January 22, 2012
One of my heroes that I have not had the fortune yet to meet is California defense attorney Leslie Abramson. A former Los Angeles County Assistant Public Defender, Ms. Abramson became a well-known private criminal defense lawyer who handled a number of high profile cases in her career as well as excellent television commentary on other high profile cases such as the O. J. Simpson murder case.
About 15 years ago or so, she wrote a memoir about her career called ‘The Defense is Ready: Life in the Trenches of Criminal Law.’ I swiped it up when I first found it at a bookstore all those years ago, and I couldn’t put it down. One of the things that I took with me, to this day, was her willingness to stand up to unfairness in the courtroom. In one of her high profile cases, when the judge denied her an instruction, basically gutting her defense, she wrote the word ‘OUTRAGE’ on a legal pad in large lettering to show the judge during the instructions conference.
I’ve never forgotten that, and many of us can identify with that moment in time. One of our jobs as criminal defense lawyers is to help ensure justice through the zealous representation of each and every one of our clients. Many times however, we also bear witness to tremendous injustice. We need to speak out when we see that injustice to let others know it happens.
This month of January certainly has been a month of injustice to talk about. For almost 19 years, the Lake County State’s Attorney pursued Juan Rivera for a murder charge of a little girl. After 2 trials and 2 convictions, the Lake County State’s Attorney’s Office had powerful evidence that he was innocent in the form of a DNA exclusion. They received this powerful evidence of Mr. Rivera’s innocence in 2006.
Much has already been written about this case, which does not bear repeating. Suffice it to say that after the DNA exclusion came to light, the prosecutors fought to keep the conviction of Rivera based on a very tenuous confession alive. After they lost that battle, they tried Mr. Rivera again. They argued that an 11 year old girl was sexually active to explain the DNA away without one scrap of evidence to support this nonsense.
Rather than admit that their officers procured a false confession from a man with a history of mental health issues or that any of their “jailhouse snitches” could be lying, they pursued a conviction and they got it. Then, they defended this nonsense on appeal.
The Second District Appellate Court unanimously called this what this was last month. They stated that “(t)he State’s theories distort to an absurd degree the real and undisputed testimony that the sperm was deposited shortly before the victim died” People v. Rivera, 2011 IL App (2d) 091060 at 10. This opinion should be read by everyone, not just for its cogent thoughts about false confession cases or jailhouse informant cases, but also for its sharp criticism of the behavior of the Lake County State’s Attorney and the prosecutors assigned to the case.
Earlier this month, the Lake County State’s Attorney made the welcome decision to not pursue an appeal of this decision to the Illinois Supreme Court. Mr. Rivera was finally released earlier this month, after being victimized for almost 20 years.
Some would say that justice was finally done for Juan Rivera. I won’t. I would say that one injustice has finally been stopped. There are still a host of others that continue.
Where is the justice in repeatedly prosecuting an innocent man? Where is the justice when insulting the memory of that poor little girl – by suggesting she was sexually active to explain away the exculpatory DNA evidence – without one piece of evidence to support this absurdity?
The Illinois Appellate Court, after excellent work by Mr. Rivera’s lawyers, rightly said that this was absurd. But the prosecutor’s behavior was so much more than that.
It was an outrage. And we should say so.