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If you like Barry Scheck's story, you might also like:
David Boies,
Willie Brown,
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Barry Scheck
 
Barry Scheck
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Barry Scheck Interview

Co-Founder, Innocence Project

September 14, 2014
Napa Valley, California

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  Barry Scheck

You've tried a lot of famous cases, but let's talk about the one that led to the founding of the Innocence Project, Marion Coakley.


Barry Scheck: The way that the Innocence Project really got started was this case of Marion Coakley, who was a man who was convicted of a rape based on the testimony of three eyewitnesses in the Bronx. That he broke into a motel and raped a woman and her boyfriend at gunpoint, and then put the woman in a car and drove to her home, and got more money from her relatives, and then abandoned the car and left. So there were these three eyewitnesses: the rape victim, her boyfriend, and the brother that gave money. And he had 17 alibi witnesses that he was at a prayer meeting in the other side of the Bronx -- 17. The reverend, all the members of the congregation, and anybody that knew Marion knew that he really couldn't drive and he was probably incapable of making it from the prayer meeting to the motel and back. There was really no way of explaining how he could have committed this crime.


He had a fairly low IQ, I believe.

Barry Scheck: Yes. And then there was some serology at that trial.

Explain serology, please.


Barry Scheck: Part of the evidence against Marion is that it appeared as though -- before the era of DNA testing, forensic scientists would use what they called conventional serological methods, because people secrete blood group substances into their semen or into the vaginal discharge or saliva. So that would be analyzed to look for blood types, and also what they call conventional protein markers. And in Marion Coakley's case, I believe -- if I recall it correctly -- they were saying that the only blood type that they got from the vaginal swab that was taken from the victim in this crime was blood type O, and Marion was blood type A. So in theory, he could not have been a contributor, right, because he was blood type A. So the prosecution put on a serologist, a good guy named Dr. Robert Shaler from the New York City Medical Examiner's office, and said, "Well, is it possible that somebody could be a low level secretor?" So even though they secreted blood group substances into their semen, but there was not very much, so you could get a false negative for the A. And he said, "Well yes, in theory, that's true." And that contributed to Marion Coakley's conviction. So we were given this case by our old public defender's office in the Bronx, and Peter Neufeld and I, along with students, decided to work on it.


Was this on appeal?

Barry Scheck: It was after he was convicted, but before a direct appeal. Everybody in the office was just so shocked that he was convicted, based on the testimony of the three eyewitnesses.


So we decided to take on the case, and there was a company called Lifecodes that had just begun DNA testing. It wasn't in the courtrooms, and it was one of the two or three commercial companies that first tried to transfer this technology from medical and research purposes to the forensic arena. Dr. Shaler had gone to work for Lifecodes, so we said, "Bob, let's get Lifecodes to do DNA testing on this case, because maybe this will prove that Coakley is innocent." And they tried it, but they claimed that they didn't get enough high molecular white DNA to get a result and then we went out and did quite a number of things to prove Marion innocent the old fashioned way. We found a palm print on the rear view mirror of the car that the perpetrator had abandoned, and they had taken, and we showed that it wasn't Marion's, and that analysis had never been done. We found exculpatory evidence that hadn't been turned over. And we literally had Marion Coakley ejaculate at different times in Attica Prison -- which we found very disturbing, it was hard for him to do -- to prove that he wasn't a low level secretor. So we proved him innocent anyhow, but we saw immediately that this DNA testing would be transformative for the criminal justice system. So we held a forum at Cardozo Law School with a number of people that were at the very early stages of using forensic DNA testing. I think it was the first such program that we'd had in a law school and became very interested in the topic. And then Governor Cuomo, Mario Cuomo, appointed Peter and I to a commission to look at the transfer of DNA technology to forensic purposes. And we became involved with some people at Cold Spring Harbor Laboratory, this fellow Jan Witkowksi, who then in turn introduced us to a number of scientists at Cold Spring Harbor seminars. And that is really how we got our start in dealing with DNA evidence in the criminal justice system.


In the early '90s, late '80s, you and Peter Neufeld were critical of the use of DNA testing in some cases. Famously, you called into question the DNA evidence in the O.J. Simpson criminal case.

Barry Scheck: Well, what really happened is that...


Right after the Marion Coakley case, there was another case involving an individual named Castro in the Bronx. After we did this seminar at Cardozo Law School, one of the people from the public defender's office says, "You guys are very interested in this. Could you do the admissibility hearing? The prosecution wants to prove that blood on Mr. Castro's watch is not his blood, but is actually the blood from the murder victim." So we were initially very suspicious, based on our early dealings with Lifecodes, because we could see that they hadn't published peer-reviewed articles, and they hadn't done some of the basic validation research that you would expect for this technology transfer. So we got the evidence in this case, and we never contested in the Castro case that the exclusion... that the blood on the watch wasn't from Castro. Because the way these DNA tests work, you would see these bands. They had what they called a RFLP testing at that time, that had to do with bands going down in a gel and you would see it. The bands were clearly not aligned, then it was an exclusion, and there was no dispute about the exclusion. So we didn't dispute that. But when they said, "Well, these bands that don't look the same are really the same, and then we can make an inference about the statistical significance of that by looking at population genetic evidence." Well, there was some very serious scientific problems with that. So we went to these Cold Spring Harbor seminars, and we started showing what they called the auto rads and some of the data to the scientists there. And we ran into this Dr. Eric Lander who's quite an extraordinary figure, very brilliant man. He was looking at it and he immediately realized, "Oh my God, here we are in the genetics community, and we all believe that this technology transfer is going to work, because it is such a robust technology, and of course DNA testing is going to work." But then, when he saw how this was being misapplied, and they had not done the right validation studies to prove that the things matched, and they hadn't done the population genetics work adequately to give us a real statement about what the significance of it was within certain populations.

