bits of mushrooms and tomatoes from Christine Morton’s last meal — a celebratory
birthday dinner she had with her husband — were still in her stomach when the
medical examiner performed his autopsy in 1986.
Those remnants, the prosecutor told the jury during Michael Morton’s trial,
“scientifically proved” that Mr. Morton had beaten his wife to death.
Twenty-five years later, DNA science revealed that someone else had actually
killed Mrs. Morton and that her husband’s murder conviction and more than two
decades in prison were a tragic mistake. His exoneration based on DNA evidence
is the 45th in Texas.
Before he dismissed the wrongful murder charges against Mr. Morton last week,
Judge Sid Harle recounted the faults the case exposed in the Texas justice
system. Among them: the use of so-called junk science in the courtroom.
“The courts and the sitting judges need to be ever mindful about their role as
gatekeeper in regard to the admission of science,” Mr. Harle said. “Your case
illustrates the best and the worst of what can happen.”
Despite scientific advancements like DNA testing, the use of unreliable
scientific techniques in the criminal justice system persists. While some judges
say they work to ensure only reliable scientific evidence is presented to
juries, criminal justice advocates say that more must be done to root out an
array of pseudoscientific practices that can have life-or-death consequences.
“What passes for science in courtrooms is not always, in fact, science,” said
Kathryn Kase, interim executive director of the Texas Defender Service, which
represents death row inmates.
In recent weeks, the Texas Court of Criminal Appeals has agreed to review cases
that indicate it may also see a need to address the types of evidence that meet
In November, the state’s highest criminal court agreed to review the case of
Megan Winfrey, who is serving a life sentence for murder. She was convicted
largely on the testimony of a sheriff’s deputy who said his bloodhounds
“alerted” to her scent on the murder victim’s clothing. The court has previously
ruled that dog-scent evidence, used to convict Ms. Winfrey’s father for the same
murder, was insufficient without corroborating evidence. The court acquitted her
father on appeal.
This month, the court also agreed to review the cases of two men awaiting
execution. Both men, convicted of murder, were sentenced to death after a
psychologist who was an expert witness in several death penalty cases told
jurors that they were mentally competent to face execution.
Lawyers for the men — Steven Butler and John Matamoros — argue they are mentally
handicapped and therefore ineligible for the death penalty. In April, the Texas
State Board of Examiners of Psychologists reprimanded the psychologist, Dr.
George Denkowski, and he agreed to never again conduct evaluations in criminal
Though Ms. Kase said the court’s willingness to review the cases is a hopeful
sign, she and other criminal justice advocates said other relatively simple
changes could help prevent the use of such evidence.
Judges, who ultimately decide what is allowed in court, should approve adequate
money for indigent defendants to hire experts to refute scientific experts whom
prosecutors present at trial, she said. It can cost thousands of dollars to hire
experts, and Patrick McCann, a Houston defense lawyer, said judges worry that
voters would not take kindly to such expenses.
“They act as if funding each defendant’s efforts to have a fair trial comes out
of their own children’s pockets somehow,” Mr. McCann said.
In recent years, Jeff Blackburn, chief counsel at the Innocence Project of
Texas, has pushed to ban evidence that does not conform to national scientific
standards. He will try again in 2013 when lawmakers reconvene. “These are
problems that can be fairly easily solved,” he said.
Senator Rodney Ellis, Democrat of Houston, said another key solution already
exists: the Texas Forensic Science Commission. For more than two years, the
commission was bogged down in a national political controversy over its
investigation of arson science used to convict and execute Cameron Todd
Willingham for a 1991 fire that killed his three daughters. That issue was
resolved this year with a plan to review past arson cases to see whether similar
faulty evidence led to questionable convictions. Now, Mr. Ellis said, he hopes
the commission will address other questions of courtroom science.
“To have a justice system we can have faith convicts the guilty and protects the
innocent, we need scientific evidence that’s based on real science,” Mr. Ellis
said, “not some guy saying he has magic dogs that can solve crimes.”
ON Tuesday, the Supreme Court will hear oral arguments in Williams v. Illinois,
the latest in a string of cases addressing whether the Sixth Amendment’s
confrontation clause — which gives the accused in a criminal case the right “to
be confronted with the witnesses against him” — applies to forensic analysts who
produce reports for law enforcement. In other words, should an analyst
responsible for, say, a fingerprint report have to show up at trial to face
questions about the report?
A logical application of the law produces an easy answer: Yes. The court has
defined a “witness against” a defendant as a person who provides information to
law enforcement to aid a criminal investigation. That is exactly what forensic
Subjecting forensic analysts to cross-examination is also good policy. According
to a recent National Academy of Sciences study, forensic science is not nearly
as reliable as it is perceived to be. DNA specimens, for instance, are sometimes
contaminated; fingerprint, ballistics and even run-of-the-mill drug and alcohol
analyses depend on human interpretation and thus are subject to error. Worse,
investigations over the past decade have revealed outright incompetence and
fraud in many crime labs. So it makes sense to subject the authors of lab
reports to cross-examination — a procedure the court has called “the greatest
legal engine ever invented for the discovery of truth.”
Despite all this, the Supreme Court has been sharply divided on the issue. In
similar cases in 2009 and earlier this year, in which I represented the
defendants, Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy,
Stephen G. Breyer and Samuel A. Alito Jr. accepted claims by state governments
that, simply put, confrontation in this context costs too much. It is far more
efficient, these justices contend, to let analysts simply mail their reports to
court. Having to appear at trials pulls them away from their labs, and only
occasionally proves more revealing than their written testimony. Hence, these
justices maintain, “scarce state resources” are better committed elsewhere.
Given that several states have long required forensic analysts to come to court,
one might think that this financial argument would not have gained much
traction. Justice Antonin Scalia, in fact, called the argument a “bogeyman.” But
the four dissenting justices not only accepted it but deemed it powerful enough
to trump the commands of constitutional text and precedent.
The same battle lines are being drawn again in the case to be heard next week
(for which I have signed a friend-of-the-court brief in support of the
defendant). In Williams v. Illinois, the defendant contends that he should have
been given the right to confront an analyst in the lab that generated a DNA
profile from the crime scene. Yet the State of Illinois argues that the extra
cost of bringing that witness into court was unnecessary, because the defendant
had an opportunity to question a different analyst who compared that profile to
the defendant’s and concluded that it was a match.
A friend-of-the-court brief by the Manhattan district attorney’s office pushes
the state’s argument one step further, warning that a ruling in the defendant’s
favor would prove so costly that it would “force prosecutors to forgo forensic
DNA analysis” in future cases. Consequently, the brief continues, defendants in
rape and murder cases “might well be prosecuted solely on the basis of
eyewitness testimony,” which is notoriously unreliable and could lead to
convictions of many “innocent individuals.”
This is an outrageous assertion. Nothing in the outcome of the Williams case,
which deals only with the admissibility of evidence, will preclude prosecutors
from using DNA testing to determine whether they have the right guy. Presumably,
prosecutors concerned about whether they imprison (or, in some states, execute)
innocent people will continue to do such testing whenever possible, no matter
how much it will cost to enter the results as evidence.
But the assertion in the Manhattan district attorney’s brief reflects — in a
particularly dramatic way — some prosecutors’ belief that they can bully the
court into refusing to enforce a constitutional guarantee simply by arguing that
such enforcement would be an administrative and financial burden.
There’s nothing new here. In the 1963 case of Gideon v. Wainwright, Alabama and
several other states filed a brief urging the court to refrain from interpreting
the Sixth Amendment’s guarantee of the “assistance of counsel” to require states
to provide lawyers to poor defendants accused of felonies. The brief said such a
rule would impose on states “an unbearably onerous financial burden to pay the
fees of attorneys.”
The court, of course, was not moved. States have adapted. And the Gideon case
has become a cornerstone of American jurisprudence. It’s almost impossible now
to imagine how a trial could be considered fair without that basic procedural
The court should follow this lesson in Williams and refuse to be cowed by
prosecutorial bogeymen. It unquestionably costs money to deliver the fundamental
demands of justice. But the price is not nearly so high as the states usually
claim. And the price of failing to enforce basic procedural rights is, in the
long run, much higher.
Fisher is an associate professor of law at Stanford.
November 25, 2011
The New York Times
By ANDREW MARTIN
By the time Juan Rivera was taken to Lake County for
questioning on Oct. 27, 1992, the search for Holly Staker’s killer had gone
cold. Two and a half months had passed since the 11-year-old girl was raped and
stabbed while baby-sitting for two little children, and with the killer still at
large, neighborhood-watch groups had formed and wary parents kept their children
indoors. The Lake County police had pursued nearly 600 leads and interviewed
about 200 people but were not close to making an arrest when they hooked Rivera
up to a polygraph machine and began questioning him about his whereabouts on the
night of the murder.
A 19-year-old with a ninth-grade education and a history of psychological
problems, Rivera was interviewed by the police a few weeks earlier and told them
that he was at a party near the crime scene and that he noticed another
partygoer there acting strange. This time around, he repeated the same story for
two days before finally admitting it was a lie. Still, he denied murdering the
What followed was 24 hours of near constant interrogation, and around 11:30 on
the morning of Oct. 30, after banging his head on a cell wall, pulling out a
clump of his hair and being handcuffed behind his back and placed in leg
shackles, Rivera finally provided investigators with a detailed confession.
