DNA and the Authoritarian Fantasy Life of Prosecutors
By Andrew Martin has a fascinating article about how things work in a winger-dominated DA’s office in Illinois. First, people are convicted based almost entirely on not-very-plausible confessions extracted from the kind of marathon high-pressure interrogations that will produce many false positives. And then, once a convicted defendant is essentially exonerated by DNA evidence, the prosecutors respond by trying them again (or refusing to try the real killers) based on baroque theories that would need substantially more coherence and underlying evidence to rise to the level of being “implausible”:
His theory for why there was sperm that did not come from Juan Rivera inside 11-year-old Holly Staker on the day she was murdered is, to his mind, simple and straightforward. She and her twin sister, Heather, were sexually active, Mermel argues, and Holly must have had sex with someone else before Rivera came along and raped (but didn’t ejaculate) and murdered her. There was scant evidence to support this sexual-activity theory, but Mermel dismissed that objection. “Nobody is going to admit to having sex with an 11-year-old girl, even if the statute of limitations has run out,” he told me. “But there was a lot of evidence that came to our office that these two girls were sexually active.”
Sure, we don’t have any evidence that this 11 year-old girl had sex the day she was raped and murdered by someone who apparently left no forensic evidence at the scene, but we have evidence that she was sexually active — conjecture is a kind of evidence, right? And evidence has come into our office! Not the kind of evidence that can be presented in open court or anything, but it’s out there!
An initial examination found no evidence of sexual assault in the case, and Hobbs never mentioned it in his confession. Two years after his arrest, though, a private laboratory hired by his lawyers discovered that there had been sperm in Laura’s vagina, anus and mouth, and they tested a sample. The defense lawyers immediately announced that DNA analysis showed the DNA did not match Hobbs’s.
When Mermel heard about the findings, he dismissed them and suggested that Laura could have got the sperm on her while playing in the woods, where couples might have sex.
Right. I’m sure this has happened to all of us — you go for a quick chaste stroll in the woods, and you come back with your genitals covered in semen. Happens all the time.
At least in the latter case, the innocent man is free, although the DA has refused to prosecute the probable killer identified by the DNA evidence. The first exonerated defendant remains in prison after being convicted yet again. Obviously, Rivera’s post-DNA convictions represent failures by the jury and/or defense counsel as well as the DA. But an interview with the victim’s guilt-ridden twin sister late in the article shows how the jury can err; no matter how ridiculous the DA’s theory, most people have no idea how unreliable confessions secured under coercive methods are. The DA’s office has no such excuse.