[ Key to Success ] Perseverance


The probability.

Barry Scheck: The probability. So we contested that in court.


It was quite an extraordinary... it is sort of a landmark case. Because what happened, we did a six-month evidentiary hearing. There were Nobel Prize winners on the prosecution side, we had all these great scientists. And by the end of the hearing, Eric wrote an article about it in Nature. But what happened is he got the prosecution scientists to agree with our scientists about the data and they conceded. They wrote a joint statement at the end of the hearing that you couldn't match the fragments, you couldn't make an adequate statement about their significance, and called on the National Academy of Sciences to convene a panel immediately to help with the transfer of this technology from medical and research purposes to the forensic arena. And that was really a great and extraordinary development. That's really how we began. So we knew immediately that DNA would prove a lot of people innocent.

[ Key to Success ] Vision


And we knew, frankly, from the beginning, that it would change people's view of eyewitness identification, confession evidence, all kinds of different forensic assays that had not been adequately validated.


Barry Scheck: After the Castro case, so we knew there were problems with DNA, but we also -- and we wanted to see it work well and be admissible -- but at the same time we saw the problems in this technology transfer, and were actively involved in that National Academy of Science report and the commission that was set up on the future of DNA testing by the Department of Justice that turned out to be very important. So we started the Innocence Project in 1992, really even earlier than that we started working on these cases to use DNA to exonerate people who didn't commit the crime. But what we are probably better known for, our involvement... we always knew the Innocence Project was going to be extraordinarily important, but it became inevitable when O.J. Simpson was driving around in the Bronco, and I was literally in Madison Square Garden watching a playoff game and seeing the Bronco going around. I just knew, "Oh, we are going to get called." And sure enough, we did.


Why?


Barry Scheck: It had to do with blood stains on a walkway, and we knew that the defense lawyers would eventually call us just for advice on how to handle the serology evidence, how the DNA should be tested, because this was an area of expertise that we had, and the legal community all knew this. So literally, while they are doing the hearings, we would send questions to Jerry Uelmen and Bob Shapiro about how the evidence was processed, what they should ask, etc. And then, it's not something that we ever wanted, per se, but people forget that the DNA testing was going on before, even after they picked the jury they were still doing serological and DNA testing and other forensic testing in the Simpson case. So in any event, we were called in to be part of that defense team. And everybody thought that we were going to challenge the technology, per se. And that is not something that we did, because that wasn't really... the defense in the matter had to do with the way they mishandled its collection. And there's not much good that could be said came out of the O.J. Simpson case for the American criminal justice system. I think it exacerbated problems of race in this country enormously. I think it destroyed the sensible coverage of courts, with cameras in the courtroom.


It led to Nancy Grace.

Barry Scheck: It did. It led to the Nancy Gracification of coverage of trials, and more media circus, and less of an opportunity to learn.


I was very involved with my friend from college, Steve Brill, who started Court TV, and I think he started in a very serious way to make it real journalism, and really learn something from the coverage of trial courts. And the Simpson case was such an insane circus, I think it really set us all back that way. But the one interesting thing that did come out of it, is that the way that we critique the DNA evidence, in terms of how it was picked up, because our whole position was "garbage in, garbage out." If you cross-contaminate the samples when you collect it, you can do all the DNA testing correctly, but that doesn't mean you're going to get results about who really is the source of the evidence. And the idea that you would pick up DNA, you would pick up things without wearing gloves, you did not change the gloves, and you would take blood stains and put them in plastic bags when they were wet, so the bacteria would eat away the DNA and then put them in a hot truck, and then take them back to the lab. And then put everything out on a table and open a purple top tube that contained Mr. Simpson's DNA and have an aerosol and then touch all of the different samples. I mean, today that's just insane and unthinkable. And the truth of the matter is that the prosecutors who were brought in to do the DNA for Rock Harmon and the late Woody Clark -- Woody was really a great guy, we miss him terribly -- they understood what we were saying about the way the evidence was handled was accurate. And then later Woody and I were on this federal commission where we sent out things to police departments all over the United States, what everyone should know about DNA evidence: never put anything wet into a plastic bag, always change your gloves. All of these -- really the lessons of the Simpson case. So the critique of how the crime scene was handled was very important, and I think the forensic community recognized this changes everything. You can't use a 19th century method of collecting evidence for a 20th -- 21st century technology. So that's about the only silver lining I can find in that case, if you must know the truth.


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