The Innocence Project: Peter Neufeld & Barry Scheck

The Five-O-One is joined by Innocence Project Founders, Barry Scheck and Peter Neufeld, to discuss how they are using DNA testing to exonerate those who have been wrongfully convicted, and to dive into the contributing causes of wrongful convictions.

To learn more about their work visit www.innocenceproject.org.

Talia: This story all begins with Marion Coakley, who was convicted of a robbery rape in the Bronx. That was the first case where you tried to use DNA testing to reverse a conviction. This was in 1988, before DNA testing was even an accepted method in criminal justice. Peter, can you tell me a little bit about what happens there?

Peter: Sure, it was a friend of ours at Legal Aid who represented Marion Coakley at the trial. Marion was convicted and the lawyer reached out to both Barry and me saying could we take on the case look into it. We had both heard at that time about DNA being used in Great Britain, primarily in immigration cases, and we thought that maybe this was a case where these identifications were erroneous, and there was a rape kit collected, and if we could test the semen in the rape kit, we could perhaps exclude Marion Coakley using DNA testing. And so that was the goal. Of course, we got hold of the rape kit, and there was no semen left, so we were unable to do DNA testing, it all been used up with conventional serology. So we had to use old fashioned serology to get him out. But we learned that — my goodness — DNA has such potential,and we started learning a lot more about it. After that, we got involved with a state commission investigating the use of DNA in New York's criminal justice system. And the more we learned, the more we realized that we could go back to old cases where they didn't have this very sensitive and specific technology, and test the hypothesis of innocence.

Talia: So Barry, that case really brought about the creation of the Innocence Project. Today, you have expanded to 68 projects in the US and abroad, and you have exonerated 375 wrongfully convicted individuals to date, including 21, who served time on death row. Could you have ever conceived back then that your little startup would have this kind of impact?

Barry: It's almost embarrassing to admit, but I think we knew from the very beginning that we were onto something extremely important. We had been public defenders, and when you're a public defender you know that confessions are suspect, eyewitness identification are subject to error, that so much of what passes for forensic science may not or is not reliable, and had not been adequately validated scientifically. We could see from just what was going on with our clients that there was horrible racism and problems in the system as a whole. So truth be told, we knew from the beginning, that if we had DNA testing done, we knew that we were going to be able to exonerate all these people that were innocent, and we were going to be able to look at the causes of wrongful convictions and do something truly significant.

Talia: What was the general reaction when you guys started bringing DNA testing into this arena? It had obviously never been used before. Were people excited, or were you viewed with skepticism?

Peter: Well, they had been using DNA, beginning in about 1988. That's when the FBI opened up their DNA laboratory. They've been using DNA to indict people and to convict people. But we were the first to say, hey, if it's good for that, it could also be good to exonerate people. And when we first tried to do it, there was a great deal of resistance. There was a resistance on the part of prosecutors, there was even reluctance on the part of the judiciary, and I think there was a doctrine that basically control people's thinking about challenging old convictions — and that was the doctrine of finality. The doctrine of finality basically said that once you've been convicted and you've exhausted your direct appeal, it's over. And even if we learn of new evidence showing that you're innocent, it's too late.But one of the great things about DNA testing is that the courts ultimately realized that this evidence was more reliable, in fact, than the eyewitness ID that convicted somebody 20 years ago. And so we were able to sort of topple that doctrine of finality ultimately, and get these cases heard and decided on the merits.

Barry: in fairness to that….

Peter: You're much too fair Barry, to everybody. You have to be fair to the serologists, and judges, and prosecutors…

Barry: I have to be fair because certain people deserve it. One of the great heroes for us was Janet Reno, who was then the Attorney General of the United States. She had put out a little green book after the first I think it was, but 36…

Peter: 28 exoneration.

