Barry Scheck on Race, the Courts and DNA

Attorney Barry Scheck founded The Innocence Project in 1992 to help give convicted prisoners access to DNA technology that might exonerate them. Scheck argues that an African-American man charged with sexual assault by a white woman is still in the most dangerous place in the American legal system.

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FARAI CHIDEYA, host:

Miller's release might not have been possible without the Innocence Project. The New York-based group takes up the cases of prisoners that they believe DNA testing may help free. Attorney Barry Scheck founded the Innocence Project in 1992.

Mr. BARRY SCHECK (Attorney; Founder, The Innocence Project): One of the things that is very clear from the data on these 200th exonerations is that one of the most dangerous places to be in the American criminal justice system is an African-American man being charged with the sexual assault by a white woman. Far more wrongful convictions come from that configuration than others. But the overarching problem is mistaken eyewitness identification.

And the great thing about the Innocence Project is that we've been able to work with lots of law enforcement people and academics in order to bring procedures for doing eyewitness identification that will both protect the innocent and help apprehend the guilty. There are things that can be done in terms of the way photo arrays or lineups are run that will minimize the number of mistakes without reducing the number of correct identifications. So these eyewitness reforms are a win-win for law enforcement and for getting good cooperation from many police departments.

CHIDEYA: Why DNA? You are focused very much on DNA evidence. Why so?

Mr. SCHECK: Well, DNA has been transformative in the criminal justice system since it's introduction into courts in 1989. Because we, literally, can go back, just as in Jerry Miller's case, and do a DNA test that not only proves that the wrong person was convicted, but, as in Jerry's case, we're able to identify the person who really committed the crime. Nobody argues with the DNA results. But the important part about DNA is that, remember, only 10 percent of serious felony cases have any biological evidence in it that could be subjected to DNA testing and find out, you know, who did it or who didn't do it.

So what about the other 90 percent of cases where you have the problem of eyewitness identification, false confessions, maybe problematical forensic science, you know, bad defense lawyers, prosecutors or police who crossed the line. We've got to look at those other causes of wrongful convictions in the other 90 percent of cases.

CHIDEYA: You mentioned that DNA evidence is considered sacrosanct, but it wasn't always. Wasn't it, at some point challenged as, you know, iffy science.

Mr. SCHECK: Well, at the very beginning - nobody ever challenged it as iffy science. At first when it was introduced there were problems in the transfer of technology from medical and genetic research into the forensic arena, in terms of deciding when you had matches, as it was called in the early systems, and calculating statistics. And, frankly, there are still some problems in calculating statistics when you have mixed samples.

So DNA is foolproof but any fool can do it. You have to have validated processes. You have to maintain vigilance that the labs are doing the work right. Even in the very best of labs we've had problems over the last 18 years that DNA testing has been going on in this country. But compared to everything else, this is really transformative technology. DNA is a learning moment. That's the most important way to look at it. And the (unintelligible) initiatives that flow from this I really think are beginning to usher in an era of reform in the criminal justice system that we haven't seen since the '60s, if we pursue it in the right way.

CHIDEYA: Let's just go very quickly through some of the ways that people get incarcerated unjustly. We've talked about misidentification by eyewitnesses. What about false confessions?

Mr. SCHECK: Well, false confession is about 25 percent of our cases. And there's a very simple way to deal with the usual false confessions, and that's to videotape the interrogations. We just came from Chicago that finally passed a bill, which requires videotaping of interrogations and homicide cases - now that we should extend it to other felony cases. And it was a little known state senator in Illinois who carry that bill named Barack Obama.

And at first, law reform - law enforcement was resisting videotaping interrogations, now they love it. It really eliminates debates about, you know, coercion. Did the police feed information to a defendant? And on the other hand, it really helps protect the police officers from false charges that they've coerced witnesses. It's good for training. It's just good across the board. So videotaping of interrogations is another one of those reforms whose time has come and we're getting some real traction on it all across country.

CHIDEYA: What about snitches and jailhouse informants?

Mr. SCHECK: Well, that's a huge problem. We just had some hearings in front of the California Commission on the Fair Administration of Justice. But they had some legendary jailhouse snitches. This guy - Leslie Whiten, Los Angeles - for years, he set up dozens of people. What seems to happen is that in the very weakest of cases, prosecutors for some reason are willing to rely upon jailhouse informants, which is, you know, the worst and most unreliable form of evidence you could put in.

