It reveals, with nearly infallible accuracy, who left the damning evidence—blood, hair or skin—at the scene of the crime, and who did not. Since DNA testing began in 1989, it has revolutionized the criminal justice system. Law professor and defense attorney Barry Scheck—part of O.J. Simpson’s “dream team”—has cowritten (with lawyer Peter Neufeld and Pulitzer Prize-winning columnist Jim Dwyer) Actual Innocence, which chronicles cases of people who were wrongly convicted and how DNA testing set them free. “You will not soon read a more frightening book,” George F. Will recently commented.
Through the pro bono Innocence Project he runs with Neufeld in New York City, Scheck assists others he believes to have been unjustly jailed. A former public defender, Scheck, 50, attended law school at the University of California at Berkeley. He now teaches at Yeshiva University’s Benjamin N. Cardozo School of Law in Manhattan and is a commissioner of forensic science in New York State. Scheck, who lives in Brooklyn with his wife, Dorothy, and their two children, spoke with contributor Jennifer Longley.
How many people now on death row have been wrongly convicted?
Since reinstitution of the death penalty in 1976, more than 600 people have been executed, and 87 people have been exonerated on the grounds of newly discovered evidence of innocence—about one for every seven executed. That’s a pretty worrisome rate of error.
Why does it happen?
Nothing guarantees the conviction of an innocent person faster than a lawyer who is incompetent or lacks resources. It’s terribly risky to be poor, or even innocent and middle-class, and unable to afford a good lawyer.
There’s a lot of prosecutorial and police misconduct. They often focus on a certain suspect, so if there’s new information that doesn’t point in that direction, it’s ignored and the defense and defendant don’t get to see it. Mistaken eyewitness identification is probably the single greatest cause of wrongful conviction. Others are fraudulent forensic science and jail-house snitches, who are a notoriously unreliable source.
How has DNA testing affected the justice system?
Eight of the 87 people taken off death row were exonerated through DNA. Seventy people in the U.S. and Canada who were imprisoned—many sentenced to life—have been cleared by testing, and in 16 of those cases, DNA led to identification of the real perpetrator. A Louisiana inmate, Clyde Charles, spent 19 years in prison for rape—nine of them trying to get a DNA test, which was denied on statute of limitations grounds. We got the tests and got him out in 1999. [The tests implicated his brother Mario, who was arrested in April.]
Thousands of individuals who were suspects, under arrest or brought to trial have been exonerated. Since the FBI began forensic DNA testing in 1989 in sexual assault and murder cases, they’ve found that results have excluded the primary suspects 25 percent of the time. DNA testing has been used to solve cases that would never have been solved. At my urging, the New York City police are now testing evidence in about 12,000 unsolved rape cases. The tests will lead to the identification of serial rapists and killers as well as the exoneration of innocent people who’ve been jailed.
How common is postconviction testing?
It would be shocking for people to know how hard we have to fight for it. Thirty-three states have statutes of limitations of six months or less for bringing up new evidence of innocence. Because of that, prosecutors have been able to block postconviction testing, even though the testing is inexpensive—typically $3,000 to $5,000 I support legislation that would permit prosecutors to indict a DNA profile as a John Doe case to meet statutes of limitations requirements. I’m against throwing them out entirely.
Is there compensation for the wrongly imprisoned?
Very few states have compensation statutes for the wrongly convicted, and most of them provide very little money. For example, in California the maximum is $10,000, no matter how long the person sat in jail. This is indecent.
What changes do you think should be made?
We’re trying to get legislation through Congress [introduced in February by Vermont Sen. Patrick Leahy] that requires every state to give inmates DNA tests regardless of the statute of limitations or the ability to pay. Right now only New York and Illinois have such laws. We need reforms in the way eyewitness identification procedures are conducted. We should require videotaping of interrogations, as they do in Minnesota, Alaska and Britain. To prevent fraud, we need to make sure every crime lab is accredited, and we should reexamine some forensic techniques such as microscopic hair comparison, which DNA testing has proved is unreliable. All these solutions not only prevent conviction of the innocent, but they help law enforcement identify the perpetrator before that person goes out and commits more crimes. These are win-win solutions.
What’s your stance on the death penalty?
Personally, I’m opposed to it on moral grounds. At least we should have a moratorium—something that has been endorsed by conservatives like Pat Robertson—until sweeping reforms are enacted that will help prevent conviction of the innocent.