Barry Scheck Interview: Conversations with History; Institute of International Studies, UC Berkeley

DNA and the Criminal Justice System: Conversation with Barry Scheck, Professor of Law, Yeshiva University; and Co-Director of The Innocence Project, July 25, 2003, by Harry Kreisler
Photo by Jane Scherr

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Bringing Science to the Courtroom

What, then, led you down this path of bringing scientific insight into the courtroom? Tell us how that came about.

A competent criminal defense attorney has to learn over time how to deal with forensic evidence. Here I'm talking about the social science and science behind eyewitness identification, false confessions, and all kinds of forensic applications. Over time, as cases demanded it, I would learn something about all these different disciplines and how they intersected with criminal law. If you do a murder case, you have to know something about forensic medicine, what medical examiners do. If you deal with a case that involves evidence from a crime scene and trace materials, you have to learn something about that. So just being a reasonably competent attorney, learning to do a good job, I learned things about that.

I got involved with one case in 1984 where we proved a fellow named Robert McLaughlin innocent of a felony murder in Brooklyn. It was a mistaken ID case. The lawyer I work with on that, Richard Emory, a prominent civil rights lawyer in New York, sent over a case that had come to him from the old public defender's office where Peter Neufeld and I worked in the South Bronx, a case involving a fellow named Marion Coakley. We tell the story in our book, Actual Innocence, where Coakley was convicted. He had seventeen alibi witnesses that he was at a prayer meeting in one part of the Bronx, when there was a couple having an afternoon delight in a Bronx motel, when somebody broke in, robbed them, raped them, drove off in their car, left a palm print on a rearview mirror, and of course, semen. The semen evidence was done with conventional serology techniques, and it didn't exclude him. It should have excluded him, but there were some problems in that. He was convicted. They asked us to look into the case, and we looked into the case, along with the serologist who had been involved in it, named Robert Shaler, who was then working with the New York City medical examiner's office. Bob said to us, "I'm going to go to work soon for a new company called Life Codes, and they're doing something called DNA testing. Why don't we try it on this case?" So we tried it, and there wasn't [enough] DNA to get a result.

Bob left the medical examiner's office, and Peter and I proved Coakley innocent anyway. We found this palm print on the rearview mirror of the car that didn't matched Coakley's. We found a lot of other proof. Coakley was exonerated. But we realized then that DNA was going to be extremely important, and it had not really been involved in courts yet. So we held a forum at Cardozo Law School involving DNA testing, the first one, I think, in any American academic institution for its forensic application. Somebody from our old office in the South Bronx said, "Gee, there's a case [where] they're trying to introduce blood evidence, that blood on a watch came from a murdered woman, and that the blood on the watch did not come from the defendant himself." The prosecution was using Life Codes, the same operation that Shearer went to work for.

We were asked to do a hearing, as court-appointed lawyers, along with students from the clinic, on the admissibility of this evidence. In the course of that hearing, which took about four months, we were able to get pro bono the very best scientists in the world to look at the evidence. We became very involved in this; we knew it would be important. Our position was that because of certain technical problems they couldn't say that the blood from the watch came from the victim because it really didn't match, and also they couldn't calculate the statistics correctly, they were doing a bad job of it. But the conclusion that the blood on the watch didn't come from the defendant was scientifically incontestable. So we said, "Well, that's true," even though the prosecution wanted to use it.

In the middle of this admissibility hearing, which took a long time (and ironically enough was presided over by Judge Jerry Scheinlin, who is Judge Judy's husband, and once had a little run as a television judge himself), in the middle of the hearing, the evidence that our scientists came up with was so overwhelming that the scientists on the other side said, "What? You guys are right." Together they wrote a joint statement of experts saying that this technology is very, very important to the criminal justice system, it is being used incorrectly here, and that the National Academy of Sciences ought to develop a study commission to make sure that the transfer of this technology, DNA technology, from medical and research uses to the forensic arena is accomplished reliably.

