Bluhm Blog

Misclassification Error Plus Tunnelvision Doomed Jerry Hobbs

Photo by Lane Christiansen of the Chicago Tribune

At a press conference after his office agreed to dismiss the charges against Jerry Hobbs, Lake County State's Attorney Mike Waller insisted that the detectives from the Lake County Major Crimes Task Force (LCMCTF) had done nothing wrong and were not to blame for Jerry Hobbs' decision to falsely confess to the murder of his 8 year old daughter Laura and her 9 year old friend Krystal Tobias.  According to Waller, his detectives were exonerated of any wrongdoing when Judge Fred Foreman denied Hobbs' pre-trial motion to exclude his confession from the trial. He told reporters to read Foreman's 36 page decision, even had copies made to hand out for them.  It was a clever ploy. He must have known that the reporters could not read and digest the decision quickly enough to question him at the press conference or even to read the decision in time to meet their deadlines.  He probably also banked on the fact that most reporters were not lawyers and therefore, were not in a position to understand why Judge Foreman's decision does not clear his officers.  End of story. Case closed.  Time to move on to the next case..... 

Not so fast.  I read Judge Foreman's decision again over the weekend.  From my perspective, the decision does not clear the LCMCTF.  If anything, it explains precisely why so many law enforcement officers screwed up so badly in this case.  

There are at least three common errors that occur in virtually every police-induced false confession: 1) the misclassification error (police erroneously conclude that an innocent person is guilty); 2) the coercion error (they subject that person to an accusatory, confrontational interrogation and turn up the heat in response to the suspect's denials); and 3) the contamination error (they feed the details of the crime that they know to be true to the suspect and pressure him to incorporate these facts into a confession which they often script for the suspect to sign).  All three are present in the Hobbs case but the most immediately recognizable error -- the one that practically leaps off the pages of Judge Foreman's decision -- is the misclassification error.  

The LCMCTF were confident from the very beginning of their investigation that Hobbs was guilty. Their confidence in his guilt only grew during the 21 hours he was in custody.  But why were they so convinced an innocent man was guilty?.  It was not based on hard evidence.  Hobbs also had no motive.  It was based on nothing more than intuition, hunches, junk science, and faulty police training that makes police think that they can tell that a suspect is lying based on an analysis of the suspects verbal and non-verbal responses (his body language).  In short, it was based on nothing more than speculation.

John E. Reid and Associates, the leading interrogation training firm in the United States, spend days instructing officers on how to detect deception and boast of accuracy rates of over 85% for its graduates.  They call it the Behavioral Analysis Interview (BAI). LCMCTF detectives are all Reid-certified or are trained by Reid-disciples such as Wicklander and Zulawski.  But study after study has demonstrated that Reid-trained investigators (and police officers generally) are not human lie detectors.  They are no better than you or I at detecting deception and we are right about as much as we are when guessing whether a flipped coin will come up heads or tails. The training, however, makes them overconfident in their ability to detect deception and it is this overconfidence that causes them to both coerce confessions and contaminate them in order to force suspects to accept their pre-conceived theories of how the crime occurred.

Let's review the evidence that police had against Hobbs that led them to insist he was guilty and to keep him in custody until he broke down and told them what they wanted to hear.  

