Rivera lawsuit: Police planted blood on shoes

New allegations from man cleared in the 1992 killing of 11-year-old Holly Staker

By: Steve Mills & Dan Hinkel, Chicago Tribune: December 11th, 2014

Before Juan Rivera went to trial for the August 1992 rape and murder of an 11-year-old girl, police and prosecutors in Lake County heralded a piece of evidence they said linked him to the crime: a pair of sneakers that authorities said belonged to Rivera and were stained with Holly Staker’s blood.

But by trial, prosecutors backtracked, never introducing the seemingly pivotal evidence.

Now, three years after Rivera was exonerated and freed from prison with the help of DNA evidence, his attorneys have made a startling new allegation in a federal lawsuit –that police planted the blood. Their evidence: The shoes were not available for sale anywhere in the country until after Holly was fatally stabbed in Waukegan.

What’s more, recent DNA testing on the pair of black Voit high-tops has, for the first time, detected another substance mixed in with the blood. Lab tests discovered that the second substance matches the genetic profile of the as-yet unidentified suspect whose semen was found in Holly’s body, buttressing the claim that authorities tampered with evidence, Rivera’s lawyers say.

“The only realistic inference from the foregoing evidence,” the lawyers wrote in court papers filed in federal court late Tuesday, “is that someone endeavored to plant Holly Staker’s blood on Mr. Rivera’s Voit shoes and in doing so inadvertently planted both her blood there and the blood of the as-yet unidentified killer.”

Rivera’s attorneys are seeking additional DNA testing they say will help show the evidence was planted. The genetic match once touted by police and prosecutors had been obtained two decades ago through primitive DNA testing that was not as statistically certain as matches made today. Rivera’s lawyers want to test the evidence again using more sophisticated methods to confirm it was Holly’s blood that was mixed with the suspect’s DNA.

But lawyers for Waukegan police oppose the testing, arguing it would use up the remaining DNA evidence, compromising the reopened investigation into Holly’s slaying. On Wednesday an attorney representing the north suburban Police Department and individual officers in the lawsuit also denied any knowledge of tampering.

“We do not know of any police misconduct or planting of evidence,” attorney Peter Trobe said. “If we knew of that type of activity, we would report it to the state’s attorney’s office for investigation.”

Lawyers for officers from other police agencies being sued by Rivera could not be reached for comment or declined to comment.

The evidence has potential relevance beyond the lawsuit or the investigation into Holly’s murder. Earlier this year, DNA testing showed that the substance on the shoes and the semen from Holly’s body both matched DNA recovered from a bloody two-by-four used to beat a man in North Chicago in 2000. That suggests the unidentified suspect in Holly’s slaying may have also taken part in Delwin Foxworth’s beating.

Lawyers for Marvin Williford, who is in prison for Foxworth’s murder, claim the DNA evidence proves his innocence.

Authorities say they are reinvestigating the killings of Holly and Foxworth. Lake County State’s Attorney Mike Nerheim, who took over the troubled office in 2012, said the Voit sneakers are part of both investigations.

Rivera was convicted of Holly’s murder three times in one of Lake County’s most controversial cases. Prosecutors were widely criticized for taking Rivera to trial for a third time even after DNA tests showed another man had sexually assaulted the girl. But authorities contended the DNA did not point to Rivera’s innocence, arguing instead that, at 11, Holly was sexually active and had sex with someone else before Rivera killed her.

The Illinois Appellate Court overturned the last conviction in December 2011, noting that the DNA undercut Rivera’s confessions obtained by police after repeated questioning over four days. The court took the extraordinary step of barring prosecutors from trying Rivera again for the homicide.

Before the first trial in 1993, the blood on the shoes was the prosecution’s only forensic evidence purported to link Rivera to Holly’s rape and murder.

“It is the state’s belief that the defendant was wearing those shoes at the time of the homicide,” Assistant State’s Attorney Jeffrey Pavletic was quoted in a transcript as telling a judge a few months before trial. “In fact, it was those shoes that he was wearing that were then spotted with the victim’s blood.”

A few weeks after Rivera’s arrest, investigators obtained the shoes from an inmate who had been locked up with Rivera at Hill Correctional Center. The inmate, David Howard, told investigators he had traded Rivera his television for the shoes and $20. Rivera was then serving time for an unrelated burglary.

But as Rivera’s lawyers prepared for the trial, an investigator for the public defender’s office who was working on the case made the discovery that the Voit sneakers, made in Hong Kong, had not been available in the U.S. at the time of Holly’s slaying. The shoes were then at a warehouse in California awaiting delivery to regional distribution centers for later sale at Wal-Mart stores around the country, according to court records.

The investigator, David Asma, also went to the Wal-Mart store in Gurnee where Rivera’s mother said she had bought the shoes and got the cash register tape showing the purchase took place after the slaying.

According to attorneys, Howard was in prison when the slayings of Holly and Foxworth occurred.

About two months before Rivera’s first trial, one of his attorneys said in court that the defense planned to call a witness who worked for the importer of the Voit shoes to testify they were not for sale at the time of the slaying. At a hearing a few weeks later, then-Assistant State’s Attorney Matthew Chancey disclosed that the prosecution no longer planned to use the shoes as evidence.

None of the attorneys in court that day addressed how Holly’s blood could have gotten on the sneakers if they were not even on sale the day of her murder.

Lawyers from Rivera’s legal team from the first trial either declined to comment or said they did not recall the details of the legal fight over the shoes. Chancey also said he did not remember it well, and Pavletic could not be reached for comment.

The sneaker evidence adds to troubling questions that continue to emerge about the investigation into Holly’s slaying more than two decades after she was killed. In January, the Tribune revealed that in 1994 local police took possession of a serrated knife that had been found steps from the crime scene.

By the time the potential murder weapon was discovered, Rivera had been convicted once but still faced two more trials because of post-trial reversals. Yet his lawyers said they were never told of the knife, even though its discovery clashed with Rivera’s confession and his claim that he had broken a knife during Holly’s murder. There is also no indication authorities conducted forensic tests on the knife, according to records and interviews.

In June, the Tribune reported that the DNA from the unidentified man who raped Holly matched blood taken from the two-by-four that was used to beat Foxworth before he was doused with gasoline and set on fire.

Lawyers for Rivera argue that the link between the two slayings supports their claim that he was wrongly convicted and suggests that prosecutors, by wrongly pursuing him, allowed the real killer to murder Foxworth eight years later.

Rivera’s prosecution is one of four cases in which Lake County prosecutors insisted on an inmate’s guilt even after DNA evidence had indicated his innocence. All four men were cleared during the last years of retired State’s Attorney Michael Waller’s 22-year tenure but only after they had spent a combined 60 years in custody.

Waller left office in 2012 and was succeeded by Nerheim, who promised reform.

As Rivera’s civil lawyers try to prove he was railroaded, the authorities who won Rivera’s convictions face questions about the case they built. Charles Fagan, an investigator who helped obtain Rivera’s confessions, said during a sworn deposition in October he remembered little about the episode with the shoes. Fagan, who served as undersheriff of Lake County before retiring in 2011, said he did not plant the evidence on the shoes and did not know of anyone else doing so, according to a copy of the deposition.

Asked if he still believed Rivera committed the murder, Fagan responded, “I think so.”


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