An appellate court decision reversing Juan Rivera's conviction for the 1992 rape and murder of 11-year-old Holly Staker doesn't mean Rivera's release from prison is imminent.
That decision rests largely with Lake County State's Attorney Michael Waller, who has not yet indicated whether he will request a rehearing before the 2nd District Appellate Court in Elgin or appeal the decision to the Illinois Supreme Court. Waller has indicated it could be next week before he makes a decision.
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Until then, Rivera and his family wait.
"We have no idea what his attitude is," said Rob Warden, executive director of Northwestern University's Center on Wrongful Convictions, whose attorneys represent Rivera, 39.
Waller has up to 35 days to make his decision before Rivera would be released automatically, Warden said, adding that he hopes Waller "will do the right thing ... and drop (the charges)."
Police found Staker's body in August 1992 in the Waukegan apartment where she baby-sat. She had been sexually assaulted, strangled and stabbed 27 times. In October 1992, investigators, working on a tip that Rivera might know something about the crime, interviewed the then 19-year-old who at the time was in prison for violating his probation on a burglary conviction. Rivera reportedly gave conflicting accounts about his whereabouts at the time of the murder over several days of interrogation.
Although no physical evidence linked him to the crime, he was convicted in 1993. The appellate court reversed the conviction and ordered a new trial. Rivera was convicted again in 1998. The appellate court upheld that conviction but in 2004, defense attorney Jeffrey Urdangen from the Center on Wrongful Convictions secured a new trial based on DNA analysis that excluded Rivera as the source of semen collected from the 11-year-old. Rivera's 2009 trial ended with a third conviction and a life sentence.
On Friday, the appellate court found that prosecutors' evidence was "insufficient to establish guilty beyond a reasonable doubt" and reversed the conviction, leaving several possible scenarios.
Urdangen declined to comment on the case.
If Waller decides not to appeal, Rivera would be released, Warden said.
If Waller does proceed, the appellate court could affirm its ruling or remand the case to the lower court for a new trial. If the appellate court declines to revisit the case, said Warden, Waller could file a petition for leave to appeal to the Illinois Supreme Court. If that court grants the appeal, oral arguments would be scheduled within three months, at which time the Illinois Supreme Court would uphold the decision or remand it to the appellate court.
"With an opinion like this, which is unanimous, it's unlikely the Illinois Supreme Court would grant the petition," said Warden, adding that if it gets to the Illinois Supreme Court and the justices deny the appeal, "it's all over and Mr. Rivera goes free."
"If this opinion stands he cannot be retried," Warden said.
Assuming it does, Rivera can petition the court for a certificate of innocence, said Warden, or he could also petition the Illinois Prisoner Review Board to request Gov. Pat Quinn issue a pardon based on innocence.
"We've had clients who've been exonerated in both manners," Warden said.