You have spoken widely about the need for better public defenders and better representation for indigents who can’t afford the Dream Team.
Barry Scheck: It’s so bizarre to be on the Dream Team. Many of us on the Dream Team — Jerry Uelmen, Peter Neufeld, myself, and Johnnie Cochran — were all people that believed in strong indigent defense.
I would say that in terms of criminal justice reform in my professional lifetime, the area that we have lagged the most is adequate funding for the defense. That is such a problem, because when you’re talking about issues of bad science, inadequate forensic science, you can blame the forensic science community for not adequately validating many of these assays, or the judges for not understanding issues when they were brought before the courts, because unfortunately, lawyers were kind of scientifically illiterate. But the defense, where was the defense? Over the years, the Innocence Project has exposed crime labs where people weren’t even doing the tests — they were calling it dry-labbing — and all kinds of problems. When we look back at these cases that we are now auditing many years later, so where were the defense lawyers? And the problem was that they didn’t have adequate resources. They weren’t adequately trained, and it’s a serious problem. And you’ve got to reconceive public defense, because if people begin to understand that a public defender is somebody that solves problems — if you want to keep families together, a public defender can assist in keeping families together. If you want to cure alcoholism or drug abuse, the defender has a huge role to play, or even dealing with family violence. Not to mention that if you have a strong defense in an adversary system, you expose police misconduct, prosecutorial misconduct, and bad evidence. And if the defense is not adequate, the whole system implodes. So that really has been a very important cause for me in my entire professional career.
The George Rodriguez rape case is certainly one that exposed some misconduct. Talk about that.
Barry Scheck: The George Rodriguez case was one that arose in Houston, Texas. And again, that was a case where it turned out that the serologist at the Houston Police Department crime lab had literally testified to serology results that he had to know were false, but gave an interpretation that was consistent to help convict poor George Rodriguez in this rape case, whereas on other occasions, he literally testified to the opposite. And the fellow that was doing the serology testing for the Houston Police Department crime lab was literally overwhelmed. They had taken too many cases, they didn’t have adequate resources, they didn’t have adequately trained personnel. And what we discovered after we were able to exonerate George with DNA testing, that — along with the great Rodney Ellis, who was a state senator in Houston, but is much more than just a state senator, he’s a force of nature, one of the great political geniuses in the country — we used George’s case as a way to expose all of these other deficiencies in the Houston Police Department crime lab. And as a consequence, the Mayor, Bill White, and the Police Chief agreed to appoint Michael Bromwich, who was a former inspector general in the Justice Department, to do the largest audit to that date of any crime lab in the world. He did it, and found quite a number of other cases where certainly the serology was not adequately tested. 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 are not apprehended, because they are not even identifying semen stains. And when the wrong person is in jail, the real person is out on the street, often committing more crimes. Serial rapes and serial murderers 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, while the real perpetrator was out there committing crimes again. In fact, out of the 314 post-conviction DNA exonerations that we have as you and I speak today, I think it’s close to 47, 48 percent of them, the real perpetrator has been identified. And often, invariably, has committed other crimes subsequent to the one where the wrong man or woman went to prison.
Could you tell us about the case of Kenneth Waters, which inspired a film?
Barry Scheck: One of the cases that — in the first decade of the Innocence Project — involved Kenneth Waters, who was convicted of a murder in Ayer, Massachusetts. When we got involved in the case, there was already his sister, Betty Ann Waters, who is a real hero. Betty Ann had watched Kenny get convicted in this small town where they grew up and they both were raised in total poverty. She was a mother with two children, a GED. And her brother is saying, “Well, I want you to become a lawyer to get me out of jail. You are the only person I trust. And otherwise, I am going to commit suicide,” was essentially the bargain he made with her. So sure enough, Betty Ann, eventually becoming a single mom with two kids, went to college and then went to law school, all for the purpose of getting her brother out of jail. And near the end of it, she called the Innocence Project, and me in particular, to assist her in the end in trying to get Kenny out of jail, and she did. She is a wonderful inspirational figure, and he was a great guy. He was funny and full of life, and tragically died just a few months after we got him out.
We recognized almost immediately that this was one of those inspirational stories that the media understood, and really appreciated, because of the love of the sister for the brother, and just all that she did, overcoming such great odds. Everybody wanted to make a movie out of this. So we made a deal, represented Betty Ann, and with Working Title pictures, and it was budgeted at $24 million initially, and then the movie business changed and you couldn’t get the right stars and the script. But for 11 years, my friend and next door neighbor Andy Karsch worked with Tony Goldwyn and the writer Pam Gray and made this movie finally, Conviction, for a lot less money. Starring Hilary Swank, who is really just a genius, who embodied — inhabited — Betty Ann Waters — as she does in so many of these parts, Sam Rockwell, Melissa Leo, Minnie Driver playing Betty Ann’s best friend. I got control, so I had Peter Gallagher playing me. But we didn’t change one name and we’re very proud of that movie. If you want to see a movie that makes you feel good about being a lawyer, and just about being a human, take a look at Conviction.
More recently, you dealt with a horrifying case out of New York. You were involved in the Abner Louima case.
Barry Scheck: Yes, we were. Peter Neufeld and I, and Johnnie Cochran. After the Simpson case, Johnnie Cochran moved to New York. Johnnie was always well known for civil plaintiff’s work, but Johnnie formed a small civil rights law firm with Peter and me, and now we have a partner, Nick Brustin. And the purpose of this law firm was just to do civil rights cases.