In his sworn statement, Rivera detailed how, on Aug. 17, the morning of the
killing, he bought two joints and a half gram of cocaine, snorted the cocaine
and smoked one of the joints and then headed across town, at which point he came
upon Holly standing in front of a two-story apartment building on Hickory
Street, just north of downtown Waukegan.
“Ain’t you Rebecca’s brother?” Holly asked him. His younger sister once
introduced him to Holly, and he couldn’t believe this girl, a striking blonde
with an identical twin sister, was only 11. She was baby-sitting a 5-year-old
boy and a 2-year-old girl, and Rivera said she told him that she was lonely and
invited him up to the second-floor apartment to keep her company.
“I played with a little boy and little girl, because I really like kids,” Rivera
told police. When the 2-year-old got tired, he took her to the bedroom to rest,
and the boy left the apartment to play. Soon, Rivera said, he was naked and
trying to have sex with Holly, but he was unable to get an erection, and she
began making fun of him. When the 2-year-old started crying and he went to the
bedroom to comfort her, Holly followed him and grabbed his crotch and insulted
him again. “Is that all you got?” she said.
“This is when I got really mad, and she kept making fun of how small I was and
that I could not get hard,” he said. He ran to the kitchen, grabbed a knife from
a dish rack and returned to the bedroom. Holly grabbed his wrists and tried to
fight him off.
“If she would have stopped yelling and fighting me, I would have stopped cutting
her, and she would not have gotten hurt anymore,” he said. Rivera described how
he pushed her onto a bed and had intercourse with the bleeding girl, whom he
stabbed 27 times. He did not remember if he ejaculated. When he was finished, he
washed the knife and his hands in the kitchen sink and ran out the back door. On
the way out, he grabbed a mop and bashed the door to make it look like a
robbery, then wiped the mop with a towel to remove his fingerprints. Once
outside, he broke the knife, tossed it in the backyard and ran home.
Rivera’s grisly, three-page confession became the key piece of evidence against
him in his murder trial in 1993 — and again in two subsequent retrials, the
latest in 2009. Each time, Rivera was convicted, and he is now serving a life
sentence at Stateville Correctional Center near Joliet, Ill. His lawyers are
seeking an outright reversal or a fourth trial before the Illinois Appellate
Court, arguing that there is no physical evidence and no witnesses linking
Rivera to the crime; that his confession was coerced; and, perhaps most
significant, that DNA testing in 2005 definitively ruled him out as the source
of the semen found inside Holly Staker’s body. (At the time this article went to
print, a decision from the appellate court was imminent.)
“This is a rape and murder of an 11-year-old child, and the semen found inside
the girl excludes Juan Rivera,” Jeffrey Urdangen, one of Rivera’s lawyers, said.
“According to the state’s perverse theory, the girl, the unfortunate victim, was
having sex with another man who was not the murderer. It’s ludicrous.”
In the years before DNA evidence was introduced to the legal system, little was
known about the extent of wrongful convictions and the situations in which they
occurred. That changed in 1986, when an English scientist used DNA testing to
help exonerate a man accused of raping and killing two teenage girls (the
evidence also led the police to the real killer). Since then, DNA testing has
helped exonerate 280 convicted felons in the United States and has exposed deep
flaws in our legal system, including misconduct by the police and prosecutors
and egregious mistakes made by witnesses and forensic scientists. In his 2011
book, “Convicting the Innocent,” Brandon Garrett, a law professor at the
University of Virginia, examined most of the case files for the first 250 DNA
exonerations. Garrett found that 76 percent of wrongly convicted prisoners were
misidentified by a witness and half the cases involved flawed forensic evidence.
The testimony of an informant, often a jailhouse cellmate of the accused, was
pivotal in 21 percent of the cases. Perhaps most surprising, 16 percent —
virtually all of whom were subjected to interrogations lasting several hours
and, in many cases, days — confessed to crimes they didn’t commit. Garrett
pointed out another, striking detail in the false confessions: in 38 of 40 false
confessions, the authorities said defendants provided details that could be
known only by the actual criminal or the investigators, thus corroborating their
own admissions of guilt by revealing secret information about the crime that
could only have been provided by them.
The issues raised by DNA exonerations have led to an overhaul of the
criminal-justice system. Some states now require that evidence be preserved;
others require mandatory videotaping of interrogations. Several states,
including Illinois, New Jersey and New York, abolished the death penalty largely
because of concerns about executing an innocent person. North Carolina,
meanwhile, has created an independent commission to review innocence claims. And
some prosecutors’ offices, including those in New York and Dallas, have created
More often, though, the fate of an inmate with powerful new evidence of
innocence still rests with local prosecutors, some of whom have spun creative
theories to explain away the exculpatory findings. In Nassau County on Long
Island, after DNA evidence showed that the sperm in a 16-year-old murder victim
did not come from the man convicted of the crime, prosecutors argued that it
must have come from a consensual lover, even though her mother and best friend
insisted she was a virgin. (The unnamed-lover theory has been floated so often
that defense lawyers have a derisive term for it: “the unindicted
co-ejaculator.”) In Florida, after DNA showed that the pubic hairs at the scene
of a rape did not belong to the convicted rapist, prosecutors argued that the
hairs found on the victim’s bed could have come from movers who brought
furniture to the bedroom a week or so earlier.
“They essentially argued that there were naked movers,” said Nina Morrison, a
senior staff lawyer at the Innocence Project, a New York-based group that seeks
to exonerate wrongfully convicted inmates.
Why prosecutors sometimes fight post-conviction evidence so adamantly depends on
each case. Some legitimately believe the new evidence is not exonerating. But
legal scholars looking at the issue suggest that prosecutors’ concerns about
their political future and a culture that values winning over justice also come
into play. “They are attached to their convictions,” Garrett says, “and they
don’t want to see their work called into question.”
Few offices have fought post-conviction evidence with as much gusto as the Lake
County state’s attorney’s office, which is coming under increased scrutiny for
what defense lawyers and law professors suspect is an alarming number of
wrongful convictions. One murder case has unraveled, and several other rape and
murder convictions are now being challenged. “They can never admit a mistake,”
said Kathleen Zellner, a lawyer who is suing Lake County on behalf of a man
named Jerry Hobbs, who spent five years in jail for killing his daughter and her
friend; he was released last year after sperm found inside one of the girls was
linked to a convicted rapist and accused murderer. “They have to solve cases
quickly, and if a problem develops or doubt develops about a person’s
culpability, they feel like they have to press on,” she said. “It’s a
Lake County encompasses some of Chicago’s wealthiest suburbs, like Lake Forest
and Mettawa, but Waukegan, which sits along Lake Michigan on the eastern edge of
the county, is a world apart from those communities. It is a once-thriving
factory town that in recent years became known for its noxious Superfund sites:
remnants of an asbestos plant and an outboard-motor manufacturer. The county
legal system is controlled by a relatively small group, almost all Republicans.
The state’s attorney is Michael Waller, who has held the job since 1990, when he
was appointed to fill out the term of his predecessor. Until recently, Waller’s
wife, Jane, was a long-serving Lake County judge. (Waller declined to be
interviewed for this article.) Of the three dozen sitting judges in Lake County,
three are Democrats. Two-thirds are former prosecutors, mostly from the office
of the Lake County state’s attorney. The current sheriff is a Republican and
also a former Lake County prosecutor.
In 2009, when the former head of the county’s Republican Party, Tom Adams, was
sentenced for the possession of child pornography, he received 30 days in jail
and 30 months’ probation as part of a plea agreement, prompting complaints that
he received light punishment. “There is no challenge to the orthodoxy,” said
David Rutter, who was editor of the local paper, The Lake County News-Sun, from
2006 to 2008. “No one is going to run and challenge a judge or prosecutor on
Jed Stone, a local defense lawyer, described the legal community as “an echo
chamber.” “The problem with everyone coming from the same background, from the
same state’s attorney’s office, from the same narrow political spectrum, is
there is a failure to see the other side,” he said. “You begin to view people as
others. And when you begin to see people as other than you, they begin to become
Lake County certainly isn’t the only county in the United States dominated by
one party and an insular political and legal culture. (Neighboring Cook County,
for instance, has long been controlled by Democrats and has its own ignoble
history of wrongful convictions.) It may be the only place, however, with a
prosecutor as obstinate and as gifted as Mike Mermel. A 60-year-old widower,
Mermel joined the state’s attorney’s office in 1990, after a stint as a
prosecutor in Cook County. The first time I contacted him and said that I was
from The New York Times, Mermel immediately announced that he was conservative.
He agreed to speak with me on the phone, and later in the lobby of the state’s
attorney’s office, but he refused requests for subsequent interviews and sought
to retract all statements from our previous conversation.
Defense lawyers described Mermel’s office to me, with a photo of Charlton Heston
and a book by Ann Coulter on display. “The first time I was in his office, he
played me a videotape of Rush Limbaugh,” Stone said. “It was a diatribe on Bill
While some of Mermel’s tactics have drawn the ire of defense lawyers, others
give him grudging respect for his skill in the courtroom. “He’s a very effective
trial lawyer,” Stone said. “But his view of the world is very narrow.” In the
case of Juan Rivera, Lake County prosecutors have been able to convince juries,
not once but three times, that he was the murderer, despite DNA evidence in the
last trial that powerfully suggested otherwise. (Mermel was the lead lawyer on
the third trial and assisted in the second.)
“We don’t fold our tents and run,” Mermel told me when we spoke this spring. “We
don’t quaver because somebody holds up three letters: DNA.”
