DNA TESTS: PROSECUTORS WANT TO HAVE IT BOTH WAYS

When prosecutors call for DNA testing to prove a case, they should not be able to claim that the result is irrelevant when the test showed that someone else could have committed the crime.

COURT REVERSES CONVICTION OF MAN JAILED FOR 19 YEARS IN RAPE AND MURDER
By Andrew Martin

The New York Times
December 10, 2011

In an opinion that harshly criticizes the tactics of the police and prosecutors, an Illinois appellate court on Friday night reversed the conviction of Juan Rivera, who has spent 19 years in jail for the 1992 rape and murder of an 11-year-old baby sitter in a suburb of Chicago.

Rivera, who is 39 and serving a life sentence, has been convicted three times for killing the sitter, Holly Staker, based on the strength of a confession that was obtained after four days of questioning. There was no physical evidence linking him to the crime, which occurred in Waukegan, Ill., and DNA testing in 2005 excluded him as the source of sperm found in Holly’s body.

In the most recent trial, in 2009, prosecutors explained the DNA evidence by positing two theories: that the sperm sample had been contaminated and that Holly had been sexually active. Rivera’s case was the subject of a Nov. 27 article in The New York Times Magazine that examined efforts by prosecutors, particularly in Lake County, Ill., where Waukegan is located, to discredit DNA evidence that supported the innocence claims of men they had prosecuted.

In its opinion, the appellate court on Friday said the confession was highly suspect and was not enough for a “rational trier of fact” to conclude that Mr. Rivera was guilty beyond a reasonable doubt. For instance, while prosecutors insisted that Mr. Rivera’s confession contained details only the killer would know, the court said that detectives had fed some details to him by asking leading questions and that some other facts had been made public in newspaper articles.

“The evidence belies the state’s argument and supports an inference that details of the crime were provided to defendant, intentionally or unintentionally, during the investigative process,” the opinion said. “The evidence further supports an inference that the details that the defendant provided were the result of psychological suggestion or linguistic manipulation.”

The court also noted that while the DNA evidence does not exonerate Mr. Rivera, it nonetheless “embedded reasonable doubt deep into the state’s theory.” The judges said evidence in the case discounted the idea that the sperm sample was contaminated. And regarding the state’s suggestion that the sperm came from an unnamed lover of Holly’s, the court said, “The state’s theories distort to an absurd degree the real and undisputed testimony that the sperm was deposited shortly before the victim died.”

The opinion also said, “The most reasonable explanation, therefore, of who murdered the victim is not the defendant but rather someone who, unfortunately, has not yet been identified.” Mr. Rivera, meanwhile “has suffered the nightmare of wrongful incarceration,” it said.

It may be several weeks before Rivera is released from prison, and even then prosecutors may try to block his release.

The Lake County state’s attorney, Michael J. Waller, said, “We are going to study the opinion, confer with our appellate attorneys on Monday and determine a course of action.” He declined to elaborate.

Rivera’s case is one of several in Lake County in which prosecutors have challenged DNA evidence. Michael Mermel, who was the lead prosecutor in Rivera’s last trial, said in the Nov. 27 Times article that DNA evidence can be irrelevant.

In one case, Mermel argued that an 8-year-old murder victim may have come into contact with sperm — which did not match the DNA of her father, whom he was trying to prosecute — by playing in woods where couples have sex or sitting on a bed where a man masturbated.

Mermel’s superiors deemed his comments in the article inappropriate, and last week he announced his retirement.