What It Takes - Barry Scheck

What It Takes - Barry Scheck

00:00:00 ALICE WINKLER: One morning in 1986, a supermarket manager named Michael Morton left for work. By the end of the day he’d been arrested for the murder of his wife, Christine, who was found in their bed, beaten to death in front of their three-year-old son. Michael Morton was sentenced to life, and went to prison, but the thing is, he didn’t kill his wife. Behind his conviction is the sickening story of bad forensic science and an unscrupulous prosecutor who hid evidence from the defense, the judge, and the jury. Meanwhile the real criminal went on to kill another woman.

00:00:43 In 2011, after 25 years in prison, Michael Morton was finally exonerated, thanks to DNA evidence and thanks to the Innocence Project. I’m Alice Winkler, and this is What It Takes, a podcast about passion, vision, and perseverance from the Academy of Achievement. On this episode, co-founder of the Innocence Project, Barry Scheck.

00:01:12 OPRAH WINFREY: "Hattie Mae, this child is gifted," and I heard that enough that I started to believe it.

00:01:17 ROGER BANNISTER: If you have the opportunity, not a perfect opportunity, and you don't take it, you may never have another chance.

00:01:24 LAURYN HILL: It all was so clear. It was just, like, the picture started to form itself.

00:01:28 DESMOND TUTU: There was no way in which a lie could prevail over the truth, darkness over light, death over life.

00:01:36 CAROL BURNETT (quoting CARRIE HAMILTON): “Every day I wake up and decide, today I'm going to love my life. Decide.”

00:01:44 JOHNNY CASH: My advice is, if they're going to break your leg once when you go in that place, stay out of there.

00:01:48 JAMES MICHENER: And then along come these differential experiences that you don't look for, you don't plan for, but boy, you’d better not miss them.

00:02:02 ALICE WINKLER: The Innocence Project has used DNA evidence alone to win the freedom of 337 wrongly convicted men and women, some of them on death row. That’s the number as of April 2016. If you count the cases where DNA was one of several factors, the number is closer to 2,000. Two thousand people who served serious time for serious crimes they did not commit. In 2008, Barry Scheck gave a speech to students at an Academy of Achievement gathering. He began his talk with a poem by Seamus Heaney.

00:02:40 BARRY SCHECK: "Human beings suffer. They torture one another. They get hurt and get hard. No poem or play or song can fully right a wrong inflicted and endured. The innocent in gaols beat on their bars together. A hunger-striker’s father stands in the graveyard dumb. The police widow in veils faints at the funeral home. History says, ‘Don't hope on this side of the grave.’ But then, once in a lifetime, the longed-for tidal wave of justice can rise up and hope and history rhyme."

00:03:22 That is the sound and feeling of exoneration, a once-in-a-lifetime tidal wave of justice where hope and history rhyme.

00:03:33 ALICE WINKLER: Barry Scheck has dedicated much of his life to unearthing injustice and making it right. He and Peter Neufeld, both law professors at the Benjamin Cardozo School of Law in New York City, realized in the late '80s that new scientific discoveries about DNA had the power, if applied to criminal law, to transform our judicial system. By 1992, Barry Scheck and Peter Neufeld had launched the Innocence Project, and their organization has spawned a network of Innocence Projects in other states and around the world.

00:04:08 That network has gotten a lot of attention over the past two years because of the case of Adnan Syed, made famous by the mega-hit podcast Serial, and the case of Steven Avery, made famous by the mega-hit Netflix documentary Making a Murderer. But day after day, for nearly 25 years, lawyers involved with the Innocence Project and its affiliates have gone about their work tirelessly and without much glory.

00:04:41 The stories of the people who’ve been exonerated by the Innocence Project give you that pit in your stomach. It could actually happen to you, to anyone in the wrong place, at the wrong time, under the wrong circumstances.

00:04:56 BARRY SCHECK: It’s horrible. I mean here are these people that are just, you know, taken out of society. They go through the nightmare of being convicted of a crime, you know, they didn’t commit, which is a trauma in and of itself. You know, because the innocent — it's very interesting, the innocent ordinarily don’t possibly think they’re going to be convicted, even though, if you looked at the case objectively and you said, "Oh, my God, you’re in big trouble here. They've got all this evidence — all these witnesses testifying against you and supposed corroboration, and you know, your story sounds terrible. You know, the alibi witnesses sound awful. They’re your relatives, you know, and it looks like they’ll say anything in support of your position."