We represented Abner Louima, who was the Haitian man who was abused in a police precinct in New York City by police detectives, one in particular named Justin Volpe, who shoved a nightstick into his rectum, and it caused a riot, literally, in the City of New York. Terrible, terrible racial tensions arose after this assault in the Louima case. We were involved in helping gather witnesses together, and work with federal authorities and it was tried by federal prosecutors. Ken Thompson, who is now the district attorney in King’s County, was one of the prosecutors on the case, and Zack Carter was a U.S. attorney. He is now the corporation council in the City of New York and is a great public servant. And Alan Vinegrad, from whom I learned an enormous amount, prosecuted this case. What was great about it is that not only were a number of police officers convicted who were guilty and committed this crime, but most importantly, we filed this lawsuit, not just against the City of New York, but we filed it against the Patrolmen’s Benevolent Association. We sued the union. And Abner waited many, many years to settle it for then a record-setting monetary recovery. But it wasn’t the money. We got non-economic relief from the city. There used to be a rule, they call it “the 48-hour rule,” where the police officers at the scene of a shooting or an incident couldn’t be questioned for 48 hours until they spoke to their union delegates, and the city agreed not to renew that rule. And then we got a relief, where a good police officer doesn’t have to be afraid of the bad police officer, can actually get a separate lawyer from the union, because there can be conflicts of interest. Because they all got together and made up a story in the Louima case, that was our theory in suing the union. So we were very proud of that work.
We formed this civil rights law firm, and soon after that we worked on the Diallo case for awhile. We represented these young men that were racially profiled on the New Jersey Turnpike and shot by police officers, New Jersey State Troopers. We’ve done civil rights cases all across the country, including cases where people were wrongfully convicted. Then we sue, not just trying to get them compensation, but in each of these cases we try to get non-economic relief. We sued the City of Detroit in the false confession case, and they agreed to videotape interrogations, something that even our local co-counsel, Saul Green — who had been the U.S. attorney there — couldn’t get when he was a U.S. attorney. So there are certain great benefits one can get from filing federal civil rights cases in these matters.
Where do things stand with regard to economic compensation of those who have been wrongly convicted and are exonerated?
Barry Scheck: The issue of compensating the wrongfully convicted has been a very difficult one. We have statutes across the country that in some cases give monetary relief. A lot of them are woefully inadequate. Interestingly, and I think it’s a good example for the country, Texas has a good one. In Texas you can get $160,000 a year for each year you were in: $80,000 in cash and $80,000 in an annuity. Now why would Texas do this? Well one reason is that we got a lot of people out of prison and so they knew they were going to be sued. And they realized that rather than have these lawsuits where literally it would be millions of dollars — because if you’re convicted and sent to a maximum security prison, the rule of thumb for juries in my experience is you give a person a million dollars a year, which is sensible and reasonable. And that’s what judges have given in cases where they were just judge trials on this. But you know, if you put it at $160,000, it’s probably the squeal point right now. It would get higher in other places. You know, somebody can get that money right away and they don’t have to go through the difficulties of a lawsuit, and they don’t have to worry about all the problems in federal civil rights litigation, and absolute immunity for prosecutors, and qualified immunity, and all these appeals, and finding the lawyers that will put the money into it. It is a very difficult kind of litigation. So that works, and there should be more statutes like that. So I would love to be out of the business of suing for people on this basis if they had statutory compensation on a no-fault basis. So not enough states are doing that, and we still need more, so it’s one of the great difficulties. I mean, these poor people are convicted of crimes that they didn’t commit, taken away from their families, life passes them by and then they have to readjust. It’s very, very hard. They should be able to be compensated right away and in an amount that befits what society should give somebody that suffered the ultimate injustice.
The Innocence Project obviously has exposed many problems with the criminal justice system. You mentioned a couple of them, such as inadequate defense and police misconduct. Mistaken identification seems to be another big issue.
Barry Scheck: Right. At the Innocence Project, we’ve used DNA testing to get people out of jail that didn’t commit the crimes. And we’ve worked on non-DNA cases, and we’ll continue to do even more of those, and the network of projects that we have across the country does that.
What we have found is that there is a whole group of causes of wrongful convictions sort of well-known and established. 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. And there are wonderful, wonderful fixes that scientific research has given us that will minimize mistakes without really reducing correct identifications. Now it’s 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 have been doing this across the country. 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. The Oregon Supreme Court has followed that, and soon we expect a report from the National Academy of Sciences that really gives you the factors, as a juror, that you need to know that can affect eyewitness identification and make it less reliable or more reliable under different circumstances. 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. So we have had a lot of success, I think, in the eyewitness area.
We are 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 are getting in state after state after state. And the FBI, just this year, has finally agreed to videotape interrogations, which is a big step forward. 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 saying, “Well, it’s admissible if it’s voluntary.” Well, what the police and the professionals in the area of interrogation will tell you, the most important thing to look at is reliability. That is to say, 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, the measures of what is a reliable interrogation. And that has to be recognized more by the courts, and we have to train law enforcement on how to do that better.
Where do the courts stand with regard to access to DNA testing after conviction? That was an issue with the Kenneth Waters case.
Barry Scheck: We have now gotten post-conviction DNA statutes in all 50 states, but not all of them are as good as they should be. So that is moving. But we need better access, frankly, to the DNA databases. We’re going to need access to fingerprint databases when they get better. So we have made enormous strides. You’ve got to appreciate, when we started the Innocence Project, there wasn’t one place in the country that had a statute that allowed for post-conviction DNA testing, so we really had to start from scratch.
