March 11, 2013
The Chicago Tribune
Lake County prosecutor to review five more convictions, none with DNA issues like recent exonerations
By: Dan Hinkel
As he overhauls an office that repeatedly prosecuted suspects who were eventually cleared, Lake County's new state's attorney has chosen the first cases he's likely to send to a panel designed to root out any other injustices.
But unlike the prosecutions that collapsed under the weight of DNA tests during his predecessor's term, the five cases Mike Nerheim may put before his panel have one thing in common: They don't appear to involve DNA indicating innocence.
Nerheim told the Tribune that the likely first five cases involve three murders, a sexual assault and a misdemeanor battery. He hasn't been notified of meaningful DNA evidence in any of them, he said.
Nerheim said he picked defendants who contacted him claiming their innocence — as opposed to claims that their convictions should be tossed because of technicalities. He stressed that he hasn't formed an opinion about the potential innocence of the men. In fact, he had yet to review all the evidence when he chose the cases.
But the discrediting of three murder cases and a rape prosecution in Lake County through DNA evidence in recent years has helped motivate Nerheim's decision to review other cases in which the convicted insist upon their innocence.
Nerheim acknowledged he hasn't established a standard that inmates must meet to prove their innocence, and he doesn't expect an obvious answer in every case.
"It's not always going to be black and white," he said.
Though prosecutors nationwide have reviewed their own cases, Nerheim and experts believe his panel of outside lawyers is a first for a local jurisdiction. Nerheim's public stance on innocence claims represents a shift for an office that has looked skeptically upon even those inmates whose cases involved DNA indicating their innocence.
Anti-wrongful conviction advocates who criticized the former state's attorney, Michael Waller, voiced hope that Nerheim and his panel will seriously audit innocence claims, even those without DNA.
"If this is done with credibility, and I have no reason to believe it wouldn't be, the Lake County criminal courts building won't be tall enough to hold the feather that will be in (Nerheim's) cap," said Rob Warden, executive director of Northwestern University's Center on Wrongful Convictions.
The panel also won't review cases that are early in the appeals process, so as not to interfere with higher courts.
Nerheim plans to send each of the panel lawyers a summary of each case and documents to review and then he'll convene the group. Nerheim will make the final decisions.
The highest-profile prosecution Nerheim said he'll likely review is Jason Strong's. The case is unusual in that Strong was convicted before authorities discovered his alleged victim's identity.
Shortly after a woman's beaten body was found in a North Chicago forest preserve in December 1999, Strong confessed to killing her in his motel room northwest of Waukegan. Two alleged accomplices implicated him, but both recanted, according to court records and Tribune archives.
Authorities identified the woman in 2006 as Mary Kate Sunderlin, 34, a mentally disabled Kane County woman, and Strong's defense attorneys argue her identification calls his guilt into doubt. His lawyers said authorities should look closely at associates of Sunderlin including her husband, who has a history of arrests and mental illness, according to court records. Her husband confessed to her killing, court records show, though he gave accounts that appear fanciful.
Strong, 37, is serving a 46-year prison sentence.
Nerheim also tentatively plans to review the case of William Carini, who was convicted of sexually assaulting a woman at knifepoint in June 1991 after she parked her car to sleep near Gurnee, according to court records. She identified him as the rapist, though court records indicate he didn't match fingerprints or hair in the car. His stepfather provided him with an alibi.
Carini, now 50, was sentenced to 26 years in prison, according to court records, but while he was jailed, he was convicted of a 1983 double murder in Cook County, for which he is serving life.
The panel, Nerheim said, will also likely consider the murder case of Jeffrey Miller, 52, who was convicted of stabbing Elizabeth Merlock, 38, in Waukegan in 1996, according to court records. Miller is serving 56 years in prison, but he claims self-defense, Nerheim said.
Another potential candidate for review is Charles Blair, who was convicted of killing his wife, Teresa, in a Vernon Hills hotel room in 2001. Blair first said she drank heavily and took medications and had fallen, according to court records, but he eventually confessed to beating her. Blair, now 58 and serving a 38-year sentence, has said he falsely confessed, Nerheim said.
The only misdemeanor case is that of Vince Testa, who was convicted of battery and resisting arrest after a January 2010 confrontation with police at his home outside Libertyville in which he was shocked with a Taser on video camera.
The footage shows the altercation that followed Lake County sheriff's officers' attempts to serve an arrest warrant on Testa's son. Testa and his wife, Kitty, used the footage to produce a documentary called "iFramed," and they are suing police.
The footage shows Testa talking with officers at his door, and he was convicted of making contact with an officer as he walked in. Testa contends the officer grabbed his arm and pulled him in, and he argues his footage proves he didn't initiate contact. Appeals judges ruled that the video doesn't prove that claim.
Testa served his 200 hours of community service, according to court records, but he wants his conviction erased in part because he fears he's marked as a "troublemaker" to any officer who might check his record during a traffic stop. He has exhausted his appeals, he said.
"There's only one person who can actually do something about it, and that is Michael Nerheim himself," he said.
Testa's case is far from the four felony prosecutions that have called attention to Lake County's justice system. In those cases, prosecutors under the past state's attorney, Waller, argued the biological evidence was irrelevant. Waller pursued the defendants until the cases were upended by losses in higher courts or new suspects were discovered via DNA. He couldn't be reached for comment.
But most exonerations nationally have not come through DNA. Of the 1,067 exonerations the University of Michigan and Northwestern law schools count in their database dating to 1989, 344 involved DNA.
Still, about 25 years after DNA debuted in the justice system, it remains the gold standard of physical evidence, experts said.
The Innocence Project in New York doesn't take cases that don't involve DNA in part because the group's leaders want to build a database of ironclad innocence cases they can use to move policies surrounding interrogation, witness identification and other areas, co-founder Peter Neufeld said.
But, Neufeld said, DNA has "radically shifted" the landscape for all claims of innocence, spurring legislation in some states making it easier for inmates to challenge their convictions and causing judges to look more cautiously at jailhouse informants, confessions and other evidence.
Northwestern's Center on Wrongful Convictions does take cases without DNA, and 20 of the 41 exonerations the center has been involved with since 1999 didn't include DNA, Warden said. A case without DNA is tougher, he said, because a defense lawyer, instead of holding a forensic trump card, must negate each piece of evidence against the defendant.
Noting that only a fraction of cases include DNA, Warden said it's important to consider how many wrongfully convicted people are sitting in prison without evidence to prove their innocence.
One wrongful conviction is too many, said Scott Burns, executive director of the National District Attorneys Association. But he said prosecutors push about 15 million felony and serious misdemeanor convictions per year, and the percentage of faulty cases is small. "We only hear about it when the plane crashes," he said.