Our witnesses, for example, included Eric Lander, who is at the Whitehead Institute now, and Harvard and MIT, and is probably the principal public person responsible for mapping the human genome, along with a colleague of his, Dr. David Page, who was very famous for his work on the Y chromosome. On the other side was a scientist named Dr. Rich Roberts, who soon after our hearings won a Nobel Prize for his work on restriction enzymes. So they all got together and they said this is what should happen, and, indeed, it is what happened. The National Academy of Sciences issued this report and another report after that. We got involved at the ground floor with the leading scientists, trying to think through how to use this technology correctly, how to develop standards for it, how to think about civil liberties implications of its use. That was a great place to be: we got in on the ground floor of the application of this technology with the criminal justice system. I didn't know anything about DNA, neither did Peter, and we got educated by the best teachers in the world in the context of litigation. It's extraordinary.

So this case became a forum for ideas about how to change or how to define the legal system's use of this in the future.

Yes. Scientists like Dr. Lander, Dr. David Page, Dr. Conrad Gilliam, especially a brilliant scientist at Harvard, Dr. Richard Lewontin, Dan Hartl -- really, what an education! -- Dr. Peter D'Eustachio, Paul Hagerman, some of the leading geneticists on the planet were dealing with lawyers and saying, "Let me teach you how it works." So Peter and I got to know a lot about a certain narrow area, but in a very interesting way. It's much better than taking a seminar and taking all these courses -- just have the best people teach you.

Now, in terms of another step in this, you and Peter were involved in the defense of O.J. Simpson, so I'm curious, what did that trial contribute to elevating the broader consciousness about how one should proceed with DNA evidence?

We started the Innocence Project as a clinical program at the law school before the Simpson case, in 1992, because we realized that just as DNA could be used to identify the real assailants, it could be used to exonerate people. We knew -- and it was very consistent with the position we took in the Coakley case -- that there were certain technical problems in the way it was handled that had to be overcome, but at the same time, the exclusion -- even though the prosecutor wanted to use it -- we didn't oppose. We also knew that this would be an amazing tool to revisit old cases where people had been dragged out of the courtroom, screaming, "I'm innocent! I'm innocent! I'm innocent!"

The Simpson case was something where we became involved initially just as consultants -- because we knew a lot about this stuff-- to Bob Shapiro, Jerry Ulman, and ultimately Johnny Cochran, who was called into the case. We had no intention of ever doing anything with the trial. We were just telling them, "This is what it means. These are the potential problems." And then slowly but surely, in a very strange, inexorable way, we got drawn in as lawyers in the case.

Now, in some ways, the Simpson case is a bit misunderstood. I will tell you, having wound up in the end giving the closing argument in the case with Johnny Cochran, that the O.J. Simpson trial, as far as I'm concerned, is about one of the worst things that happened to the criminal justice system in America, in terms of cameras in the courtroom, which I oppose, unless the defendant consents to it, and maybe even the prosecutor consents to it. I think it's potentially a terrible problem. It did terrible things for the way we cover criminal justice stories; it created this unbelievable ratings machine, where cable and over-the-air news media suddenly realized that if you cover a story that has sex, celebrities, and murder trials, which have always been interesting to people, you can get ratings, and if you get ratings all day all the time, it completely skews the news coverage. It became the most publicized trial in the history of our country, probably the planet. There were a lot of bad things about it, and what it said about our country, in terms of race, in terms of the way we cover criminal justice.

Oddly enough, though, in terms of the forensic science, there was a silver lining, because we never attacked the validity of DNA technology, because it is a valid technology, it's a revolutionary technology. The problem in the O.J. Simpson case is the way that the evidence was collected. They were using nineteenth-century evidence collection techniques for twenty-first century technology, which had more than the potential, but the reality of producing contaminated results. So in the end, the collection and handling of the evidence was the way that we attacked what was produced in the Simpson case.