It’s very powerful when you go on the website of the Innocence Project, and just browse through the hundreds of names of people who have spent time in prison, sometimes for years or decades, and you can read their stories in great detail. It is such a powerful achievement. How would you describe, perhaps to a young law student, what it has meant for you to be able to do this project?
Barry Scheck: 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. Because it has been established now in the United Kingdom, Norway, Israel, China, people are trying to start — well, Taiwan — trying to start an Innocence Project. They are very interested in — mainland China as well — in this whole issue, and they have delegations over to look at it. But I think that it’s an essential human right. No matter what kind of a system you have, whether it’s adversarial or inquisitional, there has to be a mechanism in place for people to be able to prove after an adjudication that they really didn’t commit the crime. And we’ve had problems in the American criminal justice system being able to get back into court to prove innocence. And we now have established that far more innocent people are convicted than anybody ever really thought. It was really a necessary fiction to believe that we have an infallible system, but it certainly isn’t, and there is no good reason to believe it is infallible. Indeed, I think a law student should say, what’s really great about the Innocence Project is not simply that you’re able to save a life or the lives of family members of the wrongfully incarcerated and the wrongfully convicted.
Take a look at the work that has come out of the Innocence movement in forensic science, where we’re able to now stand up in the federal government. A real effort to involve the mainstream scientific community in actually validating and making more reliable things like fingerprints, or ballistics tool marks on bullets, or maybe some assays that will never be validated, like bite mark evidence. We are in a brave new world of digital evidence. It is extraordinary how quickly this technological change is coming, and the criminal justice system has to catch up. We can’t afford any more to have lawyers and judges that are scientifically illiterate. I’m 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 the staples of scientific research in all kinds of disciplines. 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’re doing criminal or civil work.
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. And when I say the scientific community, I’m including psychologists and cognitive scientists.
One of the areas that is of great concern to me has to do with forensic pathology. Because forensic pathology is something where we really need centers for excellence, and we really need to clean up the problems we have had in this country arising from coroner’s systems where people who aren’t doctors were making judgments about cause of death. And we have to really get our medical examiners who are not looking at just — they shouldn’t be opining on much more than just cause of death. We have, in the United States alone, a medical examiner can say, “Here’s the cause of death. It’s a bullet that went through an organ that stopped the heart,” or “There was poisoning and we can look at the toxicology.” That is all hard science. But when you talk about manner of death, and you start speculating about the mechanisms, and how it happened, and start interpreting what the confession was, or this evidence was, that’s where I think sometimes the expert witnesses get off base, and they stop doing the science. And also, forensic pathology, unfortunately, has been a stepchild in medical schools for a long time, and it’s very important in terms of public health to reinvigorate that whole discipline. So we would like to see that happen.
One of the areas that really brings it home is a case I did in 1996 in Boston, involving Louise Woodward, the so-called nanny, that got a lot of international attention. And this was a case where Louise was charged with murder for the death of young Matthew Eappen, who was one of two children that she was watching. When Matthew presented in the hospital, he had a skull fracture, a subdural hematoma, and he literally had the equivalent of what looks like a stroke. He had a hypoxic ischemic incident. His brain was swelling when he was admitted to the hospital. And the doctors reasoned, from looking at these symptoms, that what must have happened is that his head was smashed against a fixed hard surface at 26 miles an hour. Otherwise you couldn’t get a skull fracture. And because they saw subdural hematomas, and retinal hemorrhages, and shearing of the white matter of the brain, they said, “Ah-ha! This must have meant that he was shaken as hard as an adult can shake, with the head snapping back and forth, for about a minute-and-a-half.” And it turned out that when we finally did this trial, and brought in the scientists that originally had written all the articles about shaken baby syndrome, they said, “Well, first of all, I can’t believe that you’re misinterpreting our article. If you see a subdural hematoma, and shearing of the white matter of the brain, and a skull fracture, that can account for a lot of the things that we used to think was caused by shaking alone,” because they did a big study on this. And that doesn’t mean that the baby’s head was… he was shaken for a minute-and-a-half with his head snapping back and forth where you ordinarily would see injury to the back, to the spinal cord, which you didn’t see in this case. So there was a lot of misinterpretation of some of the fundamental articles that were the foundation for this. So we brought those scientists back in to testify in that case.
Now it turns out that the lead scientist for the prosecution, somebody named Dr. Patrick Barnes, has recognized now, looking back on this, that this was all wrong. That so many of the things that he had testified to in this case were not really evidence-based. I mean, you can have short falls that will cause skull fractures in children. In terms of the retinal hemorrhages, those can be caused by the sudden increase and decrease in intra-cranial pressure, and we find a lot of it may be related to treatment. We had overwhelming evidence that this was an old subdural that was about three weeks old that re-bled. I could give you some technical reasons for it. But now the doctors that were on the prosecution side have become the most prominent critics. And this is an area that is so complicated, because sometimes the answers to these questions is undetermined, we don’t know. But we have a whole group of people that are mandatory reporters in hospitals. You see what you think might be child abuse, and a lot of these symptoms have been misinterpreted as being what they call pathognomonic, or it automatically means it is a shaken baby if you see a subdural hematoma, retinal hemorrhages, a skull fracture, or something like that. And that may not be the mechanism of injury, certainly not the time of injury. So much in this area has to be examined by the scientific community in a critical way, and it hasn’t been yet because it is so emotional. I think, personally, that there might be some cognitive science fixes here that would be helpful.