00:05:39 But they still don’t believe they’re going to get convicted in most instances because, well, they’re innocent. They didn’t do it. And then they go to prison, and I find that the first two or three years they get insanely angry, as you would expect, and we probably lose a lot of people at this stage of the process because, you know, I don’t know, maybe they commit suicide or they get involved in fights or they just lose it mentally, completely.

00:06:09 But what you find, which is so fascinating, about almost all of these exonerated individuals, is that at a certain point during the period of wrongful incarceration, they have a kind of spiritual transcendence where they — because they know that the anger and hate will eat them alive. So there’s this phenomenon when they get out of prison. Everybody goes, "Oh, my God, there’s no bitterness here." Now it’s not really true. There’s a lot of resentment, as there ought to be, for the injustices that were dealt to these people, but they have something special about them, a spiritual transcendence.

00:06:47 No matter what their walk of life or, you know, level of education, they achieve that, and so that’s a remarkable quality that they share. And they all want to change the system. They all feel all this pain must have had a purpose, so each in their own way wants to make it better. But when they get out, you know, everybody has moved on, even those who are lucky enough to have family that stick with them.

00:07:18 You know, many just shut the family out because, you know, it’s a terrible burden on people when you’re incarcerated for two decades to, you know, continue this connection. But even those who still have close families — when they get back, you know, it’s different. You’re a different person. You know, people have gotten married. They’ve gotten divorced. They’ve had children. They’ve changed jobs. They’ve really moved on in their life experience, and you’ve sort of stayed the same in certain respects, so it’s very, very, very hard to adjust.

00:07:57 All of them have some kind of sleep disorder. Many of them are suffering from post-traumatic stress disorder, and it’s not so much that they were personally attacked in prison — well, of course, that happens. It’s the violence they see in a maximum-security prison. That’s what keeps you up at nights, watching, you know, somebody else, you know, get stabbed or, you know, suffer terrible injury.

00:08:22 Those are the kinds of things that prevent you from sleeping. So it’s very hard when they get out. And when they get out, for the most part, they have less social service support in many states than somebody that committed the crime and is out on parole and is getting some re-entry benefits.

00:08:41 ALICE WINKLER: One of the exoneration stories Barry Scheck told in detail during his interview with the Academy of Achievement in 2014 was about the case that changed the course of his career. It's a story about a rape case, so be forewarned, it contains some graphic details.

00:08:59 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 he got more money from her relatives, and then abandoned the car and left.

00:09:26 And 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 on the other side of the Bronx. Seventeen! You know, the reverend, all members of the congregation, and anybody who knew Marion, knew that he really, you know, couldn’t drive, and he was probably incapable of making it from the prayer meeting to the motel and back.

00:09:57 And there was really no way of explaining how he could have committed this crime. And there was also some serology at that trial, and —

00:10:06 GAIL EICHENTHAL: Explain serology.

00:10:07 BARRY SCHECK: Yeah. So part of the evidence against Marion is that it appeared as though — when — 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, and so that would be analyzed to look for blood types and also other, what they call conventional protein markers.

00:10:43 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?"

00:11:31 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. Everybody in the office was just so shocked that he was convicted, you know, 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.

00:12:03 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. So Dr. Shaler had gone to work for Lifecodes, so we said, you know, "Bob, let’s get Lifecodes to do DNA testing on this case because, you know, maybe this will prove that Coakley is innocent." And they tried it, but they claimed that they didn’t get enough high-molecular-weight 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.

00:12:44 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.

00:13:20 ALICE WINKLER: And one of the ways it has been so transformative is this: when DNA evidence exonerates someone who’s been convicted, it usually reveals what factors led to the wrongful conviction in the first place. For instance, the Innocence Project has shown, case after case, that eyewitness identifications are terribly unreliable. Also, false confessions are much more common than you would think. Then there’s misconduct by police or prosecutors, bad defense lawyering, and the intractable problem of racism.

00:13:57 Each of these, and often some combination of them, lead to innocent people serving time for crimes they did not commit.

00:14:06 BARRY SCHECK: And, by the way, you’ve got to understand that when this happens, it’s not just that innocent people are incarcerated. It’s that the guilty is out on the street, often committing more crimes. Serial rapes and serial murderers, you know, are a real problem in the docket of the Innocence Project. So many of our clients were convicted of rapes and murders that they didn’t do and while the real perpetrator was out there committing crimes again.