• Hobbs was the father of one of the victims.  So what.  While it is true that police almost always consider family members "persons of interest," this is not evidence of guilt.  There are plenty of cases involving strangers who abduct, sexually assault, and murder children.
• Hobbs discovered the victims' bodies.  Again, so what.  This is not evidence of guilt. Hobbs had been searching for the girls throughout the evening.  The fact that he located them on the day after their disappearance is worth noting. But that's about all it is worth.
• Hobbs stated that he saw the girls's bodies from 20 feet away, that they were red, and pink, and blue, that they were very bloody, that he could tell they were not breathing, and that they did not look human.  Police expected Hobbs to rush over to the girls, to check if they were still breathing.  That's the way they believed a grieving father should have acted.  But people grieve in different ways.  They react differently when they are traumatized or in shock.  His failure to act as the police expected is not evidence of anything.
• Hobbs had a criminal background which included some violence (he had threatened a mobile park owner in Texas with a chain saw) and had some physical altercations with his wife prior to his incarceration and he told the police this during the interrogation.  Again, while a prior history of violence is noteworthy, Hobbs had nothing in his background to suggest he would stab his own daughter to death and murder her friend. Hobbs' wife told the police that he never laid a hand on the kids -- his anger was only directed at her, usually after he had been drinking.
• At one point Hobbs stated "I did not kill them girls."  Police are trained to believe that the fact that a suspect refuses to name the victims is suspicious. But this is nothing more than mythology.  
• Police viewed Hobbs's moaning and crying as inauthentic.  Again, even the best trained psychologists cannot discern the difference between real tears and crocodile tears.  
• His emotions did not "carryover" to other lines of questioning.  Maybe these lines of questioning were not as emotional.  
• The rest of the reasons for suspecting Hobbs were straight out of the BAI.  Hobbs was guilty because he "covered his face with his hands", he "turned away from detectives when they asked him about the girls," he slid to the end of his chair, placing himself as far away as possible from the officers at one point, he would "drop his hands" when the detectives switched topics from the girls to another subject.
• Hobbs's wife disputed parts of Hobbs' alibi, claiming that he was not playing video games with his son Jerry in their bedroom when he said he was.

After 21 hours of interrogation, this is all the police had upon which to base their belief that Hobbs was guilty.  Stunningly, Judge Foreman found that Hobbs was not "seized" by the police prior to his confession, i.e., that a reasonable person in Hobbs' position would have felt free to leave the police station.  Even if he was "seized," Judge Foreman made the even more incredible finding that the police had probable cause to arrest Hobbs based on the above facts.  He found that it was reasonable for police to infer that Hobbs had committed the crime based on his behaviors and the police interpretation of them.  In a sense he gave his blessing to to largely discredited notions -- that the police are able to intuit a suspect's guilt based upon "behavior analysis" and that they are reliable human lie detectors.

What happened here is that the police zeroed in on Hobbs, not based on any real evidence, but a combination of police mythologies and body-language bunk.  They refused to consider the possibility that he was innocent, either ignored facts suggesting his innocence (no murder weapon, no blood on Hobbs's clothes, no motive, the fact that Hobbs willingly gave his blood and other evidence to the police and consented to a search of his home, and that he was willing to subject himself to a lie detector test) or manipulated them to confirm their guilt-presumptive bias.  It's a classic case of police tunnelvision, one that continued for four years and would have continued until police convicted him and almost certainly sentenced him to death, if not for the fact that DNA found inside Laura Hobbs's vagina (DNA missed by the State's forensic experts) was linked to another suspect with a prior history of sexual deviancy.  

The fact that Judge Foreman denied the defense motion to suppress is no defense for the LCMCTF.  Few judges are willing to suppress confessions in murder cases.  The political repercussions for state court judges (who are elected) are simply too high.  This is especially the case where judges, like Judge Foreman, do not have an electronic recording of the interrogation of Jerry Hobbs.  Without a recording, judicial decisions concerning the voluntariness and reliability of confessions are notoriously unreliable.  In virtually every DNA exoneration involving a false confession (more than 40), judges denied defense efforts to suppress the confessions. Here, the pre-trial motion was based solely on the testimony of the police officers.  These are professional witnesses who are prepared by the prosecution and their testimony almost always comes across as credible and consistent.  Without a recording, there is little the defense can do to challenge the police officers' sanitized accounts of what transpired during the interrogation.  The defense could have countered the police testimony by putting Hobbs on the stand but the risks of such a strategy were clearly outweighed by any of the benefits. Judges rarely believe suspects over police officers.  

