Third Of A Three-Part Series
By John Riley. Originally printed in 2003 in Crime, Justice and America magazine and reposted here with permission from Crime, Justice and America magazine.
Attorney Barry Scheck became a national figure in 1995 when he joined the defense team for murder defendant O.J. Simpson as an expert in DNA, the genetic fingerprinting that has convicted – and cleared – thousands of suspects in the past 20 years.
Scheck is known for his landmark litigation setting standards for forensic applications of DNA technology. Since 1988, his and Peter Neufeld’s work in this area have shaped the course of case law across the country and led to an influential study by the National Academy of Sciences on forensic DNA testing, as well as important state and federal legislation.
In 1992 Scheck and Neufeld created the Innocence Project at the Benjamin N. Cardozo School of Law in New York City. Since then, more than 100 convicts have been exonerated of their crimes based upon DNA evidence.
The Project was set up as a non-profit legal clinic, handling only cases where post-conviction DNA testing of evidence can yield conclusive proof of innocence. As a clinic, students handle the case work while supervised by a team of attorneys and clinic staff.
Most of the organization’s clients are poor, forgotten and have used up all of their legal avenues for relief. The hope they all have is that biological evidence from their cases will exists and can be subjected to DNA testing. All Innocence Project clients go through an extensive screening process to determine whether DNA testing of evidence could prove their claims of innocence. Thousands currently await evaluation of their cases by Project staff members.
DNA testing has been a major factor in changing the criminal justice system.
“The Project has provided scientific proof that the U.S. Legal system can convict innocent people – and that wrongful convictions are not isolated or rare events”, Scheck has told Congress during a number of hearings.
As forerunners in the field of wrongful convictions, the Innocence Project has grown to become much more than the “court of last resort” for inmates who have exhausted their appeals and their means. The organization is now helping to organize “The Innocence Network”, a group of law schools, journalism schools and public defender offices across the country that assists inmates trying to prove their innocence, whether or not the cases involve biological evidence which can be subjected to DNA testing.
The Innocence Project consults with legislators and law enforcement officials on the state, local and federal levels, conducts research and training, produces scholarships and proposes a wide range of remedies to prevent wrongful convictions while continuing to work to free innocent inmates through the use of post-conviction DNA testing.
In an article by Scheck, “DNA Analysis: Helping to Right Wrongs,” Scheck’s focus is on proper preservation of evidence and more common use of proper laboratory procedures when DNA evidence would be helpful to a case.
Among many other things, Scheck points out that the FBI use of DNA testing in many sexual assault cases has proven that eyewitness/victim identification is shockingly unreliable: “The statistics from the FBI indicate there may be thousands of people in jail who shouldn’t be there, some of whom we will be able to help with this technique if the evidence can be found and we can find the way to do it,” Scheck said.
With a further focus on death penalty cases, Scheck states: “All of us who have been involved in looking at death cases on appeal, in the context of post-conviction motions, are sick and tired of being sick and tired about seeing transcripts where lawyers were given $5,000 for themselves and all the expert witnesses, to defend a case that took three or four days to try, resulting in somebody sentenced to death.
“It is extremely upsetting and frustrating when you finally get to see that case in a post-conviction challenge, with very little resources to go back and do some investigation – to really get to the issue of guilt or innocence. It cannot come as a surprise to anyone that with this system based on money and race, innocent people are going to be convicted all the time and sentenced to death.”
In June, Scheck testified before Congress on DNA testing.
“There are now 108 Americans who have been exonerated by post-conviction DNA testing,” Scheck said. “Thirteen of the exonerated had at one time been sentenced to death. Thirty-two of the exonerated were convicted of murder, and many of them would have almost certainly faced execution if the death penalty had been available in the jurisdictions where they were tried.
“The pace of post-conviction DNA exonerations has accelerated because states have begun to pass statutes that permit those claiming innocence a chance to gain their freedom and 35 law schools have started a network ‘innocence project’ on shoestring budgets to prevent, as best they can, these DNA statutes from becoming unfunded, unrealized mandates,” Scheck explained.