Barry:28 exonerations convicted by juries, exonerated by science. And then she formed a commission on the future of DNA testing, where she brought together — and I think this is actually important for how you fix things in the criminal justice system — it was interdisciplinary and multi-stakeholder. So in this commission, we had prosecutors, defense lawyers, judges, crime lab people, victim services, and she brought it all together and made recommendations on post conviction DNA testing. You know, in so many states, they had these laws that prevented us from getting into court with new evidence of innocence, but just with that pamphlet, we had at least a fighting chance, where we would go to a prosecutor and say, look, the US Department of Justice believes that you ought to say yes, would you consent to the testing? And a lot of times they said, yes,a lot of times, they said, no, get the hell out of here.

Talia: How do you explain that?

Barry: Well they thought they had to win elections by being tough law and order prosecutors. They thought it was their duty, not to seek the truth, not to seek justice, but to defend the jury verdict. And we had to overcome that kind of psychology, that kind of prosecutorial philosophy. And it still exists, it exists so much that there are still states where if you pled guilty, and you want post conviction DNA testing, you can't get it. And the other part of the psychology of prosecutors, I believe, unfortunately, was that they were afraid of the next case. So if you prove that somebody was convicted wrongfully based on a mistake in eyewitness identification, or a false confession, or police hiding evidence, or a prosecutor committing an act of misconduct by hiding exculpatory evidence, or other bad forensic science essays,then they were afraid that juries would doubt the next case they brought before them.

Talia: So I read somewhere that you take on 1% of the cases that come across your desk. I'm wondering, Peter, how you determine which cases you take on? And also how can you be sure that the clients that you do choose to represent are in fact innocent?

Peter: Well, when we take on a case, we don't know if, in fact, the person is innocent. If we could actually decide which cases to take by knowing in advance which ones will turn out to be innocent, Barry and I could be very, very wealthy spending our time at the racetrack. What we tried to do initially, when we set up the project, was to look for those kinds of objective criteria, that would mean that there's a good chance that this this case could have a good result. If no biological evidence was collected — let's say it was a drive by shooting, there wouldn't be biology left by the perpetrator on the victim or the crime scene. So that wouldn't be a high quality case for us.

Talia: Unless let's say the weapon was found. And there would be biological evidence.

Peter: Correct. So if there's biological evidence on a weapon left behind by the assailant, that's great evidence. If it's a rape case, or rape homicide case, and semen is left behind, that's actually the most powerful evidence because it's very difficult for anybody to come up with an innocent explanation. If the victim is lying on the ground, and there's a trail of blood going out the back door, that would indicate that the assailant was wounded somehow, and it's his or her blood. So we're looking for cases like that. And ideally, we would want cases where the biology have been retained. And that became very difficult because there were no national rules on retaining crime scene evidence or even rape kits. And it varies from state to state. And even within states, it varies from county to county.So it was hit or miss whether the evidence would be there.

Talia: But you guys are also exonerating folks who have been wrongfully convicted, not based just on DNA testing, but all sorts of other evidence that disprove that they actually committed the crime.

