- Union-negotiated arbitrator says Montgomery County, Maryland police officers who commit felonies should still be allowed to get disability once they get out of prison.
- No hugging.
- Frontline will air another special about forensics tonight. From what I understand, Hayne and West will make an appearance.
- Man claims a stroke turned him gay.
- Things Jeopardy champ Ken Jennings learned from his trip to Antarctica. If you’re on Twitter, Jennings’ feed is great. The guy has a wicked sense of humor.
- An oral history of outlaw country.
- Police handcuff a six-year-old Georgia girl for “throwing a tantrum” during her kindergarten class.
- Police respond to man’s medical alert bracelet accidentally going off, and end up killing him.
- ” . . . the total amount of uncompensated care provided in America currently adds up to only $40.7 billion annually or about 3 percent of our total health care spending.”
- New doubts about yet another shaken baby conviction.
- In 1951, the CIA spiked the bread in a small French town with LSD.
- You learned something today: Larry Hagman once drunkenly swung an ax at a group of nuns.
- Duke Sucks, the book.
- Over at the Economist, Bruce Schneier debates former TSA director Kip Hawley.
- The surprising thing is how little FLA found in its investigation of Foxconn. Workers sometimes worked more hours than are allowed under Chinese law, but wished they could work more. Interns don’t get health insurance. Migrant workers can’t get social security. This hardly seems like the vision of a sweatshop critics describe.
- A point that can’t be made often enough when discussing labor in the developing wrold.
- Jeffrey Havard again denied by the Mississippi Supreme Court. I’ve written about Havard’s case several times, but here’s a good summary. The only real evidence against him was now-disputed testimony from Steven Hayne. Yet he’s now perilously close to an execution date. I’ll have more on this later.
- Jacob Sullum on the injustice in the Dharun Ravi verdict. It’s disappointing to see people normally skeptical of the criminal justice system celebrating Ravi’s possible imprisonment.
- NPR asks three people who want to go to war with Syria what we should do about Syria.
- Senators say if they could tell you how the PATRIOT Act is being used, you’d be appalled.
- Police officer accused of sexual battery, rape while in uniform offered deal to plead guilty to extortion. He’ll get probation and the chance to clear his record entirely.
- State politicians aren’t using money from the mortgage settlement to help out homeowners. So basically, politicians used desperate homeowners as a prop to punish banks in order to get funding to help pay down budget deficits created by politicians. If you’re surprised by this, you haven’t been paying attention.
- If elected, Rick Santorum promises to crack down on Internet porn. Which raises an important question: Why does Rick Santorum want more people to be raped?
- The progressive case for federalism.
- San Diego policy of enforcing curfew by rounding up, cuffing, sometimes arresting hundreds of kids doesn’t do much to prevent crime.
- Battle of the NCAA Tournament mascots.
- Another questionable shaken baby conviction.
- Oregon man shot by police after mistaking for prowlers a SWAT team that was preparing to raid his neighbor’s home.
- World’s ugliest dog passes away.
- U.S. asserts global jurisdiction to extradite U.K. citizen accused of criminal hyperlinking.
- The latest edition of Cato Unbound looks to be pretty interesting. It’s on DNA testing and the death penalty.
- Interesting look at the lobbyists who are paid to keep marijuana illegal.
- Bunk opens a grocery.
- So this is absurd. Let’s hope Texas doesn’t hear about it.
- Doctor faces murder charges for prescriptions she wrote for painkillers. Note that the investigation began in 2008, the deaths she’s charged with causing occurred until December 2009, and she had her license and was still prescribing until at least the end of 2010. This is consistent with the criticism that law enforcement agents are more interested in bagging scalps and seizing assets than protecting patients.
- Remember when media consolidation was the big fear? Now, it’s too much media. Where are you when we need you, Rupert Murdoch!?!
- Recently laid-off manual laborer leaves a generous tip.
A Texas man is currently 13 1/2 years into a 20-year sentence for molesting his two young cousins. The allegations from the children were corroborated by a bit of pseudo-science quackery worthy of a spot in the forensics hall of shame.
Michael Arena was summoned to a psychologist’s office to measure his sexual attraction to children.
The test given required the 16-year-old to click through images of swimsuit-clad people of various ages while the computer secretly measured how long he viewed each photo. The results, according to the prosecution-hired psychologist who administered the test, showed Arena to be a pedophile who was a “high risk” to strike again.
Bell County prosecutors hammered the finding during Arena’s 1999 trial, urging jurors to choose prison over probation to protect children from a teen “diagnosed as a pedophile by an expert.” The jury responded with a 20-year sentence.
