More on Michael Mermel, DNA, and False Confessions

Friday, December 19th, 2008

Earlier this week, I wrote about Lake County, Illinois prosecutor Michael Mermel, who doesn’t seem to be all that impressed with DNA testing, at least when it has the effect of exonerating his suspects and undermining his convictions. Mermel’s most ridiculous dismissal of DNA testing to date was in the case of Jerry Hobbs, a man accused of killing his 8-year-old daughter and her friend.

When tests showed that the semen found in the mouth, rectum and vagina of Hobbs’ daughter came from someone other than Hobbs, Mermel argued that Hobbs was still his man, and that the semen could be explained by the fact that the girl often played in a woods where people have sex, even though the girl was found fully clothed. Mermel also pointed to Hobbs’ confession, which Mermel says included details that could only have been known to the killer. Well, the killer and the police officers investigating the case.

Steven Drizin, who heads up the Center on Wrongful Convictions at Northwestern University, wrote last month about the conditions of Hobbs’ confession:

Hobbs was taken into police custody at 10:00a.m. on May 9, 2005 and interrogated for at least 16 hours until police claim he confessed at 4:45 a.m. on May 10th. Hobbs had not slept the night before (he was out searching for his daughter) and did not sleep once in custody. While in custody, he was subject to the full battery of psychological techniques by teams of detectives in a tag team fashion. Hobbs’s interrogation was not recorded (a new law requiring recording had passed in 2002 but would not become effective for a month or so), although police did prepare a typed statement which Hobbs signed.

[...]

The confession closes with an apology for what happened, claiming that “things got out of hand.” (police are trained to write such expressions of remorse into their statements).

Prosecutors quickly announced that they were seeking the death penalty against Hobbs. Throughout the time he was in custody, Hobbs’s face was always on the news and reporters were talking about him as a “person of interest” or “being questioned by police” and detailing his criminal history. The confession is the only evidence the police have against Hobbs. There were no eyewitnesses to the crime and no murder weapon was recovered. Although Hobbs was wearing the same clothes when arrested as when he found the girls, no blood was found on him, his clothes or his shoes. Although some of the details in the confession are consistent with the wounds on the girls’ bodies, without a recording of the interrogation, there is simply no way to know whether these details were suggested to Hobbs by the police during the questioning, whether he knew the information because he saw the girls when he found the bodies, or whether he knew the details because he was there when they were killed.

As Washington, D.C. police Detective Jim Trainum wrote earlier this year in the L.A. Times, even well-intentioned police investigators can unintentionally elicit a false confession. They can also unknowingly impart details of the crime to the person they’re interrogating.

Here you have a confession made under duress, then quickly retracted. You have an interrogation that wasn’t recorded. You have no physical evidence linking the suspect to the crime scene.  And you have the semen of a man other than the suspect all over one of the victim’s bodies. Yet Mermel plans to forge ahead with his prosecution.

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39 Responses to “More on Michael Mermel, DNA, and False Confessions”

  1. #1 |  Jeff | 

    Is Mermel’s position filled by election? It’s obvious that he’s more concerned with convicting somebody for what’s certain to be a high-profile crime and that it doesn’t really matter if it’s the right guy. I ask because I expect that sort of behavior out of someone who has to run for office. If he goes to the Lake Co. voters without having gotten a conviction in a horrific highly publicized child rape and murder case, he’s gonna look like a complete schmuck. If he gets a conviction, even if he knows that it’s a wrongful one (as he surely does by now), he’ll look like a hero, and will just be a complete schmuck.

    And if it is an elected position, shouldn’t our efforts be aimed at making people understand that the “somebody has to pay” mentality doesn’t lead to justice, and that it’s better that the crime remains unsolved than to have an innocent person go to jail for it? It’s a public attitude shift that’s necessary here…

  2. #2 |  Jeff | 

    Just looked it up… Mermel’s not an elected official. He does, however, work directly under State’s Attorney Michael Waller, who is elected. Odds that Waller’s pressuring him to get a conviction at any cost? Or that Mermel wants a promotion, and he wants a nice feather in his cap to show the voters?

  3. #3 |  tesla | 

    This sounds like a complicated case. Mermel’s reasoning about the semen is ridiculous but I wouldn’t be in a rush to paint him as the bad guy here. Hobbs did confess so you have to expect that he will be looked at as a suspect regardless of his retraction.

  4. #4 |  cliff | 

    >>>>>Mermel’s reasoning about the semen is ridiculous but I wouldn’t be in a rush to paint him as the bad guy here.<<<<<

    Sorry, but the ridiculous reasoning DOES make him the bad guy here. It immediately paints him as either completely incompetent or evil, take your pick.