CHIDEYA: Let's turn to the harsh reality that you can't help every one. And among the reasons that you can't help everyone is that evidence has been destroyed. Give me an example of how that might happen and how that ends your work?

Mr. SCHECK: Actually, the most spectacular one of all in a way is this case of Barry Gibbs. Barry was a fellow in Brooklyn, who was convicted of a murder. We were looking for fingernail scrapings and hair evidence, something that could prove him innocent. We looked at the evidence in the case and we just really thought there's something wrong with this.

The police officer involved in this case who Barry said beat him up, we just thought he must have mistreated the witnesses; things he said didn't make sense in the case. And we just couldn't close it even though they reported the evidence was destroyed.

One day, Vanessa Potkin, a staff attorney at the Innocence Project, and I opened up the newspapers and we see that the police officer we suspected - his name was Louis Eppolito - had been indicted in the eastern district of New York. He's a notorious mafia cop who had joined organized crime in 1986 and done a number of hits.

(Soundbite of laughter)

CHIDEYA: Right. He was living a parallel life.

Mr. SCHECK: Right. So we just called up the prosecutors and said, would you look into this one? And sure enough, Barry Gibbs' police file had been taken out of the police department, and Ippolito had it with him when he was arrested in Las Vegas years later. And now it's evident that he had coerced witnesses, fabricated evidence in that case. The Brooklyn prosecutors agreed and they vacated the conviction. And now Barry has a civil suit.

See, we never had the DNA there, but it worked out anyhow.

CHIDEYA: A lot of other things. Wow. Fascinating. Well, before we let you go, what about the reentry of these wrongly convicted prisoners into civilian life? There has been a lot of studies now of reentry and narratives about reentry. I'm thinking about Jennifer Gonnerman's "Life on the Outside." How do these folks transition back into what we consider normal life?

Mr. SCHECK: It's the worst problem. It's the one that we have been least able to make any progress. Because when somebody is convicted for a crime they didn't commit - you know, they all look remarkable when they get out because, you know, everybody says, oh, they have no bitterness. And in a way, it's true because, you know, psychologically, if you're in for one, two, three years - if you just remain angry, it'll eat you alive.

You know, and we've probably lost a lot of people because they just went insane, you know. So you have to make peace with that process and reach some kind of spiritual position where you forgive. So these are remarkable people, but still, when they get out, they've lost their whole lives.

You've been in 15, 20 years, you know. Your relations with your family are just different went you get out. Even if you have a supportive family, you're different and they're different, you know. Everybody's life has moved on. I haven't met anyone that didn't have trouble sleeping after they got out, because, you know, they see such terrible violence in our nation's prisons. It comes back.

You know, they have nightmares - many have posttraumatic stress disorder, you know, there are all kinds of triggers. And then, of course, there's the injustice of being wrongfully convicted itself. So our clients face a more difficult reentry problem, frankly, than those people who have gone to prison for crimes that they did commit. Yet, our clients have less when they get out. They don't even get, you know, the traditional, you know, bus tickets.

No real service is provided for these individuals. Only a few states have statutes that provide for any kind of compensation for the wrongfully convicted. And, you know, those statutes in many instances don't provide enough, and they certainly don't provide anything immediately when people get out. When they just need simple dental care, sort of a social worker for casework purposes, to just tell them what's available to them - you know, just initial counseling for purposes of reentry is most difficult for our clients.

CHIDEYA: Barry Scheck, thank you for talking to us at this landmark moment.

Mr. SCHECK: Thank you so much for having me.

CHIDEYA: Attorney Barry Scheck is co-director of the Innocence Project. As he mentioned, most serious felonies leave no DNA traces. And on Thursday, we'll look at the case of Timothy Atkins. He's now free after 23 years in prison for a murder he didn't commit. He owes his release to a dedicated caseworker.

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CHIDEYA: Just ahead, kids in Milwaukee schools face handcuffs when they act out. And later, an HBO documentary about how DNA freed one man who was falsely accused.

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CHIDEYA: This is NPR News.

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