The cousins have since recanted their testimony, and have said they were pressured by their mother to say they’d been molested. She was fighting a custody battle at the time. As you might imagine, the swimsuit photo test has since been shown to be nonsense.
The test, defense lawyers say, had an unacceptably high 35 percent error rate that was not disclosed to Arena’s judge and jury. It was never intended to be used to identify pedophiles, they claim, and a university study found that its results were little better “than chance” when trying to distinguish pedophiles from non-pedophiles.
In addition, the psychologist who examined Arena inflated the test’s effectiveness and scientific support when he testified at Arena’s trial, leading to a reprimand from a state regulatory agency four years later, court records show.
That was the evidence against Arena. The allegations from his two cousins and the test. The test has been shown to be a fraud. The cousins have retracted their allegations. Yet Arena is still in prison. Two judges have upheld his conviction since all of this has come out, and of course the prosecutors aren’t relenting.
The good news is that by the Statesman account, the Texas Court of Criminal Appeals at least appeared skeptical of Arena’s questioning during oral arguments.
One other item worth noting. The test, called the Abel Test, is run by a for-profit company. The owner of the rights to the test (eventually) said it was never intended to diagnose pedophiles, but to aid in the treatment of people already diagnosed. But he also refuses to release the test’s methodology, even for criminal cases, claiming that the information is proprietary.
We’ve seen this with breath test machines in DWI cases as well. I just don’t see how this can be acceptable. If you’re going to allow your technology to be used to put people in prison, it seems to me that anything and everything about how the technology works and how the results are interpreted has to be subject to cross-examination.
Any criminal law Agitatortots out there know if the Supreme Court has heard a Confrontation Clause case on the use of proprietary technology in criminal cases? I don’t recall coming across one in my reporting.
(Thanks to Ted Frank for the tip.)
There’s a poignant scene in the documentary Mississippi Innocence in which District Attorney Forrest Allgood, reflecting on the fact that he wrongly convicted two separate men for the rape and murder of two little girls in the early 1990s, tries to mitigate his mistakes. He looks into the camera and says, “At least nobody died.” It’s a striking thing to say. In part because of the way it casually dismisses the fact that Allgood put two men in prison for nearly two decades each, one of whom was nearly executed.
But it’s also inaccurate. As Allgood finishes his sentence, the film cuts to the gravestone of Christine Jackson, the second of the three-year-olds to be sexually assaulted and murdered. If Allgood hadn’t fixated on Levon Brooks after the first murder, and hadn’t enlisted the help of fraudulent forensic specialists Steven Hayne and Michael West to help him get his conviction, he might have been able to identify and convict the real killer, who, for reasons the film explains that are too involved to get into here, should have stuck out as a suspect from the start.
But he didn’t. And so the real killer went on to rape and murder again. And Allgood went on to convict Kennedy Brewer, again the wrong man again, again using Hayne and West, even though the crimes were remarkably similar and occurred just a few miles apart. Allgood then fought like hell to keep both Brooks and Brewer in prison, even as it become obvious to everyone but Allgood that he’d convicted the wrong men.
In 2008, the man who actually killed both little girls, Justin Albert Johnson, was finally identified with DNA testing. This week, he was sentenced to life in prison.
The experience doesn’t appear to have curbed Allgood’s taste for blood.
District Attorney Forrest Allgood said Friday night that he wanted to seek the death penalty for Johnson, but the families of both victims sent letters and asked him not to do so.
“My personal opinion is that anybody that rapes and kills a small child deserves the death penalty,” Allgood said. “… Quite frankly, I would have preferred to have tried him and sought the death penalty.”
I’m currently working on a piece for Huffington Post on the latest prescription painkiller hysteria. In researching the piece, I found this 2010 Time piece by Maia Szalavitz on how post-mortem overdose diagnoses may be overstated.
The problem is that it’s difficult to isolated a particular drug as cause of death. So the rise in opioid-related overdose deaths that the CDC and numerous media outlets have been screaming about for the last few months could be the result of lots of people ODing on painkillers, or it could merely be that because more people are taking painkillers, more people are likely to have painkillers in their systems when they die. Hence, the use of the term “opioid-related” to describe these deaths. That allows panic-sowing without the need to establish any causal connection. (It’s similar to the way the government calculates “marijuana-related emergency room incidents.)
But the problem gets more urgent when we start using these diagnoses in court, as the government has done in the trials of doctors accused of contributing to a patient’s overdose death.
