Monday, December 15, 2008

DNA is not the be all and end all of evidence, but this is a bit ridiculous.

The Chicago Tribune has this article about a Lake County prosecutor who is pursuing 3 cases despite the fact that the DNA results in all 3 cases point away from the defendant. I believe in all 3 cases, the DNA sample from the victim has not been matched to anyone. I certainly agree with the prosecutor's basic premise, that presence of DNA at a crime scene is not always forensically significant. That has been one of my concerns about the emergence of DNA evidence: that juries consider DNA conclusive proof of guilt without analyzing what the DNA really means in the particular circumstances of the case. Of course anytime any of my clients try to argue that his DNA is at the crime scene innocently, the argument is laughed at by the prosecution. But it is true that not all DNA located at the scene of the crime bears any connection to the crime itself.

Still, this guy is taking it a bit far. The semen found inside the rape victim's vagina isn't probative of who raped her? Well, the semen doesn't match the man the prosecutor is sure did it, so the semen must not be related to the rape. It would seem to me that if the victim had had consensual sex in the days before the rape (the theory the prosecutor espouses to explain the non-matching semen), someone probably would have gotten that information out of the victim in the 20 years since the attack. And then it should be pretty easy to test the DNA against the known sexual partner.

Even better is the case of the raped and murdered 11 year-old girl. When that DNA sample didn't match the prosecutor's suspect, the prosecutor called that DNA a "red herring" because the girl could have been sexually active. That seems pretty un-prosecutor-like to besmirch a murdered child like that. At the very least, the presence of semen in her body is evidence of a crime because an 11 year-old girl can't consent to sex. I don't think there's any real reason to think her murder isn't connected to the sex abuse. I'm sure the state assumed the sex and murder were connected until the DNA came back excluding the defendant.

This prosecutor pre-determines his suspects and then interprets the evidence in whatever way is consistent with guilt of the suspect he's already picked. He would rather rely on eyewitness identifications, bite mark nonsense, and shaky confessions (all big contributors to wrongful convictions) than to rely on the best evidence in sexual assault cases. Just because he's sure he's got the right guys so that best evidence must not be relevant in these cases. That's the worst way to conduct an investigation and prosecution. Considering how desperate every state and local economy has become of late, it's maddening to me that a prosecutor would recklessly and blindly pursue his own theory on these cases in spite of the evidence. With any half-decent defense attorneys, these cases all have built-in reasonable doubt. Especially if the prosecutor pisses off the jury by suggesting that a sweet, murdered 11 year-old girl must have been having sex with someone other than her rapist and murderer.

I'm tired of hearing complaints about the costs of indigent defense and hearing about draconian cuts into indigent defense funding but never, ever hearing anyone questioning the way prosecutors spend money. It's not in the county's financial interests to pursue trials that can't result in guilty verdicts. And it's not in the county's personal interests to push charges against the wrong guys while the right guys are still roaming the streets. The good news is that the comments to the article are almost universally critical of the prosecutor. Maybe this prosecutor won't be able to keep his job if he continues to pursue his own idea of justice that doesn't take into account the evidence.


Unknown said...

You're absolutely right that "this guy is taking it a bit far." It is abuse of power of the worst kind when prosecutors and arresting officers and judges insist on sticking with their original wrong conclusions in the face of evidence to the contrary.

SaucyVixen said...

"This prosecutor pre-determines his suspects and then interprets the evidence in whatever way is consistent with guilt of the suspect he's already picked."

This has always been the way it's been. Unfortunate? For sure. Surprising? Not in the least.

S said...

I know that's how it's always been, but this just seems too outrageous. For my own sanity, I just have to believe that this prosecutor is the only one who would rather argue that his 11 year-old murder victim was sexually active than admit that the semen found in her clears the chosen suspect. Or at least that he's in a very small minority.

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