Barry Scheck

DNA expert and one of the defense lawyers in the O.J. Simpson case. He is a professor at the Benjamin N. Cordozo School of Law at Yeshiva University and co-founder of the School's Innocence Project.

Q: When you take these DNA exoneration cases, the ones which set an innocent person free--what do they represent to you?

SCHECK: The post-conviction DNA exoneration cases are telling us that there are more people being convicted for crimes in our criminal justice system who are innocent than any of us wanted to believe. It's really that simple. And there are many causes for this.

Probably the first one is that when you have a system where most of the people who are charged with crimes are being represented by lawyers who are court-appointed (because the people are indigent), who lack experience in many instances or come from public defender offices that have too many cases and are unfunded, who are involved in cases where the crime labs are underfunded, where even the prosecution is short of resources and the caseloads are backed up, it makes a certain amount of sense that if the system is not funded and poor people are really getting screwed in the system that you're going to have mistakes. That there is going to be an error rate in that kind of system.

There are other things that arise in almost all of these cases. There's police misconduct in many instances, prosecutorial misconduct, and as I was saying before, bad lawyering. Nothing convicts an innocent defendant faster than having a bad lawyer. No question about it.

But finally and most importantly what these cases are telling us is something that we already knew from other studies. Mistaken identification is the single greatest cause of the conviction of the innocent. True today, it's always been true, DNA testing is showing us with a great deal of scientific certainty that it's an even greater problem than we suspected.

Q: What exactly does DNA evidence tell us?

SCHECK: DNA testing has given us a tremendous opportunity to learn a great deal about all the other parts of the criminal justice system--what works and what doesn't work. Because we can take a look at cases, those where people have been included by DNA testing in, let's say, sexual assault batterers where the issue of identity is really the only issue and those who've been excluded. And we can take this very considerable number of cases that we have and we can ask: What was it that went wrong in the cases where people were wrongfully arrested or convicted?

And DNA proved with a great deal of scientific certainty that they couldn't have been the perpetrators of the crime and then let's look at the cases where the police got it right and we asked ourselves the question: Were they doing something particularly good in these cases? And we want to look at methods for eyewitness identification methods for interrogation of suspects by police, methods of crime scene investigation, methods employed by police generally and prosecutors in handling these cases, and, of course, the defense lawyers. All these factors can be examined now with this unique magic black box, in a sense, imagine. When you saw a case, depending whether you're a judge, a prosecutor, a defense lawyer, anyone in the system, you see a case where somebody is convicted and they drag that individual out of the courtroom and he is screaming, "I'm innocent, I'm innocent," and you walk away sometimes saying, "I don't know, there's some doubt." Now we can go back to those cases 15, 20 years later and we can find out. And literally quite a few of our clients who have been exonerated in post-conviction DNA testing were dragged out of the courtroom at the time of sentencing and conviction screaming, "I'm innocent, I'm innocent" and it haunted all the people involved in the case and then we come back 20 years later with this magical black box that suddenly produces the truth.

Q: Why are we seeing more of these cases? What's going on?

SCHECK: Ever since the Justice Department published its study in June of 1996 entitled "Convicted by Juries, Exonerated by Science: The Post Conviction DNA Cases." At that time there were 28 cases. Since then seven more people have been exonerated. [That is] 35. We have four motions pending in this office which I am confident will result in exonerations either by gubernatorial pardon or by court order. And there's more. The reason is that there is a group of individuals, probably a class of individuals, in a 20-year span where it's going to be possible to find biological evidence that if we test it with DNA is going to be determinative on the issue of guilt or innocence. And we find in our work that 60% of our cases, we cannot find the evidence. The evidence has been destroyed. If that number were higher, there'd be even more people exonerated through post-conviction DNA testing.

There're more and more of these cases because DNA evidence can clarify what was previously ambiguous or frankly misleading to juries in terms of biological testing. Now we can go back to a case where sperm on a vaginal swab, something that could only have been left by the perpetrator of either a homicide that involved the sexual assault or sexual assault and we can cut right to the issue and have a determinative finding on identity. And we can go back to cases that are 10, 20, 30 years old and retest them. And as we go back through them we're going to get more and more exonerations.

Q: What do these cases tell us, in particular, about eyewitness identifications?

SCHECK: Well, mistaken eyewitness identification is particularly difficult for the criminal justice system, because if a victim of a crime mistakenly identifies an individual, that person is a crime victim, so he or she will naturally engage our sympathies. That person is telling the truth as the individual sees it. They're not lying. The person is making a mistake and it's very, very hard to get beyond that ... it's very hard to combat that testimony with, you know, sort of dry statistics almost saying, "Well, the descriptions don't match or the opportunity wasn't very good." It's a very hard thing for a judge or a jury to evaluate. Is this person making a mistake or not?