The opponents that we had, who were the DNA specialists -- Woody Clark, who is the prosecutor in San Diego; Rock Harmon, who is the prosecutor here in Alameda County -- in the end, after the trial was over, we all became friends -- we actually knew each other and were friendly before that -- but allies after the trial. Woody and I were on a number of federal commissions that set standards. We literally hand out a pamphlet, millions of them, "What Every Law Enforcement Officer Ought to Know about DNA Testing: A Commission on the Future of DNA Evidence."

Now, everyone in the forensic community realizes that the collection and handling of this evidence is essential to getting reliable results. You get contaminated results if you commingle contaminant. So, for example, [people] made fun of the idea that evidence handlers ought to change gloves when they pick up items. So now, we literally send out instructions to every law enforcement officer, "Always change your gloves." "Never put anything wet into a plastic bag, which can cause bacterial degradation and ruin your evidence." When you think back on it now, everyone in the DNA forensic community looks with horror at the idea that they would take all the different evidence samples and put them on one table -- the blood drops from Bundy, the glove, and then Mr. Yamauchi would open up a tube of O.J. Simpson's blood and have it aerosol over the table, and he can't even remember whether he changed his gloves or not -- that is unreal to think about today. So that attack actually changed forensic science in a very profound way, because everybody understood that if you're going to get anything out of DNA testing you have to collect the evidence correctly, you have to make sure that the labs are handling it correctly, so that you don't screw up these results.

At the same time, DNA technology is really good, and it has shown that other forensic assays -- bite mark evidence, hair comparisons -- are very unreliable methods of analysis. In the area of forensic science, DNA technology has exposed a lot of unreliable methods and has made the law enforcement community realize that forensic scientists shouldn't be police -- cops in lab coats. What we have failed to do in this country is develop a tradition where forensic science is an independent brute force in the criminal justice system, where the same kind of vigorous standards that we require for medical scientists and research scientists are applied to forensic scientists. We have a lot of problems in the crime labs in this country. There are two chapters in our book, one about "junk forensic science," so-called, and another chapter about fraudulent forensic science, because we have problems everywhere. Today, we have lab scandals all over the place. We describe one in West Virginia, involving Fred Zane, whose dry lab didn't even do the experiments in about 330 cases, at the very least.

He just faked the data?

Faked the data. They had inconclusives, or just gave the results they wanted, didn't even do the tests. He moved on to San Antonio, Texas, where he did the same thing. Joyce Gilchrist, whom we mention in our book in the first edition (we have a new one coming out in the fall), has now been caught in Oklahoma City, a known ersatz forensic scientist, who was caught giving results that didn't make any sense, where she may not have even done the work, and she's been fired. Now they're looking at 3,000 cases and [will] whittle them down to another about 300. We have lab scandals today in Houston, Texas -- Harris County. If Harris County, Texas, were a state, they would have executed more people in this country than any state other than Texas. It executes more people than any other site in the Western world. And in Harris County, Texas, we now have a scandal involving a bad, unaccredited DNA laboratory that is getting results that convicted an innocent man named Josiah Sutton; we've now determined it with additional DNA tests. We have a ballistics lab there that is getting unreliable results in case after case. What has to happen there (it's a huge scandal,) is that every case done by the bad DNA analysts, every case done by the people that were doing fraudulent or grossly incompetent ballistic work, has to be reexamined. I mean, that's extraordinary. We're having these scandals in Florida now, in Indiana last week, various places across the country.

What DNA testing has done -- and, in part, the work we did in the Simpson case -- is change the whole way that forensic science operates, hopefully for the good. Because what people have to understand, in terms of the crime, and then, frankly, in terms of all these other issues, is that nothing convicts an innocent person faster than a crime lab that doesn't get it right. At the same time, every time an innocent person is convicted, the real perpetrator is out there committing more crimes. So our movement is really about good law enforcement. I can't think of any more important issue in terms of good and effective law enforcement in this country than cleaning up the crime labs.

Next page: Reforming the Criminal Justice System

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