It’s here that the opinions of one of Szalavitz’s sources seem particularly troubling.
Given the state of the science, then, should it be used in court? Ed Cheng, a professor of law at Brooklyn Law School and expert on scientific testimony, says, yes, noting that more research is still needed. “If we were to require studies and statistical assessment on every assertion, almost nothing would be able to be used in court. My view on this is that the question here is not throwing the baby out with the bathwater,” says Cheng. “It’s clear that the forensic sciences do not have as much of an empirical basis as we would like them to have. The question becomes how do we motivate them sufficiently to come up with the empirical basis that we want?”
In the Schneider case, which entered jury deliberations on Wednesday, the defense team sought and failed to prevent the jury from hearing testimony that it believed did not have sufficient scientific foundations. But according to Cheng, it may be preferable to let the jury hear both sides of the scientific dispute and make up their own minds. “I myself have floated between the poles on this,” he says. “I’m currently more on the ‘Let the jury hear it’ side. I’m not convinced that good science and bad science is always cut and dried.”
“Let the jury hear it” sounds great on its face. But there’s more to it than that. If the science linking a particular drug to a particular overdose isn’t established–if the scientific community is split over whether you can make that connection–then the jury shouldn’t hear it. (If nothing else, that would seem to establish reasonable doubt.)
Yes, we do have an adversarial judicial system. But lay juries aren’t trained scientists. Most people don’t know what to look for when evaluating the veracity of some science-based claim. Get two scientific-sounding witnesses pitching the jury competing or mutually-exclusive theories, and the winner will more often be not who advocated the best science, but who was a better expert witness. Or more bluntly, who was a better salesman.
We’ve seen this over and over again with bite mark testimony. Frauds like Michael West have sold crap science to juries for years, sometimes unopposed, but often opposed by more credible experts. Even now, with a solid consensus in the forensics community that you can’t “match” bite marks in skin to one person to the exclusion of everyone else, we still see appeals courts shoot down post-conviction petitions on the grounds that the defense already challenged the state’s expert at trial, and the jury found the prosecution’s witness more convincing. It doesn’t seem to matter that we now know the prosecution’s witness was spewing pseudo-science hokum.
I think you could make a strong case that West was able to persuade juries because he didn’t sound scientific. I’ve read more than a few trial transcripts where West and the prosecutor would actually use an opposing expert’s credentials against him, contrasting him as a fancy out-of-town hired gun with a bunch of letters after his name with West, the local dentist just trying to do the right thing, helping put bad guys away with intuition, common sense, and some self-taught expertise. The scary thing is that when you see West in action, he sounds convincing, even when you know he’s a fraud.
Of course, West is only one example (although he is one of the most egregious). I don’t know the best way to determine what science has reached enough of a consensus to be used in a courtroom, but leaving the decision to individual juries on a case-by-case basis seems like a bad idea. In the federal courts, and in much of the country, challenges to scientific evidence are currently resolved by the judge in what’s called a Daubert hearing. From my understanding, while those hearings have done a decent (but far from perfect) job keeping junk science out of civil cases, the process has been less successful at keeping it out of criminal cases.
Skeptical as I am of blue ribbon commissions, this may be one area where we’re best off having an established, accredited panel of specialists set policy.
- Here’s a good SOPA/PIPA protest roundup from Reason.
- Also, the fact that Chris Dodd was recently a powerful politician is a pretty damned good argument against giving politicians more power.
- Maryland photojournalist harassed, arrested for recording police.
- U.S. government is abandoning the Iraqis who helped troops during the war, and who now face threats to their lives.
- The story is light on details, but a Connecticut assistant medical examiner has been charged with perjury.
- Dan Auerbach and Bon Appetit eat Nashville.
- Headline of the day.
- New Florida Marlins acquisition Mark Buerhle can’t live in Miami because he own an 18-month old Staffie, and Miami-Dade County has a dumb ban on “pit bulls.” I explain the numbskullery of breed-specific legislation here.
- Ken at Popehat draws the line between recording police, take-down notices, and SOPA.
- Alabama minister sues after his photo was posted to the local sheriff’s “most wanted” web page. It was posted after a tip from an informant.
- U.K. couple cleared in the midst of a shaken baby trial after post-mortem exam reveals the child had rickets.
- Veteran photographer threatened by L.A. cop for violating the cop’s “right to privacy.”
- Tumblr of the moment: Ron Paul meets Ron Swanson.
- The threatening letter that the FBI anonymously sent to Martin Luther King, Jr.
