Prosecutors often challenge DNA evidence that could clear the convicted

June 13, 2012 Source :

When Terrill Swift was released from prison after serving 15 years for rape and murder, he sought DNA testing because he wanted to prove his innocence. Cook County prosecutors opposed his efforts but relented last year after the Tribune made inquiries about Swift’s request.

After the DNA from semen in the victim’s body was matched to a convicted murderer and rapist, Swift went to court to get his conviction thrown out. But prosecutors opposed that effort, saying the DNA was meaningless, especially when considered against Swift’s confession.

A judge turned aside prosecutors’ arguments, saying the DNA was powerful evidence, and earlier this year the judge vacated Swift’s conviction.

And last month, when Swift went to court to obtain a certificate of innocence to expunge the record of his arrest and conviction and clear the way for him to seek compensation from the state, prosecutors opposed that request, too, saying Swift’s disputed confession outweighed the DNA.

Nearly a quarter-century into the DNA era, what has been called the gold standard of forensic evidence has fulfilled its promise to help police and prosecutors win convictions. Rare is the case in which DNA evidence, particularly in a rape or a murder, does not send a defendant to prison.

DNA’s potential to free the innocent has been more elusive. That has been especially true in Cook and Lake counties, where prosecutors have opposed requests for DNA testing and then downplayed the results when they excluded their leading suspects or inmates trying to win their freedom.

“When we started doing this work 20 years ago, we received opposition on requests and motions to do post-conviction DNA testing in more than three-quarters of the cases,” said Peter Neufeld, a co-founder of the New York-based Innocence Project. “Today … the overwhelming majority of prosecutors do not oppose motions for DNA testing.”

What’s more, Neufeld said, prosecutors rarely challenge DNA results that appear to indicate a suspect’s innocence. Prosecutors in Cook and Lake counties are part of a tiny group that consistently do that, he said.

“That kind of consistent rejection of logic and common sense,” Neufeld said, “is fairly unequaled around the country.”

Prosecutors counter that DNA is not the “end all” of evidence, as Cook County State’s Attorney Anita Alvarez once said, and say they are bound to consider all evidence in a case, not just the DNA. In the cases where DNA has failed to persuade prosecutors, the opposition frequently has been supported by a suspect’s confession. For decades a building block of murder cases, confessions remain remarkably potent in spite of what DNA has revealed about their frailties.

“Generally speaking, the significance of DNA evidence varies from case to case,” said Sally Daly, a spokeswoman for Alvarez. “In some cases, it may be critically important to a criminal investigation or a prosecution. In others, it can be relatively unimportant. It is the state’s attorney’s opinion and the general policy of this office that DNA evidence cannot be viewed in a vacuum, but rather examined in light of all of the other facts and evidence known at the time.

“DNA evidence certainly establishes a link between the donor of the DNA and a location or a piece of evidence, but it does not always establish the identity of the criminal,” Daly added. “The significance of DNA evidence is dependent upon all other facts available in the totality of the investigation.”

A series of cases in Lake County illustrate that standoff.

On May 15, Lake County prosecutors issued news releases announcing new murder charges in two cases — the bludgeoning of Fred Reckling, 71, in Waukegan in 1994 and the stabbings of Laura Hobbs, 8, and Krystal Tobias, 9, in Zion in 2005.

Both announcements credited “newly developed leads and forensic findings … actively pursued by law enforcement.” The releases did not mention that the new sets of charges resulted from DNA tests that prosecutors had dismissed as either unnecessary or meaningless.

In the Reckling case, prosecutors fought for years to block post-conviction testing sought by James Edwards, who had confessed and was sentenced to life in prison.

Edwards, often working as his own lawyer, claimed his innocence could be proved by testing blood found at the scene from a then-unidentified man. Prosecutors argued at trial that the blood in Reckling’s appliance store and car did not clear Edwards because it could have come from a store employee. They aimed to block post-conviction testing by noting that jurors were presented with that theory, and they still found Edwards guilty.