00:14:31 ALICE WINKLER: Barry Scheck and his co-founder, Peter Neufeld, along with hundreds of lawyers and law students who have worked to reveal the cracks in our criminal justice system, are usually portrayed as the guys in the white hats. But that wasn’t the case exactly just a couple of years after the Innocence Project was created, when Scheck and Neufeld joined the so-called “Dream Team.”

00:14:53 BARRY SCHECK: We always knew the Innocence Project was going to be, you know, 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're going to get called," and sure enough we did.

00:15:13 GAIL EICHENTHAL: Why?

00:15:14 BARRY SCHECK: Well, because it had to do with bloodstains, you know, 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 — you know, because this was an area of expertise that we had, and the legal community all knew this.

00:15:34 And so, you know, literally, while they're doing the hearings, we would, you know, send questions to Gerry Uelmen and Bob Shapiro about, you know, 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.

00:16:05 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's not something that, you know, we did, because that wasn’t really — you know, 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.

00:16:33 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. And the Simpson case was such an insane circus, I think it really set us all back that way.

00:16:53 ALICE WINKLER: Here’s a clip from the televised trial of Barry Scheck delivering his part of the closing argument.

00:16:59 BARRY SCHECK: But what have we heard about rules and training at the Los Angeles Police Department laboratory? Well, this laboratory is run without a set of rules that everyone knows. They don't even have a manual. Think about that. That’s extraordinary.

00:17:19 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 know, 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.

00:17:45 You know, the idea that you would pick up things without wearing gloves, or you did not change the gloves, and you would take bloodstains 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.

00:18:13 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, you know, a 19th century method of collecting evidence for a 20th, 21st century technology. And so, that’s about the only silver lining I can find in that case, if you must know the truth.

00:18:37 ALICE WINKLER: The O.J. Simpson case was as high-profile as it gets, but it really was a one-off. Barry Scheck’s docket has been almost entirely filled with clients who are poor, without access to decent representation. I want to switch gears here and spend some time on Barry Scheck’s professional and personal background to paint you a picture of why he wound up on the path he did. It starts with a classic American story, but quickly takes an unusual turn.

00:19:08 BARRY SCHECK: I grew up as the first college graduate in my family. And my father was born on the Lower East Side of New York on Rivington Street, and he had seven brothers and one sister, and you know, the probably apocryphal story is that the last one up didn’t get clothes. But they were quite poor, and my father learned how to tap dance from a janitor in a bank, African American, and became a professional tap dancer, played the Apollo Theater, got into show business, had dancing and singing schools, was a producer of television for, first, the DuMont Network, and all the major networks.

00:19:49 And he had a show called Startime, where the kids from the singing and dancing schools would go right onto television. It’s sort of like Star Search, American Idol, you know, America’s Got Talent today, but back then. And then he wound up managing a lot of acts that came out of the schools, most prominently Connie Francis, Bobby Darin, and eventually managing Mary Wells, Odetta. His favorite client was actually a woman named Hazel Scott.

00:20:17 ALICE WINKLER: The brilliant and beautiful African American jazz pianist who wound up blacklisted, and for a time was an expatriate in France. So Barry Scheck grew up in this multiracial milieu in a family that was intensely interested in the Civil Rights Movement.

00:20:33 BARRY SCHECK: You know, it was a classic kind of, you know, second generation immigrant household, you know, where we had the values of your typical kind of left-wing, striving, you know, Jewish family that came from poverty.

00:20:50 ALICE WINKLER: But not so typical.

00:20:52 BARRY SCHECK: Well, my whole life, you know — my father tap danced at my bar mitzvah, he tap danced at my wedding. And everywhere we would go over the years, we would see all the great tap dancers, you know, Honi Coles, Sandman Sims, all of these people, and they would turn to him and say, "George, do that step that only you and John Bubbles could do!"

00:21:11 ALICE WINKLER: Barry Scheck’s mom was unusual in her own right. She’d grown up with parents in the dress business, never went to college, but ended up writing for magazines. She also won punching bag championships, as well as the Silver Skates speed skating competition at Madison Square Garden. So the speed skater and the tap dancer gave birth to a lawyer? How did that happen?

