A grisly whodunit may rest on the oddest criminal defense theory in recent history. We asked the experts if it’s possible.November 12, 2016
Editor's note: This story was originally published in the fall of 2016 during Michael Peterson's retrial. A request for dismissal was rejected, and the case continued into 2017, when he eventually entered an Alford guilty plea. The owl theory never made it to court.
The 15-year-old legal proceedings against author Michael Peterson for the alleged murder of his wife, Kathleen, constitute one of the more notorious and extensively documented criminal cases of our time. It has provided fodder for two Dateline segments, a Lifetime movie, an expansive documentary film series, and dozens of true-crime television episodes and podcasts. It is lurid, tinged with drugs and alcohol, replete with an ongoing extramarital affair with a prostitute, and soaked in blood—lots of blood. It also spawned a criminal defense theory that sounds like a punch line: The owl did it.
But it’s not a joke. And even though the "Owl Theory," which states that a Barred Owl is responsible for the chain of events that led to Kathleen Peterson's eventual demise, hasn't made it to trial yet, depending what happens next in the case, there's a slight chance it could still be presented. On Monday in Durham, North Carolina, the Peterson murder case is scheduled to enter what may be the last stage in the twisted legal proceedings that have dragged on since December 9, 2001. A superior court judge will decide whether to dismiss the charge that on that day, Peterson, now 73, struck his wife in the head repeatedly with a fireplace tool, causing her death by blunt force trauma.
The motive presented at trial in 2003 was an unlikely mélange of Peterson’s desire to cash in on his wife’s life-insurance policy and a furious fight between the couple—after she discovered he was having a long-term affair—that led to her fatal beating. Her husband called the paramedics at 2:40 a.m., claiming he found her lifeless body on the stairs in the family’s mansion. The alleged murder weapon—found in the Petersons’ garage and presented late in the proceedings—was ultimately ruled out for lack of forensic evidence, and simply because it had been sitting in the same place long before and after Kathleen Peterson's death. Regardless, Peterson was convicted and sentenced to life in prison without parole. But in December of 2011, a judge ordered a new trial after finding that a key witness had misrepresented his forensic expertise, and made “materially misleading” and “deliberately false” testimony about bloodstained evidence. Peterson has been free since the day of that ruling.
If it weren’t for this misstep by the prosecution, the case might have gone in a wildly different direction—blame the owl. But how exactly could an owl be responsible for the death of Kathleen Peterson? The Owl Theory essentially posits that a Barred Owl attacked Peterson, got entangled in her hair, and inflicted serious injuries, including the removal of part of her scalp, which triggered a series of events that led to her death after falling down a flight of stairs. The theory first came to light in late 2009, after attorney Larry Pollard, a friend and neighbor of Peterson’s, took a fresh look at the evidence. Her autopsy revealed seven lacerations, including very deep ones in the back of her scalp, and pine needles stuck to one of her hands, which both held clumps of her own hair. As Pollard discovered, the strands in the victim’s left hand contained three small feathers. Also, as Pollard and several ornithological experts noted, the pattern and shape of the cuts on Kathleen Peterson’s head suggest a weapon quite unlike a fireplace tool. If the culprit was an intruder, the finger points to the Barred Owl, a common species in and around Durham.
“When you look at her injuries, they do appear consistent with being made by an owl’s talons,” Peterson’s defense attorney Mary Jude Darrow tells Audubon. “But I would hate to risk my client’s life or future on that argument.”
So when Darrow enters court on Monday, she and co-counsel Mike Klinkosum will pursue a different argument, namely that no human forensic evidence exists to mount a substantive defense. The reason for this is twofold: The state improperly stored and thus contaminated crime scene evidence, including the couple’s blood-stained clothes, and also failed to order DNA testing of the victim’s clothes to rule out an attack by an outside party. Darrow and Klinkosum are seeking dismissal of the case with prejudice, which would protect Peterson from further charges.
But if the judge were to let a second trial move forward, Darrow says, there’s a slim chance she and Klinkosum “may decide to pursue” the Owl Theory as a defense.
If so, they would rely on Pollard’s extensive research of owl attacks on humans, as well as the testimony of specialists, including Kate Davis, executive director of Raptors of the Rockies, a Montana-based nonprofit. Around the same time that Pollard was tackling the Owl Theory, Davis was interviewed for a story about a local raptor attack on a boy who had been sledding. Davis subsequently received a call from a member of the documentary team from The Staircase, the Emmy-winning series about the Peterson case. The producers had done some research of their own, but they needed the expertise of someone who really knows her owls. Someone like Davis.
After delving into the evidence, Davis was convinced that an owl had attacked Kathleen Peterson, setting into motion the events that would lead to her death at the bottom of the stairs. She based her decision on the shape and placement of the victim’s wounds (a match to how the owl's talons would strike), the timing of the attack (in December, when owls are mating and highly territorial), the presence of the tiny feather (owl feet are covered with them), and the force of the impact. A 2014 study published in the Journal of Experimental Biology notes that an owl weighing less than a pound can pounce on a mouse with force equivalent to 150 times the weight of the rodent. If a 175-pound human were struck with the same intensity, it would feel like being hit by a 13-ton truck.
Mrs. Peterson weighed 120 pounds and the suspect bird in the Owl Theory, an adult Barred Owl, weighs between one and two-and-a-half pounds and can fly at speeds of up to 40 miles an hour. Of course, the truck analogy is outside the limits of a raptor’s power, but the point is clear: An owl strike can definitely cause blunt force trauma. What's more, the raptors are known to dive-bomb humans when they feel threatened, almost always targeting the head. For example, in 2015, there were repeated Barred Owl attacks on joggers in a park in Salem, Oregon. The victims of those strikes, which earned the bird(s) the name “Owlcapone,” suffered from multiple half-inch talon cuts.
Davis also points out that the victim would have been taken by surprise because the shape of an owl’s feathers—serrated on one side to cut through the air, and fringed along the other edge—make it silent in flight.
In a 25-minute interview with Raleigh news station WRAL in March, Pollard laid out the Owl Theory in great detail. “The other wounds that are on her body seem to give a compelling case to this having been done by an owl,” he said. “The injuries to the eyes, and the injuries to the elbows, and the little pock marks on her wrists, here and here, all are consistent with her having her hands over her head, holding onto her hair, because something is grasping that hair.”
Pollard’s timeline shows that Kathleen Peterson had been drinking wine with her husband by the backyard pool at night, and then headed through the house and into the front yard for reasons unknown. (Toxicology reports also found anti-anxiety and muscle-relaxant medication in her blood.) That’s where the raptor attacked. Peterson was out of earshot while his wife fought off the bird. The victim then walked into the house; blood was found on the front steps and smeared on the inside of the door. After all of this, while buzzed on wine and pills, she climbed the stairs, presumably en route to the master bedroom. But when she reached the last step, she fell backwards and tumbled to the bottom of the staircase. A crime scene photo shows her with her neck bent severely to the left, her head resting on the bottom stair, and her body splayed on the floor in a massive pool of blood.
If Peterson’s team succeeds in having the case dismissed on Monday, the sordid tale will end, and the Owl Theory will remain just that—a theory. Either way, Davis remains convinced that it is true.
“The owl didn’t kill Kathleen Peterson,” Davis says. “The owl just knocked her in the head. She would have been fine if she’d gone up and crawled into bed and slept it off.”