3 Takeaways - Founder of the Innocence Project, Barry Scheck: Why People Are Wrongfully Convicted and What We Can Do About It (#1)

Episode Date: July 29, 2020

Founder of the Innocence Project Barry Scheck, answers all questions related to wrongful convictions. Barry Scheck has freed hundreds of wrongfully convicted people from jail, many of whom spent decades in jail for crimes they didn’t commit. Wrongful convictions are not an aberration but a result of the way the system is designed. What can we do to reduce wrongful convictions and free innocent people from jail? Tune in to find out. Also check out the Netflix series The Innocence Files, which is based on Barry Scheck and his work.

Welcome to the Three Takeaways podcast, which features short, memorable conversations with the world's best thinkers, business leaders, writers, politicians, scientists, and other newsmakers. Each episode ends with the three key takeaways that person has learned over their lives and their careers. And now your host and board member of schools at Harvard, Princeton, and Columbia, Lynn Thoman. Hi, everybody. It's Lynn Thoman. Welcome to another episode. Today, I'm here with Barry Sheck, co-founder of the Innocence Project. Barry co-founded the Innocence Project to free and get out of prison the wrongfully convicted by using DNA and other evidence. To date, they have overturned hundreds of wrongful convictions of people that have spent decades in jail. They have also overturned convictions of dozens of people sentenced to death.

Netflix's new docuseries, The Innocence Files, is based on Barry and the Innocence Project. Today, Barry's going to tell us the major reasons for wrongful convictions and what we can do to change the system so innocent people don't spend decades in jail for crimes they didn't commit. Welcome, Barry, and thank you for talking to us today. Thank you so much, Lynn. Great to be here. Barry, how did you come to start the Innocence Project? I was a professor at the Benjamin N. Cardozo School of Law. But before that, I had been a public defender in the South Bronx. And that's when I met my friend Peter Neufeld. And the two of us shared

a real interest in forensic science serology, as well as all the other things that we knew brought about wrongful convictions. And starting about 1987, 88, we had been involved in some cases involving conventional serology that had led to wrongful convictions. Then we realized as it came to the fore that DNA testing, as this technology which had come from medical diagnosis and research, was being transferred or translated to the criminal justice system, that it was going to be transformational. So we were lucky enough to be there at the beginning as this transformation was occurring at the cutting edge. So we realized from the outset, DNA testing could not only identify people who had committed the crimes,

but it would be able to exonerate thousands of people who did not, while at the same time identifying those people who really were guilty. And we knew from the beginning that this would allow us to understand a lot more about the causes of wrongful convictions. How many wrongfully convicted people have you freed? The Innocence Project itself has probably been attorney of record or assisted in close to 300 exonerations. But from the beginning, we worked to help build a network of innocence organizations, primarily at law schools, all across the United States. So now we have 56 innocence organizations in the United States, and there are 13 other organizations abroad. Mexico, Latin America, continental Europe,

Taiwan, Japan. We even have made a number of trips to China. So this has become an international human rights. Let's talk about some of the reasons for wrongful convictions. Let's start with misapplication of forensic science or junk science. What can you tell us about that? The misapplication of forensic science and a way of saying there's unvalidated forensic science. These are forensic assays that haven't gone through the kind of rigorous validation that we would all want as we live at the time of COVID-19. You see how important it is to understand sensitivity and specificity. You have to know your false positive rate and your false negative rates. When it came to so many of

these forensic assays, there was no scientific approach where you would have those kinds of rigorous studies to show how often they get it right or wrong, which is incredible when you think about it, that life and liberty are at stake. That was what was so unique about DNA. And in 2009, the Innocence Project was part of a group that were able to persuade the National Academy of Sciences to issue a report about forensic science called Strengthening of Forensic Science. And the NAS panel actually made a finding that the only truly validated forensic assay scientifically was DNA. So even things that we all know are going to be very good identifiers like fingerprints, they had not been adequately validated. We did not know their false