00:21:35 BARRY SCHECK: Oh, gosh. Well, you know, any person of my generation that grew up, you know, passionate and interested in the Civil Rights Movement saw that lawyers in the Civil Rights Movement really were able to use law as an instrument for social change. So, you know, that was, you know, quite inspirational and just seemed like, well, isn’t that what lawyers do?

00:22:01 You know, I liked Perry Mason, as anyone, you know, did in those days. But the show that I liked better was something called The Defenders that, you know, was written by Reginald Rose. I think Paddy Chayefsky would write episodes, and it was starring E.G. Marshall and Robert Reed. And The Defenders always, you know — they didn’t always win the cases, but they always took on the great constitutional challenges and the really interesting cases, and they were always idealistic, and it was, like — it was a great program. So, you know, I always remember that.

00:22:36 WILLIAM SHATNER: The people who defend me say if there hadn't been a war and I hadn't been taught to kill, I would never have killed Frank Cook. But in a way, wasn't it my fault there was a war? I mean, whose fault is it that there are wars and people learn to kill? Aren't we all to blame? Aren't we all bullies at one time or another, in one way or another? Aren't we all guilty?

00:23:02 ALICE WINKLER: Does that voice sound a little familiar? It’s a young William Shatner, but I digress. Barry Scheck may have found role models on television, but he also remembers the impact of particular books on his worldview, as he told journalist Gail Eichenthal.

00:23:19 BARRY SCHECK: One book that had a lot of influence on me was Manchild in the Promised Land by Claude Brown, and I remember Michael Harrington wrote that book The Other America. I remember reading Silent Spring, Erich Fromm, Escape from Freedom, very strange, and Freud’s Interpretation of Dreams. I read that in seventh grade, and it had a big impact on me.

00:23:41 GAIL EICHENTHAL: How so?

00:23:43 BARRY SCHECK: Well, you know, all of a sudden you read that and, you know, your everyday life looks different because you start thinking about the motivations of everybody’s behavior. It was actually quite helpful.

00:23:56 ALICE WINKLER: Scheck’s childhood reading list is impressive, but he insists he wasn’t a very good student.

00:24:02 BARRY SCHECK: They sent me to — you know, they had this — in the New York public school system they had these funds for kids that they thought were smart but, you know, couldn’t behave in class, and you know, these days they'd probably give us Ritalin, right? So it probably was attention deficit disorder, or maybe I was just — or I don't know. But I had — you know, I was a class clown and a cutup and, you know — so they sent me to this psychiatrist, I remember that.

00:24:33 And then we had this personal tragedy in our family when I was in fifth grade. Our house burned down. I was ten. My sister died. She was seven. My parents, you know, suffered injuries during the fire. So I was sort of dislocated.

00:24:52 GAIL EICHENTHAL: Well, obviously that's incredibly difficult for everyone. Do you think it affected your career?

00:24:59 BARRY SCHECK: Well, I came to terms with it in my fifties. I actually went to this terrific psychotherapist for about a year. I think he's really quite an extraordinary man. His name is Martin Bergmann. He lived — he just died. He was 100 and really brilliant. And people probably know him because he played this doctor of love in Woody Allen’s movie Crimes and Misdemeanors.

00:25:33 But in any event, you know, I had compartmentalized this whole thing about the fire and the death of my sister and how it affected, you know, me and my parents. And I finally came to terms with it — or he pointed out to me, you know, how it really had been, without my truly being aware of it, you know, probably a pretty good motivating influence. It’s how you wind up wanting to defend people and protect the underdog and it probably had something to do with what I wound up doing professionally.

00:26:09 ALICE WINKLER: Somehow, despite the tragedy, or maybe because of it, Barry Scheck excelled in high school and wound up at Yale, studying macroeconomics. But it was 1968, and he was bitten by the politics bug, working for Eugene McCarthy and Robert Kennedy. He went to the '68 convention. He went to Woodstock. He decided to switch to American studies. He thought he’d change the world by making public access documentaries.

00:26:37 BARRY SCHECK: There was not a revolution, by the way, by 1971 and, you know, so I took the law boards and, you know, got into a bunch of law schools. And I just didn’t think I wanted to do it, and then I decided, “Well, here, the University of California at Berkeley, it only costs $400 dollars a semester, and it’s Berkeley,” and I had never been there, you know. And that was, you know, a hotbed of, you know, political activity, so I figured, “Let’s go move there.” That’s how I wound up at law school.