  5. #5 |  David | 

    Tesla,

    That’s because police can’t seem to grasp that beating a confession out of a guy doesn’t mean he actually did it. They, most people really, think “I’d never confess to something I didn’t do” so anyone who does so must be guilty. I don’t think they realize how difficult it is to stick to the truth under such conditions.

  6. #6 |  Nick T | 

    “Yet Mermel plans to forge ahead with his prosecution.”

    Radley, will you go easy on this guy please? What do you want him to do, admit he was wrong? That’s it isn’t it, you want this guy to actually ADMIT THAT HE WAS WRONG!? That’s seems incredibly harsh, dude. I bet YOU’VE never admitted YOU were wrong, asshole! And don’t give me that “well my mistakes never cost someone his freedom and reputation, for years and years” bullshit!

  7. #7 |  Bill | 

    Imagine how this would affect future cases if this guy is found guilty, and his conviction becomes precedent. After all, the semen has somebody’s DNA in it, and if Mermel committed the crime, then the person with the DNA that matches the semen didn’t do it–after all, people do have sex in that park, right?

    So if the cops come after you for a crime where DNA evidence is found in/on the victim, and it’s your DNA, your defense can be, “I don’t know how it got there. DNA sure does get around. Take a look at Illinois vs. Mermel if you don’t believe me.”

    Down with science! What a terrific way for the innocent to be punished and the guilty to go free!

  8. #8 |  John Jenkins | 

    Bill, cases in trial courts do not typically become precedent (and are largely not reported) except in the local court district.

    From the prosecutor’s perspective, he has inculpatory evidence of questionable provenance (the coerced confession), and significant exculpatory evidence (the DNA evidence).

    It seems like a no-brainer to me that the prosecutor should dismiss the case, though there may be additional evidence of which we are unaware.

    In any event, if the facts are as described, I believe that a jury will weigh the evidence and find the defendant not guilty in short order. I wonder whether this case even gets to a jury though. Exculpatory evidence that strong seems like something that a judge could use to dismiss the case (does anyone know whether Illinois law provides for preliminary hearings? If it does, I find it hard to believe this case could go past that point.)

  9. #9 |  Zero | 

    Bill,

    I think you meant take a look at Illinois vs. Hobbs. Mermel is the prosecutor. Hobbs in the the defendant.

  10. #10 |  Dave Krueger | 

    What a dumbass. Every prosecutor worth a damn knows that, when the DMA doesn’t match the defendant, you claim there was an accomplice.

  11. #11 |  Big Texan | 

    I weep for the Death of our Republic

  12. #12 |  Edmund Dantes | 

    Jeff > He probably realizes that if he someday wants to get Waller’s job he can’t have this as an unsolved case.

    John Jenkins > You are putting an awful lot of faith in a jury made up the average american citizen. Are you sure you really want to trust them to see beyond the confession, cop’s arrested he must have done something mentality, and other all too common deferments to prosecutors and police by citizens when the person is a “bad” guy.

    Look at the number of people that suddenly don’t care about wrong door raids when it turns out the guy had some pot on him, or has been a bad guy in the past. Suddenly it’s “he got what he deserved”.

  13. #13 |  Steve Verdon | 

    Mermel is, IMO, just as evil as the killer of those two girls. His shameful actions ensures that the real killer will likely get away. Frankly I see him as an accomplice to a child killer and rapist. Truly despicable.

  14. #14 |  Michael Chaney | 

    Dave – we have no reason to think that the police actually believe his confession. The validity of the confession isn’t relevant – they got to close a case and claim they successfully caught the perpetrator.

    Our criminal justice system is becoming more third-world by the day. Keeping the light on these cockroaches is our only hope.

  15. #15 |  ktc2 | 

    Interesting thought. If a prosecutor knowingly (or should have known) convicts the wrong guy is he not automatically an accessory after the fact to the crime?

  16. #16 |  Dave Krueger | 

    #14 Michael Chaney

    Dave – we have no reason to think that the police actually believe his confession. The validity of the confession isn’t relevant – they got to close a case and claim they successfully caught the perpetrator.

    That’s correct. All the prosecution has to do is keep inventing reasons to explain those little anomalies such as the DNA not matching the defendant (especially when there isn’t more irrefutable evidence, like maybe a bite mark…).

  17. #17 |  Randy | 

    Mermel doesn’t want to acknowledge the DNA evidence because, if he did, it would likely lead to questions concerning the interrogation of the father. People would want to know why, if the father didn’t do it, did he confess to the rape/murder. Mermel and his ilk fear the lid could be blown off regarding interrogation practices that can easily lead to false confessions.

