Prosecutor, DNA at odds In 3 cases, Lake County prosecutor Michael Mermel is willing to pit other evidence against genetic tests that exclude defendants By Steve Mills, Chicago Tribune reporter December 15, 2008 Monday DNA evidence has been widely embraced over the last two decades as a powerful forensic tool to prove a defendant's guilt or innocence. But in Lake County, authorities have sometimes pressed for convictions even when the DNA doesn't match a suspect. Consider three active cases overseen by Michael Mermel, chief of the criminal division for the Lake County state's attorney's office: When DNA evidence excluded a man convicted in the rape and battery of a 68-year-old woman, Mermel suggested the victim had consensual sex with someone else. When DNA evidence excluded a man in the rape and murder of an 11-year-old girl, Mermel and another prosecutor suggested that the girl may have been sexually active. The DNA, he said, was a "red herring." And, just recently, when lawyers for the man charged in the killing of his 8-year-old daughter and her 9-year-old friend said in court that DNA evidence from semen excluded him as the perpetrator, the Lake prosecutor had another explanation. Mermel said DNA may have gotten inside the 8-year-old's body as she played in the woods at what became the crime scene -- a place where Mermel said some couples go to have sex. The girl was found fully clothed. In each of the cases, all likely to go to trial in the new year, Mermel argues that other evidence, mainly confessions and witness identification, carry greater sway than the genetic material. That attitude startles some DNA experts and others in the criminal justice system. "The vast majority of prosecutors in the United States generally are willing to walk away from a case where DNA excludes a suspect," said Joshua Marquis, an Oregon prosecutor and member of the board of directors of the National District Attorneys Association. \ 'Forensically significant' In these Lake County cases, several DNA scientists and others say the prosecutor's explanations are difficult to imagine. "It's just amazing how convincing DNA can be if it supports your case and how unconvincing it is when it doesn't support your case," said William Thompson, a lawyer and DNA expert at the University of California at Irvine. Defending his office's approach, Mermel said Lake prosecutors believe in DNA "when it is forensically significant." "If we thought the evidence excluded the defendant in any of these cases," he said, "we'd dismiss them." Mermel pointed to another rape case where his office supported vacating a man's conviction after DNA excluded him as the source of semen in the victim. But in that case the defendant had served his prison sentence and been released. \ 'DNA ought to humble us' At a hearing six years ago in the case of Bennie Starks, who had been convicted of raping a 68-year-old woman, Mermel made an intriguing vow. Though a semen stain on the victim's underwear contained a genetic profile different from Starks' DNA, Mermel said it was not enough to prove his innocence. What would help Starks' claim, Mermel said, was if the semen came from inside the woman's body. "If this DNA ... were to come from the victim herself, I would be standing over there advocating the side that the defense has in the case," Mermel said, according to a transcript. Three years later, a vaginal swab from the rape kit on the woman was found; again, the DNA evidence did not match Starks' profile. But Mermel still argued it failed to exonerate him in the 1986 rape case. In a recent interview, the prosecutor said that because the profiles from the underwear and vaginal swab were the same, they both could have been from someone with whom the woman had consensual sex. Starks was awarded a new trial in 2006 based on the DNA evidence. After serving 20 years of a 60-year prison term, he was released on bond. When the case comes to trial again next year, Mermel plans to use the victim's identification of Starks as her attacker. But eyewitness identification, while still widely used, has been proven fallible by DNA. In three-quarters of the more than 200 DNA exonerations nationwide, eyewitness identifications were central to the state's case, according to the Innocence Project, which represents inmates seeking to prove their innocence with DNA. Mermel also plans to argue that bite-mark evidence -- the comparisons of bite marks on a victim to a suspect's teeth -- links Starks to the case. But Mermel's confidence in bite-mark comparisons contrasts even with some of the forensic discipline's leading practitioners who, after embarrassing reversals linked to DNA evidence, now argue that bite marks are best used to exclude suspects, not to identify them. Prosecutors also will use the fact that Starks' jacket was found near the crime scene. Arguing that Starks left his coat there, Mermel said it would help jurors see past the DNA. None of the defense's case "makes any sense," he said. "None of it passes the most elementary credulity test." Starks has said he was drinking the night of the attack and was robbed of his money and coat. His lawyers insist the DNA is the most telling piece of evidence in the case and are perplexed that the prosecutor continues to fight it. "The DNA ought to humble us," said Starks' lawyer, Jed Stone. "But it doesn't humble some people." \ Child cases most puzzling Of all cases, those where genetic evidence in sperm is recovered from a child are particularly compelling because there is rarely any explanation other than a sexual assault. Children were the victims in the other two pending Lake County DNA cases. In both, the victims were found with semen in their bodies, and in both cases DNA tests revealed genetic profiles that do not match the defendants' DNA. Juan Rivera sits in the Lake County Jail awaiting a third trial in the 1992 rape and murder of Holly Staker, 11. Early on, primitive DNA testing excluded Rivera. But prosecutors were armed with confessions from Rivera and won two convictions. Rivera's lawyers said that under intense police interrogation, he experienced a psychological breakdown and gave a false confession. Prosecutors said he knew facts only the killer could have known. More sophisticated DNA tests in 2005 isolated a genetic profile from semen that did not match Rivera and won him the third trial. As he has in the past, Mermel dismissed the evidence's significance, saying Rivera told detectives he did not ejaculate during the rape. "Is it some other killer, contrary to the evidence we have against Mr. Rivera?" Mermel asked. "We say it's not." One of Rivera's attorneys, Jeff Urdangen of Northwestern University's Center on Wrongful Convictions, said it "baffles me" that prosecutors put more weight on the confession than the DNA. "As we've said in our pleadings, it's very rare for a prosecuting agency to continue with a prosecution after a DNA exoneration," Urdangen said. In the other case, Jerry Hobbs is charged with the killings on Mother's Day 2005 of his daughter Laura, 8, and her friend Krystal Tobias, 9, in Zion. He has pleaded not guilty. As in Rivera's case, the anticipated centerpiece of the prosecution's case is a confession, a short but detailed statement from Hobbs in which he says he stabbed the girls repeatedly after Laura refused to come home and Krystal held out a small knife at him. "I am sorry for what happened, things just got out of hand and I lost it," Hobbs says in the confession, which he now disavows. Public defenders in the case said in court that DNA from semen from oral, rectal and vaginal swabs of Laura produced a profile that did not match Hobbs' DNA. But Mermel noted that prosecutors had not charged Hobbs with a sex crime, saying there was no evidence of sexual trauma. He said, too, that it was possible the small amount of semen in her was picked up as she played in the woods, where some couples have sex. And Mermel disagrees with the contention by Hobbs' attorneys that the DNA is evidence that someone else attacked the girl. "It is such a goofy logic leap [that] because somewhere in her life she came into contact with a sperm cell it means she was sexually assaulted," Mermel said. "To take this leap that this is the identity of the mystery killer, I don't know where everybody gets this idea."

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