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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Reforming the Criminal Justice System

In a way, the work that you and Peter and the Innocence Project have done has held up a mirror to the criminal justice system, and revealed its flaws, its scars, and all of the corruption and organizational deformities that make the system not work. What do you see as the primary resistance to change in the system? What is it worth in your not achieving more in a shorter time, given the fact that you're bringing truth to the courtroom?

I have to look back at it another way: we've achieved a lot. The interesting thing about these DNA exonerations is not that DNA can exonerate somebody who is innocent and help identify the real perpetrator. Only 20 percent of major criminal cases have any biological evidence where you can perform a DNA test. The important issue is what are we going to do about all those other cases, the other 80 percent that have mistaken eyewitness identification, false confessions, other forensic assays that are unreliable; ineffective and incompetent defense lawyers that are underfunded or don't do the job; police that lie and prosecutors that cross the line? What about those cases? What about capital punishment?

That's where the legacy of the Innocence Project lies, because we can learn from the cases where we have all these exonerations about the causes of wrongful convictions and how to remedy them. That's what our book is about -- each [case]. We talk about eyewitness identification -- there are ways that you can make it more reliable. False confessions, videotaped interrogations -- you can make them more reliable. We have a whole program and whole agenda of reform, and it has reframed criminal justice issues in very important ways. So we're making an enormous amount of progress on that front.

In terms of why in a particular case, when you walk in the door with DNA evidence that exonerates somebody, you find that police and prosecutors resist it, even if they didn't try the case in the first place -- we found a lot of that, although, in many instances we have prosecutors and police that come forward and say, "Look, we want to do the right thing. I'm a minister of justice, that's my job, I want to correct my mistakes." But that's hard for human beings to do. There's a certain confluence of forces that can make it difficult in an individual case, particularly when it involves a heinous crime, or certainly the death penalty. And that is, number one: within a community you have the victims or the families of the victims, and they've been told for years, "This is a terrible person. This is an animal, a beast, that committed this terrible crime." Prosecutors and police are very reluctant to go back to the victims, understandably, and say, "Oh, we made a terrible error. I'm going to have to revive this horrible thing that you lived through and make you live through it again." In the case, for example, of a rape victim who mistakenly identified somebody, then they're doubly violated -- they're the victim of the crime, and now they have to relive the experience and come to terms with the idea that, by mistake, they may have had a hand in putting an innocent person in prison. That's a hard thing to accept. Very few people come to terms with it. We write in our book about Jennifer Thompson from North Carolina, who is a magnificent person, who came forward, and who describes the experience in a moving way. She has been a very effective politically for our Innocence agenda.

She was a victim?

Yeah, a victim, the Ronald Cotton case -- a very, very powerful person. They made a number of documentaries about it. She has been a very powerful citizen in favor of these reforms.

So, you can see that dealing with the victims and their families is very hard.

Then there's another unfortunate aspect, and that is that prosecutors and police sometimes feel that, "If we admit that we were wrong in this case, what about the cases that are going on trial now? Are the juries going to think, 'Hmm, we have to worry about these eyewitness identifications, these false confessions, that maybe the police aren't telling the truth, maybe there's overreaching here?' -- they're going to consider innocence and the possibility of it more seriously than they might otherwise." So they feel like it undermines the legitimacy of their efforts. I don't think it does. I think it actually, in the final analysis, enhances it. But that's what they worry about, that it's going to affect the jury in the next case.

So for all these reasons, and just the fact that human beings don't like to admit mistakes, especially important mistakes, we find resistance in some cases.

We've talked about finding this route to truth in the courtroom through DNA, we talked about the O.J. Simpson trial. Let's talk a little about the Innocence Project itself, because here you are out of the sixties, you made it clear that that was a formative experience for you. You set about shaping an organization that could carry the word forward and actually change things. Talk a little about that, and how your sixties experience helped you understand what you needed to do.

Actually, we look at it as a kind of civil rights movement to reframe criminal justice issues. It was my experience as a public defender that helped the most, because so many of these issues, whether it be mistaken eyewitness identification or false confessions, or unreliable forensic science, these were things that we knew about. DNA just became a way to reframe the issue in a fashion that the criminal justice community would understand and react to positively, because we can't argue with a case where we exonerated somebody, and we have so much to learn from it. This is the greatest data set in the history of our criminal justice system. We're now up to 132 post-conviction DNA exonerations, including 13 off Death Row. But even more importantly in a way, tens of thousands of people have been cleared by DNA testing after they've been arrested but before they were convicted, and there were mistaken IDs, and false confessions, and bad police work, and ineffective lawyering in all those cases. So we have an amazing data set to work with that scholars and criminal justice professionals will be studying for decades to come.