What's interesting is, at least in the DNA cases where there's biological evidence that can either affirm or definitely reject the eyewitness identification, we have a check on this very fragile kind of testimony. But what about all those other cases where there's no biological evidence that turn on mistaken identification. It's a very troubling situation.

Q: A good cop gets a mistaken identification from the witness--how does he begin to focus? What happens?

SCHECK: Even the best of police officers or prosecutors can get into a situation where they have a witness who is the victim of a crime who they believe to be telling the truth because the person is telling the truth, but is mistaken and they feel very very strongly that they want to support the witness, they want to support the crime victim, it's a terrible thing that's happened, but as the evidence comes in, it is inconsistent with the guilt of the person being charged because after all it is a mistake.

Sometimes people are very honorable and they turn over all the evidence that's inconsistent with guilt, other times human nature takes over. And people start brushing it aside or they start convincing themselves that it couldn't be true or it's not that important and other times people feeling that they've got the right guy do things that are just plainly misconduct. That's the pattern that you see very frequently in these cases.

Q: So we are learning a lot about our criminal justice system because of DNA?

SCHECK: It's giving us a set of cases where we can look at all the other things that go on in the system and see what we're doing right and what we're doing wrong. What is it about these cases where we know a mistake was made that produced that mistake in terms of methods for eyewitness identification. Evidence collection, crime lab, police work, the work of prosecutors, the work of defense lawyers, and what is it that was done right in these other cases where we have DNA confirmations? Unique situations, that's one key way that DNA is going to transform the system ...

Q: What's a cop to do? Police have a job, they're depending on a witness...

SCHECK: Well, I think that there are a lot of things that can be done with respect to the methods we use for conducting eyewitness identification. We have a great body of social science research that's telling us that the ways that we currently use to make identifications is in engendering to a certain degree mistakes. Mistakes may be inherent than the nature of eyewitness identification, certainly, but there are things we can do to prevent more of those mistakes that we're not doing. The world has not caught up with the social science research. That's one factor.

Another thing is that I think we can use DNA proactively to exonerate people in cases where it can be of some assistance before the investigation really gets very far off the ground. Extensive use now of the DNA data banks, if we put real money into that and into good quality DNA laboratories, will permit police to use DNA to find suspects and to eliminate people that shouldn't be suspects very very early in the investigation.

Now, because we don't have data banks in place and because we have limited resources, what happens is DNA is not used until the individual has already been arrested or indicted, and in many instances, obviously, we're using DNA in cases which are over.

Well, one of the things we have to recognize about DNA testing is that we can use it more proactively. We can use it in an earlier stage in the investigation than it is being used today. Right now, what happens is the police focus on a suspect and then they do DNA testing to try to see whether that person matches or not, long into the investigation, very frequently after an arrest or an indictment has been obtained. But what we can do now much more effectively is we build DNA data banks and we have this new form of DNA testing, PCR (polymerase chain reaction) testing where we can take smaller amounts of sample and test them at the beginning of the investigation without prejudicing the rest of the evidence--if it's done correctly. We can now use DNA to get suspects and to eliminate the wrong people very, very early in the investigation, but we're not putting enough money into it right now.

Q: How many cases are out there? Are we talking about 25, 28, 35, isolated individual cases ...

SCHECK: These cases are not aberrational. They're plainly just the tip of an iceberg. The fact of the matter is we've only been doing this in a semi-organized fashion for four years and our innocence project, and other groups that do this work, are very short of money and person power. But the fact of the matter is that in these four years the Justice Department in June of 1996 did that study where there were 28 cases of people being exonerated. Three months after that study was published, seven more people were exonerated--two of whom had been on death row. As we speak today we have four motions pending on cases that I feel confident, either through a governor's pardon or through a court order, people who've been in jail for a decade, are going to get out of jail because they didn't do the crime.

If we looked at all the work, the number of cases that come into our office here at the law school, we see that in 60% of the cases, we could do DNA testing in theory that would be determinative because the evidence would be determinative in the case, but the evidence has been destroyed. So we're really working with a much smaller number of cases than in theory we ought to have in terms of the number of people who've been convicted. There's yet another reason to believe that these cases are the tip of an iceberg.

And it comes from the FBI itself. Since the FBI began doing DNA testing in 1989 in sexual assault cases where the biological evidence tends to be determinative of guilt or innocence they have found that in 25% of the cases where they get results, they are getting exclusions of the primary suspect. Now, there could be reasons that number may be high. But make all the arguments in favor of that number being high. [It] could be that there is some laboratory error that were false negatives. It could be that the victim of the crime had a consensual partner that was not revealed and, this must be true as well, the suspect that's being excluded did not ejaculate. Both those things must be true, otherwise you'd see the suspect's DNA. Those things could happen. We want to say it's 20%, we want to say it's 15%. That number is still an extraordinarily large number when you consider the thousands and thousands of cases that go through the system all the time, when you're talking 15%, that's a lot of cases.