Tina Funderburk is a forgotten woman.
The 37-year-old mother from Brooklyn, N.Y., remains in the Hinds County Detention Center, where she has spent much of the last eight years behind bars.
She remains in legal limbo – still charged with murder in the death of her 3-year-old daughter, Reina Russell, but unlikely to ever be tried.
In 2009, Hinds County Circuit Judge Tomie Green ordered Funderburk, who has been diagnosed as paranoid schizophrenic, sent to the State Hospital at Whitfield unit for those determined to be criminally insane, but after treatment, Whitfield officials returned her.
“This poor woman diagnosed as having psychosis and delusions is languishing in jail?” said Tucker Carrington, director of the Mississippi Innocence Project. “That seems needlessly cruel.”
Angela Ladner, executive director for the Mississippi Psychiatric Association, said the situation needs to be corrected. “You don’t put mentally ill people in jail,” she said. “You get them medical treatment.”
Hinds County District Attorney Robert Shuler Smith said he is open to negotiations with the defense. Until that happens, “we cannot override a court’s order,” he said.
Stanley Wesley, who has visited Funderburk in jail, said she has already served twice as much time as then-District Attorney Faye Peterson offered in a plea bargain – four years for child endangerment.
Funderburk didn’t take the deal, insisting she never killed her child, he said.
Funderburk is severely schizophrenic. At the very least, she appears to have abandoned her daughter while traveling through Mississippi, while in the middle of a schizophrenic episode.But even if she had killed the girl, it doesn’t excuse locking a severely mentally ill woman up for eight years, without treatment, without so much as a trial.
If you’re wondering, yes, Steven Hayne was involved. Based on the girl’s remains, he determined her death was a homicide. Other doctors found insufficient evidence for that conclusion.
Michael Bowers has been one one of the heroes to shed light on the bite mark matching fraud. He has personally exposed a number of quacks, and contributed to the National Academy of Sciences report that found no scientific basis for the idea that bite marks on human skin can be definitively matched to one person, to the exclusion of everyone else.
Now, two bite mark specialists whom Bowers has criticized are suing him for stating at a conference that they contributed to a wrongful conviction.
Dentists Russell Schneider, of Waukegan, and Carl Hagstrom, of Fox Lake, filed their lawsuit against Michael Bowers, a dentist in California who is a frequent and sometimes acerbic critic of his fellow forensic odontologists for work that has led to numerous wrongful convictions . . .
The two dentists allege in their lawsuit that Bowers spoke at a conference of forensic dentists in Chicago earlier this year and included a case they worked on in a list of 10 wrongful convictions caused by bite-mark evidence. That, the two allege, was wrong and subjected them to ridicule and a loss of business.
I wrote a bit about this particular case in the Reason criminal justice issue. The prosecutor in the case? None other than Lake County, Illinois Assistant State’s Attorney and DNA fabulist Mike Mermel, who was recently forced to resign for comments he made in an unflattering profile in the New York Times.
When a DNA test in 2003 showed that the semen in the underwear of a 68-year-old woman didn’t belong to Bernie Starks, a man convicted in 1986 of raping . . . her, Mermel dismissed the results because the semen came from the victim’s clothing. Had it come from the woman’s vagina, Mermel said, “I would be standing over there advocating the side that the defense has in the case.”
Three years later, defense attorneys found the rape kit and tested semen recovered from the woman’s vagina. Again, there was no match. Mermel again wouldn’t budge, this time arguing that the woman must have had sex with someone else just before the rape.
In its brief to keep Starks in prison, the state cited Schneider and Hagstrom’s testimony as evidence of Starks’ guilt, despite the DNA evidence. Here’s their attorney:
They say Schneider stood up and told Bowers that Starks’ conviction was not reversed because of any of the bite-mark evidence, but Bowers “ignored plaintiff’s statement and did not retract his assertion that the Bennie Starks conviction was premised upon faulty bite-mark testimony.”
“Whether or not he had sexual intercourse with her … has nothing to do with my clients,” said Michael Krause, one of the attorneys for the two dentists, neither of whom returned calls for comment. “My clients feel that their reputations have been harmed by Bowers’ statements. It’s actually quite simple.”
He’s at least right about that last part. Starks’ attorney explains:
“The victim was attacked by one person who sexually assaulted her. We know that wasn’t Bennie Starks, so it wasn’t Bennie Starks who bit her,” said Jed Stone, one of Starks’ attorneys. “There is no other interpretation of this evidence that makes any sense and isn’t completely fanciful.”
