DNA Matters, Except When it Doesn't?

by Laura James

"DNA ought to humble us. But it doesn't humble some people."

--Attorney Jed Stone

The Chicago Tribune ran a story by Steve Mills recently about some pending murder cases in Lake County, Illinois that ought to put the voters of that county on notice: your local department of justice has a moron on staff. If you have more integrity than your local prosecutor's office, you need to elect someone else.

In four rape - murder cases - involving female victims who were eight, nine, eleven, and sixty-eight - the DNA from the semen did not match the man charged with the rape and murder.

The prosecutor is pursuing these cases anyway, waving away the DNA evidence and the science upon which it is founded as a "red herring."

You read that right - these girls, this elderly woman were raped and some also murdered. Semen was recovered in each case. It did not match the suspect. The suspect was charged anyway, despite the fact that the prosecutor offers no logical explanation for the presence of semen that does not match. If there were evidence of two assailants, this might make sense. But there's not. And it doesn't.

Despite these DNA results, despite the fact that the source of DNA is semen, the prosecutor is getting convictions. How? He claims that the semen/DNA is from "contamination." That argument was not only permitted but was successful in the case of Juan Rivera, convicted of murdering Holly Staker again last month, even though DNA testing proved that he was not the source of semen found in the victim's body.

Where is the flipping judge, I'd like to know - how could he let this case get to a jury in the first place? How could he let the prosecutor make such specious arguments? From here he looks like yet another empty robe sucking up an unearned paycheck.

Some observers - like the Daily Kos, Mothers on a Mission to Stop Violence, Chicago Lawyer Magazine, Reason Magazine, and Northwestern University law faculty - are rolling their eyes at the ludicrous dismissal of the DNA evidence. But they don't have a vote, and jurors are buying it.

As one observer notes, it's "very rare" for a prosector to continue with a case when DNA excludes a suspect.

Unfortunately, I know it's not really that rare. A DNA exclusion did not prevent Michigan authorities from imprisoning Nathaniel Hatchett for rape. Twelve years is what it took before someone who knows something about DNA refused to accept the prosecutor's flimsy arguments. Shame, shame on the judges who permitted this man to go to prison for rape when the seminal DNA excluded him as the rapist!

And it happened in Toledo. I watched it happen on television in 2006 when Father Gerald Robinson was convicted of murder despite the fact that a male DNA profile obtained from the victim's clothing and bloody fingernails did not match him. The prosecutor's argument? The DNA is from "contamination." But there's some good news in that case: The Ohio Innocence Project just joined his defense team.

I am seeing more and more of these cases - representing more and more prosecutors who won't let a lil' ol' thing like DNA get in the way of a conviction. Alas, some juries are willing to accept this. Indeed these cases are becoming so common I wish someone would coin a term for it. "DNA non-match" cases isn't very catchy.

For many years, lawyers and journalists have lamented what is sometimes called the "CSI Effect" -- the expectation by jurors that cutting-edge scientific techniques will give them a definite answer in every case.

What can we call it when jurors ignore DNA that doesn't match the man on trial?

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