Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Balko is, as always, doing an excellent job of documenting the many corruptions in our criminal justice system with this post exposing the absurdity and hypocrisy of an Illinois prosecutor who invents fanciful ways to dismiss DNA evidence:
For example, six years ago, Mermel (chief of the criminal division for the Lake County, Illinois state's attorney's office) dismissed DNA tests showing that the semen found in the underwear of a 68-year rape victim didn't belong to the man convicted of the crime. Bernie starks had been serving time for the rape since 1986. Now if the DNA had come from the woman's vagina, Mermel argued at the time, "I would be standing over there advocating the side that the defense has in the case."Actually, no he wouldn't. Three years later, a missing rape kit from the case turned up. It included a vaginal swab containing semen, and a DNA test on the semen again excluded the man convicted of the crime. Mermel again refused to concede, this time arguing that the woman must have had consensual sex with another man at about the same time of the rape.
And here's a more recent case:
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.
How do such people get and keep their jobs? Oh yeah. Because we tend to focus obsessively on their conviction rate rather than on whether those convictions were justified.
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Comments
Any competent defense attorney should be able to make mincemeat of those ludicrous explanations. If the individuals were convicted or remained convicted on that sort of evidence alone then there are more to blame here than Mermel.
Posted by: Sigmund | December 22, 2008 9:54 AM
The spirit of the jolly green giant, Jim Garrison lives on. Of course, one only hears about the ethical peccadilloes of defense lawyers mainstream media.
Posted by: SLC | December 22, 2008 9:55 AM
The more I think about it, the more convinced I become that this "I Know I'm Right, Facts Be Damned" mindset is at the root of a great many of our problems today. The creationists and conspiracy nuts that routinely pop up in the comments here are an obvious example, but I see it more and more in real life too, from the Bush Administration to people I work with every day. It seems to be quite the fashion these days.
Posted by: WScott | December 22, 2008 9:58 AM
One might add that the spirit of Michael Nifong also lives on.
Posted by: SLC | December 22, 2008 10:01 AM
Sigmund is absolutely right. ISTM that much of the problem is the perception that rape is such a horrible crime that there is no mitigation, not even innocence.
Posted by: BaldApe | December 22, 2008 10:08 AM
I know a lot of people who just cannot be wrong. I pin most of the blame on parenting. Raising kids without the possibility of failure or defeat gives them a VERY warped sense of reality.
When I was an assistant little league T-ball coach we let everyone bat, everyone play the field and even run the bases backwards if that's what it took to keep everyone happy. We recorded a score but downplayed the whole winning and losing thing. That process helped some kids (and parents) with self-esteem issues and at age 6 or 7 had, I hope, a rather small impact. The next level up was a lot more "by the book" and not everyone was a winner.
Learning to lose or even learning to win is a skill all people need, especially kids. There's always someone better than you (Michael Phelps excluded of course) and someone smarter and someone ahead of you on the road, in life and on whatever ladder you are climbing. Get over it, try harder, move on. Doggedly supporting failure by calling it success is worse by far than accepting it and trying to do better next time.
Mermel should have lost a few little league games. Would have done him a world of good.
Posted by: Mike | December 22, 2008 10:30 AM
This is why I'm encouraged at the amount of time kids spend playing video games these days. For the majority of the games there is a clear winner every time you play. Even in online worlds aimed at kids there are mini-games within the environment where kids can play each other and there is always a clear winner and loser. It is vitally important for them to understand everyone doesn't always win.
Posted by: Rev Matt | December 22, 2008 10:44 AM
@WScott : There is considerable merit to your observation.
(That's my typical English understatement)
Posted by: NoAstronomer | December 22, 2008 11:22 AM
Chiming in with Sigmund and BaldApe. But wouldn't it be nice (and easier on poorly-paid and overworked Public Defenders) if the prosecutors would routinely admit mistakes when faced with overwhelming evidence?
I see Jack McCoy do it fairly often on Law and Order - but I suppose it is too much to expect from real people.