One of the main witnesses that we had on a case was a doctor named Elisa Jean from the University of San Francisco Hospital, who was a great, great expert in traumatic head injury. She’s doing wonderful things now for the veterans coming back from all these wars in the Middle East. She is quite a brilliant doctor. But what happened is that we brought all the medical records in the Woodward case to a doctor in Pittsburgh and said, “What do you think?” — a pediatric neurologist. And without telling us, he sent the data to Dr. Jean in San Francisco, not telling her any of the other context, and not telling her it was the biggest criminal case in the country. So Dr. Jean looked at this, and did what we call a blind reading. She just looked at the imaging and the underlying medical information, not knowing anything about accusations, the case or anything like that. And she said, “This is a re-bleed of an old subdural. I can tell, because of a whole bunch of factors.” And it was a blind reading.
One of the things that we are looking at doing in a lot of these forensic assays, is to have the scientists interpret data without a lot of what we call “domain-irrelevant” information that can bias judgment, and even sequentially unmasking, as one would say, other kinds of information. So you can read a CAT scan, you can read a functional MRI, you can read other data, you can read even DNA spikes, without knowing the identity of all the different people, and then you can get some of that information later. So you can blind certain readings, and then sequentially unmask other data, so they can make a diagnosis or make an interpretation. These are very important kinds of breakthroughs that we’re looking at.
So you’re trying to sequester the medical expert from being biased or influenced by things like media reports or the television circus.
Barry Scheck: Oh, that’s it. The problem of cognitive bias is not just in law enforcement or the criminal justice system, but in all kinds of medical research. Even the assessment of intelligence is a problem that people are working on now. I’m very glad that the National Institute of Standards and Technology — in setting up this whole new system to try to put a stronger scientific footing on a lot of these forensic assays — is establishing what they call a “human factors” committee, which deals with trying to inform the community of these cognitive bias problems.
Your career is not even close to being over, and you have many more things to do, but so far, what are you most proud of?
Barry Scheck: I take great pride in the fact that we have a whole movement of people that are working on these cases, obviously, to get innocent people out of prison, and identify those who really committed the crime. But most importantly, it is a movement of criminal justice reform. And that we have made a big difference, I hope, in the system. We have prosecutors forming what we call “conviction integrity” units to try to look at miscarriages of justice and work cooperatively with defense lawyers to change the results. We are really trying to make some fundamental changes in the way the criminal justice system operates. And a lot of it is involving greater scientific approach to these problems. But also a lot of it has to do with bringing people back to key and fundamental ideas of justice. Because I think that properly understood, that’s what we are all about in this system. The prosecutor is not just about winning cases, we hope, but about making sure that the results are right, and we have to figure out ways to give them space to correct mistakes. And whether it’s the defense lawyer, or the prosecutor, or a judge in the system, we have to do a lot better at policing ourselves. And when there is misconduct, we really have to hold people accountable, and we really haven’t been doing that adequately in this system.
Where do you think your sense of social justice came from?
Barry Scheck: That’s pretty easy. 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. He had seven brothers and one sister, and 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. And he had a show called Startime, where the kids from the singing and dancing schools would go right on to television. It’s sort of like Star Search, American Idol, 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 and Odetta. His favorite client was actually a woman named Hazel Scott, and there is a whole political story there. Because Hazel Scott was this brilliant, brilliant jazz pianist who was Juilliard-trained, African American. She was blacklisted and had to move to France for many years. But originally, she was so beautiful, and such a great and enormous talent, that when Adam Clayton Powell, the congressman, married Hazel Scott, he was known as Hazel Scott’s husband in the ’40s. So Hazel was an incredible person, and she spent her last years on the St. Regis roof singing. Governor Hugh Carey used to come two or three nights a week — a great Irish tenor — and sing with Hazel and play. Her funeral at the Abyssinian Baptist Church, with Dizzy Gillespie and all of these people, it was like really one of the extraordinary moments. So in any event, that’s my father’s background. So it naturally followed that we were intensely interested in the Civil Rights Movement in our family. It was a classic kind of second-generation immigrant household, where we had the values of your typical kind of left-wing, striving Jewish family that came from poverty. So that was it.
How about your mom?
Barry Scheck: My mom had a very similar background. Her parents were in the dress business and she was from Brooklyn. It’s a funny thing. It’s the emblematic Feminine Mystique syndrome, because she was really quite brilliant, but never went to college — except in her later years as adult education — but worked for magazines. She won punching bag championships, and she won a speed skating contest, the Silver Skates in Madison Square Garden.
How did they meet?
Barry Scheck: That’s interesting. There’s a ten year difference. I’m not altogether sure exactly how they met. I think she was working for a magazine and was writing some stories.
The speed skater and the tap dancer?
Barry Scheck: Yes. My whole life. 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 — 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,” because John Bubbles was this great black tap dancer. So it was kind of a strange thing.
When did you first feel attracted to the idea of law?
Barry Scheck: Any person of my generation that grew up 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 quite inspirational and just seemed like, well, isn’t that what lawyers do? I liked Perry Mason as anyone did in those days, but the show that I liked better was something called The Defenders, 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 — 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. It was a great program. So I always remember that.
What books did you particularly like as a kid?
