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Vocapedia > USA > Law, Justice > Investigation, trial


Witness, Testimony,

Evidence, DNA testing / evidence,






How DNA Changed the World of Forensics

Video        Retro Report        The New York Times        19 May 2014


Before DNA testing,

prosecutors relied

on less sophisticated forensic techniques,

including microscopic hair analysis,

to put criminals behind bars.


But how reliable was hair analysis?


Produced by: Retro Report

Read the story here: http://nyti.ms/1jwyfLt

Watch more videos at: http://nytimes.com/video



























USA > evidence        UK / USA


911-call-analysis-jessica-logan-evidence - November 21, 2022


joe-bryan-has-been-released-on-parole - March 31, 2020














































https://usatoday30.usatoday.com/news/index/nns25.htm - 10 / 18 / 1996


































dubious evidence > bloodstain-pattern analysis


joe-bryan-has-been-released-on-parole - March 31, 2020








county grand jury > hear evidence






forensic evidence












a piece of evidence





there is not a shred of evidence












lack of direct evidence





forensic evidence






forensic science































Deoxyribonucleic Acid    DNA
































DNA testing

















DNA evidence














































crime laboratory










murder scene / crime scene


















































witness, witnesses




























































underage witnesses










key witness










bribe witnesses










be given a new identity

in the the federal witness protection program











eyewitness testimony












how can courts trust eyewitnesses?    September 2011


If only our memories

were as accurate as they feel.


A crime victim might stand

behind the one-way mirror and,

with total confidence,

point to a suspect in a lineup.


But total confidence

is not the same thing as being right.


Indeed, DNA exonerations

have shown time and again

that a reliance on eyewitness identifications

 can send innocent people to prison,

or death row.


The Supreme Court of New Jersey

issued a ruling last week

telling judges to proceed with caution

when a case hinges on a witness’s memory.


An editorial

in The New York Times on Saturday

proposes that New Jersey's approach

could be a model for other states and courts.


Given that jurors tend to think of memory

as more dependable than it is,

how can courts use

eyewitness testimony and lineup IDs

without overemphasizing their reliability?






character witnesses





be sworn in as a witness
















witness stand








take the witness stand








take stand / the stand















take the stand

to testify in his / her own defense






on the witness stand






on the stand

































testify against N






testify for the defense






testify before a grand jury





testify in court





testify in open court






















 after nearly two months of testimony





consider testimony by 140 witnesses

and sift through some 600 items of evidence





testimony > make up






witness > testify under cross-examination






 cross-examination of the central witness






opportunity for defense lawyers

to smear the witness’s credibility




























Corpus of news articles


USA > Law, Justice > Investigation, trial


Witness, Testimony, Evidence, DNA testing,





Murder Cases

Put Questionable Evidence to Test


December 24, 2011

The New York Times



Undigested 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 scientific standards.

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 cases.

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.”

Murder Cases Put Questionable Evidence to Test,






The Bill of Rights

Doesn’t Come Cheap


December 1, 2011

The New York Times



Palo Alto, Calif.

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 analysts do.

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 guarantee.

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.


Jeffrey L. Fisher

is an associate professor of law at Stanford.

    The Bill of Rights Doesn’t Come Cheap, NYT, 1.12.2011,






The Prosecution’s Case Against DNA


November 25, 2011
The New York Times


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 girl.

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 conviction-integrity units.

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 self-defeating philosophy.”

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 reform grounds.”

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 expendable.”

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 Clinton.”

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 forensically significant?”

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 children.

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 faces.

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 penalty.

An initial examination found no evidence of sexual assault in the case, and Hobbs never mentioned it in his confession. Two years after his arrest, though, a private laboratory hired by his lawyers discovered that there had been sperm in Laura’s vagina, anus and mouth, and they tested a sample. The defense lawyers immediately announced that DNA analysis showed the DNA did not match Hobbs’s.

When Mermel heard about the findings, he dismissed them and suggested that Laura could have got the sperm on her while playing in the woods, where couples might have sex.

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 doubt.

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 prosecution.

“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 statement.

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 the interview.

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 Rivera’s confession.

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 signature.

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 to?’ ”


Andrew Martin is a reporter

for the Business Day section of The Times.

This is his first article for the magazine.


Editor: Joel Lovell

The Prosecution’s Case Against DNA, NYT, 25.11.2011,






Supreme Court Allows Suit

to Force DNA Testing of Evidence


March 7, 2011
The New York Times


WASHINGTON — 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 due process.”

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.”

Supreme Court Allows Suit to Force DNA Testing of Evidence, NYT, 7.3.2011,






Evidence Points to Methodical Planning


January 10, 2011
The New York Times


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 Phoenix.

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 buildings.

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 convicted.

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 Schneck, 79.

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.

    Evidence Points to Methodical Planning, NYT, 10.1.2011,






With Video Everywhere,

Stark Evidence Is on Trial


December 8, 2010
The New York Times


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. Wark said.

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 exclusion.”

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,” he said.

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 calls, everything.”

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.

    With Video Everywhere, Stark Evidence Is on Trial, NYT, 8.12.2010,







Tell of Finding Victims in Conn. Killing


September 15, 2010
The New York Times


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 was 11.

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 Hawke-Petit.

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 separately.

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.”

    Witnesses Tell of Finding Victims in Conn. Killing, NYT, 15.9.2010, http://www.nytimes.com/2010/09/16/nyregion/16cheshire.html






Confessing to Crime, but Innocent


September 13, 2010
The New York Times


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 in 1991.

“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 forward.”

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 contaminated.”

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 reoffend.”

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 interrogated.

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 situation.”

    Confessing to Crime, but Innocent, NYT, 13.9.2010,






American Exception

U.S. Is Alone

in Rejecting All Evidence

if Police Err


July 19, 2008
The New York Times


Bradley 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 police department.

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 peripheral importance.”

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 rule.

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 discipline.

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 complaint.”

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.”

    U.S. Is Alone in Rejecting All Evidence if Police Err, NYT, 19.7.2008,






The Power of DNA Evidence


May 28, 1995

The New York Times


While the 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 exists?

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 technology.

The Power of DNA Evidence,










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