00:27:13 After I left Berkeley, I worked for a while for the United Farm Workers Union, and I took the New York and California bars at the same time, which was a little hard then. And then eventually, after, I went back and I worked as a public defender in the South Bronx for the Legal Aid Society for two-and-a-half years and before I sort of accidently wound up as a law professor.

00:27:36 ALICE WINKLER: The South Bronx was one of the most bereft neighborhoods in America during his time as a public defender there. It’s where he was steeped in the inequities of our justice system, and it’s where he met Peter Neufeld, his future partner in the Innocence Project. When Scheck stumbled into a job at the new Benjamin Cardozo School of Law, he immediately started focusing on clinical education, which was very uncommon in those days.

00:28:02 BARRY SCHECK: The clinical movement really changed legal education. Then there was a focus on seeing the client as a person. And fact investigation, which really, you know, is quite important to the development of law because, you know, you can have the analytical principles that decide cases, but you know, who created the facts? And how you gather the facts and how you marshal them and present them, you know, has enormous importance for lawyers.

00:28:32 You know, so I was a clinical professor. I had students working on cases, but I would take major cases, and I guess the first one that really caught public attention involved battered women. There was this horrible incident just a few blocks from our law school where a lawyer — although it turned out he didn't really have a license — named Joel Steinberg had actually beaten to death his not-legally-adopted daughter, Lisa.

00:29:02 He had another small child that he had adopted, and his live-in companion, who was a woman named Hedda Nussbaum, who had been a book editor at Random House and was drop-dead gorgeous. I mean, Hedda Nussbaum was a very, very beautiful woman, and she used to write children’s books, and she became involved in this relationship with Joel Steinberg. And he was sort of a mesmerizing character and eventually became batterer of Hedda.

00:29:34 And by the time that Lisa Steinberg was brought to the emergency room at St. Vincent’s Hospital in Manhattan and Hedda was seen, she was unrecognizable. You know, she had a ruptured spleen. You know, bones in her face were broken, you know, all over her body, and she looked twice her age. And when she was seen on television, you know, people were appalled.

00:29:58 HEDDA NUSSBAUM: There was a period when Joel made me sleep in the bathtub. When I would displease him the first time, he would say, "No breakfast," so I couldn’t have any breakfast. Then, "No lunch. No dinner." Next would come, "No blanket."

00:30:11 BARRY SCHECK: This was a case that really did divide the feminist movement because, on the one hand, Joel was clearly a batterer. He battered Hedda. He had killed Lisa. There had been heavy drug use in the house, and we all came to believe that they were literally, you know, sharing a delusional system. They would call it a folie à deux. But there were many that believed, "Well, you know, if you're a battered woman, that’s one thing. We can understand, you know, either killing your batterer — we understand that. We’ll defend that, but if a child dies, even though both you and the child were being battered, well, that’s where we draw the line, and you won’t get support from us."

00:30:56 And I am very, very grateful to this day for Gloria Steinem, because Gloria Steinem was the person that really stood up and came to Hedda’s defense when, you know, that was not easy or simple. But it was quite an extraordinary case because it was televised every day in New York. This was a televised trial in New York City, so all daytime programming was off every day that trial was on television.

00:31:24 And the prosecutors involved in that case and myself and the students and the other lawyers that worked on it, when we really investigated the lives of, you know, Joel and Hedda and the children and some of the people that were around them, it was so upsetting and horrifying that we all reached the same conclusion. And we managed to get Hedda into Neuro 12 at Columbia Presbyterian Hospital and treated by psychiatrists.

00:31:55 And the prosecutors agreed to dismiss the case against her, and they did that without any assurance guarantee or quid pro quo that she could ever be a witness, but she did make enough of a recovery where eventually she was able to testify, and that was pretty riveting.

00:32:13 ALICE WINKLER: Over the years Barry Scheck has worked on other extraordinary and high-profile cases. There was Abner Louima, a Haitian man who was sexually brutalized by New York City police officers; and Amadou Diallo, an unarmed immigrant from Guinea, who was shot and killed by New York City police officers. To this day, Scheck continues to practice as a civil rights attorney while also co-directing the Innocence Project. There are now more than 50 branches of the organization, and while the individual cases are gut-wrenching, Barry Scheck is optimistic about the big picture.