Posted by: BobApril | December 22, 2008 11:38 AM
Mike, I don't think that your observations apply to this prosecutor. He probably has faced failure many times in his career, and got over it. It seems to me that it is very clearly a case of corruption: the guy knows that he'll get ahead more quickly the more people he convicts, so he convicts everybody he can, regardless of their culpability, and then covers up his misdeeds as best he can.
He knwos perfectly well that he is destroying innocent people's lives, but he doesn't care because he's looking out for Number One.
Posted by: Valhar2000 | December 22, 2008 12:03 PM
A fascinating book on why this type of behavior occurs and keeps recurring in the same people, with an entire chapter devoted to Lawyers and law enforcement, is "Mistakes were made (but not by me)". Unfortunately, I am at work and cannot recall the co-authors' names.
Posted by: Pineyman | December 22, 2008 12:23 PM
Presumably in the 1986 case they would have asked the victim the woman about any consensual sexual activities that may make the samples in the rape kit harder to interpret. In any case, if the evidence used to make a conviction is so seriously called into question, the conviction should be overturned. Its not a matter of "can I come up with a story that explains how the evidence doesn't fit?" but "was the evidence used sound?"
Posted by: Bacopa | December 22, 2008 12:30 PM
Again, not a phenomenon that's unique to law enforcement. But it may be more common in that line of work, I think, because you tend to see the same shit day after day, often by the exact same people. So it's very easy to "just know" someone is guilty. "Based on my training and experience..." becomes shorthand for "What does some lab geek know anyway?"
Posted by: WScott | December 22, 2008 12:50 PM
This might be normal behavior for a prosecutor. Look at how the current governonr of PA, Ed Rendell, behaved in the Ferber case when he was the Philadelphia DA.
When even the cops were admitting that they had got the wrong guy, Fast Eddie fought tooth and nail to keep Neil Ferber on Death Row- right up to his last day in office.
If you want another example, Google up the Terence McCracken case next door in Delaware County.
Our system promotes this kind of behavior. The way a DA gets elected to higher office is by waving his string of scalps and puffing and blowing about how "tough" he is.
A simple remedy would be to bar former DAs from all other elective offices for a period- say five or ten years- after they leave office. In compensation, let their salaries be raised to be at least equal to that of the managing partner at the largest law firm in their jurisdiction.
Posted by: Ktesibios | December 22, 2008 12:55 PM
Posted by: WScott | December 22, 2008 12:55 PM
Along with Pineyman - I highly recommend "Mistakes were made (but not by me)" - it covers this exact scenario. I just read it about two weeks ago, and it was the first thing I thought of when I saw the words "dismiss DNA evidence."
It's really easy to say "Man, this guy is corrupt and he's totally doing this to get ahead" or "Why do people always ignore facts like that" and not make any attempt to understand the real reasons behind their actions. I would not be surprised if most of the commenters here who said things along those lines would do the exact thing the prosecutor did if they were in his position. Cognitive dissonance is a feature of humans in general, not just of corrupt or stupid humans.
Greta Christina has a nice summary of the book here.
Posted by: Eric | December 22, 2008 3:42 PM
Sorry to double post, meant to add this in from Greta's post:
Posted by: Eric | December 22, 2008 3:45 PM
Call me naive but, when you have evidence that somebody else did it and yet continue to condemn an innocent, isn't that called criminal conspiracy? That prosecutor knows the truth and should be doing the real rapists time with him.
Posted by: eddie | December 22, 2008 8:27 PM
Could this be part of the reason why America imprisons people at *seven* times the rate (per capita) than any other democratic western nation (and more than even China and Russia)?
Posted by: tacitus | December 22, 2008 9:19 PM
Yes, but then he will have to admit that he was wrong...and going over old cases...thats work....boooring work...and to him it's just a job.
Don't blame on corruption what you can blame on apathy.
Posted by: Richard Eis | December 23, 2008 10:45 AM