Barry Scheck: Oh, that is so interesting. One book that had a lot of influence on me was Manchild in the Promised Land by Claude Brown. And James Baldwin, The Fire Next Time, and his novel, Another Country. Those books had enormous impact.
Did you mostly like reading fiction?
Barry Scheck: I remember Michael Harrington’s book, The Other America. I remember reading Silent Spring, Vance Packard’s The Waste Makers, Erich Fromm’s 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.
Barry Scheck: Well, you read that and all of a sudden your everyday life looks different, because you start thinking about the motivations of everybody’s behavior. It was actually quite helpful.
Were you a good student?
Barry Scheck: In the New York public school system they had these funds for kids that they thought were smart but couldn’t behave in class. These days they would probably give us Ritalin, right? So it probably was attention deficit disorder or maybe I was just… I don’t know. But I was a class clown and a cutup, and so they sent me to the psychiatrist, I remember that. So I was not a great student in elementary school, if that means anything. 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 suffered injuries during the fire. So I was sort of dislocated and that had an impact. I think I would have been in medicine or mathematics or something, but for some reason whatever we were learning that year in math, in terms of fractions and decimals, I always had a little problem in terms of computational speed. It is very strange. But then they had the special progress, what they called “special progress” programs in New York, where you had the option of skipping a grade or going into what they call “special progress” classes. So my grades weren’t good, but obviously my IQ tested pretty high. It wasn’t until my junior year in high school that I got really good grades, which was exactly the year that you needed them.
Were you the only two kids in the family?
Barry Scheck: We were two children, so when my sister died, I became the only child.
That is incredibly difficult for everyone. Do you think it affected your career?
Barry Scheck: I came to terms with it in my 50s. I actually went to this terrific psychotherapist for about a year. I think he is really quite an extraordinary man. His name is Martin Bergmann. He just died. He was 100 and really brilliant. People probably know him because he played this “doctor of love” in Woody Allen’s movie Crimes and Misdemeanors. And I think I actually influenced the way they wrote the obituary of him in The New York Times because they focused on that movie. But he played in that movie this character that was supposed to be based on Primo Levi, the camp survivor that was a psychologist and committed suicide. But actually, the things that Dr. Bergmann said in Crimes and Misdemeanors were quite extraordinary. I actually just used it in the foreword of a book written by one of our clients, Michael Morton, that is quite excellent that you ought to read called Getting Life. And I put it in the foreword because it’s quite an extraordinary statement about people dealing with suffering. It’s a great existentialist’s statement about dealing with problems in the world. But in any event, I had compartmentalized this whole thing about the fire and the death of my sister and how it affected me and my parents. And I finally came to terms with it, or he pointed out to me how it really had been, without my truly being aware of it, probably a pretty good motivating influence. It’s how you wind up wanting to defend people and protect the underdog, and probably had something to do with what I wound up doing professionally.
When did you begin to think about law school as a reality?
Barry Scheck: Well, my father’s position in show business was — because I actually thought about writing, doing movies, television, things like that. But his position was, “You can do whatever you want. First you have to get a license,” you know. It could have been a doctor, it could have been a lawyer, but you get a license. You get a professional degree and then you can do whatever you want. I mean, it’s not like he was dictatorial about it or anything. But I guess I never focused completely on the law. It was sort of one of these things that maybe I would do it. I’ve been thinking, here at the Academy, because I have been meeting economists. I spent the evening with Joseph Stiglitz, and I started as an early concentration economic history student at Yale University. I did well in that, and I was looking at the history of the railroads and technological change, and was very involved in macroeconomic theory and all the rest of it. After all, it was 1967, and we were thinking about these things. I was selected to be the research assistant for James Tobin, who was this great Nobel Prize-winning economist and a lovely, lovely man. And so the fall semester came, and I was supposed to start working for him, and I realized I really didn’t want to do that. The politics of our time, I just… in 1968 I had worked for McCarthy and then I worked for Robert Kennedy, and then I went to the convention in Chicago. I just couldn’t do economics. So that ended.
I thought I was going to be a literary critic or writer. I studied American studies, I studied the novel, and then, near the end of college, I was making videotape movies and I thought I was going to… I asked for a Danforth Fellowship to start making things on cable access public television that was going to change consciousness. We were going to do all of these — the equivalent of reality TV shows. We didn’t do that. So it was almost, by the end — there was not a revolution, by the way, by 1971 — and so I took the law boards and got into a bunch of law schools, and I just didn’t think I wanted to do it. Then I decided, well, here the University of California at Berkeley, it only cost $400 a semester and it’s Berkeley. I had never been there and that was a hotbed of political activity, so I figured let’s go move there. That’s how I wound up at law school.
Did you study some city planning also?
Barry Scheck: When I was at Yale, they had just started city planning programs, and I had an incredible… I got such a great education in a time of social ferment. It was really extraordinary. There was a course that they had at Yale on urban studies. It was taught by Jay Kriegel and Peter Goldmark. Jay Kriegel — I think in his late 20s — was deputy mayor to John Lindsay. And because John Lindsay had this connection to Yale and believed in the young, best and the brightest, we all took this course in the spring semester, and then in the summer we went to work at City Hall, and then you continued in another semester. Peter Goldmark was quite an extraordinary person in his own right. He wound up running the Port Authority, the Ford Foundation. So here are these two totally brilliant guys, and we were looking at all of these great issues. When I think back to that seminar, it is extraordinary. It was a self-conscious strategy to inform poor people in the City of New York — particularly what they call welfare moms — that they were entitled to public assistance, because everybody believes that the federal government was going to pick up the welfare function. Because after all, if they didn’t, then New York City had to make all these huge payments, the city would go bankrupt. Well, it did, it virtually did soon thereafter. In this seminar, they would talk about… they brought in this fellow David Durk who was recruiting all of us to be police officers, and he was telling us about Serpico, and they had the police commissioner there saying, “Well, we can’t do anything about corruption now, because it’s a long hot summer and there will be race riots.” I mean, it was really something.