“There can be no doubt the number of wrongly convicted freed by DNA testing would dramatically increase if the post-conviction DNA legislation were passed by this Congress – the number of exonerations would at least double within five years – just as apprehension of the real perpetrators of these crimes through DNA databank ‘hits’ would impressively proliferate,” Scheck predicted.
“This is a `win-win’ proposition for law enforcement, innocents who rot in America’s prisons and death rows, crime victims, families of all involved and anyone who loves justice…
“DNA testing is not a panacea for what ails the administration of the death penalty in America or the rest of the criminal justice system. The vast majority (probably 80 percent) of felony cases do not involve biological evidence that can be subjected to DNA testing. DNA technology is no substitute for competent counsel, and nothing guarantees the conviction of the innocent more than incompetent, ill-trained, or ineffective defense counsel. That is why the counsel provisions of the legislation before you is so critical,” Scheck urged the Congress.
“But it would be terrible mistake to overlook the unique importance of these post-conviction DNA exoneration cases. They have created a great `learning moment’ in the history of our criminal justice system and surely constitute the most remarkable and instructive data set criminal justice researchers have ever possessed. “It permits us to identify as never before the causes of wrongful convictions and their remedies for the good of the entire system …
Citing delays in the criminal justice system, Scheck urged action, “we are in a race against time and every day counts. In 75 percent of the cases where the Innocence Project has determined that a DNA test on some piece of biological evidence would be determinative of guilt or innocence, the evidence is reported either lost or destroyed, and without laws specifically to prevent it, precious DNA evidence is surely being thrown away, wittingly or unwittingly, every day.”
“As these post-conviction cases get older, even when the evidence is found, the likelihood grows that bacterial degradation could make successful testing impossible.”Peter Neufeld, Scheck’s colleague at the Innocence Project, also testified before Congress recently, speaking to the Subcommittee on Crime, terrorism and Homeland Security about the “Innocence Project Act of 2001.”
“The pace of post-conviction DNA exonerations has accelerated because states have begun to pass statutes that permit those claiming innocence a chance to gain their freedom,” stated Neufeld. “In 1993 there were three DNA exonerations. In 2000 there were 16, and last year alone – there were 27 post-conviction DNA exonerations.”
Sen. Patrick Leahy, who serves on the Senate Judiciary Committee, was the chief sponsor of The Innocence Act, now being considered by Congress.
At a press conference last summer, Leahy said, “Today, we shift into higher gear with our one-year-old effort to address problems with the administration of the death penalty. Our coalition is strong, it is bipartisan, and it is growing.”
“Today, 133 of us – Republicans and Democrats, supporters and opponents of the death penalty, members of the House and members of the Senate – are joining together in introducing the Innocence Protection Act.”
“In just a year we have turned the corner in showing that the death penalty process is broken. Now, we will push forward to our goal of acting on reforms that address these problems.”
“Over the last year we have also shown this is not an Illinois problem’ or a Texas problem’ … There are death penalty problems across the nation, and as a nation we need to pay attention to what is happening.”
“A year ago we pointed out the startling number of cases – 85 – in which death row inmates had been exonerated after long stays in prison. In some of those cases the inmate had come within days of being executed. A single year later, the number of exonerations has jumped to 95, in 22 states – people who have been cleared of the crimes that sent them to death row.”
“It is not uncommon these days as it would have been a year ago, to pick up a newspaper and read about another wrongful conviction. We should never forget that behind each of these headlines is a person whose life was completely shattered and nearly extinguished by a wrongful conviction. And those were the `lucky’ ones. We simply do not know how many innocent people remain on death row, and how many may already have been executed.
“Now the national debate is well underway …but the need for real, concrete reforms is more urgent than ever.”
“We believe that targeting wrongful convictions and executions has to be a high priority of the congress and the Administration. We should not put it off another year. Why?
“Because a year may not seem like a long time on Capitol Hill, but it is an eternity for someone sitting, wrongfully convicted, in a death row prison cell.” “Because for every wrongfully convicted person on death row there is a true killer somewhere else. Because death penalty errors undermine faith in our system of justice.”