Peter and I are very lucky because we're well positioned to understand the significance of it. We started our project at Cardozo Law School, but we have colleagues that have been doing this. Our friends at Northwestern University, Larry Marshall, Rob Warden, a law professor and a journalist; we work with them. They performed a miracle in Illinois with those exonerations. And the courageous act of Governor Ryan, declaring a moratorium on the death penalty, forming a commission that set up all these reforms that we're talking about, and how you can prevent mistaken eyewitnesses, and prevent false confessions, and independent forensic science, better lawyering, all these issues, and then that act of giving clemency -- these are profoundly important. So we see these changes in state after state across the country, and particularly in the area of capital punishment and this whole notion of a moratorium, I see enormous changes.

So, in a way, the Innocence Project can be seen as both a research project and an instrument for social and legal change. You're combining the "Ivory Tower" with activism, which is not always easy to do.

Well, no, and that's what so great. That's what's great about being a clinical teacher; that tradition is growing since I became a legal educator. It's very funny, at the University of California at Berkeley I was part of a student committee that literally retarded the growth of clinics for decades because we invented something called a clinical semester, where you just go out and you work for somebody, and we give you credit. It really held back the effort to build clinical programs at Boalt, which are now growing and are great. It's ironic, I became a clinical professor.

But I find that the most stimulating, because you're not just doing doctrine, you're not just doing ethics-- the best ethics are the ones where you have real-life problems -- and you're not just doing practice. You have to do all of them. And that's very engaging.

I never thought that I would have one job for twenty-five years. It's one job, but look at all these different things I wind up doing -- I was representing battered women; I represented Evelyn and Heda Nussbaum in the Joel Steinberg murder case; and represented Louise Woodward in the so-called "Nanny Case" in Massachusetts, and learned about head injuries. What a great thing: you can learn about all these different social and legal and scientific issues as an academic, as a lawyer. This is the best thing about the profession.

You've discovered the secret to life, to find a job that lets you think, and work at changing the world.

It's almost too consuming, if you must know the truth. I'd like to stop working a little bit.

You're suggesting that the end result of all of this is not just to bring science in, but to reform the legal system. You're giving a structural view both of the problems and the possible solutions.

Yeah, we're lucky because this magic bullet, this telescope, so to speak, as our friend Jim Dwyer, put it in our book, "revelation machine," gives us a chance to study the system in a way you never could before. It's a real learning moment -- we should seize it -- in the criminal justice community, in the legal academic community. We know that each of these people we get out -- and you're really in a race against time, because the biological evidence is disappearing or being destroyed or just being thrown away in case after case. I can't believe we found as many as we have at this point. So we have to make a full-fledged effort to get as many out as we can, while at the same time trying to use the lessons of these cases again and again and again to change the criminal justice debate.

One of the big problems we've had in this country in the criminal justice area is a lot of reforms where professionals of good faith on both sides -- I'm talking about police professionals, prosecutorial professionals, defense lawyers, academics -- have known what needs to be implemented but can't get there because there is just so much demagoguery going on. "Let's get Three Strikes laws." "Let's get a death penalty here." "Let's ratchet up the punishments." "Let's run against crime" -- because politically, that's popular, particularly in an era when the crime is rising. But it may not be effective law enforcement at all. There is not a lot of room for rational debate in the area of criminal justice.

One of the really interesting statistics about this ... our friends, Jim Leibman and Jeff Fagen at Columbia University, wrote two great studies about a broken system, the study of capital punishment and the number of cases where the courts have reversed the convictions on the grounds of constitutional error, and sometimes they come back, in 70 percent of the cases, with not guilty or innocent determinations that might end up close to 80 percent of the cases being reversed by state and federal courts and sent back, and 70 percent or more of those are not resulting in death sentences. What's fascinating about their study is they find that in certain counties in this country -- like Harris County, Texas; Hamilton County, Ohio; and others, Maricopa County, Arizona -- you over-produce death. Those counties that are executing the most people, producing the most death sentences, are getting the most reversals, but most interesting, they are clearing fewer felony cases than other comparably situated counties. So what that means is law enforcement is not working as effectively. Is it because the political forces in these counties are using the death penalty to divert attention from their failure to clean up crime, or is it because the death penalty is so expensive that they cannot put adequate resources into solving crime, or both? Either way it's not a good situation.

It's also an argument to appeal to people concerned about law and order in some kind of traditional sense.

Everything that they're proposing as solutions to the causes of wrongful convictions are just good law enforcement, measurements that Democrats and Republicans, liberals and conservatives, prosecutors and defense lawyers, judges can all support; so we really are a mainstream movement in this respect, and that's why we get a lot of support. Conservatives [like] George Will -- when he reviewed our book, Actual Innocence, and we're grateful he gave it a rave, said, "Conservatives, this book shows us the criminal justice system is just another government program, so skepticism is in order." That's where the importance of this really lies, in being able to cross party lines and generate reasoned discussion, debate, and analysis of what's wrong with our criminal justice system, and what we can do to solve it. It's all good law enforcement.

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