When I asked him specifically about the Rivera case, Mermel said that sometimes
post-conviction evidence is irrelevant. “The example I like to give people is
next time you go to a motel room, bring a plastic bag, because the dirtiest
thing in that room is the remote control. Everybody has sex and then rolls over
and goes, ‘I wonder what’s on?’ ” he said. “O.K., so you can find DNA in the
form of sperm from 10 different people in that room from that remote control or
even on a person who has touched it. And that woman gets murdered in that room
tonight, and you are going to have a lot of DNA. Is it all going to be
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.”
It was not the first time prosecutors in Lake County offered such a theory. In
one case, Mermel is fighting efforts by a convicted rapist to clear his name
after DNA testing excluded him as the source of sperm found inside the victim.
Though Lake County prosecutors initially argued that the sperm came from the
rapist, Mermel is now arguing just the opposite: that it came from an unnamed
lover. In another case, Mermel opposed a new trial for a man convicted of
killing an unidentified woman. When her identity became known years later, it
turned out that her former husband once admitted that he killed her. Mermel
dismissed statements from the husband, who is mentally disturbed, as the rants
of a “one-armed Cuban feces-covered masturbator.” When asked about the case last
year, he told The Chicago Tribune: “The taxpayers don’t pay us for intellectual
curiosity. They pay us to get convictions.”
But few cases have damaged Lake County’s credibility as much as the one against
Jerry Hobbs. In the spring of 2005, Hobbs arrived in Lake County after a
two-year stint in a Texas prison for chasing a rival for his girlfriend’s
affections with a chain saw. His plan was to reconcile with the girlfriend, who
was now living in Zion, Ill., and to become reacquainted with their three
A few weeks after he arrived, his daughter, Laura, went outside to play with a
friend, Krystal Tobias, who was 9. The girls never returned, and that evening
the family began looking for them and eventually called the police. After a
frantic night of searching, Hobbs said he came across the girls’ bodies in a
remote wooded area around 6 a.m. They were lying on their backs, fully clothed,
with multiple stab wounds and bruises, particularly around their necks and
Hobbs was brought back to the Zion police station by 7:30 that morning, and the
questioning began. Investigators thought it was suspicious that an ex-convict
who was new to the area discovered the bodies before local residents and the
police, and they thought his reaction to finding the bodies was also odd.
According to police reports: “Hobbs referred to his daughter Laura and Krystal
Tobias as ‘them girls’ and didn’t use Laura’s name. Hobbs also didn’t show any
emotion and avoided looking at us when we talked about Laura.” After maintaining
his innocence for about 20 hours, Hobbs finally relented and signed a confession
stating that when he went to get Laura to come home, the girls resisted, then
Krystal pulled out a small knife, and the two girls attacked him. Hobbs said he
hit them both and eventually got the knife from Krystal and began stabbing her,
then stabbed Laura. “Things just got out of hand, and I lost it,” he said.
He was charged with the murders, and prosecutors vowed to seek the death
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
Hobbs remained in jail, awaiting trial, for more than two years before the DNA
was found to match a friend of Krystal’s older brother named Jorge Torrez, who
was already serving a sentence in a Virginia jail for attacking three women, one
of whom he raped, choked and left for dead. (He was eventually sentenced to life
in prison for those crimes; currently he is also being charged for the 2009
murder of a 20-year-old naval officer.)
In August 2010, Michael Waller, the state’s attorney, told reporters he was
releasing Hobbs because they could no longer prove his guilt beyond a reasonable
Lake County has yet to charge Torrez for the murders of Laura and Krystal, and
Mermel said he still suspected that Hobbs was the killer and that the sperm was
not related to the crime. One plausible scenario, he says, is that Torrez
masturbated while visiting Krystal’s brother, and then Laura got it on her hands
and unknowingly transferred it elsewhere.
“They have popcorn-movie night, and the little girl is in the same bed where
this guy did it,” Mermel said by way of explanation. “How do we get colds? We
touch our mouths, we touch our nose. What does a woman do after she urinates?”
We were in the lobby of the prosecutor’s office, and Mermel answered his own
question by standing and pulling his hand between his legs, as if wiping
himself. “Front to back, O.K.?”
Hobbs, who is now 41 and lives in Texas and trims trees for a living, told me he
confessed to the crime because he hadn’t slept in days and figured the truth
would come out. “I found my daughter,” he said. “She didn’t even have eyes in
her head. I was already broken. They didn’t have to break me.”
He said that he didn’t understand why Lake County wasn’t pursuing Torrez for the
crime, and that he had filed a lawsuit against the county for wrongful
“Why haven’t they charged him as fast as they railroaded me?” he said.
I met Juan Rivera this spring in a stark conference room at the Stateville
Correctional Center near Joliet. He wore dark blue prison pants, a light blue
work shirt and white unlaced high-top sneakers. His black hair was slicked
straight back, and he had a trim goatee.
He was bigger than he was the last time I saw him, 18 years ago. He’s 39 now,
6-foot-3 and 200 pounds, his arms decorated with menacing prison tattoos. Once
we started talking, though, Rivera smiled easily and became relaxed, almost
serene, a fact that he attributes to a religious conversion in prison. “The only
thing that is incarcerated is my body,” he said. “My mind is free here.”
The first time I met Rivera was in April 1993, when I interviewed him at the
Lake County Jail. At the time, I was the police reporter for the newly opened
Lake County bureau of The Chicago Tribune. Holly’s murder came to dominate much
of my reporting over the next year, and as the story unfolded, I began to have
doubts about the case against Rivera.
For one thing, a prosecution witness, who claimed Rivera confessed to him in
jail, tried to sell me case documents at a local McDonald’s.
“I never touched that girl,” Rivera told me when I first interviewed him.
Despite the claim in his statement that he had met her through his sister, he
now said: “I don’t even know her or her family. I’ll keep saying I’m innocent,
because I am.”
Seven months later, on Nov. 19, 1993, Rivera was convicted of murder. While I
was hardly convinced of his guilt, I moved on to other jobs and largely forgot
about him. Occasionally, though, his incarceration would nag at me, and last
fall, after reading stories about Jerry Hobbs, I began checking in with lawyers
again and asked Rivera if I could speak with him in prison.
In the small concrete-block conference room, behind two sets of locked gates,
Rivera sat across from me as a prison official hovered nearby. When I asked him
why he confessed, Rivera said he blacked out and doesn’t remember the specifics.
“Coercion is just not physical, but it’s also mental,” he said. “There’s
different ways to actually break a person down.” He added: “I know that it is
easy to overbear a person’s mind if you continuously barrage them with questions
and accuse them. And that’s exactly what they did with me.”
Rivera moved to Waukegan about a year before Holly’s murder, and while he worked
a few jobs, he mostly hung around on the streets and got high. He had a minor
criminal record and twice tried to commit suicide. On the night of the murder,
he was confined to his home by an electronic leg monitor for stealing a car
stereo. The monitoring system was supposed to alert authorities if Rivera left
his house, though the system was prone to malfunction. He said he routinely
violated his home confinement, infractions that were noted by Lake County
authorities, who eventually sent him to prison for them. On the evening of Aug.
17, however, records for his monitor show he was at home.
Rivera said he learned about the murder from a friend who was at a party that
night near the crime scene. She was the one who noticed one of the partygoers
leave and then return later, acting strange. When he was sent to jail that
September for violating his home confinement, Rivera repeated his friend’s
story, putting himself at the party to protect her, because she had an
outstanding warrant. His cellmate contacted police, and Lake County detectives
arrived to question him in prison on Oct. 2. Later that month, on Oct. 27, with
all their leads turning into dead ends, they took Rivera to Lake County and
began questioning him intensively.
Three days later, on Oct. 29, investigators directly accused Rivera of Holly’s
rape and murder. He became agitated and swore and tried to leave the room. Over
the course of that night, detectives continued to press him about
inconsistencies in his story. Just after midnight, Sgt. Charles Fagan asked
Rivera, “Juan, you were in that apartment with Holly Staker, weren’t you?”
Rivera nodded and began sobbing. He then told detectives that he killed Holly,
but only after she attacked him with a knife because he refused to have sex with
her. (Fagan did not respond to requests for comment.)
Shortly after detectives left the room at 3 a.m., Rivera began banging his head
against the wall. One jail official later testified that he was unresponsive and
stared straight ahead afterward. He was moved to a padded cell, and a nurse who
went to check on Rivera later said he was pacing back and forth, speaking
incoherently. The nurse testified that he was in a psychotic state and was “not
in touch with the reality of what was going on around him.”
Around 5 a.m., investigators called Holly’s mother and woke her up with news
that they had caught the killer. The rest of the Lake County task force was
informed of the confession and told to report to work. When Fagan returned to
talk to Rivera shortly after 8 a.m., he described the suspect as handcuffed and
shackled but nonetheless coherent and cooperative. The detectives read back the
confession that Rivera had made earlier, and he signed it.
But there were problems. Even though Rivera admitted to killing Holly, many of
the details in his confession didn’t match the crime scene, and investigators
thought it was implausible that Holly was the aggressor. They gathered in
Waller’s office at 9 a.m. on Oct. 30, four days before his election as state’s
attorney, to figure out what to do next. They decided a fresh team of detectives
was needed to interview Rivera again to resolve the discrepancies in his
When Lou Tessmann retired from the Waukegan police in 2005, the Illinois House
of Representatives passed a resolution praising his two decades of service. The
resolution noted that Tessmann, a former Marine, is “well known for his
interrogation techniques on suspects of crimes.”
