DNA debunks prosecution theory? Hey, just adapt.

The job of prosecutors is to seek justice, not convictions. But one troubling trend that University of Washington School of Law Professor Jacqueline McMurtrie identifies in the Journal of Criminal Law and Criminology are cases in which, confronted with DNA evidence that the defendant is innocent, prosecutors amend their theories in weirder and weirder ways rather than re-think the guilt of the person they assumed was guilty.

In the case of Juan Rivera, who was convicted of brutally murdering and sexually abusing an 11-year-old girl in 1992 in Waukegan, Illinois, after DNA showed that the semen in the victim was not Rivera’s, prosecutors contended another person must have had sex with the victim before Rivera came along and murdered and raped her, without ejaculating.

In the case of the Dixmoor Five, five teenagers were convicted of the rape and murder of a 14-year-old girl. After DNA from semen found on the victim’s body was linked to a man with a lengthy record of sexual assault and armed robbery, the prosecutors suggested that the new suspect had necrophilia upon discovering in the woods the victim’s body, already murdered by the teenagers.

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And in the case of Jerry Hobbs, charged with murdering his 8-year-old daughter and her friend, Hobbs was excluded as the source of the semen and other DNA evidence found on his daughter. The DNA profile was matched to a convicted sex offender who was awaiting trial on a murder charge, someone who was a friend of the second victim’s older brother. The prosecutor suggested that Hobbs’ daughter got the DNA on her hands after she visited her friend’s home, where the sex offender had perhaps masturbated.

McMurtrie notes a series of ways that judges could intervene when prosecution theories become less credible. But prosecutors bear responsibility, the article makes clear, for losing their way. She takes Rivera’s case, where prosecutors clung to Rivera’s confession of guilt, even as evidence mounted that it was neither voluntary nor reliable.

The interrogation went on for days, and details emerged that Rivera suffered psychological and physical distress. As McMurtrie writes: “Jail personnel observed Rivera in a catatonic state — eyes open but entirely unresponsive; they noticed that he had wounds from hitting his head against the wall of the interrogation room. After that, Rivera was put in a padded ‘rubber room,’ designated for detainees who present a risk for suicide. ..Yet, when investigators retrieved Rivera from the rubber room and brought him to an interrogation room for the final round of questioning, they claimed not to notice anything unusual about his demeanor.

Her conclusion: There are many steps being implemented in various jurisdictions, to guard against wrongful convictions, and additional steps can be taken to stop prosecutors from changing its theory of the case as new evidence develops. But in the end: “As Rivera’s case illustrates, prosecutors, as elected officials, are ultimately answerable to the citizenry.”

Read McMurtrie’s complete article here, part of the Journal of Criminal Law and Criminology’s just published edition devoted to a symposium on the Center on Wrongful Convictions upon the retirement from the Center of its co-founder, Rob Warden. Rob, we’re proud to say, now serves as co-director of Injustice Watch.

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