    

Innocent People Do Confess (Falsely) to Murdering Their Loved Ones

Jorge Torres (below) is the new suspect whose DNA has been matched to semen found on 9 year old Laura Hobbs who was found murdered along with her 8 year old friend Krystal Tobias in a park in Zion Illinois in 2005.

      

Jerry Hobbs (below) who was arrested and charged with the Murders of Krystal and Laura (his daughter) based on a confession which, in light of the DNA match to Torres, is demonstrably false.

 
Jurors have a hard time believing that anyone would ever confess to a crime they did not commit.  They have an even harder time believing that someone would falsely confess to a murder, a crime that can lead to the death penalty of life without parole if the confessor is convicted.  It is almost impossible for jurors to imagine a false confession to the most unspeakable of crimes -- the murder or rape-murder of a loved one.  In these cases, prosecutors always argue to the jurors to convict the confessors because no one in his or her right mind would ever confess to killing a loved one.  The truth is that there are many documented cases of proven false confessions to the murders of loved ones.  And the Jerry Hobbs case which I have blogged about before is about to become the most recent addition to this list.  http://blog.law.northwestern.edu/bluhm/2008/11/dna-test-results-suggest-that-jerry-hobbss-confession-is-false.html

Hobbs was arrested and charged with the most awful of crimes -- the brutal stabbing death of his 9 year old daughter and her 8 year old friend -- on Mother's Day in 2005.  Hobbs discovered the bodies of the two children in a park near a wooded area.  Lake County, Ill. police officers immediately focused on Hobbs, in part, because he had recently been released from prison in Texas and had a history of assaultive behavior (although none involved children). They took Hobbs into custody and grilled him relentlessly for nearly 20 hours.  He finally broke down and signed a confession to the murders, one which was inconsistent with the crime scene evidence and frankly did not make much sense (Hobbs claimed he snapped when the eight year old friend of his daughter pulled a "potato  knife on him").  Even before his confession, Hobbs's menacing mug shot was plastered on local news stations and even on the national news as a "person of interest" or "as a man in custody." And in little or no time after Hobbs' arrest, Lake County Prosecutor Mike Waller was calling for the death penalty.  Case closed, right?

Not by any stretch of the imagination.  Within a year of Hobbs' arrest, the case against him begin to disintegrate.  DNA evidence found on clothing of Laura Hobbs and on her body (semen) did not match Hobbs' DNA. Hobbs' confession made no mention of a sexual assault. Despite the DNA exclusion, Lake County prosecutors persisted in their quest to convict Hobbs and kept the threat of the death penalty on the table.  They fought and defeated Hobbs's motion for bond.  On June 25, 2010, however, the crime scene DNA was matched to Jorge Torres, who was a friend of Krystal Tobias's brother.  Torres, who was only 16 at the time of the crime, later joined the Marines but was discharged earlier this year after he was arrested and charged with a kidnapping and sexual assault in Arlington, Virginia.  As a result of his arrest, his DNA was entered into the national database and a match was made.  It is highly unlikely that Hobbs and Torres ever met and equally unlikely that Hobbs and Torres conspired to sexually assault Hobbs' daughter and her friend.  

The DNA match to Torres may be a lifesaver for Hobbs.  Lake County prosecutors were planning to try him in the Fall and they would have been able to use Hobbs' confession at his trial.  A Lake County jury recently convicted Juan Rivera of the murder of 11 year old Holly Staker (for the third time) despite DNA which excluded Rivera.  Jurors placed almost complete reliance on Rivera's confession and bought the prosecutor's closing argument that no innocent man could be made to confess to murdering and raping an 11 year old.  When DNA evidence goes toe to toe with a confession to a murder and rape, jurors have repeatedly sided with the confession.  For other examples, see the case of Billy Wayne Cope (covered Friday on Dateline's " The Mystery in Rock Hill" story at http://www.msnbc.msn.com/id/38060491/ns/dateline_nbc/) and the case of the Norfolk Four (see http://www.norfolkfour.com/). 

