In 1995, Barry Scheck became known to anyone with a TV set as a member of O.J. Simpson's legal Dream Team. His area of expertise: the still-nascent use of DNA evidence to demonstrate an alleged criminal's guilt or innocence. Since then, Scheck has emerged as the world's most recognized legal authority on the subject, and his Innocence Project, the group he founded with fellow attorney Peter Neufeld, has championed the use of DNA testing to expose a stunning number of wrongful convictions. The group's work has contributed to a widespread re-consideration of the death penalty and, arguably, a reappraisal of the entire crim-inal justice system. Jungle contributing editor Jack Hitt talked with Scheck about his work, its limits, and whether lawyers and law students should join his cause.
JD Jungle What was the inspiration for the Innocence Project? Was there a moment?
BARRY SCHECK My colleague Peter Neufeld and I were asked by a public defender's office to re-investigate a case in 1987 about a man everybody believed had been wrongfully convicted. We tried to do DNA testing, which was just beginning then, but there wasn't enough sample to get a result. We were able to prove with the help of law students that this individual, Marion Coakley, was innocent, by other evidence. But we knew from the beginning that DNA testing would be incredibly important to the criminal justice system, not only to identify the guilty but to protect the innocent. We also knew that this form of testing would demonstrate that a lot of people had been wrongfully convicted, but we never suspected that it would be so many. Once you've been involved in a case where somebody has been proven innocent, it's hard to give up doing it again and again. There is no higher purpose or calling in the practice of law.
JD How many innocent people have been saved from the death penalty, and why do so many wind up on death row in the first place?
BS Right now there are 123 people nationwide who have been exonerated because of DNA tests performed after a conviction. Twelve of these individuals had been sentenced to death when post-conviction DNA tests proved their innocence. Their sentences were vacated and the charges were dismissed.
JD So the death penalty is unfair simply in the way it's imposed?
BS Absolutely, and the problem is revealed in ways other than wrongful convictions. There is a larger problem identified by professors Jim Liebman and Jeffrey Fagan of Columbia University: erroneous guilt and sentencing. They have shown that some 68 percent of death verdicts are subsequently reversed by state appellate courts or federal courts due to serious error. And they have shown that when reversed cases were sent back down for re-litigation, 82 percent of individuals were not sentenced to death the second time around, and 9 percent were adjudicated not to have committed the crimes at all. So the inefficiencies in the current system go beyond its unreliability in making guilty or innocent determinations. It's also highly inefficient in making the refined judgments necessary under our Constitution to decide who will live or die among those classes of people who did commit the crime.
JD Some have argued that such inefficiencies simply show the system working: Cases get appealed, truth comes out, justice is done. Is there another way society suffers from the way our system now works? BS Yes. Higher crime. When you jail an innocent person, the crime rate goes up. Society pays a terrible price when the wrong person is in prison, because the real assailant is free to commit a whole series of new crimes. In Florida there was the story of Frank Lee Smith, who tried unsuccessfully to get a post-conviction DNA test to prove he was innocent. The courts and the state prosecutors refused him the opportunity to have DNA tests. They were performed after Smith died of cancer on Florida's death row. The test proved he was innocent of the rape and murder of Shandra Whitehead, and it also demonstrated that the DNA belonged to the person Smith's lawyers had always contended committed the crime for which Smith had been sentenced to death, a man named Eddie Lee Mosley. Then, with the help of police officers in the Fort Lauderdale area, it was proven that Jerry Frank Townsend, a mentally retarded man who confessed to eight rape-murders, was also innocent, and his innocence was proven by post-conviction DNA tests, which pointed to Eddie Lee Mosley. Two innocent men—Smith and Townsend—rotted in prison for years. Meanwhile, police believe Mosley has committed countless rapes and homicides in the Fort Lauderdale-Broward County area.
JD Does the Innocence Project take just any case, or is there a selection process in order to ensure the group lives up to its name?
BS The Innocence Project at Cardozo Law School only takes cases where a DNA test can raise a reasonable probability that the individual did not commit the crime. So we have to find biological evidence that is probative and is subject to a DNA test. We now have 35 other innocence projects at law schools or journalism schools all around the country and most of those will take cases that involve non-DNA evidence. In other words, they will do a complete re-investigation of a case on the belief that the individual is innocent and look at other things besides DNA—this magic bullet that will prove them innocent. That's a much harder and more labor-intensive undertaking.
JD Fingerprinting was introduced a century ago as the ultimate crime fighting tool; now we know it's not foolproof. Does DNA have room for error?