I thought that this was amazingly exciting and I started as a law and city planning person at the University of California Berkeley. I did take courses in city planning and they had a very good school. But for my purposes it was all about “no growth in Petaluma” and “let’s save Lake Tahoe” and conservation. I was into one-man patrol cars, sanitation, affordable housing, regulation of police. That’s not really quite what they were teaching. So I think they gave me a degree, but I swear I didn’t finish the course requirements, so I’m not altogether sure about that. I did take a lot of courses and was very interested in urban studies.
It probably didn’t hurt your later career.
Barry Scheck: No. The same issues have always been a focus of my personal, political and professional interests.
Were there teachers at law school that were particularly influential, or really important to you?
Barry Scheck: The law school at the University of California at Berkeley when I went there was a comparatively conservative law faculty. When I say conservative, I mean there were many brilliant and great teachers there, but on the whole the more progressive and socially active faculty was at Stanford. But the student body at Stanford was not like that then, and the student body at Berkeley was. I mean, we had a strike over third world admissions in our first year. I can’t tell you how significant that is, because in law school everybody wants to make sure that they get good grades. And in the first year, the idea that you would strike before exams was insane. But we actually did that.
I did have some great professors. Paul Mishkin was a federal courts constitutional law professor who sort of like adopted me, because he wanted somebody who would give a radical, left-wing point of view in discussing constitutional law. So before I took constitutional law, he put me in his advanced constitutional law course. Years later, when I was applying to become a law professor, I asked him for a recommendation and he said, “Yes, I remember. You sat to the left of Marsha Berzon,” who is a very progressive judge on the Ninth Circuit. But he was a great teacher and he really made you think. Jack Coons and Steve Sugarman did some really wonderful things that are still an issue in this country, dealing with financing public education. There was a case they brought called Serrano v. Priest that stopped the State of California from using the property tax to finance public education under the state constitution, because that would create inequities in terms of people with the rich property would have better schools, and people that didn’t — where the property tax wouldn’t yield much money — would have terrible schools. And then they tried to bring that case in the United States Supreme Court called Rodriguez and lost there. But there have been other efforts over the years. The right to a good and proper public education is in the state constitution in some states, like New York and others, and this litigation is still going on in all kinds of places.
So they did some wonderful work. I had some great teachers there, but it wasn’t one of those things where there was one professor that was really extraordinarily influential. But what is always important are your peers. When you have the opportunity to go to great schools, you learn as much or more from your friends and the people you are in school with over time as you do from many of your professors, and that has certainly been true for me.
You worked as a public defender early on. Can you talk about how that influenced you?
Barry Scheck: After I left Berkeley, I worked for awhile for the United Farm Workers union. And then I took the New York and California bar at the same time, which was a little hard then. And then eventually, after I went back, I worked as a public defender in the South Bronx for the Legal Aid Society for two-and-a-half years, before I sort of accidentally wound up as a law professor. That was a great job. That really was the right place to be for somebody like me, and it was a natural extension of what… during this period of time there’s a whole group of us in this era that were motivated by the Civil Rights Movement and the anti-war movement. If you became a lawyer, what were you going to do? One logical place was defending poor people as a public defender. And it turned out that they sent all the people that they thought had this kind of political motivation to the Bronx. So we were all there when the Bronx was really — the Carter Administration designated — like the most bereft urban neighborhood in the United States. It was a time that they made that movie Fort Apache, and unfortunately many of the neighborhoods looked just like that.
Is that where you met Peter Neufeld?
Barry Scheck: That is where I met Peter Neufeld. Then I went off to teach and we remained good friends. He stayed there for a period of time. We really started doing these things in 1989, so that was ten years into my teaching career. Peter and I started doing theses cases involving serology, and then eventually DNA, and that led in 1992 to the Innocence Project.
The Innocence Project is based at Cardozo School of Law. How did that come about?
Barry Scheck: One of the things that I should say is that I became a law professor by accident. Because they started this new law school in New York City, the Benjamin N. Cardozo School of Law and it was affiliated with Yeshiva University. And the idea — like a Miller Analogy — what Einstein Medical School is to medicine they wanted the Cardozo Law School to be to law. So it was a pretty interesting and bold experiment, and they started this law school on Fifth Avenue and 12th Street. A friend of mine had actually applied for a job there to be the — quote — clinical professor. And he decided, instead of doing it, to go to the University of North Carolina Law School and move to Chapel Hill. Then he said, “I have this friend, and he has never thought of it, but you really should hire him, because he went to the right schools and he got good grades,” because he knew that that is what they wanted. So indeed, I did go there.
