The unindicted co-ejaculator and necrophilia: addressing prosecutors' logic-defying responses to exculpatory DNA results.

Author:McMurtrie, Jacqueline
Position:Symposium on the Center on Wrongful Convictions


DNA technology can operate as a kind of truth machine, ensuring justice by identifying the guilty and clearing the innocent. (1)

Prosecutors' willingness to acknowledge the exculpatory value of postconviction DNA results has varied widely among jurisdictions. Some prosecutors have embraced DNA's power to free innocent prisoners, going so far as to create "conviction integrity units" within their offices to investigate claims of actual innocence. (2) The nation's first Conviction Integrity Unit, established in Dallas County, has proactively worked to exonerate thirty-four people, including someone who did not seek out the DNA testing that proved his innocence. (3)

However, other prosecutors have developed new and bizarre theories, particularly in cases involving confession evidence, to explain away exculpatory DNA results. Many of the most outlandish and insidious theories were advanced against innocent suspects who falsely confessed and whose cases were championed by Rob Warden, the warrior for justice honored by this symposium. Warden, the co-founder and longtime Executive Director of the Center on Wrongful Convictions at Northwestern University School of Law, dedicated his career to freeing innocent prisoners and remedying causes of wrongful conviction. His focus on exposing and eradicating false confessions is appropriate since the majority of Illinois's known wrongful conviction cases involved false confessions. (4) Warden's work has had a profound impact on innumerable people including Juan Rivera, the Dixmoor Five, and Jerry Hobbs. Each falsely confessed and were prosecuted despite exculpatory DNA tests which led to only one logical conclusion: They were innocent.

In Rivera's case, the prosecutor's theory for why sperm found inside the eleven-year-old victim did not belong to Rivera was that she had sex with someone on the day she was murdered before Rivera came along and raped (but didn't ejaculate) and murdered her. (5) The unnamed-lover theory is used so often by prosecutors that it has its own moniker: "the unindicted co-ejaculator." (6) In the case of the Dixmoor Five, teenagers convicted of the rape and murder of a fourteen-year-old girl were exonerated 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. (7) When the exculpatory postconviction evidence was presented to the Cook County State's Attorney's Office, the State opined the convicted rapist engaged in necrophilia after wandering through a field and finding the deceased fourteen-year-old victim's body. (8) And in the last example, Hobbs was detained and charged with murdering his eight-year-old daughter and her friend, but DNA testing later excluded Hobbs as the source of semen, spermatozoa, and other biological material found on evidence gathered from his daughter's skirt and hands. (9) A single male was determined to be the source of all of the DNA profiles. (10) The prosecutor explained away the exculpatory DNA results by claiming the victim came into contact with the sperm while playing around the crime scene, a park where couples went to have sex.11 Two years later the DNA profile was matched to a convicted sex offender who was serving a sentence for attacking three women and also was awaiting trial on a murder charge. (12) Moreover, the sex offender was friends with the second victim's older brother. (13) The same prosecutor then switched theories to posit--and this is hard to follow--that Hobbs' daughter got the biological material on her hands while visiting the house and then transferred it to her clothes and genital area after the sex offender masturbated at the second victim's home. (14)

These and other examples demonstrate the extreme lengths to which some prosecutors will go to protect flawed convictions. (15) The logic-defying theories advanced by prosecutors run counter to the government's fundamental interest in criminal prosecutions, "not that it shall win a case, but that justice shall be done." (16)

An overarching principle of our criminal justice system is that a prosecutor owes a duty of fairness to a defendant. (17) The majority of prosecutors are conscientious public servants who adhere to their ethical and constitutional obligations to ensure "that guilt shall not escape or innocence suffer." (18) The consequences of violating this principle are damaging and far-reaching. Litigating cases against innocent suspects drains resources, (19) devastates innocent defendants and their families, and harms public safety by allowing the actual perpetrator to remain free, often to commit additional crimes, (20) which leads to an erosion of trust in the criminal justice system. (21) The question becomes why our criminal justice system lacks sufficient safeguards to prevent a case built upon a logic-defying theory of guilt from moving forward to trial. Although prosecutors enjoy largely unfettered discretion, they must account for their actions at different stages of the criminal proceedings before bringing cases to trial.

