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David Protess

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A Prosecutor's True Calling

Posted: 12/12/11 10:46 AM ET

Ask Lake County, IL prosecutor Michael Mermel who raped and murdered 11-year-old Holly Staker in 1992, and he'll insist that Juan Rivera broke into the home where Holly was babysitting and committed the crime. Rivera confessed, the head of criminal prosecutions for the north suburban county will tell you, and three juries found him guilty.

But what about DNA tests proving that the semen found in Holly's body was not from Rivera? The child must have been sexually active, Mermel shrugs.

Ask Mermel who sexually assaulted and murdered Jerry Hobbs' eight-year-old daughter and her nine-year-old friend in 2005, and Mermel will say it was Jerry Hobbs. He confessed, after all, and his admissions were horrifying enough to justify the death penalty.

But what about the DNA tests that excluded Hobbs and implicated a man with a violent past? Hobbs still must have been involved, Mermel maintains, and the DNA evidence probably resulted from the girls playing in a wooded hot spot for lovers near the crime scene.

Ask Mermel about his duty as a prosecutor, and his answer speaks volumes about why he persists in spinning nonsensical theories about Rivera and Hobbs' guilt. "The taxpayers... pay us to get convictions," he told the Chicago Tribune.

You get points for candor, Mr. Prosecutor, but you are flat wrong. That's not just my take. It's the opinion of the Illinois Supreme Court.

In its Rules of Professional Conduct, the high court established Special Responsibilities of a Prosecutor. Among them: "The duty of a public prosecutor is to seek justice, not merely to convict."

A prosecutor is "not simply... an advocate," the justices declared," but also "a minister of justice."

Wrongful convictions occur because prosecutors like Mermel forget that their mandate "in a criminal prosecution is not that it shall win a case, but that justice shall be done," as the United States Supreme Court has decided.

Recently, I wrote about the Englewood Four, juveniles who falsely confessed to rape and murder only to be cleared by DNA tests that identified the real perpetrator. Cook County State's Attorney Anita Alvarez has stubbornly refused to acknowledge her office's mistake, devising a theory of guilt that is even more preposterous than Mermel's flights of fancy in the Rivera and Hobbs cases.

"I have a duty to the victims in this case," Alvarez told the NY Times in explaining why she won't let it go. If you feel that way, Ms. Alvarez, you should consider leaving the prosecutor's office to become a victim's rights advocate. Perhaps you might establish a law practice with Michael Mermel, who announced last week that he is retiring from the Lake County State's Attorney's Office. Mermel was so blindly identified with the victims in the aforementioned cases that he wrongfully prosecuted Juan Rivera and prematurely charged Jerry Hobbs with a capital crime, allowing the little girls' killers to roam free.

Fortunately, justice is at hand for the innocent prisoners. On Friday evening, the Illinois Court of Appeals unanimously tossed out the guilty verdict in Juan Rivera's case. The justices attacked prosecutors' explanation for the DNA results as "highly improbable," adding that they had "distort[ed] to an absurd degree" the witness's testimony. The Court's conclusion: The evidence used against Rivera was "insufficient... unjustified and cannot stand."

(Asked by the Tribune to comment on the ruling, Mermel hung up the phone.)

After more than nineteen years of wrongful imprisonment, Rivera, 39, will soon return home to welcoming family and friends. Rivera's exoneration is the 98th in Illinois since 1989, the dawning of the DNA age. Of those, 48 involved false confessions, according to the Center on Wrongful Convictions at Northwestern University.

Hobbs, 40, has filed a lawsuit alleging Lake County police and prosecutors railroaded him for five years -- three of them after they knew about the DNA evidence. And Hobbs' lawyer announced she will add a count of defamation against Mermel for his continued snide remarks about Hobbs' guilt.

Meanwhile, the Englewood Four are free while Alvarez decides whether to re-try them despite the DNA evidence.

These men are not notches in a prosecutor's gun belt, nor should they be treated less fairly than ordinary citizens who are presumed innocent under the law. "The state's attorney in his official capacity is the representative of all the people, including the defendant," the Illinois Supreme Court has ruled.

That's the law. Our counties' top law enforcement officials should obey it.