Clinical education was a pretty important development and I got in at the very beginning in legal education. I was able to start clinical programs — not just this criminal law clinic, and the Innocence Project was started as a clinical program — but lots of other clinical programs in the law school. And the reason I say that is that now there’s a lot of talk about creating law schools only two years. I think that’s because we need clinics for the second and third years to really enrich the experience. In the first year of law school what we teach students is — quote — how to think like a lawyer. Which really means we teach them analytical skills: how to read the cases, how to reason about precedent. And that is important, to at least understand how the court system works in that way, and the justice system works. But what clinical education always was supposed to do is if you had people with analytical abilities, then you can take them to the next level and start dealing with, in some instances, real cases. They could be small cases, it could be a test case, reform litigation. But you would actually look at institutions in an interdisciplinary way to try to solve problems. And you would do fact investigation, which really is quite important to the development of law, because you can have the analytical principles that decide cases, but who created the facts? And how you gather the facts, and how you marshal them and present them, is of enormous importance for lawyers.
The clinical movement really changed legal education. Then there was a focus on seeing the client as a person and a greater understanding and engagement in ethical issues. So I think that — and medicine has always worked like this, right? We have internships and residencies where you are mentored in the context of really treating patients. The clinical movement in American legal education I think has had an enormous impact. And certainly I think that all the work that I have done with my colleagues is not just let’s say starting the Innocence Project and getting innocent people out of jail with DNA testing, which is this great scientific advance. But you know, we have — it’s an interdisciplinary approach. So we look at issues of psychology, with eyewitness misidentification and false confessions. And you have to learn something about molecular genetics, and serology, and physics, and pattern evidence, and statistics and probabilities, and all of the science — cognitive science — which is changing the world. And it has to be integrated into the law. I think that that’s where we have really had our success. I don’t think that that would have happened if I hadn’t been involved in clinical education, because that’s really what clinical education is supposed to be.
Break that down for us, please. What is clinical law?
Barry Scheck: A clinical education is — in American legal education over the last 25 years I would say — programs have come up where you have professors that will mentor students in the actual practice. But it’s not just doing cases where you are representing people. It started, quite correctly and commendably, in helping the poor get legal services, whether you were defending people charged with crimes or in civil legal services, people that are getting evicted from their homes or can’t get public benefits. But it has changed enormously. You have clinics that deal with healthcare issues, clinics that deal with intellectual property, clinics that deal even with taxes, clinics that deal with public health issues. You name it, there’s some clinical component to it in some good law school in America. And it’s expensive, but if done right, it’s I think very important, because it brings the academy together with real world problems, and you can try to solve them.
You’ve been teaching at Cardozo for a long time now.
Barry Scheck: Thirty-four years. And we have the Innocence Project, that I co-direct with Peter Neufeld who founded it with me. And that is a big full-time job. We still use students from the law school in the clinical program, but it has become quite a large and significant institution. I guess our budget this year is $11 million, just for our entity. And there are 51 other projects in the United States that are affiliated with ours in an Innocence Network, and there are six projects abroad.
What was the first big case for the Innocence Project?
I was a clinical professor, I had students working on cases, but I would take major cases. And I guess the first big case that really caught public attention involved battered women. I represented a number of women that had been battered. That raised battered women defenses, and as a consequence, myself and some other lawyers that had done these kinds of cases were called in when there was this horrible incident just a few blocks from our law school.
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. 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 a sort of a mesmerizing character and kept on saying to her, “Go in and ask for a raise, ask for another raise, ask for another raise,” and eventually became batterer of Hedda. By the time that Lisa Steinberg was found, was brought to the emergency room at St. Vincent’s Hospital in Manhattan, and Hedda was seen, she was unrecognizable. She had a ruptured spleen, bones in her face were broken, all over her body, and she looked twice her age. When she was seen on television people were appalled. But 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 sharing a delusional system. They would call it a folie a deux. But there were many that believed, “Well, if you’re a battered woman, that’s one thing. We can understand either killing your batterer, or 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.” 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 that was not easy or simple.
It was quite an extraordinary case, because it was televised every day in New York. This was a televised trial in New York City, the media capital of America at that time. Certainly the largest television audience. So all daytime programing was off every day that trial was on television. It was quite an extraordinary thing, because 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 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 the psychiatrists, and then to this other center called Four Winds. The prosecutors agreed to dismiss the case against her, basically saying that her mental condition rendered her incapable of stopping him and she had no complicity in the murder. And they did that without any assurance, guarantee or quid pro quo that she could ever be a witness. And you know, I guess we all really didn’t think she could be a witness, but she did make enough of a recovery where eventually she was able to testify and that was pretty riveting. But that was like the first media circus that I had ever been involved in. It was a very interesting case, and was the first sign of how cameras in the courtroom can affect the proceedings. Very interesting.
Many people might be surprised to hear that the IRA played a part in your legal career.
Barry Scheck: Well, it is interesting. At the time that there were the troubles in Northern Ireland, and Bernadette Devlin McAliskey and others were involved in these protests in Northern Ireland, the Catholics who couldn’t own property and couldn’t vote. And Bobby Sands was on hunger strike in Long Kesh Prison. There was a group in New York called Northern Irish Aid and they were supposed to be raising money, and they did — some of it, I’m sure — for the widows and orphans in the struggle in Northern Ireland. But then they were arrested for running guns. So Paul O’Dwyer — who was a real great man in New York, and interestingly had helped Louis Untermeyer, the poet, run guns to the State of Israel when it was being founded — he got this whole group of lawyers together to represent the people from Northern Irish Aid who were charged with the gun running. So a group of us did this case, essentially pro bono, where our clients in Northern Irish Aid were charged. And what we discovered during the course of the representation is that the person who was selling the guns to NORAID was actually somebody who was a contract agent for the Central Intelligence Agency who had run guns to anti-Castro Cubans and to the Dominican Republic. And as the case unfolded, all of this was discovered, and it became part of our defense that the government knew about this, and they would have preferred this gunrunner, this contract agent to give them the guns, because they could control the flow of it, and they didn’t always have the ammunition they wanted and the spare parts. It was quite a wild trial. They were all acquitted, and our client — the lead client — became Grand Marshal of the St. Patrick’s Day parade.
