Williamson County, Texas, District Attorney John Bradley is the winner of our 2011 Worst Prosecutor of the Year award. It was a tight four-way race for the first day. North Carolina DA Tracey Cline then broke open a small lead on day two, before Bradley closed on the final day of voting.

A few updates on Bradley: On January 4, UPI reported that the Texas State Bar cleared Bradley of any ethics violations for spending 20 years fighting the DNA test that kept Michael Morton in prison for a crime he didn’t commit. This isn’t terribly surprising. State bars are notoriously lax at disciplining misbehaving prosecutors.

In this November New York Times profile that I didn’t catch when researching Bradley to nominate him, Bradley actually shows some contrition, going so far as to say the DNA results in the Morton case—which, again, he fought like to prevent from ever happening—have changed him. I hope that’s the case, but I’m inclined to think that after the Morton case, after having once advised another prosecutor to seek plea agreements that allow evidence to be destroyed so it can’t be tested in the future on an innocence claim, and after doing all he could to bury any investigation into the Cameron Todd Willingham case, Bradley’s period of penance should probably last more than a few months.

Nevertheless, even after all of that, last year Bradley was still elected to the board of directors (PDF) of the National District Attorneys Association. (Nominee Anita Alvarez is also on the board.) I don’t know if his election was the result of obliviousness to the controversy surrounding Bradley or a way of symbolically defying Bradley’s detractors. Either way, it really doesn’t speak well of the organization’s membership. Or at least of its voting membership.

Bradley is up for reelection for his current DA position. His critics have adopted an amusing way to protest his candidacy: They’re hanging bandannas from Bradley’s campaign sings. The DNA that eventually cleared Michael Morton was taken from a bandanna left at the crime scene.

A few updates from the other 2011 nominees:

• Someone from the office of Mississippi Attorney General Jim Hood appears to be cleaning up his Wikipedia page.
• Hood is also seeking to “undo” Haley Barbour’s controversial end-of-term pardons, and has won an injunction on the pardons from a state circuit court judge.
• Cline, the Durham, North Carolina, DA, again attempted to have a judge removed from one of her cases, alleging bias and conspiracy. She was again denied.
• Prince William County, Virginia, State’s Attorney Paul Ebert has been called in as a “special prosecutor” in another high-profile case.

More than 500 people were wrongly imprisoned in Denver’s jails over seven years, with some spending weeks incarcerated or pleading guilty to crimes they did not commit before authorities realized they nabbed the wrong person, a federal court filing shows.

Civil-rights lawyers suing the city and county of Denver assert the documented mistaken-identity arrests “are the tip of the iceberg” and are an undercount of the true magnitude of the problem.

In one case a black man spent nine days in jail after he was arrested on a warrant for a white man wanted on a sex-crimes arrest warrant.

In another, authorities arrested an 18- year-old when they were searching for a man 30 years older.

A white man was hauled in even when the suspect actually was an American Indian who was nearly a foot taller and 100 pounds heavier. He wasn’t released until almost a month had passed and not until the victim of the crime alerted authorities at a court hearing that they had the wrong suspect . . .

“Denver’s approach to this pervasive problem is to put its head in the sand,” the ACLU said in the motion asking the judge to rule on behalf of four individuals suing the city for wrongful arrests. Three others represented by the ACLU already have reached settlements with the city.

The ACLU, in the motion, cites a 2010 report by the city auditor’s office that blasted the city for having an inadequate system for tracking arrest identity issues.

“We cannot improve what we do not measure,” that city audit reported.

Despite the city’s lack of a comprehensive system to track mistaken- identity arrests, the ACLU identified 503 such cases from 2002 into 2009 by combing through orders issued by judges, internal affairs records, arrest warrant logs and jail records. The ACLU maintains that many more cases exist but the city’s lack of a robust tracking system makes it impossible to get an accurate count.

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.

Yep, they had the wrong guy. He now has a mountain of legal bills. Oh, and while he was in jail, the actual “serial groper” struck again.