Based on the DNA testing, the Illinois Appellate Court overturned Starks’ conviction in 2006. Because of Mermel’s posturing, Starks has yet to get a new trial. It’s reminiscent of Forrest Allgood keeping Kennedy Brewer in prison years after DNA testing cleared him because of Michael West’s claim that bite marks on the victim were a match with Brewer’s teeth. Allgood postulated that someone else must have raped the girl while Brewer held her down and bit her.
One intriguing thing about this lawsuit: In a defamation suit, the plaintiff must prove that the alleged defamatory statements are false. Assuming it isn’t tossed before it gets that far, it would be fascinating if the lawsuit became an inquiry into the scientific validity of bite mark evidence. Something tells me that Bowers would probably welcome that. The plaintiffs probably wouldn’t.
In other bite mark news, CNN’s Anderson Cooper recently aired a report on the topic on his show. Over at the Bite Marks Evidence blog, David Averill posts this incredible video from the report, in which bite mark specialist Lowell Levine defends bite mark testimony as “important and viable.” But when asked if there’s a way it can be validated with the scientific method, he responds, “I sure can’t think of it.”
It’s telling that Levine would be considered one of the country’s most respected bite mark witnesses. He too nearly helped convict an innocent man. From a 2004 article on bite mark testimony in the Chicago Tribune:
. . . a team of Massachusetts State Police officers turned to Levine in hopes of solving the gruesome murder of Irene Kennedy.
The 75-year-old grandmother had been beaten and stabbed two dozen times while on a morning stroll with her husband in a park outside Boston. The killer, who attacked Kennedy when she and her husband briefly took separate paths, left a bite mark on her breast.
The investigators drove from Boston to Levine’s office. Explaining the circumstances of the murder, they asked him to compare photos of the bite mark on Kennedy’s body with a copy of a mold made from the teeth of a suspect, Edmund Burke . . .
. . . in a sworn deposition taken in the lawsuit, Levine testified that after studying the materials in his office, he told the waiting officers he could not exclude Burke but would need additional information for a more definite opinion.
Three days later, Levine went to Boston to examine more evidence, asking police to provide him with enhanced photos of the bite wound. They did, and that, Levine said, was enough.
In his deposition, Levine said he concluded “to a reasonable scientific certainty” that Burke had left the bite on Kennedy’s breast.
Police searched Burke’s home, and arrested and jailed him. The county prosecutors called the bite mark the “most compelling evidence” in the case.
Less than six weeks later, though, officials had to admit they were wrong. DNA taken from saliva recovered on the bite mark was analyzed. A genetic profile was obtained, and prosecutors said it was not Burke’s. He was set free.
Levine insisted in the January 2003 deposition that he had been correct when he linked the bite mark to Burke, although he also hedged a bit, saying he had never made a definitive “match.”
Under questioning by a lawyer for Burke, who sued the police and Levine after he was cleared, Levine stood by his bite-mark analysis.
“Do you think he bit her breasts?” attorney Robert Sinsheimer, who represents Burke, asked Levine in the deposition.
“I think with a high degree of probability he did,” Levine said. He offered possible explanations for why the DNA did not match Burke, including that police who had handled the crime scene contaminated the DNA.
He also noted that another prominent forensic odontologist, Dr. Ira Titunik of New York, had examined the evidence and concurred in his opinion. Titunik confirmed that he had informally examined the evidence and agreed with Levine.
But then Levine’s analysis took another hit. In June 2003, some five months after Levine testified under oath and held fast to his bite-mark analysis, police announced they had made another arrest in Irene Kennedy’s murder.
The genetic profile derived from the bite mark, the police said, had been entered into a database. It hit on a convicted murderer.
I haven’t yet seen the entire CNN story. I hope they at least mentioned the Burke case before introducing Levine as an expert.
The New York Times takes up the case of Megan Winfrey, convicted of murder at age 16 due primarily to a scent lineup conducted by the miracle dogs of Fort Bend County, Texas Dep. Keith Pikett.
Pikett has been used in thousands of cases all over the country. The problem? There’s no scientific evidence that his lineups are any better than guesswork. Winfrey was accused of committing the murder along with her father and brother. There was no physical evidence linking any of them to the crime. Her father was convicted, then had his conviction overturned by the Texas Court of Criminal Appeals, which found that “scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction.” Her brother’s attorneys put on a credible attack on scent lineups, and was acquitted after 13 minutes of jury deliberations. The prosecutor, of course, is trying to keep Winfrey in prison.