    Of course, if one confession is false, then perhaps others confessions used to convict suspects might be false too. Better to protect the status quo than to inadvertantly open a can of worms on confessions.

    By now, Mermel probably knows his defendant is innocent and that he will lose at trial, but he’s okay with that. It’s win-win for Mermel in his eyes, the innocent father won’t be convicted and the false confession and the shoddy techniques used in eliciting the confession will likley disappear down the memory hole. Mission accomplished, status quo preserved.

    Also, if Mermel would drop charges based on the DNA findings, the police might feel undermined by that action and undermine Mermel on other cases. IOW, he might be afraid of pissing off the police and is therefore doing a CYA for them by pressing forward with the case.

    Typically speaking, when systemic problems are exposed in the justice system, the actions of those in justice system mirrors those of a manufacturer that learns that a serious design flaw exists in one of its products, they deny the problem is a real problem. To do otherwise would call into question convictions that resulted from the bad practice. The authorities can’t countance this thought. Also, if these shoddy practices get too much exposure to the public, they become less effective in helping the authorities in securing convictions

    Basically, as Radley’s documented in the Hayne case, for a lot of police and prosecutors, the attitude is that if crappy or shoddy police work will get the conviction, why do good police work?

    The irony in all this is that the Mermel’s of the world beleive they are saving the system by covering up its weaknesses and mistakes. Of course, the opposite is true, they are not defending the system, they are covering up for their own incompetence or mendacity, thus damaging the confidence citizens have in the system.

  18. #18 |  AJP | 

    Re: Bill’s comment on the precedent this would set, I think he actually makes a compelling argument, and one that I would use in pre-trial briefing were I representing Hobbs.

    John Jenkins, re: your response to Bill, while you are correct that local cases do not result in “precedential” decisions, the point here is that if Hobbs is convicted, he surely will appeal, and if his appeal were denied, you then have the exact problem that Bill has identified. So at the end of the day, I think Bill is correct – If Hobbs gets convicted in spite of the exculpatory DNA evidence, and the conviction is allowed to stand by the appellate courts, you will indeed have a precedent that could cause all sorts of problems for prosecutors down the road.

  19. #19 |  auggie | 

    A prosecutor with this kind of disregard for the facts should not only be an accessory but should be charged with violating the publics trust in him to keep them safe. I’ve always thought there should be special felonies on the books for police prosecutors and judges. They have more power than the average citizen thus should be more severley punished when they abuse that power. The worst part of all this is the real child raping killer who matches that semen is still out there doing his thing.

  20. #20 |  Bob | 

    Cases with no physical evidence that rely only on a recanted confession infuriate me.

    It says “We’re so incompetent at investigation, our only available tactic is to grab the first guy we think will confess and subject them to psychological torture until they do”.

    This cowardly, immoral, and more wrong than you can shake a stick at approach is made possible by the fact that you don’t HAVE to make the actual killer confess… all you have to do is pick anyone with even an ancillary connection to the crime that you think will confess.

    No physical evidence should equal jury nullification and a ton of bad press for the prosecution.

  21. #21 |  freedomfan | 

    Bill:

    Take a look at Illinois vs. Mermel [...]

    Zero

    I think you meant take a look at Illinois vs. Hobbs. Mermel is the prosecutor. Hobbs in the the defendant.

    True, sadly. We can dream, though…

  22. #22 |  thomasblair | 

    Big Texan,

    I weep for the Death of our Republic

    I don’t. You can’t build a stable society if the dilapidated and discredited structures of state governance and violence still stand.

  23. #23 |  John | 

    Folks, say it with me, once again:

    NEVER TALK TO THE POLICE!!!!!!

    Ever. Never. Ask for your lawyer and shut up. Don’t play ball, don’t think that if they just hear your side of the story they’ll let you go, don’t figure you have nothing to hide. None of that matters.

    Convictions are for prosecutors. Justice is for suckers.

  24. #24 |  John Jenkins | 

    @AJP: There is a lot to unpack in what you said. First, when a higher court refuses to hear an appeal, there is generally no opinion and no precedential value. The rule is that just because a court saw no reason to reverse the decision below (i.e., agreed with the outcome), the refusal to take the appeal is not approval of the lower court’s reasoning.

