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State Legislatures Magazine: June 2001

Editor's Note: This article appeared in the June 2001 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.

Righting Wrongs

DNA can correct mistakes made by the criminal justice system. Law professor Barry Scheck encourages policymakers to ask how to avoid these errors before they happen.

Defense attorney, DNA expert and law professor Barry Scheck is recognized by many as a contributor to the "dream team" that defended O.J. Simpson. But most of his legal life has been spent out of the spotlight consulting with law enforcement officials investigating unsolved crimes, and participating in the Innocence Project he founded with Peter Neufeld at the Cardozo School of Law in New York. The clinical project assists convicted offenders who raise claims of innocence that may be aided by DNA testing. Here, he shares his experiences and views on what is broken in the system that contributes to wrongful convictions, and how technology and policy can come together for better law enforcement and justice.

Scheck: We are now up to 88 exonerations of incarcerated offenders nationally as a result of post-conviction DNA testing. Ten of those individuals had been sentenced to death. There also was another guy who died in prison before evidence proved his innocence. This isn't an issue that has a certain political persuasion. One of the best reviews we got for our book, Actual Innocence, was by conservative George Will. He suggested that the justice system could be perceived as just another failed government program if steps are not taken to correct flaws.

We now have gone through a period where there has been this remarkable number of exonerations of people who have been convicted of crimes. They were sentenced, some to death, lost their appeals, then we do a DNA test on a case 10, 20, even 30 years old, and it proves the individual is innocent. In many of these cases, we not only prove one person to be innocent, but we can identify the person who really committed the crime. Remember, every time we convict an innocent person there is a guilty person potentially out there committing more crimes. Correcting an unjust arrest and conviction is a win-win proposition for the justice system because it is just good law enforcement.

No one knows for sure, but FBI tests in rape and rape/homicide cases give us some perspective. In about 1989, the FBI started doing DNA testing at the request of state and local authorities. Almost invariably these are cases in which a person already has been arrested or indicted so there is probable cause to believe they have committed the crime. But in 26 percent of the cases where the FBI gets results, the primary suspect is excluded.

Now that is not to say that a quarter of all people charged with rape and rape/homicides in American prisons are innocent. But starting with the FBI's 26 percent exclusion, and considering how many of those people would have been convicted, you still have thousands of cases. So far I've referred only to cases where there is biological evidence-which are maybe 15 percent to 30 percent of all cases. What about all of the other people in prison in the majority of cases without such evidence? It seems logical to conclude that a certain percent of those also are wrongful convictions.

Generally they identify themselves. They are the ones who have been screaming "I'm innocent, I'm innocent," for any number of years. I consulted last year for several episodes of ABC's "The Practice," for which they used an innocence story line based on a true case in Oklahoma. This guy, a star baseball player, was manic-depressive. Jailed for a rape and murder from which DNA analysis later excluded him, and not medicated in the jail, he would hold onto the bars and bang his head against the wall screaming, "I'm innocent, I'm innocent." The TV writers used some of that stuff. The friend of this guy who was also convicted in the case came within five days of execution. We got a hit running the DNA evidence in the case against Oklahoma's DNA databank, which has quite a few samples in it. Who did it? A guy now in jail for a violent crime against his ex-wife but who also was the principal witness against the two men wrongfully convicted.

Oklahoma is among states recently putting into statute post-conviction remedies based on DNA evidence. Where our Innocence Project or others identify someone screaming, "I'm innocent," we look at transcripts to determine if there is biological evidence that could potentially exonerate the individual. But even if there is such evidence in the case, 75 percent of the time we can't find it. It has been lost or destroyed.

We have found that about 84 percent of the time it is mistaken eyewitness identification. Victims of crime, and they are people who are entitled to empathy and compassion, are not lying but they often are making mistakes. Mistaken identification is most prevalent across racial lines.

A key problem this: In a conventional police lineup, you have five people standing next to each other. Or you do a photo array and lay a series of pictures out next to each other. Well the data show that is not a good way of doing it because you are inviting the witness or victim to make a relative judgment. You are saying, "Which one of these five people most resembles the person who committed the crime." We know human memory works that way. If you do a sequential presentation, guess what? You dramatically reduce the number of false identifications. However, you do not in any way reduce the number of correct hits. This is a win-win proposition for law enforcement.

False or coerced confessions are an issue in some cases we deal with. A way to avoid that is to videotape or audiotape interrogations. Minnesota and Alaska for more than a decade have had this requirement because the supreme courts in their states ordered it.

Fraudulent and junk science is a critical, critical area. Forensic science has not always been the discipline that the best people in the profession want it to be. DNA has been a great source for improvement because it was imported from the "hard sciences," so to speak. Back in the 1970s, the Law Enforcement Assistance Administration (LEAA) did proficiency tests of crime lab hair comparisons, bite marks, serology, these types of things. They knew they were getting it wrong like 50 percent of the time. It was terrible. And then that sort of analysis disappeared with the LEAA. Now we can do a DNA test known as mitochondrial where you can actually extract DNA from the shaft of the hair. With today's technology, we can see that much of the microscopic hair analyses are just wrong. You would never want to rely on it for anything of importance.

Not necessarily. Not unless there is a structure in place to set standards and see that they are met. I commend the New York Legislature for having set up a Forensic Science Review Board to set standards for and oversee crime labs. All labs have to be accredited, which costs money. But ask police and prosecutors and they will tell you it is the best expenditure that they ever made. Nobody hates bad lab work more than a prosecutor does, that's how cases get lost. They hate it. It is another win-win proposition for the criminal justice system. So is better training for police in DNA evidence. Probably the only good thing that came out of the O.J. Simpson case was that people saw that the way evidence is collected and handled is a serious problem.

First, I'm a big supporter of laws that allow for post-conviction motions for DNA testing, not restricted to existing statutes of limitations for relief. This provides a window for persons convicted as a result of the problems I have mentioned.

Perhaps the single best idea is that of a state "innocence commission." When an airplane falls from the sky or a car blows up or Firestone tires explode on the road, what happens in this country? We bring in the Transportation Safety Board, we bring in a blue ribbon panel with subpoena power, and they ask, "What went wrong? Is it system error, individual error, and most importantly, how can we fix it?" They do an investigation and they issue a report with recommendations. It's a basic notion.

But 88 innocent people have walked out of American prisons, and there is not a syllable written in any court opinion about why these wrongful convictions occurred. No analysis. Judges cut orders, people walk out of jail and maybe the press covers it. No way to learn from these errors. I know of no other institution in this country where life and liberty of citizens are at stake that can get away with that. University systems could be involved in innocence review, and in fact are as part of an "innocence network" being formed in law, graduate and journalism schools across the country. I hope legislatures will assist these projects going forward. They are a valuable companion to post-conviction DNA laws because they can investigate cases and contribute to review of causes of and remedies for wrongful convictions. If we can get to this bipartisan, neutral examination of the system it lowers the rhetoric, and we all know that crime is one of those issues that can be politicized to the detriment of everyone in the system.

It is! We have an extraordinary opportunity brought about by DNA technology. We can learn something about the system and fix it. This is a learning moment, and we really shouldn't lose it.

NCSL's Donna Lyons interviewed DNA expert Barry Scheck for this piece. Scheck, along with Peter Neufeld and Jim Dryer, is an author of Actual Innocence: Five Days to Execution, and Other Dispatches from the Wrongly Convicted. First published in 2000 by Doubleday, it is now a Signet paperback.

  Criminal Justice Program

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