Pikett is currently facing a class-action suit from several people wrongly identified by his dogs. As late as 2009, prosecutors were attempting to retry exonerated convict Anthony Graves based on Pikett’s dogs. In that case, Pikett claimed his dogs had picked up Graves’ sent on 17-year-old evidence recovered from a burned-down crime scene. Graves, who served time on death row, was released last year.
I explained in a Reason column earlier this year why the dogs aren’t the problem in these cases—their handlers are.
In my “rogue’s gallery” of bad prosecutors for the criminal justice issue of Reason, I included Mike Mermel, an Assistant State’s Attorney in Lake County, Illinois. Mermel has taken prosecutorial tunnel vision to new depths, by concocting bizarre theories to explain why the guy he convicted is still guilty of rape and murder, despite the presence of another man’s semen in the victim. On Sunday, Mermel and the Lake County State’s Attorney’s Office were profiled in the New York Times Magazine. It’s really an amazing article, for a number of reasons.
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.”
Actually, there wasn’t. But this is Mermel’s M.O. From my own piece on Mermel:
When a DNA test in 2003 showed that the semen in the underwear of a 68-year-old woman didn’t belong to Bernie Starks, a man convicted in 1986 of raping and murdering her, Mermel dismissed the results because the semen came from the victim’s clothing. Had it come from the woman’s vagina, Mermel said, “I would be standing over there advocating the side that the defense has in the case.”
Three years later, defense attorneys found the rape kit and tested semen recovered from the woman’s vagina. Again, there was no match. Mermel again wouldn’t budge, this time arguing that the woman must have had sex with someone else just before the rape.
Mermel’s biggest blunder was Jerry Hobbs, who was arrested in 2005 on charges of raping and stabbing to death his 8-year-old daughter and her 9-year-old friend. Hobbs confessed to the killings, but only after 16 straight hours of questioning that began after he’d spent the previous night looking for the girls….
When Hobbs’ attorneys revealed in court in 2008 that DNA tests showed the semen found in the mouth, rectum, and vagina of Hobbs’ daughter didn’t belong to Hobbs, Mermel postulated that the foreign semen must have found its way into the girl’s body while she was playing in a patch of woods where teenagers were known to have sex. The girl had been found fully clothed.
Let’s get back to the Times piece. Meet the cop who extracted the confession from the latest person Mermel insists is guilty, despite DNA evidence.
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.
How convenient. Also convenient: The interrogation wasn’t recorded. Now watch how Mermel uses Tessmann in the courtroom:
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.
Incredible, isn’t it? Mermel tells the jury that if they acquit because of the DNA evidence, they’ll be insulting the sterling reputation of this honorable cop . . . just after he has successfully argued to prevent the jury from hearing about the cop’s shady past.
A couple more choice quotes from Mermel:
- 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.”…
- …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.?”….
But this quote Mermel gave the Chicago Tribune last year is probably the only one that matters:
“The taxpayers don’t pay us for intellectual curiosity. They pay us to get convictions.”
That really says it all, doesn’t it?
Mermel isn’t alone, of course. The article lists other cases in which prosecutors have come up with alternate explanations for the presence of DNA. (Don’t forget Colorado DA Carrol Chambers, who attempted to explain away the DNA found in an 8-year-old victim’s underwear by pointing out how slutty children tend to dress these days.) The article notes that the problem is common enough that defense lawyers have come up with a term for the strategy: the unindicted co-ejaculator.
Competition for the 2011 Worst Prosecutor of the Year award looks to be fierce.
Emily Bazelon has the terrible story of another shaken baby case in which the woman convicted—the grandmother—is likely innocent. The Supreme Court says it doesn’t matter, thanks to the Anti-terrorism and Effective Death Penalty Act, which put restrictions on habeas appeals.
The majority’s brief and unsigned opinion concedes that “doubts about whether Smith is in fact guilty are understandable.” But according to six justices, it’s not the 9th Circuit’s job to do anything about that.
Justice Ruth Bader Ginsburg dissented, with Stephen Breyer and Sonia Sotomayor. Ginsburg gives all the reasons to doubt the medical testimony against Smith. She does a great service by laying out the growing skepticism among a minority of doctors about the validity of diagnosing shaken-baby syndrome without any evidence at all of external injury. “What is now known about the SBS hypotheses seems to me worthy of considerable weight in the discretionary decision whether to take up this tragic case,” Ginsburg writes.
The piece includes a decision by Judge Richard Posner about another shaken baby case involving a coerced and false confession.