“I am gratified that our bill has served as a catalyst for reforms in the states, in dealing with post-conviction DNA testing. In just one year, several states have passed some form of DNA legislation. Others have DNA bills under consideration. Much of this legislation is modeled on the DNA provisions proposed in the Innocence Protection Act, and we can be proud about that. But DNA is not a silver bullet.”
“DNA samples are not available in many cases. Even so, DNA is the fingerprint of the 21st Century. If DNA evidence exists that could help determine guilt or innocence, it should be available for testing. However, many states still have not moved on this issue, even though it has been more than six years since New York passed the first post-conviction DNA statute. And some of the states that have acted have done so in a way that will leave the vast majority of prisoners without access to DNA testing. Moreover, none of these new laws address the larger and more urgent problem of ensuring that people facing the death penalty have adequate legal representation. The Innocence Protection Act also addresses this problem.”
“We have consulted widely with legal experts and practitioners in formulating these reforms. All have given us valuable insights, and we have refined the bill in the process. Bill Delahunt and I are former prosecutors, and we have been particularly pleased with the encouragement and assistance we have received from prosecutors across the nation.”
“Good prosecutors have two things in common. First, they want to convict the right person. Second, they want defendants to be represented by good defense lawyers. Lawyers who thoroughly investigate their clients’ cases before trial, and who represent their clients vigorously in court. Our adversarial system counts on that happening. The last thing a prosecutor wants is to have to retry a case years later, because key mistakes were made by a defendant’s lawyer. Can you imagine the ordeal the nation would face if we had to retry the Oklahoma City bombing case?”
“In parts of the country it is often better to be rich and guilty than poor and innocent. All too often, lawyers defending people whose lives are at stake are inexperienced, inept or just plain incompetent.”
“If Congress offers some leadership with fair and objective standards and some funding, America’s prosecutors will be ready, willing and able to help fix the system. We owe them, and the American people, that leadership.”
“The goal of our bill is simple, but profoundly important: We want to reduce the risk of mistaken executions.”
The Innocence Project founders note that there has been a major shift in criminal justice legislation over the past decade, in large part due to the phenomenon of DNA exonerations and innocent people being freed from death row.
The Innocence Protection Act (IPA), sets guidelines for courts to follow when DNA testing has been ordered and establishes post-testing procedures. The IPA provides provisions for the preservation of evidence, payment of testing
and punishment for the unlawful alteration or destruction of evidence.
Other important provisions of the act, which was approved on July 18, 2002, include: implementation of new and better standards of representation in capital cases, increased funding for federal capital defense and prosecutorial DNA testing programs and compensation guidelines for state capital cases (including the withholding of federal funds to states that do not comply with the standards set forth).
Much hope has been placed upon DNA, but a review of the nation’s DNA system by USA Today in October found that the genetic fingerprinting system was not living up to its potential.
According to the article, which appeared on Oct. 7:
Evidence from tens of thousands of unsolved rapes and homicides during the past several years has not been tested for DNA, and so is not reflected in the FBI’s national database. State and local crime labs say they are swamped by current cases, but they have been slow to apply for new federal grants aimed at reducing the backlog.
The effectiveness of the DNA crime solving system varies from state to state. Criminals in some states are far more likely to be caught through DNA evidence than those in other states.
Federal efforts to help states and cities pay for DNA testing has encouraged states to pursue rapists but not murderers. Testing in homicide cases can be far more complex and costly – $10,000 or more compared with $500 for a test in a typical rape case. Critics say federal grants for DNA testing push states to test evidence from unsolved rapes first.
DNA matches have provided law enforcement officials across the nation with the identities of suspects in thousands of unsolved cases. But state and federal officials have no idea how many of those matches have led to convictions, making it impossible to assess DNA’s true impact. There is no system for tracking how police follow up once matches are made.
According to USA TODAY, some states, such as Virginia, Florida, New York and Illinois, are more conscientious about their DNA databases that other states – they have accounted for 56 percent of the national databases more than 5,000 DNA matches since 1992.
And finally, even though we are in the 21st century, in some states that haven’t been committed to building a DNA database, solving crimes through DNA testing is rare, let alone exonerating the innocent.
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