“Testing of this showing us who specifically (the blood came from) is not going to exculpate the defendant,” said then-Assistant State’s Attorney Michael Mermel, according to a court transcript. “The defendant is wasting the time of the criminal justice system because he has nothing else to do but write these motions.”

After Edwards had spent 14 years in prison, the Illinois Supreme Court ordered the DNA tests. Last month, prosecutors said forensic evidence had guided investigators toward Hezekiah Whitfield, 42, of Chicago, who is now charged with murder.

Prosecutors agreed to a new trial for Edwards and then immediately dropped the charges, though he remains jailed on separate convictions for armed robbery and murder.

“The Supreme Court says prosecutors have a duty to seek justice, not convictions,” said Edwards’ lawyer, Paul De Luca. “Doesn’t it seem like they didn’t abide by the rules?”

In the killing of the two girls in Zion in May 2005, lawyers for the original suspect — Jerry Hobbs, one victim’s father — clashed with prosecutors over the timeline and procedures for both sides to assess the physical evidence. Immediately after the murders, authorities sent evidence to the Northeastern Illinois Regional Crime Laboratory, where analysis with a microscope found no semen evidence that would have indicated a sexual assault, according to the lab’s report.

After Hobbs had spent more than two years in jail awaiting trial, the defense team’s scientists reported the opposite — that semen from another man had been found in Laura Hobbs and on her clothes. Hobbs’ lawyers argued this proved that his confession — given after some 24 hours of intermittent interrogation — was false. Prosecutors disagreed, arguing that the girls had been playing in the woods and the girl could have touched some semen and then wiped herself.

“The defense is … misleading the court,” Mermel said in December 2008. “What they have is one errant sperm which is impossible to deposit by the offender or an offender. It’s trace evidence.”

After that hearing, Hobbs sat in jail for more than a year before the DNA was matched to Jorge Torrez, a onetime friend of Tobias’ brother, according to court records. While Hobbs was jailed, prosecutors say, Torrez murdered a 20-year-old woman in 2009 and raped another in 2010, both in Virginia. Torrez is now serving five life sentences for a series of attacks on women, including the rape, and he faces trial in the Virginia murder case.

Hobbs was freed in August 2010, but nearly two years passed before the Lake County prosecutor’s office tacitly acknowledged his confession was false by announcing that Torrez had been charged with the girls’ murders. Mermel retired this year amid controversy over remarks he made to the media about the meaning of DNA. Lake County prosecutors could not be reached for comment. Mermel declined to comment.

Hobbs’ attorney, Kathleen Zellner, said she would like to see legislation making confessions inadmissible in court unless they can be corroborated by physical evidence. Prosecutors, she said, repeatedly have proved reluctant to admit the faults of their favorite evidentiary tools.

“(DNA) takes away the power that a prosecutor would have to develop a case around an eyewitness or a confession … and I guess there’s resistance to that,” she said.

Zellner has another client fighting his case in which DNA calls into question the conviction. Though there is no confession, prosecutors say the DNA does not persuade them of his innocence. So far they have declined to vacate the man’s conviction, although they say they are “actively investigating” the case.

Alprentiss Nash was convicted in the 1995 murder of a man named Leon Stroud during a home invasion and robbery and sentenced to 80 years in prison. Nash, according to prosecutors, put on a black ski mask before committing the crime, and the mask was found near the crime scene.

Cook County prosecutors under then-State’s Attorney Dick Devine opposed Nash’s request for testing, but the Illinois Appellate Court later ordered it. When the testing was done on skin cells found on the mask, the genetic profile was matched to an inmate who recently was paroled from prison after serving time for a drug conviction. Zellner requested additional testing, to which Alvarez’s office agreed.

In an interview at Menard Correctional Center, where he is being held, Nash, 37, said he hoped the DNA results would lead to his release.

“I’m tired of doing time,” he said of his 17 years in custody.

But Alvarez’s prosecutors argue that the DNA evidence does not clear Nash, which has frustrated him and Zellner.

“They’ve got an exclusion. They’ve got the profile of the real killer,” Zellner said. “And they’re horsing around with it.”

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