I actually did quite a number of cases after that. I had two clients that actually were tortured in Long Kesh prison and won judgments in the Court of International Human Rights. So I’m quite amazed, and actually quite optimistic, because having done all of those cases at that time and seeing all the troubles in Northern Ireland, I never thought that would be solved in my lifetime. The progress that’s been made over the last 20 years is almost heartening. It almost makes you think that we could solve the Israeli-Palestinian crisis or so many other trouble spots in the world. That one made quite an impression on me, and I developed a lot of great friends in Ireland and spend a lot of time there, any time I can go.
With your civil rights background, does the concept of the American Dream resonate with you?
Barry Scheck: I spent a lot of time looking at the literature about the American Dream. One of my literature professors wrote a great book about it.
Who was that?
Barry Scheck: R.W.B. Lewis. The American Adam, he called it. What is great about the American criminal justice system and the adversary system — look, there are so many things wrong with it, we all know that. The effects of race and class and money — look, you want to get justice? Have a lot of money. We all know that our system is affected by that. But there is a certain genius to this, to the adversary system. There is some fundamental genius to the way we approach this in a constitutional democracy. And we find that across the world there are things that are useful and helpful in the inquisitional systems that we can bring to bear that are helpful here. We don’t like to talk about it that way, but it’s true. And then you find in inquisitional systems, they take a lot from the adversary system. I think that what is great about the adversary system in a way, it’s a good way for trying to approximate truth and avoid biases. I mean, there is something incredible about this democracy where we bring in strangers to sit in a jury and find the facts no matter who you are, rich or powerful or poor. And if we could actually fund it, staff it, run it the way that in theory it’s designed, it truly would be the greatest system in the world. May well be right now anyhow, but there’s much to improve. I mean, you just see it. This society is so inspiring when you come to a place like the Academy and you see all of these young people that are so smart and so gifted and so idealistic, no less idealistic, frankly, than my generation which thought we had the purchase on being idealists. They are no different than we were and maybe just a little bit more technologically savvy and probably better educated. So I have enormous hope, really a very idealistic and optimistic person. And it’s easy to be if you do the work I do. I mean, I am really in a great place. I get innocent people out of jail, I try to reform the system and then I sue the people that created the injustice. What a great social space to be in in American law, and only in America could you find that way of making a living.
In the field that you are in, you could be seen as a hero or a villain. How do you deal with that type of pressure? You have worked on such huge cases, like the O.J. trial, where a lot of people agree with you and a lot of people don’t. How does that affect you?
Barry Scheck: Frankly, you just have to believe in what you are doing, and understand that you are playing by the rules, and you are doing the job that the system requires you to do. I never had any qualms about that. We were brought in to do what we had to do in the Simpson case. Frankly, in the issues that we were litigating, even our adversaries recognized in the end that we were right about them. But look, if you don’t — I teach this all the time to law students — if you want to have a criminal justice system where people’s rights are defended, it is just a fact of life that the state has to be held to its proof. It is part of our system that we want to protect the innocent from being wrongfully convicted, and there will be some people that are guilty that escape, because the state doesn’t have the proof to demonstrate that they are guilty beyond a reasonable doubt.
Or because the state screwed up the evidence.
Barry Scheck: Well, the state screws up the evidence all the time, but the defense does too. Which is another great tragedy, that inadequate defense lawyers cause miscarriages of justice as well. But the bottom line, in terms of personal morality, it’s role-defined. I have never had a problem being a criminal defense lawyer. I think it’s liberty’s last champion. If you care about liberty, and you care about a democracy and you care about it functioning properly — particularly for those who are the most despised — you want a good defense lawyer, because it’s the good defense lawyer that keeps the system honest, and keeps it running properly, and prevents miscarriages of justice. And you have to have the guts to do it. So I think it’s a noble calling. It’s a hard job, but we really are liberty’s last champions. I have no doubt about it. But you know, the funny thing is, a lot of my colleagues, they said, “Well, you ceased being a defense lawyer a long time ago. You’re just getting innocent people out of jail and then suing on their behalf. That’s easy to do.” I mean, not easy, but I don’t sit around saying, “Oh gee, am I doing the wrong thing?” at night. I feel pretty good about what we do.
Did the celebrity of being on TV all day long for months at a time during the Simpson trial help the Innocence Project in any way?
Barry Scheck: I wonder about that. It’s kind of a mixed bag. Yes, people know who you are, and what they really knew is that we did a good job in the courtroom, so they knew we were very good lawyers. A lot of people have reputations and you have never seen them try anything, so you have no idea whether they are any good at it. So if we knocked on the door, we knew that people would pay attention, because they knew that reporters would pay attention. We knew the public would pay attention, and they knew that we would do a very good job for the client. So that was helpful. Then again, it was a very controversial verdict, people felt very strongly about the trial, and there were some people that didn’t like it, and then didn’t like us personally because we were involved in it. So it was sort of a mixed result that way. But I think overall it was fine.
Thank you so much for speaking with us today.