Barry: Yes, that is correct, and it's not just us. We have 56 organizations in the United States, most of them at law schools, some in public defender offices, and some independent nonprofits that do this innocence work. And so much of what happens in wrongful convictions is that when you go back, and you re-examine the case, you will find witnesses, but often, you find that the police or the prosecutors have not disclosed all that they should have disclosed. So there's a whole class of cases where the trials were just unfair, and you find exculpatory evidence that was never disclosed to the defense. Many times the defense lawyers, unfortunately, in this country, don't do a very good job. So if you re-examine the case, you find all kinds of evidence of innocence.One huge class of cases has to do with unvalidated forensic science bite mark evidence where the Innocence Project has really led the way exonerating people who are wrongfully convicted based on bite marks; which really they can't even show with proper scientific experiments, whether something that you see on skin, which is, you know, very plastic is a bite mark, as opposed to something else. Even in microscopic hair comparison, we've been able to now do DNA testing on the hairs themselves through mitochondrial DNA testing, and shown that so much of what passed for powerful evidence where people were actually convicted based on microscopic hair comparison, they shouldn't have even been making these kinds of extreme calls in the first place. And arson evidence, you know, we executed somebody named Cameron Todd Willingham,in this country,andd it's now been proven that there was no accelerant in the debris of the fire. But then fire marshals at the time of his trial, believed wrongly, that they could tell “oh, there was accelerant here, but it all burned off. So what if we don't see it in the chemical remains? This was a set fire, where accelerant was spread.” And now we know from a whole series of experiments, that's total nonsense. So in all these different areas, we've been able to show that innocents were convicted on unvalidated, and frankly, even fraudulent forensic science.t see it in the chemical remains? This was a set fire, where accelerant was spread.” And now we know from a whole series of experiments, that's total nonsense. So in all these different areas, we've been able to show that innocents were convicted on unvalidated, and frankly,even fraudulent forensic science.t see it in the chemical remains? This was a set fire, where accelerant was spread.” And now we know from a whole series of experiments, that's total nonsense. So in all these different areas, we've been able to show that innocents were convicted on unvalidated, and frankly, even fraudulent forensic science.

Talia: I'd like to pivot a bit. I know that false confessions are also a major contributor to wrongful convictions. Barry, could you share the story of Huwe Burton?

Barry:Sure, Huwe Burton was a 16 year old in the Bronx. He went to school one morning, and he came home and found his mother dead, strangled, and the whole place looked as though somebody had attempted rape. Initially, the police asked him where he had been that day, “what are your whereabouts?” He said, I left for school at seven in the morning, and I went to my first period class with Miss Berwick, and I was in school until I came home in the afternoon. So they went to talk to his first period teacher, the Cops, and she looked at her records and said, “well, he wasn't here. He wasn't in his first period class.” At which point the Cops became highly suspicious of him. The Burton’s lived in a sort of private house in the Bronx, where there were renters downstairs and they questioned the renters the Greens, and Manny green said,“I left early in the morning, and his girlfriend, Stacy Green says, I left after Manny left.” So the police brought him in, Huwe Burton, and they started interrogating him. Then they had him there for many hours, and eventually, he gave them the story that he thought they wanted to hear. Just a few days later, Miss Berwick, called the Cops back up on the phone. This was after the confession. She said, “you know what? I made a mistake reading my notes. He was in class.”She said, “you know what? I made a mistake reading my notes. He was in class.”She said, “you know what? I made a mistake reading my notes. He was in class.”he gave them the story that he thought they wanted to hear. Just a few days later, Miss Berwick, called the Cops back up on the phone. This was after the confession. She said, “you know what? I made a mistake reading my notes.He was in class.”She said, “you know what? I made a mistake reading my notes. He was in class.”She said, “you know what? I made a mistake reading my notes. He was in class.”he gave them the story that he thought they wanted to hear. Just a few days later, Miss Berwick, called the Cops back up on the phone. This was after the confession. She said, “you know what? I made a mistake reading my notes. He was in class.”She said, “you know what? I made a mistake reading my notes. He was in class.”She said, “you know what? I made a mistake reading my notes. He was in class.”called the Cops back up on the phone. This was after the confession. She said, “you know what? I made a mistake reading my notes. He was in class.”She said, “you know what? I made a mistake reading my notes. He was in class.”She said, “you know what? I made a mistake reading my notes.He was in class.”called the Cops back up on the phone. This was after the confession. She said, “you know what? I made a mistake reading my notes. He was in class.”She said, “you know what? I made a mistake reading my notes. He was in class.”She said, “you know what? I made a mistake reading my notes. He was in class.”

Talia: Wow.