positive, false negative rates, not even sufficiently, I think, till today, or ballistics, or so many of these other pattern matching disciplines. So some of that is just insufficient validation. Other times we just have people that are not being regulated. They're not even following their own rules. And there is a fraud or a total misapplication of forensic science. And in the Innocence Files, the Netflix series, we focus three episodes on bite marks. And what makes bite marks so terrible is that when you go back, you'll see one case really admitting it, right? Just based on, oh, experts in the field of bite marks themselves generally agree that it's reliable, right? It's generally accepted or reliable among them, the people that are the practitioners of it, not looking at any outside group of

scientists in related fields to say, well, this is validated. And so all of a sudden, it spreads through the court. Five, six, seven, eight, nine different courts say, oh, well, it was admitted in California, so I guess we'll admit it here. And all of a sudden, you have all these decisions saying this is generally accepted as why it's like an echo chamber. But the real science was never really done and nobody ever really attacked it. So years later, we find ourselves in a situation where the bite mark analysts themselves, when finally doing a study a few years ago of items on skin where they were asked, are these bites? Even a third of them couldn't tell whether they were bites or not. When you have bite teeth on an elastic substrate like skin, being able to analyze those with any high degree of accuracy or reliability is difficult. And

lots of people believe they will never validate it, right, for inclusions or exclusions. And we haven't seen that yet. Yet there's still bite mark cases all over. Eyewitness misidentification is another major cause of wrongful convictions. Can you tell us about that? Sure. Going way back, people in the criminal justice system have always known that eyewitness misidentification was a leading cause, if not the leading cause, of wrongful convictions.

And we've known for many, many years that eyewitness misidentification from lots of scientific analysis by experimental psychologists would show that there's a lot of inaccuracy. Archival studies show that one third of the time that witnesses go to a photo array or a lineup, and that would be there's a suspect in person or a picture of the suspect. And then there are, I'd say, five other fillers, right? Filler photographs or filler individuals who we know did not do it. A third of the time, they'll pick a filler. So think about that. A third of the time, they're making an incorrect identification. Now, that shows that the process itself is problematic. At the same time, the work of Gary Wells, Jennifer Dysart, another great psychologist at the John Jay School of Criminal

Justice. Gary, Jennifer, and their colleagues for many years have done all these experiments in the lab because you actually can discover a study, eyewitness identifications. It's almost like a memory test. So you can change certain conditions. So we know, for example, that if you say to an eyewitness, I'm going to show you some pictures or individuals. If you do not see anyone you recognize, don't worry, the investigation will continue. Now, just by giving that warning, we've known for close to 30 years now that incorrect identifications will drop by more than 20% because it discourages people from guessing. Gary did amazing work in the whole area of confirming feedback. If you show a whole group of people a really bad identification scene in a movie, the opportunity

to observe is bad. Everything about it makes it very difficult to identify an individual. And then they pick somebody out of a photo array or a lineup. And then right after they pick them out, somebody says, great job, right? You got the right person, great job. And then you take 100,000 people, it's been replicated so many times, and you give them no confirming feedback, right? The people who's got the confirming feedback, you ask them, what were the lighting conditions? They go way up on good. What was your opportunity

to observe? It goes way up. I mean, when Gary shows these graphs, I've heard gasps in the audience. And then, of course, how certain are you? People that weren't certain at the very beginning when they made the identification, after they get the confirming feedback are extremely sure. And juries have always responded. We know from studies, if the witness is very certain, right, they tend to think they're right. But we also know that certainty statements should be in the words of the witness, and they must be done at the time of the first identification procedure under pristine conditions. That is to say, with the proper warning, with good fillers, so that the suspect doesn't stand out with no confirming feedback, etc.

So we know a lot about how to do that. We call them system variables. There's no really accounting for the external variables like lighting conditions, distance, et cetera. But we can do a lot to minimize the number of wrongful identifications and have. And so the Innocence Project has been working with these experts for many, many years and have won a lot of decisions in courts and gone into the legislature and gotten laws passed to try to change the way that eyewitness identification procedures are done. We've been extremely successful with that. I can't say that every state has all these reforms in place, but many do. It's something like 36, 37 states. We've all seen those dramatic moments in movies and TV shows where the witness gets up

