When tests showed that the semen found in the mouth, rectum and vagina of Hobbs' daughter came from someone other than Hobbs, Mermel argued that Hobbs was still his man, and that the semen could be explained by the fact that the girl often played in a woods where people have sex, even though the girl was found fully clothed. Mermel also pointed to Hobbs' confession, which Mermel says included details that could only have been known to the killer. Well, the killer and the police officers investigating the case.
Steven Drizin, who heads up the Center on Wrongful Convictions at Northwestern University, wrote last month about the conditions of Hobbs' confession:
Hobbs was taken into police custody at 10:00a.m. on May 9, 2005 and interrogated for at least 16 hours until police claim he confessed at 4:45 a.m. on May 10th. Hobbs had not slept the night before (he was out searching for his daughter) and did not sleep once in custody. While in custody, he was subject to the full battery of psychological techniques by teams of detectives in a tag team fashion. Hobbs's interrogation was not recorded (a new law requiring recording had passed in 2002 but would not become effective for a month or so), although police did prepare a typed statement which Hobbs signed.
The confession closes with an apology for what happened, claiming that "things got out of hand." (police are trained to write such expressions of remorse into their statements).
Prosecutors quickly announced that they were seeking the death penalty against Hobbs. Throughout the time he was in custody, Hobbs's face was always on the news and reporters were talking about him as a "person of interest" or "being questioned by police" and detailing his criminal history. The confession is the only evidence the police have against Hobbs. There were no eyewitnesses to the crime and no murder weapon was recovered. Although Hobbs was wearing the same clothes when arrested as when he found the girls, no blood was found on him, his clothes or his shoes. Although some of the details in the confession are consistent with the wounds on the girls' bodies, without a recording of the interrogation, there is simply no way to know whether these details were suggested to Hobbs by the police during the questioning, whether he knew the information because he saw the girls when he found the bodies, or whether he knew the details because he was there when they were killed.
As Washington, D.C. police Detective Jim Trainum wrote earlier this year in the L.A. Times, even well-intentioned police investigators can unintentionally elicit a false confession. They can also unknowingly impart details of the crime to the person they're interrogating.
Here you have a confession made under duress, then quickly retracted. You have an interrogation that wasn't recorded. You have no physical evidence linking the suspect to the crime scene. And you have the semen of a man other than the suspect all over one of the victim's bodies. Yet Mermel plans to forge ahead with his prosecution.