Barry: And the same day they found that out, there was also a report from police in Westchester, that Manny Green was caught in the car, the family car, that obviously was stolen. Now Manny Green, the police then discover had a prior rape up in Westchester. He had a knifepoint robbery in Time Square, and obviously he had the car. So they went up to Westchester and they had a cover up what they did. So they got Manny Green, they fed him this story that he actually helped Huwe Burton, who had an argument with his mother and accidentally killed her, and he staged the whole thing to look like it could be a potential robbery sexual assault, and he agreed to get rid of the car for Huwe Burton.

Talia: So let me get this straight. They'd rather instead of undoing their wrong, cover up what they did?

Barry: Yes, and here's another reason why that happened. Just a few months earlier, the same Cops at the 47th precinct had coerced two confession from two other people, Dennis Coss and Calvin Parker, that they had been the getaway drivers in a murder robbery in a Safeway. And it turned out that the third person that the police were basically telling them they must have committed the crime with, a guy named Amante — they said he was a murderer, he was the one who went inside. And they get these confessions from Coss and Parker, and then it turned out that Amante had been in jail that day that this crime was committed. And believe it or not, this is the way that people looked at confessions, this is 1989; they go to a hearing in front of a judge in the Bronx, and both get on the witness stand and said “they coerced us, they fed us all these facts”.And the judge said “No, no, no. How could these these cops who are so experienced they would never lie. It must have happened that way. let a jury decide.” The jury acquitted in less than an hour. But these Cops had done this other case, just at the same time that now all of a sudden they have this Huwe Burton problem, so they had a lot of motivation to coverup what happened in Huwe’s case, as well as the other case. And this is 1989, 1989 is the same year as the exonerated five — the Central Park case; the same year as another case that we had in Long Island, Marty Takliff who was wrongly convicted based on a false confession of killing both of his parents. And another case in Westchester County, Jeff Deskovic — all teenagers, all coerced into giving false confessions, all within the same year 1989 and 90,because police then were using coercive methods of interrogation, they were allowed to lie to these teenagers.

Talia: And all of those cases are just in New York. Peter, can you tell us a little bit about what happened in Chicago?

Peter:Well, on the south side of Chicago, there is a neighborhood called Englewood, which is largely poor and largely black. And in the early 1990s, a young woman is found dead in a dumpster. She is naked, and she had been strangled to death , and the police tried to investigate it. So what did they do? They used their gang books to decide who the suspects would be. And when one young man was brought in for selling marijuana, they pressured that young man to point out certain photographs — he didn't know anything about the murder. But to point at certain photographs to the police believed were the suspects in the case. The four kids are then brought in for questioning, four young men, including Michael Saunders (who we represented), and so they were brought in and kept in different rooms.And the police would lie and tell each kid that the other kids have fingered you for the murder. And so they were all implicating one another. And at the same time, the police would say that when you implicate the other person, to make it more credible, you have to admit that you personally were there as well, and that you may have done something. And so each kid ultimately confesses and implicates each other. There was a rape kit, there was semen, they tested the semen, and all four of these kids were excluded. So based on nothing but the confessions, they were all tried and they were all convicted. They receive very, very lengthy sentences, and they would have stayed there. We get involved in the case, and what was so unusual for us is they had already done DNA testing.We finally get a court order and they fight us to retest the semen using state-of-the-art DNA testing, and then run it against the national convicted offender database that had been created by the FBI in the early 1990s, which didn't exist at the time. We do the testing and we run it against the convicted offender database, and we get a hit to a guy who had two other murder convictions, who was alleged by the state's attorney's office in Cook County to be a serial murderer, who they refer to as the maniac. That's who it hits on. They said, “Oh, it can't possibly be the case that every woman that maniac is with, he has sex with and kills. This could have just been one of those consensual encounters.” But the modus operandi of the maniac was to pick up women and have sex with them in exchange for cocaine.The deceased not only had semen in her, she also had copious amounts of cocaine in her blood, and she was strangled — just like the other women that the maniac had killed or assaulted. It was ridiculous. But the prosecutor's office resisted. They did not want this rock lifted to see all the misconduct that had happened. So that led to our single biggest reform at the time, which was to mandate that police departments videotape interrogations that happened in custody, and that became a key policy move of the Innocence Project. We got statutes passed in an overwhelming majority of states, which mandated video recording, because if there's a video record, at least you see whether or not details about the crime originated from the suspect, or if they were fed to the suspect by the Cop who’s putting words in his mouth — and you'd see that I mean, it's that outrageous that they could tell each of these kids falsely, that the kid in the next room, not only confessed, but implicated you as the heavy when it wasn't true. So we want to do away with that kind of manipulation in an interrogation. That kind of manipulation is not allowed in almost every country in Europe, but it's allowed here. It's also allowed here, that the police can tell you, “oh, we found your fingerprints on the murder weapon” when they didn't, “we found your DNA at the crime scene,” when they didn't. They shouldn't be able to make up facts. They're trying to wear down a person's reserve, so ultimately, they'll simply confess. We've introduced a bill in New York State to accomplish that reform, and we think that that's going to be a major piece of Innocence Project policy going forward over the next several years.

