The Work

December 28, 2011 4:22 PM

Jenner Helps Win Reversal for Man Convicted of Murder Despite DNA Evidence of His Innocence

Posted by Tom Huddleston Jr.

UPDATE: 1/6/12, 1:25 p.m., State prosecutors announced on Friday that they would not challenge the court's reversal of Rivera's murder conviction. The Chicago Tribune reports that Rivera's attorneys are filing a motion in state appellate court seeking Rivera's immediate release from prison.


Mascherin_Terri_COLOROn December 9 a panel of Illinois appeals court judges reversed Juan Rivera's 1993 conviction for raping and murdering 11-year-old babysitter Holly Staker in Waukegan the previous year.

The ruling (PDF)—which came nearly two decades after Rivera was found guilty at the first of what would eventually be three trials—represented a major pro bono win for Jenner & Block, which estimates that more than 80 of its lawyers and staffers spent over 12,000 hours on Rivera's latest trial and appeal.

Rivera's original conviction was overturned based on questions about the evidence used against him. A second guilty verdict was vacated in 2006 when new DNA tests determined he was not the source of semen found inside Staker's body. The exculpatory DNA tests were obtained by lawyers from the Center on Wrongful Convictions at Northwestern University School of Law who continued their work on the case—joined by a Jenner team—for Rivera's third trial, in 2009, and his latest appeal.

During Rivera's 2009 trial, state prosecutors sought to explain the lack of DNA evidence against Rivera by suggesting Staker was sexually active and had sex with someone else before Rivera killed her. That was apparently enough for the jury, which disregarded the new DNA tests, convicted Rivera in May 2009, and sentenced him to life in prison without parole. (Rivera's plight was detailed in a November 27 New York Times magazine article about the lengths to which some prosecutors, including those pressing the case against Rivera, will go in an effort to counter exculpatory DNA evidence.)

In its decision, the appellate panel stated that "no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." The judges pointed to the lack of DNA evidence, and noted that Rivera's confession did not prove his guilt because police officers fed him leading questions.

Stanford University Law School professor Lawrence Marshall, a cofounder of the Center on Wrongful Convictions, served as lead counsel on the most recent appeal, working alongside fellow center lawyers Jeffrey Urdangen and Jane Raley, and a group of Jenner lawyers led by  litigation partners Terri Mascherin, Thomas Sullivan, and Andrew Vail. The Am Law Daily spoke with Mascherin about Jenner's efforts on Rivera's behalf. Mascherin says she and Sullivan logged more than 900 hours apiece on the case, and that Vail's tally topped 1,000 hours.

How did Jenner & Block first get involved with the Rivera case?

In the fall of 2006, we were asked to partner on the case with the [Center on Wrongful Convictions]. In the spring of 2006, the court had granted a postconviction petition vacating Juan's conviction and ordering a new trial. At that point, Jane Raley, the lawyer from the center who had really spearheaded [getting] the DNA testing done and had persuaded the court to vacate the conviction, wanted to get a trial team involved. So one of the lawyers at the center who is a trial lawyer, Jeff Urdangen, signed on to try the case. And, [Raley] approached a couple of us here and asked us if we would work with them.

Had you partnered with the center before?

I had worked with the center on several things, including the clemency push that led then-Illinois Governor George Ryan to clear death row in early 2003. There were a couple of lawyers at the center who had clients on death row, and I also had a client on death row at the time. There was a whole group of us that worked together in that effort, which in many ways was coordinated by people at the center. I had also partnered with Jeff Urdangen on a postconviction case several years before he joined the center. In addition, Tom Sullivan and I both sit on the advisory board for the center.

Rivera's case has received a lot of media attention, in part, because of prosecutors' dismissive attitude toward the lack of DNA evidence against him. How did your team counter the assertions made at Rivera's third trial that the DNA could have been contaminated, or that the victim could have been sexually active?

At trial, it was quite surprising to us that the prosecutors pressed the case in view of the DNA evidence.  The state put on no DNA evidence. We put on four experts. Two who had been employed by the state, and two who were private experts hired by the defense. All four of them agreed that the evidence that was generated from the 2005 DNA testing reflected a single male profile, and that there was no evidence of contamination of the sample. We fought very hard to prohibit the state from being able to even make these arguments [on possible contamination and the victim's possible sexual activity], and we think the trial court was grievously wrong in its rulings on those issues. So, then you're left before the jury with, on the one hand, the science. And, on the other hand, these statements that our client signed under the most questionable of circumstances. In my opinion, if ever there was a case of a false confession, this is that case. What the verdicts in this case showed me more than anything else is that it is very difficult for a jury to understand and accept the notion that someone might sign a statement confessing to something that they didn't really do. Because, I can't imagine a stronger case of innocence.

Do you expect the successful appeal to have any effect on future trials in which one side is attempting to downplay DNA evidence?

I would hope so, but it's very difficult to judge whether that will be the case. I think that many prosecutors will look at a case where there is DNA evidence and they'll assess it. And they'll come to the conclusion that the scientific evidence is clear and will decide not to prosecute, or will agree to vacate a conviction.

Has Rivera been freed from prison yet?

No. He hasn't been released yet. The time for the state to seek further review of the court's decision has not yet run, and the mandate [to release him] won't issue until it does. So, we're waiting to hear from the state's attorney's office as to what they plan to do. We're hopeful that he'll be able to be released soon.

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