Since then, Tessmann has traveled the country offering seminars to police
officers on how to investigate homicides and interrogate potential suspects.
“Mr. Tessmann has obtained over 80 homicide confessions during his career with
only three instances where he was unable to obtain a confession from a homicide
suspect” — a 96 percent success rate — according to the Web site of his
employer, Wicklander-Zulawski & Associates.
It was Tessmann who was sent in to interrogate Rivera around 11:30 a.m. on Oct.
30, along with Sgt. Michael Maley of the Illinois State Police. In the hour or
two before the interview began, Rivera was hitting his head against a glass
window and was then on the floor with his wrists and ankles cuffed behind him.
Tessmann, however, described Rivera as “very comfortable, very relaxed” during
Though Tessmann arrived at the police station roughly seven hours before the
interview, he testified that he wasn’t aware of Rivera’s previous confession.
(One of his colleagues testified that he gave Tessmann the statement that
morning.) He said that Rivera willingly recounted the crime, which then cleared
up many of the issues that prosecutors considered problematic. He described how
Rivera borrowed a pen to show how he stabbed Holly, and in what was portrayed as
a smoking gun, Rivera confessed that he used a mop to bash in the back door to
make it look like a burglary. Tessmann said this was the first he had heard of
the mop, but a polygrapher testified that Tessmann told him about it prior to
The confession was not recorded, but investigators typed it up and presented it
to Rivera, who, according to police, corrected several typos before affixing his
In his closing argument in the third trial, Mermel told jurors that the case
basically came down to whom they believed: the police or the DNA evidence? “Is
there anything in the makeup of any of those men that would lead you to believe
that they were the kind of people who had dedicated their lives to this
profession, yet just decided to just frame this poor innocent Juan Rivera
because they were tired of investigating and wanted to go home?” he said.
What the jury didn’t know was that Mermel had already successfully argued
against the admissibility of any evidence that might cast doubt on Tessmann’s
credibility. For instance, Tessmann said in a 1990 deposition and in an official
biography that he earned an English degree from the University of Wisconsin. But
the school’s 13 four-year colleges have no record of him ever attending. (In
fact, he graduated from Northeastern Illinois University.) In 1989, Tessmann and
four other police officers were sued for allegedly breaking into the wrong home
during a police raid and injuring a woman who was seven months pregnant. The
woman’s lawyer accused the police of writing reports to cover up their conduct
and charged that Tessmann “took the lead in creative drama.”
According to documents provided by defense lawyers, a judgment was entered
against Tessmann and the other officers for $48,500 in that case, and two years
later, another judgment of $71,500 was entered against Tessmann in a case
brought against him by a man who was wrongfully arrested for robbery.
A decade later, in 2001, a woman named Colleen Blue was charged with murder
after she confessed to killing her newborn. Tessmann, then a commander, said to
a reporter for The Chicago Daily Herald, “She told us she had six kids already
and just did not want to deal with another one.” He added: “She said she gave
birth to the baby when she was all alone, put him in the bag and walked off. She
told us she could hear the baby crying until she got close enough to the street
that the passing cars drowned out the sound.”
Charges against Blue were dropped when DNA testing revealed it wasn’t her baby.
When I called to speak with him about the Rivera case, Tessmann said that three
different juries found Rivera guilty. “The guy is guilty as the day is long,” he
said, before abruptly hanging up. He did not respond to a written request to
answer subsequent questions. Sergeant Maley, Tessmann’s fellow interrogator,
agreed with Tessmann’s assessment. “I can tell you 100 percent that Juan Rivera
did the murder,” he said. “He told us things that we later investigated that
were found to be true that only the killer would have known.”
In the spring I went twice to visit Heather Staker, Holly’s twin sister. In the
first visit, in her apartment on the second-floor above some offices in downtown
Waukegan, Staker, a slight blonde, now 30, wore a bright pink sleeveless shirt,
a pink headband and pink pajama bottoms covered with images of Tinkerbell. It
was, of course, like looking at a grown-up version of Holly, a fact that Heather
knows all too well. “I’ve never been known as Heather Staker,” she said. “I’m
known as Holly Staker’s twin.” She described how she and Holly were best friends
when they were kids, that they slept on a bunk bed and shared everything. “We
always played games on people because they could never tell us apart unless they
saw the mole on my back,” she said. “April Fool’s, we’d switch classes.”
By her own admission, Heather has led a troubled life. She left home at 15, has
been arrested multiple times, spent time in prison and battled heroin addiction.
Recently, she suffered a stroke, which she says may have been brought on by her
unhealthful lifestyle. Her two children are being raised by her mother. She told
me that she was the one who was supposed to baby-sit on the evening her sister
was murdered, but Holly volunteered to take her place. “I’ve been a screw-up my
whole life because of it,” she said. “I just try to live day by day.”
Heather was an important witness in Rivera’s 2009 trial, testifying that she and
Holly were forced to perform oral sex on a friend’s brother when they were 8.
She also told jurors that they had shown each other how to masturbate.
Prosecutors did not present other evidence that Holly was sexually active.
When we talked, though, Heather said it was simply not true. “We were not
sexually active,” she told me, although she did not deny that they were abused
earlier. Still, she made it clear that she had no doubt that Rivera killed her
sister. When I asked about the sperm that doesn’t match Rivera’s, she suggested
that maybe someone else was involved along with him, or maybe her sister was
raped by another man before the murder.
“Why would you confess?” she said. “If I am getting charged with murder, I am
not going to fess to something I did not do and then explain the whole night and
how I did it and why I did it and everything like that if I didn’t do it.”
Earlier this year, Heather got a tattoo on the back of her neck, next to the
mole that distinguished her from her sister. It says, “My Missing Half” and
“Holly,” with wings on the side and a halo above it.
“I think about her a lot,” she told me the last time I saw her. She had dyed her
hair pink since my previous visit. “I wonder how it would have been if she were
here. You know, right now. The two of us running around, you know what I mean?”
On a chilly May morning, on a street not far from where Holly was murdered,
Jennifer Linzer, from the Center on Wrongful Convictions at Northwestern
University, and Cynthia Estes, a private investigator, visited the home of a man
who was arrested for sexually assaulting a boy shortly before Holly was killed.
They began by asking what he remembered about the evening of Holly’s murder,
which wasn’t much. They talked about his criminal record, and he pointed out
that he liked boys, not girls. Then they asked him if they could get a saliva
sample in order to eliminate him as a possible suspect through DNA testing.
“I said, ‘This case is probably coming around again, and we are going to give a
list to the cops of people who they should look at and test,’ ” Linzer said. “He
said: ‘Great. I’ll do it.’ ”
Rivera’s lawyers would like to obtain a new trial with a different judge. They
believe the judge who presided over the previous three trials unfairly favored
the prosecution and should not have allowed prosecutors to introduce evidence
about Holly’s alleged sexual past, among other supposed judicial errors. But
even if Rivera is granted a new trial, with a new judge, there is a realization
among his supporters that he could once again be convicted. The crime is simply
too heinous, the confession too powerful.
Perhaps the only way to win Rivera’s freedom is to prove that someone other than
Rivera killed Holly Staker. Which is where Linzer comes in. The wife of
Northwestern’s provost, Linzer began working as a volunteer at the center a
decade ago, after she grew restless as a stay-at-home mom. Before the end of the
year, she was working full time, organizing files, directing student volunteers
and reviewing innocence claims from inmates. She heard about Rivera’s case and
eventually began speaking regularly to him on the telephone.
When Rivera lost his third trial, Linzer compiled a spreadsheet of potential
suspects and, along with Estes, set about trying to find a killer by asking
potential subjects for DNA samples. There are plenty of leads within blocks of
the murder. Police reports show that at least two other men told friends that
they killed Holly, one of them saying he stabbed her so many times he got tired.
There were also at least three convicted sex offenders in the neighborhood, one
of whom was convicted of molesting his 11-year-old stepdaughter, and around the
corner was a boarding house full of transients. An elderly man a few blocks away
supposedly drove around the neighborhood naked and masturbating. When police
arrived to interview him, there was a picture of Holly and an envelope with her
name on it in his house. A high-school senior had a picture of Holly, too,
tucked in his wallet.
“Either this crime touched a lot of people, or there is an inordinate number of
perverts in town,” Linzer said.
Typically, she and Estes show up at a suspect’s home and simply ask them for a
saliva sample. If that doesn’t work, they resort to other measures. In one
instance, they retrieved a cigar butt that a suspect discarded in an alley. In
another, they saved a plate of discarded chicken wings that someone had eaten.
Even if Rivera’s defenders don’t find the killer, Rivera told me he remains
optimistic that he will ultimately be freed. “I believe in God,” he said. “I
believe that everything comes around. . . . Things should come correct. I don’t
know when it will happen, but I do have faith that one day I will go home.”
If Mermel is worried about Rivera’s walking free, he doesn’t show it. He says
that Holly Staker’s killer is already in prison, that the sperm found inside her
is a red herring. “People love to link the murder and the sex,” he said. “It’s
like peanut butter and jelly.” It was his job, though, to separate sex and
death, to “look at the evidence,” as he put it, “and go, ‘What does this add up
— The Supreme Court on Monday made it easier for inmates to sue for access to
DNA evidence that could prove their innocence.
The legal issue in the case was tightly focused, and quite preliminary: Was Hank
Skinner, a death row inmate in Texas, entitled to sue a prosecutor there under a
federal civil rights law for refusing to allow testing of DNA evidence in his
case? By a 6-to-3 vote, the court said yes, rejecting a line of lower-court
decisions that had said the only proper procedural route for such challenges was
a petition for habeas corpus.