on the stand and dramatically points to the defendant and says, that's the person who did it. Barry, what do you think of those moments? That dramatic moment that everybody's familiar with when the witness says, that's the person, that should not be allowed in court. That has, from a scientific point of view, that has no probative value whatsoever. The most important identification is the first one, where you get a certainty statement from the witness in their own words. If it's a sound or pristine identification procedure, that's the one, it's the first identification that is the most probative of whether this is an accurate or reliable identification. One of the first things that scientists taught us, although people don't believe it,

is that memory doesn't get better with time. False confessions are another important reason for wrongful convictions. How important a factor are these? And why do people give false confessions are another important reason for wrongful convictions. How important a factor are these? And why do people give false confessions? Why do people confess to crimes they did not commit? You know, a quarter of the cases involve false confessions. First of all, all the interrogation procedures should be videotaped from the moment of Miranda warnings followed so we can see

exactly what happened. We can have police officers suggesting things to people about what they thought happened, putting even aside issues of coercion, just the feeding of facts. One of our colleagues, Brandon Garrett, who's now at Duke Law School years ago, did an incredible article looking at, I think it might have been the, years ago, did an incredible article looking at, I think it might have been the first 100 exonerations dealing with false confessions. And these are people that DNA proved did not commit the crimes, yet they're confessing. And where did all those details come from? Because the facts that they were confessing to were false.

Where did they come from? Obviously, they came from suggestions from the police officer. Could be just leading questions about what they believe to be true. And we now are focusing more and more, not just on the videotaping, but on the procedures of interrogation. Because one of the things that technically is allowed under American law, but not in other countries. And it should not be allowed in this country. And that is, it's for interrogators to deliberately lie to a suspect about a fact. Oh, we've got your fingerprints here. Or, oh, so-and-so has just rolled over and identified you. And lying about particularly facts, physical facts, greatly elevates the

risk of getting false convictions. We really need legislation now to prohibit the deception in interrogations. And we need police departments across the country, and it's now beginning to happen, to look in the field of how people are interrogated. Another reason for wrongful convictions is incentivized informants or jailhouse snitches. How important a factor is that and can you tell us about it? The use of jailhouse informants in particular or others in a case who are being offered deals to testify against somebody obviously runs the risk of a false confession because people will be trying to get benefits for themselves. But the system of jailhouse informants in particular has been really, really pernicious. There's a case right now, a former police officer who fell on

hard times and started getting convicted of crimes, and he was really a con man. So he would consistently get arrested and then consistently get out of cases against him by giving testimony as a jailhouse informant against other people. And he was a great witness. He always managed to get people convicted. And he's the textbook example of a jailhouse snitch who just can implicate hundreds of people with plainly false testimony. And there have to be controls placed on that. They use these jailhouse informants in the weakest cases. The science of DNA testing has improved. For a person who was convicted decades ago when the science of DNA testing was not as good as it is today, can you tell us about the use of post-conviction DNA testing? DNA testing hadn't even been invented yet, right? So we say we can go back and look at these old cases

and we'll get a better outcome in terms of reliable evidence than you ever could have gotten at the original trial because we're using DNA testing. And we can tell whose semen, whose blood, whose skin cells were there in a way that we never could before. We began a movement of trying to get all 50 states to adopt post-conviction DNA statutes. And that has happened. Some of them still need some further modification, but we were able to get through the United States Congress a post-conviction DNA act federally. Post-conviction DNA testing sounds like a terrific tool, but it only works if all the evidence is being preserved.

Is all the evidence being preserved? We've gotten some federal guidelines and statutes created and that it's really a local matter. But the truth is that we would have had thousands and thousands of exonerations in this country. But we went back to find the DNA evidence. It was destroyed. Here in the New York City Police Department, there was a flood. There was Superstorm Sandy. For years, they could not find things. They said that things have been lost or destroyed. Whereas in Dallas, we found almost everything. And that's why Dallas alone became one of the centers for exoneration in this country. Because we go back and look at the old cases and we find the evidence. California, they've been unable to find evidence in all cases,

biological evidence that's been destroyed. This has nothing to do with the local rules. It had everything to do with the local legal culture. So some instances were lucky. Somebody happened to save a piece of clothing found at the crime scene, and we can go back and find it. In other instances, no. But now I think in the DNA era, everybody recognizes that you have to preserve all probative crime scene evidence for as long as that person is in prison, at the very least. How do we fix the problem of false confessions and innocent people pleading guilty? Innocent people pleading guilty is a much bigger problem than just false confessions.

