edward Burmila had told prosecutors earlier that Blum could not talk about getting into the tub.
It's the fourth such blunder by prosecutors, but, unlike the earlier incidents, did not lead to a request for mistrial. But that doesn't mean there won't be a fourth attempt at mistrial if the defense sees it's warranted.
"It depends on what the next mistake might be. It has to be about the state jumping all over the judge's orders," Defense attorney Joe Lopez said.
So far there have been three such motions filed in as many weeks. The latest motion for mistrial was withdrawn by Peterson's defense on Wednesday morning. They had asked for the mistrial the day before after an assistant Will County state's attorney asked a witness about an order of protection. The judge had previously barred the question.
"The defendant, Mr. Peterson, wants this jury to decide his case. A jury of his peers," defense attorney Joe Lopez said. "We are not giving the state a practice run, this is the real race."
The defense did ask Judge Edward Burmila to strike all hearsay testimony from the case and bar any further from the testimony. That was denied.
The state's case relies heavily on hearsay evidence.
Peterson, 58, is accused in the 2004 murder of his third wife, Kathleen Savio. He was charged after his fourth wife, Stacy Peterson, disappeared in 2007. Stacy's disappearance led police to reopen Savio's case.
The third request for mistrial was filed after prosecutor Kathleen Patton asked a witness, Teresa Kernc, whether Savio had sought an order of protection against Peterson. Judge Burmila immediately ordered jurors to leave the room.
"There was one thing I told you not to go into and that's exactly what you did," Burmila said to Patton.
"I'm sorry," Patton said. "It's my fault. I can't believe I did it."
The judge seemed unmoved by Patton's apologies. He dismissed court early to consider the defense's third motion for mistrial.
The prosecutor's case is based heavily on hearsay evidence, including that of Kernc. Defense attorneys had wanted to strike all of it in light of the prosecution's blunder, but the judge denied that, as well, on Wednesday.
Kernc, who served on the Bolingbrook Police Department with Peterson, returned to the testimony on Wednesday and read a report she took from Savio after a Peterson allegedly held his third wife against her will for three hours. Kernc testified that at one point, Savio allegedly told Peterson, "Go ahead and do what you came to do: Kill me."
"He said, `Where do you want it?' And she said, `In the head."' Kernc testified.
Peterson then allegedly told Savio to turn her head, which Savio did, Kernc said, based on what Savio told her.
"And then he said, `I can't kill you,"' she told jurors. Peterson then threw a garage opener to the ground and left.
At that point on Tuesday, Patton asked about the order of protection, which led to the early court dismissal and request for a mistrial. It was the third time prosecutors were warned after broaching prohibited subjects, including allegations that Peterson tried to hire a hit man and testimony from a neighbor that implied Peterson threatened him.
"It is an avalanche of prejudicial, illegal evidence that is polluting this jury," he said. "To have this many ... errors, how can the defendant get a fair trial?"
Investigators collected no physical evidence after Savio's body was found in a bathtub in her suburban home in 2004. Her death was originally ruled an accidental drowning. After Stacy Peterson disappeared three years later, Savio's body was exhumed and re-examined, which led to a reclassification of her death as a homicide.
Peterson is a suspect in the disappearance of his fourth wife, who is presumed dead but whose body has never been found. He has never been charged in that case.
The Associated Press contributed to this report. All rights reserved.