In her opinion for the majority, Justice Ruth Bader Ginsburg emphasized how
narrowly the court was ruling. Allowing Mr. Skinner to sue, she said, is not the
same thing as saying he should win his suit.
Justice Ginsburg added that a 2009 decision, District Attorney’s Office v.
Osborne, had severely limited the kinds of claims that prisoners who are seeking
DNA evidence can make. The Osborne decision, Justice Ginsburg wrote, “left slim
room for the prisoner to show that the governing state law denies him procedural
The case that was decided on Monday, Skinner v. Switzer, No. 09-9000, arose from
three killings on New Year’s Eve in 1993. Mr. Skinner contends that he was
asleep on a sofa in a vodka-and-codeine haze that night when his girlfriend,
Twila Busby, and her two sons were killed. Mr. Skinner says that an uncle of Ms.
Busby, Robert Donnell, who has since died, was probably the killer.
Prosecutors tested some but not all of the evidence from the crime scene. Some
of the test results pointed toward Mr. Skinner, who never denied that he was
present, but some of the results did not. His trial lawyer, wary of what
additional testing would show, did not ask for it.
In the years since Mr. Skinner was convicted, prosecutors have blocked his
requests to test blood, fingernail scrapings and hair found at the scene. In
their Supreme Court briefs, prosecutors accused Mr. Skinner of playing games
with the system, dragging out his case and seeking to impose unacceptable
burdens on government resources and the victims’ dignity. They added that
testing would be pointless because “no item of evidence exists that would
conclusively prove that Skinner did not commit the murder.”
In 2001, Texas enacted a law allowing post-conviction DNA testing in limited
circumstances. State courts in Texas rejected Mr. Skinner’s requests under the
law on the ground that he was at fault for not having sought testing earlier.
Mr. Skinner then sued in federal court under a federal civil rights law known as
Section 1983, saying that the Texas law violated his right to due process. That
suit was rejected in the lower federal courts on the ground that the proper
vehicle for a challenge was a petition for habeas corpus.
Section 1983 suits are often more attractive to prisoners than habeas petitions
because Congress and the Supreme Court have placed significant barriers in the
path of inmates seeking habeas corpus.
Justice Ginsburg wrote that a Section 1983 suit was available in cases where the
relief sought by the inmate would not “necessarily imply the invalidity of his
conviction or sentence.” Since there was no telling whether the results of the
tests Mr. Skinner sought would establish his guilt, clear him or be
inconclusive, the suit was proper, she wrote.
Habeas petitions are appropriate, on the other hand, she wrote, where inmates
seek “immediate or speedier release from confinement.”
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Stephen G.
Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion.
Justice Clarence Thomas, joined by Justices Anthony M. Kennedy and Samuel A.
Alito Jr., dissented. Justice Thomas predicted that the ruling on Monday would
flood the courts with civil rights suits. “What prisoner would not avail himself
of this additional bite at the apple?” Justice Thomas asked.
Justice Ginsburg responded that the decision was unlikely to prompt “any
litigation flood or even rainfall.”
TUCSON — As President Obama led the nation in a moment of silence Monday,
Jared L. Loughner, a troubled 22-year-old college dropout, was set to appear
before a magistrate judge in Phoenix to face federal charges in connection with
a shooting rampage on Saturday morning that left six people dead and 14 wounded,
including a member of Congress.
Evidence seized from Mr. Loughner’s home, about five miles from the shooting,
indicated that he had planned to kill Representative Gabrielle Giffords,
Democrat of Arizona, according to documents filed in Federal District Court in
Special Agent Tony M. Taylor Jr. of the F.B.I. said in an affidavit that an
envelope found in a safe in the home bore these handwritten words: “I planned
ahead,” “My assassination” and “Giffords.”
Ms. Giffords remained in critical condition and under sedation on Monday after
surviving, against the odds, a single gunshot to the head fired at point-blank
range. Her doctors were cautiously optimistic that she would survive, and said
on Sunday that they had removed nearly half of her skull to prevent damage to
her brain caused by swelling from the wound. Ms. Giffords was responding to
simple commands, said Darci Slaten, a spokeswoman for University Medical Center
in Tucson. Hospital officials also corrected earlier statements that she had
been placed in a medically-induced coma.
An outpouring of grief was on display all over Tucson since the attack on
Saturday, where friends of the many victims joined complete strangers in
lighting candles and offering tear-filled prayers. President Obama stood
somberly with his wife, their heads bowed, overlooking the South Lawn of the
White House at 11 a.m. Eastern time, as a single bell tolled to honor the
wounded and the dead. On the steps of the East Front of the Capitol, hundreds of
Congressional aides gathered to mark the moment. On Sunday, Mr. Obama ordered
the flag flown at half-staff through Jan. 14 at the White House and all public
Robert S. Mueller III, the director of the F.B.I., traveled to Tucson to oversee
the shooting investigation at Mr. Obama’s request. He said on Sunday that agents
were trying intensively to determine “why someone would commit such a heinous
act and whether anyone else was involved.” Mr. Mueller added that discussions
were under way to increase security for all members of Congress.
Capitol security agencies are planning to join the F.B.I. on Wednesday in a
security briefing for members of Congress. Already, the United States Marshals
Service has increased protection for federal judges in Arizona.
Investigators here focused their attention on Mr. Loughner, whom they accused of
methodically planning the shootings, which occurred outside a supermarket. The
court documents said Mr. Loughner bought the semiautomatic Glock pistol used in
the shooting at Sportsman’s Warehouse, which sells hunting and fishing gear, on
Nov. 30 in Tucson.
The gun was legally purchased, officials said, prompting criticism of the
state’s gun laws, which allow the carrying of concealed weapons. Sheriff
Clarence W. Dupnik of Pima County, a critic of what he calls loose gun
restrictions, bluntly labeled Arizona “Tombstone.”
The documents also indicated that the suspect had previous contact with the
congresswoman. Also found in the safe at Mr. Loughner’s home was a letter from
Ms. Giffords thanking him for attending a 2007 “Congress on Your Corner” event,
like the one she was holding Saturday morning when she was shot.
Along with being accused of trying to kill Ms. Giffords, Mr. Loughner was
charged with the killing and attempted killing of four government employees:
John M. Roll, the chief federal judge in Arizona, who was killed; Gabriel
Zimmerman, a Congressional aide, who was also killed; and Pamela Simon and Ron
Barber, aides who were wounded. Mr. Loughner could face the death penalty if
The indictment against Mr. Loughner indicated that the authorities had
surveillance video, which was not released, that captured events outside the
supermarket. Outside lawyers said the footage would probably be saved for court.
The authorities did release 911 tapes of the minutes after the shooting, at
10:11 a.m. Saturday, in which caller after caller, many out of breath, dialed in
to report shots fired, many shots, and people falling, too many to count.
Mr. Mueller said additional state charges might be filed, and he did not rule
out the filing of terrorism charges.
Mr. Loughner has refused to cooperate with investigators and has invoked his
Fifth Amendment rights, the Pima County sheriff’s office said.
Judy Clarke, a federal public defender who has handled major cases, has been
appointed to represent Mr. Loughner, CNN reported. Ms. Clarke has defended
Theodore J. Kaczynski, who was convicted in the Unabomber attacks, and Zacarias
Moussaoui, the Al Qaeda operative.
Early Sunday, the authorities released a photograph taken from the surveillance
video of a possible accomplice in the shooting. But the man later contacted
sheriff’s deputies, who determined that he was a taxi driver who had taken the
suspect to the mall where the shooting took place and then entered the
supermarket with him when he did not have change for the $14 fare.
Seasoned trauma surgeons, used to seeing patients in distress, were shaken by
the scale of the shootings.
“I never thought I would experience something like this in my own backyard,”
said Dr. Peter M. Rhee, chief of trauma surgery at the University Medical
Center, who has experience on the battlefields of Afghanistan and Iraq and who
likened what happened in Tucson to the mass shootings in those places.
Doctors treating Ms. Giffords said she had been able to respond to simple
commands, an encouraging sign.
At a news conference at the hospital, surgeons said she was the only one of the
victims to remain in critical care at the hospital. They said she was lucky to
be alive but would not speculate about the degree of her recovery, which they
said could take months or longer.
“Over all, this is about as good as it’s going to get,” Dr. Rhee said. “When you
get shot in the head and a bullet goes through your brain, the chances of you
living are very small, and the chances of you waking up and actually following
commands is even much smaller than that.”
Dr. G. Michael Lemole Jr., the chief of neurosurgery, who operated on Ms.
Giffords, said the bullet traveled through the left side of her brain “from back
to front.” It did not cross from one side of the brain to the other, he said,
nor did it pass through some critical areas that would further diminish her
chances of recovery.
Officials said the attack could have been even more devastating had several
victims not overwhelmed the suspect as he tried to reload his gun. A bystander,
Patricia Maisch, who was waiting to meet Ms. Giffords, grabbed the gun’s
magazine as the gunman dropped it while trying to reload after firing 31 rounds,
officials said. Two men, Roger Salzgeber and Bill D. Badger, then overwhelmed
the gunman, and another man, Joseph Zamudio, restrained his flailing legs.
In addition to Judge Roll, 63, and Mr. Zimmerman, 30, who was the director of
community outreach for Ms. Giffords, the others who died were identified as
Christina Green, 9; Dorothy Morris, 76; Dorwin Stoddard, 76; and Phyllis
The new House speaker, Representative John A. Boehner of Ohio, denounced the
attack in an early Sunday appearance in West Chester, his hometown, and said it
was a reminder that public service “comes with a risk.”