Bail reform is critical to this. So many times people plead guilty to misdemeanors which have tremendous consequences and even felonies because they can't afford to go to trial. The National Association of Criminal Defense Lawyers has put out a very good book called The Trial Penalty. And this lays out how in federal courts, courts all across the country, in an era of mandatory minimum sentences, which has led to the mass incarceration in this country, which is one of our major national problems, that with all these mandatory minimums, it is absolutely logical to plead guilty to a crime you did not commit rather than risk going to jail for virtually the rest of your life.

And so that penalty of going to trial to prove that you're innocent has to be eliminated in both our state and federal courts. Barry, you've talked about a number of problems with our criminal justice system that result in wrongful convictions, including junk science, problems with witness identification, false confessions, jailhouse snitches, the lack of preservation of evidence for post-conviction DNA testing, innocent people pleading guilty. Can you now talk about the impact, what you call the circle of pain? Every time we have one of these wrongful convictions, you don't just put the individual in prison, you put their family there. And it's a circle of pain for the person who was harmed in one of these cases, when the wrong person went to jail. And it's just causes so much pain and heartache for everyone involved in the case. Wrongful convictions are really calamities. Before I ask you for three key takeaways from our conversation today,

is there anything else you'd like to talk about that you haven't already touched upon? Yes. And we've had a discussion of causes of wrongful convictions one after another. But when you watch the Netflix series, you will see that all these factors tend to arise in the same case. And they all arise in what is the most intractable and important problem that we have to deal with if we want justice in this country, and that is racism. Because race is everywhere in the criminal justice system. I mean, it is historical. People of color are caught up in way disproportionate numbers in the criminal justice system in this country. And it is just, it's been a shameful historical legacy.

When did this rise in incarceration start and what caused it? I started as a public defender in 1975. And I can see at the time of the crack epidemic and the passage of all these mandatory minimum sentences, a huge rise in incarceration in this country, where at the same time, the crime rate was going down. Now, why is that? There's lots of theories about it. Some of them have to do with prosecutors just always charging to the maximum offense and the mandatory minimums. It is crazy. And it has to end. I think that we're making real progress on criminal justice reform. Hopefully we'll get rid of more and more of these mandatory minimums. And we will be looking towards a policy of restorative justice, which really is victim

centered or we focus on the person harmed and see how, but also the person that's being charged and see if we can come up with solutions that do not necessarily involve incarceration. Because it's not healthy for society. It's going to take a long time for us to get over this national nightmare that really began, I guess, in the 70s, where we became the most incarcerated country on the face of the earth. What are three key takeaways from our conversation today? where we became the most incarcerated country on the face of the earth. What are three key takeaways from our conversation today? Well, I hope that, number one, people are conscious of innocence organizations in their jurisdictions. Two, they begin to look at the criminal justice system from the point of view, how can we use science and scientific-based methods to improve it, not just

in terms of forensic science assays, but in areas like false confessions or eyewitness identification or so many others, administration. We can do better with better science and how we go about investigations. And three, I really think we have to come to terms with the issue of race. I know people talk about it all the time, and some people may say, I've heard enough of it. That's crazy. We're only beginning to come to terms with it. And we have something that we call conviction integrity units. And these are units within district attorney's office, which I believe are best run by defense lawyers, right? People have defense background, where they review potential cases of miscarriages of justice, which would involve not just the innocent person being convicted, but also looking back at cases where people might have been excessively sentenced and deciding whether or not the office ought to come to the conclusion. There's so much that we can do. And I think that the next administration is going to be one of criminal justice reform like we haven't seen since the days of Robert Kennedy's Justice Department.

Thank you, Barry, for all that you do and for our conversation today. Thank you so much, Lynn. If you enjoyed today's episode, you can listen or subscribe for free on Apple Podcasts or wherever you listen. If you would like to receive information on upcoming episodes, be sure to sign up for our newsletter at 3takeaways.com or follow us on Twitter, Instagram, Facebook, and LinkedIn. Note that 3takeaways.com is with the number three. Three is not spelled out. For all social media and podcast links,

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