Prosecutors in Billy Cope's case argued to jurors that no father would ever confess to murdering his daughter unless he did it.  No doubt Lake County prosecutors would have used the same tack when trying Hobbs.  But Lake County prosecutors know that such an argument is untrue.  Kevin Fox, from neighboring Will County confessed to killing his daughter and was cleared by DNA evidence within months of Hobbs's arrest.  And Fox's exoneration is only the most recent in a long line of false confessions to the murders of loved ones.  Gary Gauger, from neighboring McHenry County, falsely confessed to murdering his parents. Chicagoan Corethian Bell falsely confessed to murdering his mother.  Outside of Illinois there are many other such false confession cases, including Melvin Nimer (nine year old Staten Island boy who  confessed to killing his parents), Peter Reilly (Connecticut teenager who confessed to killing his mother), Marty Tankleff (Long Island teen who confessed to killing his parents), Ozem Goldwire (New Yorker who confessed to killing his sister), Michael Crowe (teen from San Diego suburb who confessed to killing his sister), Matthew Livers (Murdock, Nebraska man who confessed to killing his aunt and uncle). All of these defendants were cleared with the exception of Cope and Hobbs who still remain behind bars despite DNA evidence proving their innocence.  

There are other cases which involve highly probable false confessions (the proof of innocence does not rise to the level of certainty of DNA).  I am convinced that Karen Boes of Zeeland, Michigan falsely confessed to killing her daughter Robin by setting her house on fire, Gary Delisle of Detroit falsely confessed to killing his children by driving his car into the Detroit River, Huwe Burton of the Bronx falsely confessed to killing his mother, Antone Morris, also of Detroit, falsely confessed to and implicated his friend Vidale McDowell in the death of his mother, and Nicole Harris of Chicago falsely confessed to strangling her son to death (he accidentally strangled himself with a bedsheet).  

I am in the process of collecting data on all of these cases and more. The one constant in almost all of these cases appears to be that the interrogations were extremely long (more than five hours and in some cases, several days) and the police used highly coercive tactics including lies about polygraph results, threats of harm (the death penalty) or promises of leniency (psychological help, lesser charges, etc). In some cases, the suspects were just exhausted and confessed to bring an end to the interrogations, while in others, they actually came to believe, if only temporarily, that they might have killed their loved ones in some kind of blackout state.  

So to those who think that there is no way you would ever confess to killing a loved one, I say don't be so sure.  You are naive to think that you could withstand the constant pressure of the modern psychological police interrogation.

Stay tuned for further posts on this subject.

Explaining Away DNA: Colorado Prosecutor Takes the Gold Medal

In early posts, I have discussed the musings of Lake County Prosecutor Mike Mermel in his efforts to explain away DNA in order to preserve arrests or convictions built solely on the basis of confessions of questionable reliability.  Although Lake County prosecutors have ignored DNA results in three cases  -- Juan Rivera, Bennie Starks, and Jerry Hobbs -- Mermel's public comments in the wake of DNA evidence in Hobbs's case were the most bizarre I had heard until last week.  But first, in the spirit of the Olympic Games, let's lay out the bronze, silver, and gold medal winners for explaining away DNA.

Bronze Medal goes to Bob Benjamin, the former "spokesperson" for the Cook County State's Attorney's Office (CCSAO) in the case of Anthony Moody.  Chicago's Englewood neighborhood was victimized by multiple serial killers and rapists in the 1990's.  Women engaged in "high risk" activity (drugs and sex) were being strangled and raped at unprecedented levels.  The Chicago police botched the investigations for years and obtained numerous false confessions to crimes that were later linked to a man named Andre Crawford by DNA evidence and to other men, including Earl Mack, Hubert Geralds, etc.  The police coerced a confession from Moody to killing his girlfriend.  When DNA evidence later found small traces of Moody's DNA in the victim but large amounts of DNA of a serial killer, the CCSAO reduced Moody's charges to aggravated battery in order to preserve a conviction. 