Mr. Boehner urged people to pray for Ms. Giffords and the other victims and told
his House colleagues to persevere in fulfilling their oath of office. “This
inhuman act should not and will not deter us,” he said. “No act, no matter how
heinous, must be allowed to stop us.”
He also said the normal business of the House for the coming week had been
postponed “so that we can take necessary action regarding yesterday’s events.”
That business had included a vote to repeal the health care overhaul.
Mr. Loughner had exhibited increasingly strange behavior in recent months,
including ominous Internet postings — at least one showing a gun — and a series
of videos in which he made disjointed statements on topics like the gold
standard and mind control.
Pima Community College, which he had attended, said he had been suspended for
conduct violations and withdrew in October after five instances of classroom or
library disruptions that involved the campus police.
As the investigation intensified on Sunday, the police were still at the scene
of the shooting, a suburban shopping center known as La Toscana Village.
Investigators have described the evidence collection as a monumental task given
the large number of bullets fired and victims hit.
All of the cars in the parking lot were scrutinized in search of a vehicle the
gunman might have driven to the scene. Then the taxi driver stepped forward to
help explain how the suspect had arrived.
Nobody knew for sure what compelled the gunman. Ms. Giffords, who represents the
Eighth District, in the southeastern corner of Arizona, has been an outspoken
critic of the state’s tough immigration law, which is focused on identifying,
prosecuting and deporting illegal immigrants, and she had come under criticism
for her vote in favor of the health care law.
Reporting for the Arizona shooting coverage was contributed by David M.
Herszenhorn, Emmarie Huetteman, Janie Lorber, Thom Shanker, Michael D. Shear and
Ashley Southall from Washington; Jo Becker, Lisa M. Button, Ford Burkhart, Renee
Schafer Horton, Devlin Houser, Ron Nixon, Nancy Sharkey, Anissa Tanweer and
Roxana Vasquez from Tucson; Joe Sharkey from Sierra Vista, Ariz.; Joseph Berger,
Catrin Einhorn, Anahad O’Connor, Sharon Otterman, Mosi Secret, Sarah Wheaton and
Kate Zernike from New York; and Kitty Bennett from St. Petersburg, Fla.
December 8, 2010
The New York Times
By JOHN SCHWARTZ
and KATIE ZEZIMA
In a world that is always on camera, the centuries-old courtroom experience
is becoming a lot more complicated.
The advent of video-in-your pocket camcorders and cellphones, and the
proliferation of surveillance cameras, mean that events that once would have
gone unrecorded are preserved for posterity — and, inevitably, for trial.
Legal experts say the technology shift could lead to harsher experiences for
jurors, and could put pressure on judges to re-examine the balancing act that
they have long used to determine what kind of evidence makes its way into court.
Videos, some quite grisly, are increasingly a major feature of cases. Just
Tuesday, a judge in a Massachusetts manslaughter trial said that video of an
8-year-old boy accidentally shooting himself in the head with a submachine gun
at a gun show could be shown to jurors.
In the case of a former Oakland, Calif., transit police officer convicted in
July of involuntary manslaughter in the shooting death of an unarmed man on a
subway platform, jurors watched widely disseminated cellphone video of the
shooting. And in Stockton, Calif., this month, jurors saw video of an emaciated,
dirt-caked 16-year-old boy wearing only boxer shorts and a leg shackle, running
into a gym in Tracy, Calif. The boy had escaped from a home where he had been
burned, beaten, cut and tortured for a year.
“There’s no doubt it can be helpful,” said Jake Wark, a spokesman for District
Attorney Daniel F. Conley of Suffolk County, Mass., whose office prosecuted
cases in Boston involving surveillance video of the shooting of a 15-year-old
boy waiting for a school bus and a shooting in a convenience store. “It’s a
powerful tool for us in determining the truth.”
But it also leads to greater resistance from defense lawyers, he said. “With
every new type of evidence comes a new type of evidence-suppression motion,” Mr.
Being subjected to such images could make jury service a brutal experience. Last
year, Las Vegas jurors wept as prosecutors played a 15-minute video of a man
molesting a 2-year-old girl. A juror said showing the tape was not necessary to
convict the defendant, Chester Stiles, on 22 counts of sexually assaulting a
minor and other charges.
“It’s absolutely horrific, there’s no other way to put it,” said the juror, who
asked not to be identified. The experience left him with “post-traumatic type
things,” he said. “For a regular citizen to have to watch that, it’s too much.”
Some jurors require counseling for post-traumatic stress after a particularly
grueling trial, including some of those involved in the recent case involving a
triple murder in Cheshire, Conn.
Video evidence can spark responses that surpass those of oral testimony and
still images, said Clay Shirky, a new-media expert at New York University. “It
seems like it’s happening as you’re watching,” he said. The widespread use of
such powerful evidence, he predicted, could also shift the balance of justice.
“My guess is that other things being equal, the availability of video evidence
will lead juries to make harsher decisions,” he said.
That is where judges come in, said Greg Hurley, an analyst for the National
Center for State Courts. “Judges are worried that jurors’ passions and
sympathies will be excited, and they won’t be judging cases solely on the facts
and the law,” he said.
Paul G. Cassell, a former federal judge who teaches at the University of Utah
college of law, said most judges choose to allow disturbing evidence into trial.
“The law generally places a thumb on the side of admissibility of evidence like
this, requiring the opponent of admission to show a particularly good reason for
Professor Cassell, who is an advocate for victims’ rights, said judges must also
be mindful of weakening the information for a jury. “You cannot deprive the
other side the moral force of its evidence simply by stipulating to the facts,”
The rise of video technology, he predicted, will not change the principles
behind the balancing act, but will force judges to grapple more directly with
the technology and become innovators themselves. They may need to employ tools
for editing and changing resolution and masking parts of a frame to ensure that
a video presented has “a laserlike focus on probative parts of the tape and
exclusion of irrelevant parts of the tape.”
Prosecutors predict that there will be more challenges to introducing video
evidence. Scott Burns, executive director of the National District Attorneys
Association, said such challenges were increasingly likely “but if the goal is
to seek the truth and you have compelling evidence that shows what happened,
it’s fairly important,” he said.
Stephen B. Bright, the president of the Southern Center for Human Rights, said
he did not expect the greater number of challenges to cause the judicial balance
to shift. “Every law student learns that there is a delicate balancing test to
see if the prejudicial impact outweighs the probative value before such evidence
is admitted,” but “they quickly learn that in practice the balance always comes
out in favor of admitting gruesome crime-scene photos, autopsy pictures, 911
Many judges, Mr. Bright said, favor the prosecution side, and so emotionally
charged evidence is rarely excluded.
Valerie Hans, a law professor at Cornell, said the power of video evidence has
to become part of jury selection — to find people who can withstand the
emotional battering of the evidence and still do the job before them and not be
“dominated by vengeful thoughts.”
“We really ask our jurors to do a lot,” Professor Hans said.
September 15, 2010
The New York Times
By WILLIAM GLABERSON
NEW HAVEN — At the end of a second-floor hallway still hot
from the flames that had engulfed the house, a lieutenant from the Police
Department in Cheshire, Conn., could see that there was someone on a bed.
“That’s where I found Michaela Petit,” the lieutenant, Jay Markella, told jurors
on Wednesday at the trial of Steven J. Hayes, who is accused of arson in
addition to murder in the triple killing at the Petit family house on Sorghum
Mill Drive in Cheshire three years ago.
The jurors, some looking stricken, listened as Lieutenant Markella went on. “Her
hands,” he testified in the silent courtroom, “were bound with like a string or
a rope and they were over her head.”
She was tied to the headboard. The lower half of her body was off the bed. She
He said he knew even from a distance what he would find. But he went close
enough to be sure. She was not alive.
In the courtroom’s front row, tears ran down the face of Michaela’s father, Dr.
William A. Petit Jr., who had testified dry-eyed on Tuesday, describing his own
harrowing night and day in the house.
More or less the same procedure took place three times on Wednesday. Witnesses
told how they found the victims.
A volunteer firefighter, Rick Trocchi, described finding Hayley Petit, who was
17, at the top of the stairs on the second floor.
Timothy Wysoczanski, who was the first firefighter at the scene, described
blinding smoke and scalding heat beating the men back again and again. He
finally made it into the sun room, where he found the girls’ mother, Jennifer
After each of the Cheshire officers described his discovery, a prosecutor
formally introduced photographs of the bodies. Each of the photographs was
placed in a separate file folder so as to avoid casual sightings and passed
slowly from juror to juror.
The juror in the first seat in the first row of the jury box covered her face
with her hand. A court marshal handed her a tissue. In the second row, a
broad-shouldered young man who looked a little like one of the Cheshire officers
wiped away tears.
The jurors had obviously worried about this courtroom moment. Just before it,
one of them sent a note to the judge in State Superior Court here, Jon C. Blue.
It asked for advance warning when they were going to see the graphic photographs
that the lawyers had warned them would be an unavoidable part of a murder case
in which the death penalty is being sought.
When the last of the pictures had made its last round in the jury box Wednesday
afternoon, Judge Blue told the jurors that it had been a harrowing day, the
worst part, he said, of any homicide case. He had agreed with the lawyers that
there would be no more testimony for the day.
“If it’s any consolation,” Judge Blue said, “you’ve been through the roughest
part. Not that it’s going to be any bed of roses.”
