Barry Scheck is the co-founder and co-director of the Innocence Project, a national organization that uses DNA testing to exonerate wrongfully convicted people and implements policy reforms to prevent future injustice. Founded in 1988 under the auspices of the Benjamin N. Cardozo School of Law at Yeshiva University, the Innocence Project has exonerated hundreds through post-conviction DNA testing. Scheck is also famous for having defended notable clients like O.J. Simpson, Hedda Nussbaum, Louise Woodward, and Abner Louima.
Scheck is currently a professor of law at Cardozo and a commissioner on New York's Forensic Science Review Board, a body that regulates all of the state's crime and forensic DNA laboratories. He is first vice president of the National Association of Criminal Defense Lawyers and serves on the board of the National Institute of Justice's Commission on the Future of DNA Evidence. In 2001, along with Innocence Project co-founder Peter Neufeld, Scheck co-authored the book "Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted."
Question: Why would anyone—even prosecutors—object to the widespread use of DNA evidence in all cases?
Barry Scheck: Well this has changed over time. At first when we began our work at the Innocence Project, and there’s a problem within the system generally, there were all kinds of what we call “procedural bars.” To getting a post-conviction DNA test, much less being able to offer the results in court. In fact, there were no states that permitted post-conviction DNA testing and there were only nine states that said that you could raise a claim of newly discovered evidence to show that you were innocent at any time. So many states had time limits, statutes of limitations.
In Virginia, there was an infamous 21-day rule. Twenty-one days after the trial, even if you’d found new evidence of innocence you could put it into court as newly discovered. In other states is was one year or two years or three years or six months. I mean, there were all kinds of problems like this. So we were able to get passed now in 48 states, statutes that allow for post-conviction DNA testing. And Massachusetts is one of the states that doesn’t have a statute, but you can, based on what they call common law, you can usually get a test result, but they should pass the statute.
So the point here is that from the very beginning, there were all kinds of impediments to even getting this evidence into court. And at first when we went into court and we said to the prosecutors, “Oh, well look at this case. There’s an obvious basis to doing a DNA test and it could prove somebody innocent and maybe identify the real perpetrator, why don’t you consent to it?” And in many instances they would. In many instances they did not. Not for particularly rational reasons, I must tell you. Which is really, I guess the subject of your question, why would anybody resist this? Right? And then even after the DNA proof came in, why would prosecutors still say, “Oh no, no, we’re going to uphold the conviction.” And that is a question for cognitive psychology. And a lot of people thought about it. I think there are a number of factors. The first is very simply, it’s human nature. People don’t like to admit they’re wrong. We’re all like that. Number two, and maybe well I don’t want to give Primacy to any of these, they’re all worked together. There’s the problem that when somebody’s convicted, there’s a victim, or a victim’s family in the case of a homicide. And the prosecutor has said, “Well, this defendant is a horrible person, a beast, an animal in some instances they would say, “kill this person, committed this most heinous of crimes.” And now you have to go back to the victim’s family and say, “Guess what. We were wrong.”
Well that’s very difficult for a victim or a family and we see it so often in the sexual assault cases. In particular, there was an eye witness misidentification so hard for somebody that’s been subject to such a brutal crime to now – who made an honest mistake in making a misidentification to now say, “Oh my God, I was wrong.” I mean you feel doubly, triply violated. It’s a horrible burden to carry.
So there’s a lot of reluctance to upset victims within a community. So that’s a second factor that inhibits prosecutors sometimes and police from acknowledging a wrongful conviction or even opposing an effort to get a DNA test.
And then finally, and this may be more subtle, but I think it’s a very, very important factor because in a lot of cases we would find the prosecutor, who was standing in the way of the DNA testing and refusing to acknowledge the obvious implications of the new evidence, wasn’t even in office when the crime was committed. And the reason, I think, that some of these prosecutors were so reluctant to go along with what was I think a clearly just outcome or even to find out the truth or get better scientific evidence that would shed light on the truth, is that they’re afraid of the next case.
So if we have an exoneration in an eye witness identification case and now I’m trying a new case in front of the jury, the jury had just heard about this big exoneration and they’re always big news. They should be too. And they’re going to be thinking; maybe I shouldn’t trust this eye witness. Or maybe that case involved police misconduct, maybe I shouldn’t trust the police. Or it was a false confession; maybe I shouldn’t be so sure that a confession means that somebody is really guilty. And on it goes. So I think that they’re worried about the next case.
The truth is that if you are a prosecutor that has the reputation for going back and looking back at old cases and correcting errors, I think that you’re reputation for reliability goes up.