When pressed by Tribune reporter Vanessa Gazari as to why Moody was still being charged, Bob Benjamin stated: [Such scenarios] "happen all the time....particularly in sexual attacks. A woman is lying there helpless [and] another predator comes along and sees an opportunity and takes it."  Perhaps the bronze should be shared with the New York City Police Department officers who claimed the exact same thing when DNA evidence proved that Matias Reyes alone raped and beat the Central Park Jogger within an inch of her life.  In the wake of the DNA evidence, police officers suggested that the boys had beaten here and left her helpless and Reyes, an opportunist had sex with her as she lay close to death in a wooded area.

Silver medal (almost a tie with the gold medal winners from Colorado) goes to Mike Mermel.

Lake County's Major Crimes Task Force arrested Jerry Hobbs, a recently released prisoner from the Texas Department of Corrections for the murders of his 9 year old daughter and her friend.  According to a short confession, Hobbs said he was angry at his daughter for disobeying rules and "lost it", stabbing her and her friend repeatedly with a "potato knife" he took from one of the victims who pulled it on him.  There was no mention of any sexual assault in Hobbs' confession.  Three years later, however, semen was found on Hobb's daughters clothes and in several of her body cavities.  It wasn't Hobbs's semen.  Faced with this evidence, most prosecutors would have packed their bags and worked overtime to find out the identity of the semen donor.  Not Mermel.  His take was that the girl must have rubbed up against some semen while playing in the woods, a place where teenagers are constantly going to have sex.  "It is such a goofy logic leap [that] because somewhere in her life she came into contact with a sperm cell it means she was sexually assaulted. To take this leap that this is the identity of the mystery killer, I don't know where everybody gets this idea."  Mermel went on, "If you swabbed the outhouse handles, it would not be unusual for a little girl to get that sperm...If you swabbed any tops of things like a remote control or your average shopping cart handle, you'd be surprised what you'd find."

The Gold Medal, however, must now go to District Attorney Carol Chambers from Douglas County, Colorado.  Douglas County residents were panicked by a series of break-ins last summer, mostly burglaries and trespasses.  Panic rose to a fever pitch when one of these crimes involved the alleged groping of an eight year old girl. Resident who glimpsed the perpetrator described him as a white male in his 40's, stocky, with brown hair.  Neighbors sighed with relief when the local Sheriff announced the arrest of 19 year old Tyler Sanchez, a mentally disabled and hearing impaired teen, who was picked up in the neighborhood and who "confessed" to the break-ins and the sexual assault.  Sanchez, who was thin and had red hair, admitted to the crime, after 17 hours of interrogation (38 hours in custody with little sleep or food) , soon recanted his confession.  His lawyer sought DNA testing of the young girl's underwear and two male profiles were found, one belonging to the girl's father and another belonging to another identified male.  Neither belonged to Sanchez.  The DNA came from epithelial skin cells and the profiles were developed from a state lab.   When Denver Press columnist Susan Greene (one of the authors of the Post's landmark series "Trashing the Truth" about the routine destruction of forensic evidence) asked DA Chambers about the DNA, here is what she was told: 

"With the low-cut jeans that girls wear, she could have picked up anyone's DNA off any surface her panties touched while they may have been riding above her pants.  I hate those low-cut pants....Depending on how long she had been wearing those panties and where, they could have rubbed up against the back of her chair in school, at restaurant, the couch at home that someone else may have been sitting on, a bus seat, someone's toilet seat if she did not pull them down far enough -- there are many ways to get unknown DNA on clothing.  Another kid could have snapped the elastic on her underwear -- kids do that sort of thing."

