How the Innocence Project Decides to Take a Case

Question: What inspired you to start challenging wrongful convictions?

Barry Scheck: I’ve been a law professor for 31 years at the Benjamin Cardozo School of Law here in New York City, and when DNA testing began to get transferred from medial and research uses to the forensic arena, my colleague Peter Neufeld and I became very conversant with it in 1988, 1989.  In fact, we tried to get somebody out of prison who’d been convicted in the Bronx represented by the Public Defender’s Office where we used to work, and we tried to do DNA testing before it was even in the courts to prove that he was innocent.  He had been convicted of a rape and there were 17 alibi witnesses that he had at a prayer meeting.  But there were three eye witnesses, so he was convicted notwithstanding what appeared to be strong proof of his innocence.  And we tried to do DNA testing with a new private company named, Life Codes, but we couldn’t get any results and instead we were able to prove him innocent with other kinds of evidence. 

But at that time, everybody recognized that DNA was going to be very important, and Governor Mario Cuomo, in his last – one of his last acts in his administration, set up a commission to look at DNA testing and how it might effect the criminal justice system.  Now, we’re talking 1988, 1989.  And Peter and I were on that commission and we met a number of scientists, particular Dr. Yon Winkowski from Cold Spring Harbor, and he in turn introduced us to a number of scientists, in particular, Dr. Erick Lander, who was then part of the Whitehead Institute, MIT and Harvard and now is one of President Obama’s science advisors one of two or three science advisors.  And he is at the Broad Institute.  He was both a geneticist and a mathematician and a very brilliant guy.  And so he taught us a lot, not just about molecular biology, but also about how science works, technology transfers, and the interplay between scientific institutions – science and governmental institutions.  And it was sort of left to us to figure how this was to work in the court system. 

So, from the very beginning of learning about this technology, the truth is, we knew it would be transformative, we knew that it would have an enormous impact, not just in exonerating people who were wrongfully convicted, but apprehending people who had really committed the crimes, and just a learning moment so that we could figure out what causes wrongful convictions and how to prevent them.

Question: How does the Innocence Project decide which cases to take up? 

Barry Scheck: we do get hundreds of letters per week.  And we have still a cue – a waiting list of a few thousand people.  But our criteria is very simple.  For our project, the point is, if a DNA test could in and of itself prove you innocent.  And the way things work now, more than one DNA test.  Because when this technology was first transferred to the forensic arena, we were doing what they were known as Restriction Fragment Length Polymorphism tests.  People would know those as “The Bands,” right.  And that was looking at nuclear DNA.  That would be a cell that has a nucleus and you would extract the DNA from the nucleus of the cell. 

Now, we have techniques using what’s known as **** Chain Reaction and this is – or PCR, and the best way to think about this, it’s molecular Xeroxing.  You can take a very, very small amount of starting material and amplify it up and you can look not just a nuclear DNA and the technique that’s now known is Short Tandem Repeat.  So there is using these so-called STRs or Tandem repeats, there is now a set of markers that are used for the database here in the United States, and they are also used in the United Kingdom and all over the world, frankly.  So we have one – developing one huge DNA database just based on this one particular Short Tandem Repeat system. 

But now we can also do what’s known as “Y” DNA testing, which is just looking at DNA from the Y chromosome, and you can amplify that up with a PCR.  And then there’s another technique called Mitochondrial DNA testing.

Mitochondrial DNA is a DNA test that literally looks at the mitochondrial within a cell.  It’s sort of the powerhouse of the cell.  And that’s maternally inherited.  So your mitochondrial DNA is the same as your mom’s and your brothers and sisters, unless something really weird is going on in your family.  

So, many, many different kinds of DNA tests have developed since we first came into business about 15 years ago, and that has enhanced our capability of answering the simple question that you asked me is, how do we decide to take a case?  And the simple answer is, well if DNA can prove you innocent.  But now we can do lots of different DNA tests and the methods of extraction have gotten much better, so it’s a misnomer.  People talk about touch DNA.  That’s really not helpful, but what is really meant there is that you can extract DNA from epithelial or skins cells, for example, that might be found on a piece of clothing or if the assailant left a sneaker or any kind of – a woolen hat or something where you might find saliva or skin cells or any piece of clothing, you can now take cuttings from various different parts of that clothing and develop a DNA profile of the “usual wearer.” 

So all of these different techniques, when combined together, I mean you get redundancy of results, can greatly assist in demonstrating that somebody didn’t commit the crime even when you’re looking at cases that are 10, 15, 20 or 30 years old.

Scheck's group will take up the case of a convicted prisoner if there is the possibility that a DNA test—or multiple DNA tests—could prove them innocent.

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