The fight over what evidence can be used against Drew Peterson is now headed to the Illinois Supreme Court.
The Will County State's Attorney filed a motion Friday, asking the court to review a lower court's ruling handed down in July that threw out critical hearsay evidence prosecutors consider important to the case.
Peterson, a former Bolingbrook police sergeant, is charged with murdering his third wife Kathleen Savio. He has been in jail since his arrest in May of 2009.
This appeal could mean the trial could be delayed until the fall of 2012.
Savio's niece said the family just has to be patient.
"My family and I have been waiting since March 1st 2004 for justice for my aunt Kitty. That's a long time, and we want it done the right way,” Melissa Doman said. “Unfortunately if it ends up taking longer to get to an end result that is correct and everything is done the right way, then so be it, we have to wait."
At issue are seven hearsay statements that the trial court ruled inadmissible. Those statements would in effect allow Savio to testify from the beyond the grave.
Last month an Appellate Court ruled that prosecutors had missed a deadline and lost the right to appeal.
"I have a very serious obligation to make sure I present the best and strongest case possible in the prosecution of a murder case and that's what I'm attempting to do, that's what this appeal is all about," Will County State's Attorney James Glasgow said.
Peterson's attorney said the Illinois Supreme Court typically only takes three percent of these types of appeals, so he believes the chances are slim the Court will take the case. But even if it does, and even if justices rule in favor of prosecutors, the defense remains unfazed.
"Even if all the hearsay gets in, they still don't have a case,” Joel Brodsky said. “Jurors are not stupid, they realize what somebody said that somebody said, that somebody said arising out of a contested divorce case is unreliable, who can believe that stuff.”
The Court is expected to decide by November whether to allow prosecutors to appeal or not.
Because of the continued delays, Brodsky said he will file a motion to have Peterson released pending trial. Prosecutors plan to oppose that, arguing that Peterson should remain behind bars.