Admittedly, skin cells are not as damning evidence as semen but the lengths to which Chambers goes to explain away skin cell evidence is stunning, especially since Colorado is still reeling from the DNA exoneration of Timothy Masters, an exoneration which was based on such testing.  Here's hoping that as the case goes to trial, Chambers and her colleagues take a close look at the confession and notice the obvious warning signs of a false confession -- the suspect's youth, low intelligence, the length of the interrogation (17 hours is excessive even for a murder case)--closely analyze whether or not the details of the crime came from the suspect or were fed to the suspect by police and whether the details could be independently corroborated by other evidence.  

Police claimed that Sanchez fit the profile and that his latest attack was part of a pattern of escalating behavior.  Not so, according to Greene.  Sanchez's record included a deferred judgment in a juvenile graffiti case and a probation violation when he was caught with alcohol on his breath.....

 

Novel Lawsuit by Victims' Family Members in False Confession Case

We say it so often that it almost sounds like a cliche -- when police officers arrest, charge or convict the wrong person of a crime, the true perpetrator is left on the streets to commit other crimes.  A new lawsuit, brought against the Albuquerque Police Department, aims to hold the Department liable for money damages for a death that resulted from one such wrongful arrest.  In a case that I blogged about earlier, Albuquerque police officers arrested and charged two travelling magazine salesmen -- Travis Rowley and Michael Lee -- with the murder of a Korean couple, Tak and Pung Yi.  The only evidence against the men was a confession that police had obtained from Rowley after a lengthy interrogation.  While Rowley and Lee were arrested and awaiting trial on these charges, DNA testing of material found under Tak Yi's fingernails excluded Rowley and Lee.  This DNA profile was later linked to a serial killer named Clifton Bloomfield.  The discovery that Bloomfield killed the Yi's led to the release of Rowley and Lee.  But it came too late for Katherine and Scott Pierce.  While Lee and Rowley were locked up, Bloomfield was on the streets and while there he shot and killed Scott Pierce just six days after he and Katherine got married in June 2008.  In a lawsuit filed by Ms. Pierce, she claims that the City and the detectives investigating her husband's case and the Yi killings, were negligent in not connecting the dots between the two killings and allowing a serial killer to roam the streets.  "The killer was at large, on probation, in part because of the negligence of defendants in not 'connecting the dots' and doing their jobs in the investigation of crimes that occurred months and years before (Scott Pierce) was killed," the lawsuit contends.  The civil complaint further alleges that the police should have realized that Rowley's statement was unreliable because it "didn't match up with the physical evidence at the crime scene," detectives "did no corroboration investigation of the inconsistent details in the police-induced false confession" and "perhaps worse yet, no supervisors required corroborative investigative work."  According to a February 2, 2010 article in the Albuquerque Journal, the Deputy City Attorney Kathryn Levy had not yet seen the lawsuit but said "Obviously, Mr. Pierce's death was a terrible tragedy, but nothing APD detectives did could have prevented it."  

Hopefully, the question of whether police negligence led to the wrongful death of Scott Pierce will ultimately be decided by a jury.  This groundbreaking lawsuit, however, could force police officers in Albuquerque and elsewhere to change their investigation protocols when it comes to confession evidence.  All too often, police view the confession as the be-all and end-all of any investigation.  While confession evidence is perhaps the most powerful piece of evidence in a court of law, it is not worthy of this status.  Confessions are not per se reliable.  They are only as reliable as the evidence which corroborates the confession and any good police department will continue to seek corroboration even after securing a confession. Moreover, confession evidence can be contaminated.  To the extent that confession details appear to match the crime evidence, case after case of wrongful convictions have shown that these details are often fed to suspects by police officers through leading questions, showing suspects crime scene photos, and other tricks of the interrogation trade.  Lawsuits such as the Pierce's, if successful, have great potential to improve the quality of police work and to prevent future tragedies like what occurred to Scott Pierce from recurring.  

Here's hoping that this case goes to trial or, at the very least, as part of any settlement, the Albuquerque police institute changes to their investigation protocol to improve the reliability of confession evidence.

