Trial by stealth

My colleagues are today starting the third trial in the Juan Rivera case, and I have been monitoring the media coverage with great interest. In a WBEZ story aired this morning, a couple of statements attributed to prosecutors in Lake County (Illinois) raised my hackles.

By way of very brief introduction, Lake County is continuing to prosecute Juan Rivera for the rape and murder of an 11-year-old child in 1992 even though DNA evidence has excluded him as the source of the semen found in her body. According to WBEZ: “Prosecutors say they have effective arguments to explain the DNA evidence but they're not about to show their hand.”

Excuse me?

The suggestion that prosecutors are attempting to keep their theory of the case secret from the defense is disturbing. A trial is intended to be a truth-seeking process; hiding evidence or theories from the other side frustrates that goal. Critical testimony or evidence might be susceptible to contradiction or impeachment, but if it is sprung on the opposing party for the first time at trial, there may be no opportunity to rebut it. The losers, of course, are the jury and anyone with an interest in a reliable verdict—including the public.

Indeed, the difference in that regard between civil cases and the average Illinois criminal case is striking. There is a broad right to pretrial discovery in civil cases and witnesses are subject to deposition before testifying at trial. In contrast, prosecution witnesses in criminal cases are generally not required to speak with defense attorneys before trial and frequently refuse to do so—including police officers, who are public servants with job responsibilities that include testifying. (Capital cases are an exception; discovery depositions may be requested for “good cause.”) In other words, the parties have more rights when money is at stake than they do when person's very freedom is on the line.

In one well-known wrongful conviction case, that of Robert Wilson, the victim now says that the prosecutor advised her not to talk to the defense attorney before trial. Had she done so, she might have learned about an alternative suspect whom law enforcement officials were ignoring but who greatly resembled the description of the offender (which Mr. Wilson did not). A decade later, when the victim finally learned about this suspect, she recanted her identification of Mr. Wilson and the prosecutors dismissed the charges against him. Perhaps Mr. Wilson would not have lost those years of his life to prison had his lawyer been able to talk to the victim before trial.

The WBEZ story about the Rivera case also reports that the elected State’s Attorney of Lake County refused to be interviewed on tape because Rivera’s attorneys are “like rabid dogs who might try to twist his public statements.” This prosecutor's unprofessional accusation that defense attorneys do their job by “twisting” the facts (which, happily, is not a universal opinion) may be a convenient justification for litigation by stealth—but it only moves us farther from the arriving at the truth.

UPDATE:  As noted in one of the comments below, Juan Rivera was reconvicted in May 2009 at the conclusion of his third trial.  In June 2009 he was resentenced to life imprisonment.  His legal team remains convinced of his innocence and is appealing the conviction.

Comments

[bayrak]

thank you so much

[Jennifer Bontrager]

How is the case proceeding? It doesn't seem to be receiving much media coverage.

[Karen Daniel]

Jennifer,

There has been little coverage in the Chicago Tribune, but there are articles daily in the Chicago Daily Herald and the Waukegan News Sun (though not always as complete or as informative as one would like).

Closing arguments were today (May 4), so look for heightened media coverage. Definitely keep checking in with WBEZ. A verdict could be returned any day now.

Karen

[Jennifer Bontrager]

Thanks, Karen! I'll keep my fingers crossed for acquittal.

[Frank C]

Great article! It appears to me that the players in our legal system have become so caught up in winning at any cost (e.g. getting arrests, convictions, acquittals, etc) that they have forgotten the intent of the process, which is getting at the truth. I am no lawyer but as a concerned citizen I can't help but think, what if it were I sitting in that defendant chair? It's troubling.

[Jason]

He was found guilty again a couple of weeks ago. Why you failed to mention that baffles me.

[Johnny Blackmon]

Karen you are like a ray of sunshine.
johnny

[Joshua Davidson]

It is counter-intuitive that the parties have a right to pretrial depositions in a civil case when the liberty of the defendant is not at stake and the plaintiff is only required to prove their case by a preponderance of the evidence while those facing criminal charges are often forced to face a trial by ambush. The rules of criminal procedure in my home state of Arizona do provide for pretrial defense interviews of most witnesses however any individual who is the alleged victim of an offense has the right to refuse an interview. Moreover, a criminal defendant is required to submit his or her request through the prosecutor’s office who then forwards it to the alleged victim. With the absence of any oversight regarding the manner in which the prosecutor notifies the alleged victim of a request, it is not surprising that they are almost always denied.

[Jack - Wheelchair-Guide.com]

Nice article.. please do keep posted on the happenings.