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.

Lake County Sheriff Mark Curran is calling for longtime county prosecutor Michael Mermel to be fired for making “inappropriate statements” to the media that Curran said reflect poorly on Lake County’s criminal justice system.

Curran said Thursday he voiced his concerns about Mermel during a closed-door meeting with State’s Attorney Michael Waller Thursday morning.

Though it’s unusual for an elected sheriff to call publicly for a prosecutor’s dismissal, Curran said he did so because of his “disgust” with Mermel’s comments to the media and because of Curran’s respect for the constitutional process.

He cited comments Mermel reportedly made in a recent New York Times story about murder suspects in Lake County who’ve been targeted for prosecution even after DNA evidence pointed to other possible perpetrators…

The sheriff said it’s important for the public to recognize that “Mr. Mermel’s comments are not reflective of the overall majority of law enforcement officials that have made numerous sacrifices and dedicated themselves to seeking justice.”

It’s good that Curran has gone public with this. And this sort of thing is rare enough that he deserves some praise for it. (It probably helps that he has no plans to run for reelection.) But if his last statement were true, he’d have called for Mermel’s resignation years ago. The damage Mermel ahs done to the Lake County criminal justice system didn’t begin with the publication of the Times article on Sunday.

Some highlights:

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.

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.

“We are asking the Court of Criminal Appeals to ensure that Mr. Skinner is not put to death without a careful evaluation by that court of the trial court’s unexplained refusal to grant the DNA testing Mr. Skinner has sought for so long.

“The accurate resolution of cases involving the ultimate punishment is of paramount importance to the criminal justice system.  No such decision is possible until the Court of Criminal Appeals knows why the trial court rejected Mr. Skinner’s request for scientific testing, so that it can assess whether that decision correctly applied Texas law.

“But even putting the evident deficiencies of the trial court’s order to one side, it is plain that the facts of this case raise powerful and unanswered questions about whether Mr. Skinner committed the crime for which he awaits execution next Wednesday.  Those are precisely the kind of questions that Texas’s post-conviction DNA testing law was designed to answer.  The Court of Criminal Appeals should stop the rush to execution so that it can give Mr. Skinner’s appeal the close attention it deserves.”

Robert C. Owen, attorney for Hank Skinner
November 4, 2011

I’m still baffled how the trial judge can justify openly defying the new state law. Maybe that’s why he didn’t try.

Meanwhile, try to wrap your brain around this defense of executing Skinner without first testing the DNA evidence. I understand the interest in putting a hot button pro-con head-to-head on your op-ed page. But man. That’s just really awful.

On April 30, 1992, Dale Lincoln Duke was indicted by a Dallas County grand jury on the charge of aggravated sexual assault of a child. Four months later, according to the Dallas County District Attorney’s Office and its Conviction Integrity Unit, Duke waived his right to a jury trial and entered a plea of no contest. But throughout, he refused to confess to the crime — in court, then again during sex offender treatment, a stipulation of his deferred adjudication. And so, in 1997, Duke was sent to prison for 20 years.

But, according to the DA’s office today, one year after Duke went to prison, the county learned that the complaining witness had recanted…

In 2010, says Watkins’s office, Duke came back to the district attorney with further evidence showing that “the person initially reporting the incident did not believe the complaining witness was truthful.”…

All of which leads to this: Tomorrow at 9:30 a.m. in Judge Susan Hawk’s courtroom at the George Allen, Watkins’s office will ask the judge to find Duke innocent and release him from prison. Says Watkins, “The original prosecutor’s failure to provide critical information to the defendant coupled with overwhelming evidence that the initial allegations were false, convinced me that Mr. Duke was wrongfully convicted. After a thorough review of the case, I approved a recommendation to ask the court to exonerate Mr. Duke.”

That Watkins and Lynn Switzer hold the same position in government and take such completely different approaches to their jobs shows just how arbitrary the justice system can be.