    If this case were appealed based on the sufficiency of the evidence, then the appellate court would have to look at the evidence presented at trial and determine whether, viewing the evidence in the light most favorable to the state (the appellee), any rational trier of fact could find beyond a reasonable doubt that the defendant committed the crime. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

    That is a very fact specific inquiry, so even if the case were accepted on appeal and disposed of by a published opinion, it would still not stand for very much.

    @ #12: I am placing my faith in the defendant’s lawyer. I am a lawyer (not licensed in Illinois, or in 48 other states!), and I don’t think that any barely competent first-year could lose a case where DNA evidence shows that someone not his client committed the crime. Juries do some strange things sometimes, but they have surprisingly good bullshit detectors and would not buy this prosecutor’s story.

  25. #25 |  Zeb | 

    Bob, I am glad you used the word “torture”. Whenever I hear of a false confession case like this, I think torture. Even if they aren’t physically torturing the guy, if the interrogators are doing things that their subject feels such a need to stop that he will sign a false confession to a extremely serious crime, then I think that counts as torture.

  26. #26 |  Victor | 

    Clearly a fine specimen of North America’s most dangerous predator: the ambitious

  27. #27 |  Victor | 

    Odd. The saved post cut off the last word: “prosecutor.”

  28. #28 |  John | 

    It sounds like he went to the same law school as Joe Birkett of Dupage County.

  29. #29 |  Scott | 

    “Of course, if one confession is false, then perhaps others confessions used to convict suspects might be false too. “

    Randy, you can’t be serious. I mean… a false confession? In Illinois? That’s crazy talk, man!

    It’s not like questionable interrogations and hamfisted prosecutions gave a former Illinois governor pause, and moved him to reduce the sentences of every prisoner on the state’s death row in one fell swoop. I mean, if something like *that* had happened I’d be right behind you on this, but…

    …oh, wait…

    Carry on ;)

  30. #30 |  tesla | 

    A guy confesses to a crime, then recants it. A lot of you folks seem to think standard police interrogation techniques are equivalent to torture and he only confessed because he was “tortured”. Maybe he was tortured or otherwise coerced into confessing but I don’t know that and neither do you. In addition, Hobbs knew details of the crime that appear incriminating. Maybe the police tipped him to these details but I don’t know that and neither do you.

    The DNA evidence absolves Hobbs of some horrific acts but it does NOT mean that he has no connection to what happened.

    Do you propose that Hobbs not be prosecuted?

  31. #31 |  John Jenkins | 

    @29: Actually, we know that he signed a statement prepared by someone else that contains details of the crime. You are assuming that he is the source of those details, but you have no way of knowing that.

    Given that those who prepared the confession for him to sign also knew the details (they investigated the crime, after all), we have two independent potential sources and no way of knowing the source of the details.

    Combine that with DNA evidence that excludes the apparent confessor from committing the crimes that would result in the subsequent murder of the little girl (why kill her if you weren’t the one who just raped her?), a strong case for his innocence can be made. I’d take it to trial and expect to win.

    If I were a prosecutor, I would not take this case to trial, and would likely dismiss on my own motion. There is no statute of limitations on murder, and given the shaky evidence I have at this point, I would not blow my one shot at a conviction on such a total loser. Over time, I could either develop a better case (unlikely) or actually find a better candidate for the murder (perhaps the DNA match).

    Let me put it to you this way: if someone else turned up who matched the DNA profile, wouldn’t you think he is the prime candidate for the murder, no matter what this man says? I certainly would. That being the case, at the very least, I find it unlikely that the state can prove its case beyond a reasonable doubt.

  32. #32 |  Bob | 

    Tesla,

    One man’s torture is another man’s walk in the park. Any time you deprive someone of sleep and force them through adversarial thought games designed to weaken their resolve… you are torturing them. Some men would just buck up and sit quietly, others would fall into the trap of engaging the detectives in the word games, others will harbor fears that can be exploited by the unscrupulous.

    Clue up! THERE WAS NO PHYSICAL EVIDENCE. And the police apparently made no attempt to actually find the killer, they just grabbed the most convenient guy they thought would confess and ran with it.

    As to knowing ‘details’ of the crime, that’s bullshit. Only if you could prove, through 100% videotaping all interactions with the suspect and using blind investigators (Investigators with no knowledge of the crime) can you claim beyond a reasonable doubt that the information was not provided by the police.

  33. #33 |  Mark Z. | 

    This gives me the idea for a police academy training exercise, where at some point the guy in charge announces that a weapon is missing from the firing range, and they’re going to have to question all of the students.

    They are then taken into separate rooms and grilled, in this aggressive tag-team manner, until they sign a confession which may include the firearm theft and possibly other things. (This should take two days, at most.) All of the confessions are then posted on a board and the students are invited to figure out which of their classmates really stole the weapon and/or enjoy sex with goats.