This article will examine the question of prosecutorial accountability through the lens of Juan Rivera's case. Rivera spent almost twenty years in prison and underwent three trials before a court vacated his conviction, holding that the State's theory of guilt, in the face of exculpatory DNA results, was "unreasonable" and "improbable." (22) Rivera was charged in 1992 with the brutal rape and murder of a young girl after he falsely confessed. (23) He was convicted in 1993 and when his conviction was reversed based on the cumulative effect of trial errors, he was retried and reconvicted in 1998. (24) In 2004, Rivera requested postconviction DNA testing, and in 2006, the court granted his motion for a new trial based on the exculpatory test results. (25) The DNA profile of the perpetrator was uploaded into the felon database, but no match resulted. (26) Rivera's third trial occurred in 2009, after DNA tests conducted in 2005 excluded him as the source of semen found on the victim. (27) The prosecutor obtained a conviction at Rivera's 2009 trial by arguing the exculpatory DNA evidence was either a result of contamination (which every expert discounted as improbable) or was deposited by the eleven-year-old victim's unknown and unidentified sexual partner. (28) Rivera was exonerated in 2012 after the Illinois Court of Appeals (hereinafter "Rivera Court" or "Court") held there was insufficient evidence to sustain his conviction. (29) The Rivera Court found the State's theories of guilt "distort to an absurd degree the real and undisputed testimony that the sperm was deposited shortly before the victim died." (30) In vacating the conviction, the Court acknowledged the impact its decision would have on the victim's family and friends who had suffered great anguish from her murder, and on Rivera's family and friends who had "suffered the nightmare of wrongful incarceration." (31)

Part II of this article will discuss the importance of DNA exonerations in the criminal justice system, how a false confession led to Rivera's conviction, and why exculpatory DNA results led to his exoneration. Part III will explore the prosecutor's role in obtaining the confession during Rivera's investigation and the reform movement to record custodial interrogations that occurred after his first conviction. Part IV will address a prosecutor's charging decision, how this process might contribute to solidifying a prosecutor's view of guilt in the face of contradictory exculpatory evidence, and suggested reforms to guard against charging innocent defendants. Part V will examine potential judicial solutions to these problems, such as the doctrines of judicial estoppel and judicial admission and the proposed reform of criminal summary judgment, all of which have been advanced as pre-trial means of preventing the State from advancing inconsistent theories or proceeding to trial when there is sufficient evidence to charge, but not to convict. Part VI will present the postscript to Rivera's case.


    Prior to 1993, when Rivera first went to trial, eleven people had been exonerated on the basis of postconviction DNA testing. (32) The importance of DNA in criminal investigations cannot be overstated. To date, more than 330 people have been exonerated after postconviction DNA testing established, to a scientific certainty, they were imprisoned for crimes they did not commit. (33) The growth in DNA exonerations is in part due to advances in technology which allow forensic analysts to obtain profiles from minute traces of biological material previously untestable because the sample was too small or was degraded. (34) Current DNA technology can obtain profiles from minuscule samples of saliva, semen, sweat, skin cells, and cellular material found in the root of a hair. (35) Those profiles are uploaded into the Combined DNA Index System (CODIS), a vast, computerized state and federal registry containing over 11 million convicted-felon DNA profiles. (36) Thus, postconviction DNA testing not only has the power to free innocent prisoners, but can also identify the actual perpetrator through a match in the CODIS data bank or comparison against an alternate suspect. (37) In nearly half of the first 330 DNA exonerations, the true perpetrator was identified through the database, or matched to a known profile, after a wrongfully convicted prisoner's exoneration. (38)

    Rivera's nearly twenty-year nightmare of wrongful conviction began with a horrific crime. On August 17, 1992, an eleven-year-old girl was brutally...

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