What's really impressive is that the FBI figure of 25% exclusions, in cases where they get results, is replicated by the private laboratories, CellMark, Life Codes. It's replicated by the state and local laboratories who have been doing this testing for a number of years and the same rate is found at Scotland Yard. That's very, very impressive. It's a robust number. It means that there're just a lot of cases out there [where] DNA could prove decisively that somebody didn't do a crime and those people are going to trial--would have gone to trial without DNA evidence.

Q: How important is DNA testing--are we seeing something truly revolutionary in our system?

SCHECK: DNA testing truly is revolutionary. It's transforming the way we do business in the criminal justice system. And it's only beginning. That's one reason that it's very important to make sure that the testing, itself, is done correctly, is done with the highest standards of quality assurance so that we don't make mistakes. But putting aside the issue of error, which is a big issue, but putting that aside the uses of DNA are changing everything. We can go back to these old cases and see whether or not the system made mistakes. We can look at old unsolved cases and find the real perpetrator in cases that are years old and, perhaps, most importantly, with the use of DNA data banks we can completely accelerate the way in which we do criminal investigations.

We're only at the beginning of this. Right now, DNA is used only after somebody has been arrested or indicated for the most part and then it's used to confirm or disprove the arrest. If we have DNA data banks and if the laboratories are using polymerase chain reactions test, which are the new form of DNA testing where you can just use a small amount of sample without compromising all the evidence in the case, then what you can do is use DNA testing proactively at the very beginning of the investigation to eliminate very quickly the people who shouldn't be suspects, but might otherwise be and to generate people who are suspects, strong suspects in the crime at the very beginning. That is going to save money in terms of the entire criminal justice system--police money, prosecutor money, defense function money and judicial money. It's going to save money across the board and it's going to essentially create a much better system for apprehending the truly guilty and excluding the truly innocent.

Q: Ronald Cotton said he learned about DNA by watching the O.J. Simpson trial. What has happened as a result of that trial in terms of people being aware of DNA?

SCHECK: I think that the O.J. Simpson trial, in the forensic community, has had a very good effect because where we travel, people in crime labs don't want to do a bad job and they say, "Accredit my laboratory. Give us money. Certify the individuals in the laboratory, that is have them go out, get education." We want to make sure that this extremely precious and valuable and powerful technique is not misused. That mistakes aren't made. We do see a movement among crime labs and state governments.

One of the great ironies of the O.J. Simpson case is before it started, Peter Neufeld and I were appointed to be commissioners of forensic science in New York. We're on something called the Forensic Science Review Board where we actually require labs to be accredited and help set standards so that we can raise the level of laboratory work, and we work cooperatively with people in the crime labs and all across the country people are calling us in and we are trying to support them so this is done correctly. It's very important that it be done correctly.

[But] ... one of the great misimpressions about the Simpson case, frankly, is that it proves that money makes a difference. Well, that shouldn't be a surprise to anybody that money makes a difference in the criminal justice system. In this instance, you had a defendant, regardless of what one thinks about the verdict or the outcome, had a defendant who actually had resources who could not level but make the playing field a little bit more even. After all, the prosecution had 47 prosecutors working on the case. FBI, Interpol, the Los Angeles Police Department, the Crime Lab had tremendous resources, much greater than ours, but the point was with more resources than criminal defendants ordinarily get, we were able to demonstrate a lot that was wrong, I don't think anybody can dispute this, with the way the crime lab worked, medical examiner's office worked, the way the police department functioned. Now, a lot of people are sitting in jail cells across the country saying look I didn't do it and if I had one-tenth of those resources, I could have proven it. And they may have a real point.

Q: For an innocent person who gets out of jail after five or ten years--what do we owe them?

SCHECK: Compensation of those who have been wrongfully convicted is an extremely important issue. We have states where these statutes from 70, 100 years ago where people are being offered $5,000 for ten years in jail, $30,000 for 10, 15 years in jail. There are only two states in this country where one can actually get pain and suffering and lost wages for the entire period of incarceration if you can prove by clear and convincing evidence that you were innocent and wrongfully convicted. And it should not be a matter of fault. There are just some cases where mistakes are made, and in a just and decent society if the state puts somebody in jail wrongfully, if the system breaks down, then that person is a victim too, and it's a terrible tragedy and we owe them decent compensation. It's not too much to ask. But we don't have that in states across the country. We just don't have it.

Q: In summary, when you look at the results of DNA testing and hold it up to the system, what does it show you?

SCHECK: It tells us that our system is generating more mistakes than anybody really wanted to believe. It's not that surprising. When you have a criminal justice system where most of the people charged are indigent, and the resources that the state gives them to fight their cases are meager where public defenders are overburdened, where court-appointed lawyers get $500 for a felony case or a $1,000 for a death penalty case, why is it such a shock that things go wrong? When prosecutors don't have enough resources, when crime labs don't have enough resources? Where calendars are overburdened and judges have difficulties? Why is it such a shock that things go wrong? It shouldn't be.

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