It had already been an intense day in the windowless courtroom, where the crowd
of onlookers and reporters who pushed into the rows at the start of the trial on
Monday began to thin. Officers described the chaotic escape attempt of Mr. Hayes
and the other man accused of the crime, Joshua Komisarjevsky, who is to be tried
In the Petit family’s stolen Chrysler van, the two suspects screeched out of the
driveway and across the lawn as the flames in the house began to sprout through
the windows. They crashed into two police cars and skidded to a halt.
Once out of the car, with officers shouting questions and orders, Mr. Hayes made
his first statement, Detective Joseph Vitello of the Cheshire police testified.
He said he asked Mr. Hayes if there was anyone still in the Petit house.
“I don’t know,” he said was the answer. “Things just got out of control.”
The detective said he took what looked like a 9-millimeter pistol out of Mr.
Hayes’s belt. It turned out to be a BB gun. He said Mr. Hayes was wearing a
green cap with “Miss Porter’s School Crew” embossed across the front. Hayley
Petit had been on the rowing team at Miss Porter’s School.
A Cheshire police captain, Robert E. Vignola, was cross-examined by a defense
lawyer, Thomas Ullmann, who suggested that there were police delays in
responding to emergency calls that morning. “Not excusing what happened in any
way,” Mr. Ullmann said, “but the fact is you were too late. Correct?”
The events that day in Cheshire were “very confusing,” Captain Vignola answered.
“The entire incident made no sense,” he said. “It still makes no sense today.”
September 13, 2010
The New York Times
By JOHN SCHWARTZ
KANSAS CITY, Mo. — Eddie Lowery lost 10 years of his life for a
crime he did not commit. There was no physical evidence at his trial for rape,
but one overwhelming factor put him away: he confessed.
At trial, the jury heard details that prosecutors insisted only the rapist could
have known, including the fact that the rapist hit the 75-year-old victim in the
head with the handle of a silver table knife he found in the house. DNA evidence
would later show that another man committed the crime. But that vindication
would come only years after Mr. Lowery had served his sentence and was paroled
“I beat myself up a lot” about having confessed, Mr. Lowery said in a recent
interview. “I thought I was the only dummy who did that.”
But more than 40 others have given confessions since 1976 that DNA evidence
later showed were false, according to records compiled by Brandon L. Garrett, a
professor at the University of Virginia School of Law. Experts have long known
that some kinds of people — including the mentally impaired, the mentally ill,
the young and the easily led — are the likeliest to be induced to confess. There
are also people like Mr. Lowery, who says he was just pressed beyond endurance
by persistent interrogators.
New research shows how people who were apparently uninvolved in a crime could
provide such a detailed account of what occurred, allowing prosecutors to claim
that only the defendant could have committed the crime.
An article by Professor Garrett draws on trial transcripts, recorded confessions
and other background materials to show how incriminating facts got into those
confessions — by police introducing important facts about the case, whether
intentionally or unintentionally, during the interrogation.
To defense lawyers, the new research is eye opening. “In the past, if somebody
confessed, that was the end,” said Peter J. Neufeld, a founder of the Innocence
Project, an organization based in Manhattan. “You couldn’t imagine going
The notion that such detailed confessions might be deemed voluntary because the
defendants were not beaten or coerced suggests that courts should not simply
look at whether confessions are voluntary, Mr. Neufeld said. “They should look
at whether they are reliable.”
Professor Garrett said he was surprised by the complexity of the confessions he
studied. “I expected, and think people intuitively think, that a false
confession would look flimsy,” like someone saying simply, “I did it,” he said.
Instead, he said, “almost all of these confessions looked uncannily reliable,”
rich in telling detail that almost inevitably had to come from the police. “I
had known that in a couple of these cases, contamination could have occurred,”
he said, using a term in police circles for introducing facts into the
interrogation process. “I didn’t expect to see that almost all of them had been
Of the exonerated defendants in the Garrett study, 26 — more than half — were
“mentally disabled,” under 18 at the time or both. Most were subjected to
lengthy, high-pressure interrogations, and none had a lawyer present. Thirteen
of them were taken to the crime scene.
Mr. Lowery’s case shows how contamination occurs. He had come under suspicion,
he now believes, because he had been partying and ran his car into a parked car
the night of the rape, generating a police report. Officers grilled him for more
than seven hours, insisting from the start that he had committed the crime.
Mr. Lowery took a lie detector test to prove he was innocent, but the officers
told him that he had failed it.
“I didn’t know any way out of that, except to tell them what they wanted to
hear,” he recalled. “And then get a lawyer to prove my innocence.”
Proving innocence after a confession, however, is rare. Eight of the defendants
in Professor Garrett’s study had actually been cleared by DNA evidence before
trial, but the courts convicted them anyway.
In one such case involving Jeffrey Deskovic, who spent 16 years in prison for a
murder in Poughkeepsie, prosecutors argued that the victim may have been
sexually active and so the DNA evidence may have come from another liaison she
had. The prosecutors asked the jury to focus on Mr. Deskovic’s highly detailed
confession and convict him.
While Professor Garrett suggests that leaking facts during interrogations is
sometimes unintentional, Mr. Lowery said that the contamination of his
questioning was clearly intentional.
After his initial confession, he said, the interrogators went over the crime
with him in detail — asking how he did it, but correcting him when he got the
facts wrong. How did he get in? “I said, ‘I kicked in the front door.’ ” But the
rapist had used the back door, so he admitted to having gone around to the back.
“They fed me the answers,” he recalled.
Some defendants’ confessions even include mistakes fed by the police. Earl
Washington Jr., a mentally impaired man who spent 18 years in prison and came
within hours of being executed for a murder he did not commit, stated in his
confession that the victim had worn a halter top. In fact, she had worn a
sundress, but an initial police report had stated that she wore a halter top.
Steven A. Drizin, the director of the Center on Wrongful Convictions at the
Northwestern University School of Law, said the significance of contamination
could not be understated. While errors might lead to wrongful arrest, “it’s
contamination that is the primary factor in wrongful convictions,” he said.
“Juries demand details from the suspect that make the confession appear to be
reliable — that’s where these cases go south.”
Jim Trainum, a former policeman who now advises police departments on training
officers to avoid false confessions, explained that few of them intend to
contaminate an interrogation or convict the innocent.
“You become so fixated on ‘This is the right person, this is the guilty person’
that you tend to ignore everything else,” he said. The problem with false
confessions, he said, is “the wrong person is still out there, and he’s able to
Mr. Trainum has become an advocate of videotaping entire interrogations.
Requirements for recording confessions vary widely across the country. Ten
states require videotaping of at least some interrogations, like those in crimes
that carry the death penalty, and seven state supreme courts have required or
strongly encouraged recording.
These days Mr. Lowery, 51, lives in suburban Kansas City, in a house he is
renovating with some of the $7.5 million in settlement money he received, along
with apologies from officials in Riley County, Kan., where he was arrested and
He has trouble putting the past behind him. “I was embarrassed,” he said. “You
run in to so many people who say, ‘I would never confess to a crime.’ ”
He does not argue with them, because he knows they did not experience what he
went through. “You’ve never been in a situation so intense, and you’re naïve
about your rights,” he said. “You don’t know what you’ll say to get out of that
Harrison was driving a rented Dodge Durango from Vancouver to Toronto in the
fall of 2004 with 77 pounds of cocaine in the trunk when a police officer pulled
him over, found the drugs and arrested him.
A year and a half later, an Ontario trial judge ruled that the officer’s conduct
was a “brazen and flagrant” violation of Mr. Harrison’s rights. The officer’s
explanation for stopping and searching Mr. Harrison — confusion about a license
plate — was contrived and defied credibility, the judge said, and the search
“was certainly not reasonable.”
In the United States, that would have been good news for Mr. Harrison. Under the
American legal system’s exclusionary rule, the evidence against Mr. Harrison
would have been suppressed as the result of an unlawful search.
But both the Canadian trial judge and an appeals court refused to exclude the
evidence. Mr. Harrison was sentenced to five years in prison.
“Without minimizing the seriousness of the police officer’s conduct or in any
way condoning it,” the Court of Appeal for Ontario ruled in Mr. Harrison’s case
in February, “the exclusion of 77 pounds of cocaine, with a street value of
several millions of dollars and the potential to cause serious grief and misery
to many, would bring the administration of justice into greater disrepute than
would its admission.” The case is now before the Canadian Supreme Court.
The United States is the only country to take the position that some police
misconduct must automatically result in the suppression of physical evidence.
The rule applies whether the misconduct is slight or serious, and without regard
to the gravity of the crime or the power of the evidence.
“Foreign countries have flatly rejected our approach,” said Craig M. Bradley, an
expert in comparative criminal law at Indiana University. “In every other
country, it’s up to the trial judge to decide whether police misconduct has
risen to the level of requiring the exclusion of evidence.”
But there are signs that some justices on the United States Supreme Court may be
ready to reconsider the American version of the exclusionary rule. Writing for
the majority two years ago, Justice Antonin Scalia said that at least some
unconstitutional conduct ought not require “resort to the massive remedy of
suppressing evidence of guilt.”
The court will soon have an opportunity to clarify matters. The justices will
hear arguments on Oct. 7 about whether methamphetamines and a gun belonging to
Bennie Dean Herring, of Brundidge, Ala., should be suppressed because the
officers who conducted the search mistakenly believed he was subject to an
outstanding arrest warrant as a result of careless record-keeping by another
Elsewhere in the world, courts have rejected what the Ontario appeals court in
Mr. Harrison’s case called “the automatic exclusionary rule familiar to American
Bill of Rights jurisprudence.”