  34. #34 |  MacK | 

    If the DNA don’t fit you must acquit.

  35. #35 |  Jason | 

    Notrhing beats DNA evidence. It’s time for people to wake up to that fact already.
    http://www.rightklik.blogspot.com/

  36. #36 |  Helmut O' Hooligan | 

    “Yet Mermel plans to forge ahead with his prosecution.”

    Of course. Man, things just get better and better here in Illinois. Mermel clearly has a short memory. Remember why we had that nasty old death penalty moratorium, Michael. No it wasn’t just John Burge, it was shit like this too.

    If you read the Escobedo v. Illinois decision, there is a statement about the inadequacy of a criminal justice system that becomes overly reliant on the confession. You could expand on that by including eyewitness identifcation. Physical evidence, however, is a different matter. As the famed criminalist Paul Kirk said, this evidence cannot perjure itself. It is what it is, though it can be misinterpreted. Advances in forensic science have made it possible to move past this kind of shabby police work, but folks like Mermel just want to drag us back to the bad old days.

  37. #37 |  AJP | 

    John Jenkins – I don’t want to turn the thread into a discussion on appellate procedure, but since you are a lawyer (as am I), you know that Hobbs would get an initial appeal to the Illinois Court of Appeals, and that Court would not have discretion concerning whether to “take” the appeal. They would have to decide the appeal on the merits and issue an opinion that would then be freely available to all other defendants. The discretionary part of the process only comes later, and you are of course correct that if Hobbs lost at the Court of Appeals and petitioned to have his case heard by the Illinois Supreme Court, the Supreme Court could deny his petition without issuing a written opinion.

    As to your point on the sufficiency standard, I agree you’ve stated it correctly, but I don’t think it changes anything. Right now, if a child’s body is full of DNA from the defendant’s semen, the defendant has no chance of challenging the sufficiency of the evidence. After the hypothetical Hobbs opinion, an appellate court would have held that a reasonable juror could conclude beyond a reasonable doubt that the presence of another person’s semen in a child’s body did not exculpate a defendant whose DNA was not found on the body. In other words, a reasonable juror could conclude, under the state’s theory, that semen in the child’s body doesn’t prove that the semen came from the real killer, because people have sex in public places and thus the semen could somehow have been accidentally ingested by the child prior to his or her death.

    Now imagine the next case, where a child’s body is found in a park, full of semen carrying DNA, and the police are eventually able to arrest a suspect based solely on the DNA match. Depending on the wording of our hypothetical Hobbs opinion, that defendant will have at least a fighting chance of arguing that the evidence against him is insufficient as a matter of law, because as a matter of law there is at least a reasonable possibility that the semen could have been ingested by the child accidentally, following earlier sexual activity or masturbation by the defendant in the park, and thus as a matter of law there is a reasonable doubt concerning the defendant’s guilt.

    Even describing this sequence of events makes it sound crazy, but that’s only because of how crazy the prosecutor’s theory is in the Hobbs case. It might be different if the prosecutor was saying that Hobbs had acted with an unknown accomplice, and the presence of that unknown accomplice explains that mystery DNA and semen in the child’s body. But, as far as I can tell from what Radley has posted, that is not the State’s theory (at least not yet).

    Final point – I agree Hobbs has a decent shot at acquittal, but its not guaranteed. Jurors do strange things, and I think a good number of them will not be able to get past the fact that Hobbs apparently admitted to killing his own daughter in a gruesome manner. They will imagine themselves in a similar situation, and will say to themselves (and each other), “I don’t care how tired I was – I would never confess to killing my own child.”

  38. #38 |  John Jenkins | 

    Just because the case gets heard on an appeal by right, does not mean it will be disposed of by published opinion (at least not here: maybe in Illinois, but that would make their reporter enormous). Non-published opinions have limited (if any) precedential value, and this case would not produce the broad rule you think it would since sufficiency is always a fact-based inquiry.

    The Defense attack on the alleged confession is easy: the police put the document in front of him and said sign this and we can all go home, but didn’t tell him what it was or what it said. In fact, I’d be willing to bet that is exactly what happened.

  39. #39 |  chetthejet | 

    This case reeks of police misconduct. The description of the marathon interrogation holds more suspicion of cops providing leading information than the suspect actually being guilty.

    And this prosecutor may not have an election to worry about with this debacle of a case, but he does appear to be salvaging career reputation, which, most Americans eventually figure out, is sadly worth more than a citizen, be they guilty or innocent.

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