Stephanie Croston

    Editor's note: This is part three in a three-part series reviewing the available information in the Lucas Peterson case.
     In his Feb. 20 ruling, Seward County District Court Judge Alan Gless recommended dismissing felony charges against Lucas Peterson because of the existence of a cooperation agreement.
     Peterson was charged with child abuse, death of a child and unlawful burial in the death of his 11-month-old daughter, Trista. He took deputies to her body in Butler County on April 13, 2007.
     "I find there was a cooperation agreement," Gless wrote. "Lucas performed his understanding of his part of the agreement; and in performing, he acted to his detriment."
     He ordered the state to drop the charges of child abuse, death of a child and unlawful burial, which are both felonies. Instead, Peterson should be charged with concealing the death of a human, which is a Class I misdemeanor.
     During the suppression hearing, held Sept. 25 through 27, County Attorney Wendy Elston talked about a meeting with Peterson on April 3 in which they talked about possible charges to be filed against Peterson. Peterson told Elston he wanted to plead to the charges facing him so he could get out and help find Trista.
     "I said, you know, that there wasn't gonna be charges and then he said thank you. And then I kind of smiled at him," Elston said according to court transcripts.
     Elston did not tell Peterson that the charges could be filed later, she said.
     "You gave him the impression that-that it was all over with, he was done?" Jeff Pickens, Peterson's attorney, asked Elston.
     "That particular probable cause finding, yes," Elston said.
     "That's what you attempted to communicate to him?' Pickens said.
     "Yes," Elston replied.
     Seward County Chief Deputy Dan Hejl testified that he and Elston talked about the possibility of offering Peterson a deal. Both agreed that the most important thing was finding Trista, and Hejl and Sgt. Mike Vance were planning to interview Peterson again on April 12, Hejl said.
     "She said that if it became necessary during that interview to offer him a deal, we could," Hejl said.
     He understood that the offer would include the other felony charges Peterson was facing, including criminal mischief and tampering with physical evidence, both of which stemmed from an incident at VanDerslice Towing in March of 2007.
     Elston testified that she did not authorize a deal. She and Hejl talked about different scenarios that may have played out, and Hejl mentioned that Peterson was concerned about serving time for felony convictions. At that point, a possible charge of concealing the death of a person was brought up.
     "And then Hejl had thought that, you know, that might be good because Lucas seemed to be concerned about felony charges and so then I just told Hejl, you know, that he could tell Lucas, you know, that I would keep-I would take into consideration all the facts, you know, of the case and, you know, that if it was accidental, I would take that into consideration when I made my charging decision," she said.
     Elston knew there were felony charges pending in another case, although she was not the attorney handling that case, she said.
     "And then I think I made some statement-or I had made the statement that-that the felony charges did not matter to me because they were a property offense and that he could use them if it became necessary," she said during the suppression hearing.
     According to a transcript of the interview, Hejl told Peterson: "She (Elston) said as long as it was accidental. And I'm not saying you're responsible. As long as it was accidental, she's willing to take, she's willing to do away with felony charges that includes the current ones, too."
     Also in that interview, Vance told Peterson: "Nobody wants to go to prison. That man right there is offering you a way to make it all go away."
     Later, Vance said: "That man went to bat for you today. He got a deal that I never thought was possible."
     As a result of that conversation, Gless wrote, Peterson agreed to take the deputies to Trista's body.
     "The evidence supports a finding of fact and conclusion of law that Lucas's statement and actions on April 12 were motivated by his understanding of that promise rather than by some desire to do the right thing for Trista and Jennifer (Williams, Trista's mother)," Gless wrote.
     "Lucas did not disclose Trista's location until he was offered a deal good enough for him. Lucas disclosed Trista's location because the deputies promised him that he would not be charged with any felonies if he helped them find Trista's body."
     Gless said there were seven factors that led him to his conclusion.
     The agreement and its terms were the state's idea and given to Peterson by the state. The terms were not clear, "and any ambiguity must be interpreted in favor of Lucas," Gless wrote. "'If it was an accident' overflows with ambiguity."
     Peterson was not advised of his constitutional rights, nor was his counsel present during the interrogation. The terms were not written out in advance, and the interrogation during which the agreement was offered was not recorded in its entirety.
     Therefore, Gless concluded, a cooperation agreement was in place and the state should dismiss the felony charges and instead charge Peterson with concealing the death of a human, which is a Class I misdemeanor.