00:32:50 BARRY SCHECK: Well, you know, the work of the Innocence Project — we use DNA testing to get people out of jail that didn’t commit the crimes, and we've worked on non-DNA cases and will continue to do even more of those, and the network of projects that we have across the country does that. But what we found is that there are a whole group of causes of wrongful convictions, sort of well-known and established, you know, and they would include eyewitness misidentification, which, depending on how you look, is probably the single greatest cause of the conviction of the innocent, certainly in our DNA sample.

00:33:26 And there are wonderful, wonderful fixes that scientific research has given us that will minimize mistakes without really reducing correct identifications. Now it's, you know, an inherent problem, eyewitness identification, but there are these fixes that come out of 30 years of terrific scientific research by psychologists. And now we are making enormous efforts to get the police to adopt these reforms, and we find a lot of police departments, you know, have been doing this across the country.

00:34:00 And we won a landmark case in the New Jersey Supreme Court that also would inform jurors about a lot of this research and its effects. And the Oregon Supreme Court has followed that, and it’s really an effort to bring all the scientific research and have it adequately transferred into the courtroom and to adequately inform jurors and to change police practices.

00:34:29 So we have had a lot of success, I think, in the eyewitness area. We're also looking at false confessions, which is an extraordinary cause of wrongful convictions. The simple fix, of course, is to videotape them, and that we're getting in state after state after state, and the FBI just has finally agreed to videotape interrogations, which is a big step forward.

00:34:53 And it’s not just videotaping, although that's going to help enormously, to have that record, but also better training on how to conduct interrogations because there’s a lot to learn in this area, again, from psychologists about the best way to do it. And we really have to get the courts now to look at reliability because courts, unfortunately, have looked at confessions and said, "Well, it’s admissible if it’s voluntary."

00:35:19 Well, if you certainly have a record of a videotape of interrogation, you can see if the suspect is giving information that only the police and the suspect would know and whether that information independently leads to other incriminating information. That is what I think law enforcement officials all across the world would agree are the measures of what is a reliable interrogation.

00:35:42 And that has to be recognized more by the courts, and we have to train law enforcement on how to do that better. You know, I feel — and my colleague Peter Neufeld and everybody that works on the Innocence Project in New York and in the other projects across the country, we feel we are involved in an international human rights movement. And we now have established that far more innocent people are convicted than anybody ever really thought.

00:36:06 It was really a necessary fiction to believe that we have an infallible system, but it certainly isn’t, and there's no good reason to believe it is. You know, we're in a brave new world of digital evidence. It's extraordinary how quickly this technological change is coming, and the criminal justice system has to catch up, and we can’t afford anymore to have lawyers and judges that are scientifically illiterate.

00:36:35 And I am not saying you have to understand every aspect of the technology, but what you have to understand are things like, how do you validate something? You're coming in with evidence in the courtroom. What does it mean to validate it? You have to understand sensitivity and specificity and probabilities and the kinds of things that are, you know, the staples of scientific research in all kinds of disciplines.

00:36:58 It's just unacceptable not to understand these things in some way anymore if you're a lawyer or a judge. I don't care whether you are doing criminal or civil work. And so I think the Innocence Project has had an enormous impact on state and federal policy and trying to bring the mainstream scientific community into the criminal justice arena. That's going to be one of our significant contributions.

00:37:25 ALICE WINKLER: Remember that poem Barry Scheck recited at the beginning of this podcast by Irish poet Seamus Heaney? Well, it goes on a little longer, and since Barry Scheck chose to return to the poem at the end of his 2008 speech to the Academy of Achievement, I will let him end this podcast episode the same way. It's called The Cure at Troy.

00:37:47 BARRY SCHECK: “So hope for a great sea change on the far side of revenge. Believe that a further shore is reachable from here. Believe in miracles and cures and healing wells. Call the miracle self-healing: the utter self-revealing double-take of feeling. If there’s a fire on the mountain or lightning and storm and a god speaks from the sky, that means someone is hearing the outcry and birth cry of new life at its term."

00:38:28 ALICE WINKLER: The poetic justice of Barry Scheck, civil rights lawyer, professor, and co-founder of the Innocence Project. If you have friends you think would like this episode, give them a tweet. Our hashtag is #WhatItTakesNow, and you can find more about Barry Scheck at the Academy of Achievement’s website, achievement.org. I’m Alice Winkler, and this is What It Takes. Thanks for listening.

00:38:57 ALICE WINKLER: What It Takes is made possible with the tremendous support of the Catherine B. Reynolds Foundation.

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