It Could Happen to Anyone (the Alan Beaman story)

Rosemary Lehmberg Does the Right Thing

Kudos to Austin, TX DA Rosemary Lehmberg for agreeing to drop the charges against Michael Scott and Robert Springsteen in Austin's most infamous unsolved murder/rape case -- the Yogurt Shop murder case.  True, Ms. Lehmberg did not fully exonerate the men.  True, she announced that she was still confident in their guilt.  But her decision in the wake of the discovery of unknown DNA on several of the four teenage victims who were raped and murdered and then set ablaze is still praiseworthy.  The simple fact is that she could have obtained convictions against the men with their videotaped confessions.  In a battle between DNA and confession evidence, I'll lay odds on confession evidence every time.  Especially, as here, where the identity of the DNA is unknown.  All prosecutors would have had to do was say that the DNA belonged to an unnamed accomplice.  And they probably would have won.  This is not to take anything away from the brilliant work of the defense attorneys in this case.  But jurors have a hard time believing that anyone would ever confess to something they didn't do and an even harder time thinking a person would falsely confess to murder.  Jurors convicted four men in Norfolk, Va. despite DNA linking Omar Ballard to Michelle Moore Bosko's murder; they convicted Billy Wayne Cope in Rock Hill, S.C. despite DNA linking serial rapist James Sanders to the murder/rape of Cope's daughter Amanda, and jurors convicted Juan Rivera three times in in Lake County, IL, despite unknown DNA that did not match Rivera in the murder/rape of Holly Staker in Lake County, IL.

Bottom line - Ms. Lehmberg did what other prosecutors have failed to do.  She placed justice over gaining a conviction.  She can spin it anyway she want to.  She did what none of her predecessors would do. Save this videofile and send it to the next prosecutor that twists their theory of the case to accommodate evidence of innocence, who refuses to agree to DNA testing, who cites the virtues of finality.  Tell them that sometimes justice requires eating crow. And that crow doesn't taste that bad. They say it tastes just like chicken...

http://www.statesman.com/news/content/multimedia/players/brightcove.html?bcpid=1459162514&bclid=1461295911&bctid=46782267001

What's a prosecutor to do?: Rosemary Lehmberg and the Yogurt Shop Murder Case

It’s one of the most infamous false confession cases in the annals of false confessions.  It’s also a case of unrequited innocence as the two defendants who falsely confessed over eight years after the murders, still remain wrongfully convicted.  But the magic of DNA evidence, coupled with excellent legal work, has finally resulted in the release of Michael Scott and Robert Springsteen, who, like the four female victims, in the Austin Yogurt Shop murder/rape cases, were only teenagers when the crime shocked the Austin, TX community.  DNA evidence which excludes the defendants and identifies an unknown perpetrator has caused prosecutors in this case to obtain the DNA of a wide array of over 130 potential suspects and persons who may have contaminated the evidence.  Still no matches to the defendants.  Some of the new DNA came from the same unknown male and was found in two of the victims (according to the Austin American Statesman) instead of only one of the girls (as reported by the NYT). In the face of this new evidence --what’s a prosecutor to do?

Austin DA Rosemary Lehmberg is weighing her options.  She is continuing to try to link the defendants to the crimes and to find out whose DNA was found on the girls.  But she has also raised concerns about whether the case can go to the jury without a name to match the DNA.  She deserves some credit for at least raising this issue as there are several cases where prosecutors have pushed forward anyway, putting before the jury explanations without evidence – claims that the victims had consensual sex or that the DNA was contaminated. Michael Waller and Mike Mermel of Lake County, Illinois did just that in the recent conviction of Juan Rivera for the murder and rape of Holly Staker. 

The moral of the story is that confession evidence is so powerful in court and the notion of a false confession so counterintuitive that jurors may reject science and convict innocent defendants.  DA Lehmberg may get there yet – and join the ranks of the unprincipled prosecutors who are more concerned with preserving convictions than with justice – but so far she is proceeding with caution. Let's hope it she stays the course.  Stay tuned.  