Talia: Barry, I want to go back to identifying the real perpetrator, as you did with the maniac. I'm curious of those you do exonerate, in how many of those cases does the DNA actually prove who committed the actual crime?

Barry: Well, we've been counting that and about 47% of the time, among the DNA cases, the person who committed the crime has been identified — that doesn't mean that they were always prosecuted, but we were able to figure out the identity of the person who committed the crime. So you would think that people would take every step they could to reform the criminal justice system, or make forensic science, truly scientific— to reform the whole way we approach this in terms of dealing with racism, and policing, and holding all of law enforcement accountable, including prosecutors, raising the level of practice among defense lawyers who either don't have the funding or are not doing the job. All of that has to be done. And hopefully, now, there's greater understanding and appreciation of that in this country.

Talia: Well, obviously, I think a lot of people are thinking about police accountability right now across the country. So I'm curious how you're both thinking that this time might ultimately affect our criminal justice system in the years to come?

Peter: Well, for one thing, it's hard to refer to it any longer as the criminal justice system, because we see a paucity of justice. I think that we prefer to refer to it as the criminal legal system, because it's the way that criminal investigations and adjudications are dealt with in the law, and very often it has very little to do with justice. I think that given the attention that's been placed, particularly about Black Lives Matter and other organizations, there is a great opportunity to start addressing some of those issues, systemically. Tt's not about doing what some folks call, namely, defunding the police. What we're really talking about is a kind of fundamental reimagining of what the role of police should be in our democracy and what the role of prosecutors should be in our democracy.The real change is going to require a change in culture. And we're not there yet.

Barry: I’d echo what Peter says. There are these legislative initiatives that are out there. Now, Peter mentioned transparency. So we want to have databases that finally reveal hidden misconduct, that police departments have found that officers committed. We just repealed what's known as 50A of the Civil Rights Act here in New York, which finally makes these records public record. But now we've got to go get those records. And we've got to go back and look at decades of cases and track what these officers were involved in, and I'm sure we're gonna find a lot of wrongful convictions and other problems. So there's a lot of activity in this area. And I think we're gonna get a lot of legislation passed.

Talia: I think so too. It sounds like a really exciting time for the Innocence Project.

Peter: Yeah, I think one of the reasons it's a very exciting time, is, particularly in the last six months, there's a great reckoning, if you will, about how many of these problems can be traced back to how this country was founded, and that despite the advances we've made, that we still have a country with great disparities, not just disparity in criminal justice, but racial disparity in education, and health care, and in all aspects of our society. And I think that when we talk about improving the criminal legal systems, at the same time, we have to improve those other institutions that are part of our culture, to do away with those disparities, and it's going to take a lot of effort. It's not something thats going to happen overnight.But the fact that so many people now are aware of that and are willing to roll up their sleeves and do something about it makes me pretty optimistic.