BS Absolutely. No question. Recently the DNA lab in Houston was called on the carpet. The City of Houston called for an audit because of problems in the way the testing and documentation were performed at that laboratory. We don't know if this will lead to evidence that there were wrongful inclusions or exclusions. But we do know that there are serious questions that the work wasn't done properly. DNA is foolproof, the old adage goes, but any fool can do it. Like any kind of scientific test, if it's not properly administered, there will be a problem.
JD Is the main problem with DNA testing the problem of fraud among the testers?
BS It's the biggest problem. Many people have heard of Joyce Gilchrist, the Oklahoma Police Department forensic chemist whose testimony in hundreds of lab tests is now being investigated. But maybe you haven't heard of Arnold Melnikoff, who ran the crime lab in Montana for nearly 20 years. His wrongful testimony about body hairs found at the scene put Jimmy Ray Bromgard in prison for some 15 years. Now all his work is being reviewed by Montana. He moved on to Washington state, and now they are conducting a review of his work there as well. In West Virginia, it's been determined that a forensic scientist named Fred Zain [was accused of having] provided false reports in several hundred cases. He is believed to have either not done the forensic test he said he'd done or he misreported the results—they call it "dry labbing." It doesn't mean all these people were innocent by any means. It does mean that the test results are subject to question. Meanwhile, Zain had moved on to Texas where he was accused of offering DNA results that were fraudulent in a murder case. Audits of his cases have been conducted there as well.
JD Are defense lawyers blameless in all this?
BS Not at all. It wasn't too hard to expose Melnikoff if you were a sentient human being in the courtroom. In fact, Jimmy Ray Bromgard had a lawyer known as Jailhouse John Adams. He never gave an opening statement. He never hired an investigator. He didn't appeal Bromgard's conviction. Now the American Civil Liberties Union has brought a lawsuit charging the entire indigent defense system in the state of Montana with incompetence. And there are many other states where these kinds of lawsuits ought to be filed.
JD Have the death-row exonerations changed the debate?
BS The question of the death penalty in America is no longer whether one has a moral position that capital punishment is an appropriate sanction for the most heinous crimes versus a moral belief that capital punishment is not something a civilized society should inflict on anyone. Reasonable people can hold both positions. The real debate now has to do with fairness and administration, and I don't think any reasonable person can feel comfortable that our capital punishment system is being administered fairly. There are entirely too many innocent people being convicted to have any confidence in the guilt or innocence determination. Counsel for those facing the death penalty don't receive adequate funding. How can you excuse a system that allows a lawyer who slept through substantial portions of a trial? That's the Burdine case, in Texas. To have that conviction stand?
JD What specific reforms do you propose to stop wrongful convictions?
BS Here's just one example. In eyewitness identification, there is a process known as "sequential presentation of blinded examiners." If this is adopted there will be a dramatic reduction in the number of wrong identifications without any substantial reduction in the number of correct ones. The way this works is that instead of having a series of pictures or live individuals brought before a witness all at the same time, you present the pictures or the people individually. If you do that, you cut down on the number of mistaken IDs. What 20 years of sound scientific research shows us is that people will make a relative judgment. They will pick the person who most resembles the assailant. If the real perpetrator is not among those people in the photo array or lineup, then you might, by making a relative judgment, pick the wrong person. If instead, you present the people one at a time, saying, ÔIs this the person? Is this the person?', that dramatically cuts down on the number of wrong results. In addition, the person conducting the photo array or the lineup should be "blinded"—the individual shouldn't know who the suspect is. That way, the individual can't inadvertently reveal the suspect.
JD How do police and prosecutors feel when you reopen a case and an inmate turns out to be innocent?
BS All too frequently, the police and prosecutors become fixated on maintaining a conviction even when evidence points toward innocence. The reason is understandable—it's just human nature. A victim's family has been terribly wronged. They have been told by law enforcement and prosecutorial authorities that this particular defendant did it. That he's a horrible person, an animal. They've been taught to hate this person and then 10 or 15 years later, they have to go back to the victim and go back to their families and say it's all not true. It's hard for people to accept.
JD I'm a student facing massive debt. I'm looking at that cushy corporate law job, but my interest might lie elsewhere. Why should I help the Innocence Project?
BS First, it's not just the Innocence Project. What about going down and helping Stephen Bright, or the Southern Poverty Law Center, or Bryan Stevenson in Alabama, or any of the other heroic lawyers who are trying to do justice in this country? What about becoming a public defender or a prosecutor who's going to do good work? I don't pretend that when people have to borrow up to $150,000 to finance their education, that one can second-guess anyone for taking a corporate job. At the same time, we have to start loan-forgiveness programs for people who go into public interest. Believe me, in the long run, you become a better lawyer and a better person if you pursue the public good. As the philosophers Sly & the Family Stone noted, it can't do you no harm.
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