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.

Accountability for prosecutors

I have written previously about the need to hold prosecutors accountable for misconduct in pursuing convictions.  Prosecutors play a unique and powerful role in criminal justice: they often direct police investigations, they determine when and how to charge crimes, and they decide what information generated by law enforcement will be turned over to the defense prior to trial.  Jurors commonly view prosecutors as altruistic and objective defenders of victims' rights and the common good, in contrast to "hired gun" defense attorneys.  Therefore, an unscrupulous or overzealous prosecutor has an unparalleled opportunity to distort the criminal justice process.

Please don't misunderstand -- I am not out to get prosecutors.  In fact, I have tremendous respect for the office and I admire a great many prosecutors whom I know professionally and personally.  But as in any other profession, a few bad apples can taint the entire barrel.

When prosecutorial misconduct is serious enough to require overturning a conviction, consequences are in order.  Prosecutors are largely immune from lawsuits based on their actions in prosecuting a case, so we must look elsewhere for disincentives.  Many years ago, when the Chicago Tribune still supported in-depth investigative reporting on criminal justice, the paper ran a series that pointed out how prosecutors who commit misonduct are rarely identified by name in appellate court decisions: Chicago Tribune series: Trial and Error

Therefore, when these same prosecutors run for judge or other higher office, the public is unaware of this important information.  For instance, when the Illinois Supreme Court reversed the conviction of Center on Wrongful Convictions client Alan Beaman last year because the prosecutor suppressed exculpatory information, the Court did not name the prosecutor, James Souk, who is now an elected judge in McLean County: Illinois Supreme Court decision in Alan Beaman case

Compare this to a recent decision by the Seventh Circuit Court of Appeals, blasting a federal prosecutor - by name - for her false and misleading statements at trial: Chicago Tribune article: federal judge scolds prosecutor  Such judicial criticism might serve as a powerful deterrent against prosecutorial overreaching -- even for non-elected federal prosecutors.

A Texas legislator has suggested going so far as to criminalize prosecutorial failure to disclose exculpatory information to the defense. While this proposed bill may be extreme, it is a reaction to a large number of Texas wrongful convictions recently uncovered through DNA testing, some of which involved prosecutorial misbehavior: Fort Worth Star-Telegram article 

Certainly some form of sanction for flagrant misconduct is appropriate: to educate young prosecutors, to dissuade the veterans from crossing the line, to inform the public, and to preserve the good name of the majority of prosecutors who uphold their oath of office with integrity and honor.

When do you stop fighting for your innocence?

As I have started my career as a wrongful conviction/innocence attorney, I have been struck by how many limitations there are on individuals in Illinois who are even given the opportunity to prove their innocence.  A few weeks ago, I wrote in this space about how courts have held that the Post-Conviction Hearing Act (the primary vehicle for asserting claims of actual innocence not based on DNA evidence) cannot be utilized by individuals adjudicated delinquent in juvenile court.  Another unfortunate limitation has come clear to me recently:  the "imprisoned in the penitentiary" clause of the Act.

The first sentence of the PC Act limits its application to those "imprisoned in the penitentiary."  Case law has interpreted this clause broadly to include those on parole/msr, probation, or appeal bond).  But, as I see it, this broad interpretation is not enough.  I've come across several people recently who have either completed their sentences (including their subsequent parole), or who are very close to doing so, yet have no desire to stop fighting for their innocence.  They want their names cleared, and they don't care if they are no longer in the custody of the State.  They also have a right to be compensated for their wrongful conviction no matter how long it takes.  Having any crime on your record, let alone a serious felony, will continue to haunt you the rest of your life.

The post-conviction DNA statute has no such time limitation. But we know that DNA is available only in a small minority of cases.  Innocent individuals who are not so lucky to have DNA available should nonetheless be allowed to prove their innocence whenever they are able to garner the evidence to prove it.