Several years ago, I represented a man named Jamie Lee Peterson. Mr. Peterson was convicted of a 1996 sexual assault and murder of a 69-year-old woman in a small, northwest Michigan town named Kalkaska. He was convicted of this crime because he confessed to it, and he was convicted despite the fact that male DNA recovered from semen on the body of the victim excluded Mr. Peterson. The State theorized that other semen on her body—which was untestable at the time—likely was Mr. Peterson’s, and he committed the crime with an unindicted co-ejaculator.
When I started representing Mr. Peterson a decade-and-a-half after his conviction, we sought to retest the previous DNA samples. This new testing resulted in successfully excluding Mr. Peterson from both samples of semen recovered from the victim. What’s more, it identified the donor of both samples as the same individual—a man named Jason Ryan. Mr. Ryan was arrested and the prosecution charged him with sexual assault and murder. Mr. Ryan had no known connection to Mr. Peterson.
Despite this turn of events, the same prosecution office did not drop the charges against Mr. Peterson. The prosecution contested Mr. Peterson’s release.
We had a hearing. At that hearing, the State strenuously argued that Mr. Peterson, too, was guilty of this crime. In support of its position, the State repeatedly cited Mr. Peterson’s confession, arguing that the details in the confession proved that it was reliable and Mr. Peterson was guilty.
We prevailed at that hearing, and Mr. Peterson was exonerated.
You may think the prosecutor’s position made me angry. It didn’t. Frustrated, maybe, but not angry. I believed that no matter how outlandish their theories sounded, they must have really believed it. I believed it was cognitive bias that caused them to cling to the reliability of Mr. Peterson’s confession, and I knew that cognitive bias could be psychologically powerful.
What made me angry however—perhaps more angry than I’ve ever been in my career—is what happened months later.
During pre-trial proceedings against Mr. Ryan, his attorney alerted the court that it was going to seek to introduce Mr. Peterson’s confessions at the upcoming trial for a variety of purposes that she believed would aid her defense of Mr. Ryan. In response, the prosecution argued that Mr. Ryan could not introduce Mr. Peterson’s confessions, because they were unreliable.
To recap: Literally months after the prosecution vehemently argued to uphold Mr. Peterson’s convictions despite exonerating DNA because Mr. Peterson confessed reliably, the same prosecution’s office sought to exclude those same confession in a different proceeding because Mr. Peterson’s confession was unreliable.
That made me angry. That proved to me it wasn’t about cognitive bias, or justice, or anything else for the prosecutor: It was about winning at all costs.
I figured this situation was an aberration. I had never seen anything like this in my career up until that point.
Until today.
While researching another matter, I came across this decision. It is almost the identical scenario a decade-and-a-half earlier. Months after the Cook County State’s Attorney’s Office convicted Michael Sullivan and Andre Mauldin based on their confessions, the State charged a third codefendant, Deangelo Anderson, with the same crime. Mr. Anderson’s attorneys sought to introduce the Sullivan and Mauldin confessions to aid their defense of Mr. Anderson. The State objected, arguing that the Sullivan and Mauldin confessions were not reliable. Again, this came literally months after the same prosecution office just introduced and extensively relied on Sullivan and Mauldin’s confessions in their prosecutions of Sullivan and Mauldin.
The appellate court commented on this hypocrisy:
In conclusion, we find the state’s argument that co-defendants’ statements are unreliable ironic because the circumstances under which those statements were made, memorialized and verified were almost exclusively in the state’s control. Furthermore, co-defendants’ statements were introduced and used against Mauldin and Sullivan at their own trials by the state which, at that time, urged their reliability.
My bubbling anger at this situation resurfaced again today. That a prosecutor’s office could take polar opposite positions about the reliability of the same piece of evidence—depending on the circumstances—infuriates me.
Criminal justice is not a game. Real people’s lives are at stake. A prosecution cannot just be about winning.
I still maintain a belief that most prosecutors inherently want to do the right thing. I believe there are systems and cultures that often cloud judgment that make prosecutors take positions that sometimes seem irrational. But if I keep seeing situations like this, my faith in this opinion is going to continue to dissipate.