Australia also uses a balancing test. It considers the seriousness of the police
misconduct, whether superiors approved or tolerated it, the gravity of the crime
and the power of the evidence. “Any unfairness to the particular accused” in
most cases, the High Court of Australia wrote in 1995, “will be of no more than
The European Court of Human Rights, a notably liberal institution, refused in
2000 to require the suppression of illegally obtained evidence. Using such
evidence to convict a man charged with importing heroin into England, the court
said, did not make his trial unfair.
In the United States, by contrast, evidence against criminal defendants is
routinely and automatically suppressed when police misconduct is found. In the
last week of June, for instance, courts in Georgia, Ohio, Pennsylvania, Virginia
and Washington state suppressed evidence in cases involving drugs, guns,
burglary and child pornography under the mandatory version of the exclusionary
Some specialists in comparative criminal law say that the decentralized nature
of American law enforcement, with thousands of local police departments around
the nation, requires a more rigorous and consistent approach to deterring
misconduct. The law enforcement systems in Canada and England, by contrast, are
notably less fragmented and may be subject to more stringent professional
But not always. The officer who pulled over Mr. Harrison’s car in Ontario
thought the car should have had a front license plate, even though the car was
from Alberta, which does not require one. “We respect the decision of the
courts,” said Sgt. Pierre Chamberland, a spokesman for the Ontario Provincial
Police, but “their criticism alone does not by default lead to an internal
Supporters of the American practice say that only strict application of the
exclusionary rule can effectively address violations of the Fourth Amendment,
which bans unreasonable searches and seizures.
“The exclusionary rule deters police misconduct in a straightforward and
effective way,” said a supporting brief filed by the National Association of
Criminal Defense Lawyers in the case the Supreme Court will hear in October. “It
reduces the value of evidence obtained as a result of Fourth Amendment
violations, and thus eliminates what would otherwise be a powerful incentive for
police to engage in such violations.”
Several justices have in recent years questioned whether the rule still makes
sense in light of what they called the increased professionalism of the police
and the availability of alternative and arguably more direct ways to punish
misconduct, including internal discipline and civil suits.
Opponents of the rule say it is indirect, incomplete and in a way perverse. Even
if it deters unlawful searches, exclusion of evidence, for instance, offers no
remedy to innocent people whose rights were violated by unlawful searches.
More important, as Justice Robert H. Jackson wrote in 1954, the exclusionary
rule “deprives society of its remedy against one lawbreaker because he has been
pursued by another.” Or, in Judge Benjamin Cardozo’s famous mocking formulation
in a 1926 decision for New York’s highest court rejecting the rule: “The
criminal is to go free because the constable has blundered.”
That reasoning continues to resonate with some experts.
“Lots of scholars argue that the mandatory exclusionary rule ought to be
re-examined,” said David A. Sklansky, a law professor at the University of
California, Berkeley. “Those scholars are not all on the right of the political
spectrum.” Professor Sklansky said he believed that the rule’s benefits
continued to outweigh its costs.
Most specialists continue to support the rule, said Orin S. Kerr, a law
professor at George Washington University. “The U.S. experience is a consequence
of history,” Professor Kerr said. “It’s a response to the police not following
the law in the absence of this remedy.”
The idea that exclusion is the proper response to police misconduct is of
relatively recent vintage.
“Supporters of the exclusionary rule cannot point to a single major statement
from the Founding — or even the antebellum or Reconstruction eras — supporting
Fourth Amendment exclusion of evidence in a criminal trial,” Akhil Reed Amar, a
law professor at Yale, wrote in The Harvard Law Review in 1994.
According to Professor Amar, the framers of the Fourth Amendment assumed that
the right it guaranteed would be enforced through civil lawsuits, not exclusion.
“Both before and after the Revolution,” he wrote, “the civil trespass action
tried to a jury flourished as the obvious remedy against haughty customs
officers, tax collectors, constables, marshals and the like.”
These days, law professors and defense lawyers say, civil suits are less likely
to be effective. Criminals whose rights have been violated are not attractive
plaintiffs, and they may not have the resources to litigate, particularly from
behind bars. Civil suits must, moreover, overcome various legal doctrines
limiting the liability of police officers and their employers.
The Supreme Court started requiring the exclusion of improperly obtained
evidence in 1914 — but only in federal cases.
For many decades afterward, the Supreme Court refused to apply the principle to
states, saying they could choose the appropriate remedy for police misconduct —
including civil suits and criminal prosecutions — and were not required to
suppress evidence. In a 1949 decision, the court justified that position in part
with a rationale now disfavored in some circles: a survey of foreign law.
“Of 10 jurisdictions within the United Kingdom and the British commonwealth of
nations,” Justice Felix Frankfurter wrote for the majority, “none has held
evidence obtained by illegal search and seizure inadmissible.” The right to be
free of arbitrary police intrusion is fundamental, Justice Frankfurter wrote,
but the legal remedy for the violation of that right can vary.
It was not until 1961 that the Warren Court, in one of its signature decisions,
concluded in Mapp v. Ohio that only the mandatory suppression of evidence could
adequately address wrongdoing by the police in all cases, state and federal.
Seven Cleveland police officers had broken into and searched Dollree Mapp’s home
without producing a warrant, manhandling her and rummaging through her personal
papers. Though the Ohio Supreme Court concluded that the search had been
unlawful, it affirmed Ms. Mapp’s conviction on obscenity charges based on
materials the police found in her home.
That was too much for a majority of the Supreme Court to stomach. “The state, by
admitting evidence unlawfully seized, serves to encourage disobedience to the
federal Constitution which it is bound to uphold,” Justice Tom C. Clark wrote
for the court. Only the exclusion of evidence could do the job, he said; other
remedies had proved “worthless and futile.”
The Supreme Court has in recent years whittled away at the exclusionary rule by
limiting its applicability and creating exceptions to it. Chief Justice John G.
Roberts Jr. and Justice Scalia, neither of whom is enamored with citing foreign
law, each noted in recent decisions that the American approach in this area is
unique and has been universally rejected elsewhere.
In a third decision two years ago, Hudson v. Michigan, Justice Scalia seemed to
say that the exclusionary rule had outlived its original purpose. The case
involved a conceded violation of a rule requiring police executing a search
warrant to knock and announce themselves.
Much had changed since the exclusionary rule was applied to states in 1961,
Justice Scalia wrote. Police departments had become more professional, he said,
and various kinds of civil suits against officials and the government had become
available. “As far as we know,” Justice Scalia wrote for the court, “civil
liability is an effective deterrent.”
Justice Stephen G. Breyer, writing for the four dissenters, said that exclusion
remains the best and most reliable deterrent. He added that the logic of the
majority’s objections was not limited to “knock and announce” violations but was
“an argument against the Fourth Amendment’s exclusionary principle itself.”
O. J. Simpson trial stumbles ahead with a dwindling pool of jurors and new
revelations bearing on the veracity of a key witness, the most important
development in recent weeks may be the respect accorded to the science of DNA
blood testing. Even in this bitterly contested murder trial, the principles and
potential of DNA testing have not yet been seriously questioned. Indeed, the
defense has not generally challenged the validity of the science but has instead
charged that blood evidence was mishandled or manipulated by conspiratorial
police before it was subjected to DNA analysis.
Although DNA testing is on display as never before, its worth and promise have
been apparent for a decade in thousands of cases. Scientists, lawyers and judges
find that the technology can often clear -- or incriminate -- a suspect in
crimes or paternity cases. This is a valuable identification tool, especially
because eyewitness identification is often very shaky.
Far less evident, at least at this stage of a long and dreary trial, is whether
the science can be clear or convincing to a jury of non-scientists. Do these
jurors actually absorb the crash course in genetics and rightly interpret those
blurry X-ray pictures of little blobs that the criminalists tell them are
matching blood samples? How many among the millions watching on television can
honestly say they understand the evidence?
Even knowledgeable observers may rebel at the spiraling claims of numerical
accuracy. Few people know how to evaluate prosecution contentions that there is
only a 1-in-170-million chance that someone other than Mr. Simpson matched a
particular blood spot on the walkway where his wife, Nicole, and her friend
Ronald Goldman were knifed to death. As for Mr. Simpson's bloody sock, only one
in nearly seven billion people supposedly match Nicole Simpson's blood type
found there, so a search of the planet might not turn up another match. Is it
possible that jurors will find the numbers numbing and the experts tyrannical,
and then devise their own formula for determining whether a reasonable doubt
Whatever its effect in the Simpson case, DNA testing may work a change in the
nation's adversarial system of criminal justice. The Supreme Court ruled three
decades ago that suspects may be forced to give police and prosecutors blood
samples, strands of hair and fingernail scrapings that may help convict them.
The Court found that, unlike forced confessions, this kind of compelled
cooperation can be a constitutional, reasonable search.
With DNA testing becoming more readily available, judges and juries may become
increasingly dependent on it and create a greater demand for its use. Both sides
will be impelled to use it or be subtly pressured to explain not using it. With
both legal teams engaged in a common pursuit of DNA evidence, trials might
become more of a "search for truth" on some issues than is typically the case.
The Simpson trial is proving a test of juror endurance and of the legal system's
ability to handle well-financed, celebrity trials. But its lasting importance
might be as a demonstration of the power -- and complexities -- of DNA