Barry Scheck: “When Hope and History Rhyme”
Thank you so much, Austin. When they write about why the death penalty is repealed in the United States, a lot of your work will certainly be mentioned as well…
So, this is really a distinguished audience, and I’m really quite humbled and honored to be here. They told me try to keep it short, 20 or 30 minutes. This is the first time I have not used a PowerPoint slide in about seven years, so I’ll just try to make a—give you a short sense of who I am and what motivates me and what our Innocence Movement is about, and try to engage in a conversation with you, because there are a lot of really terrific people in this room.
Let me begin in a shameless effort to pander to the spirit of Emily Dickinson—I think that’s required when you’re at Amherst, right? And to drive traffic to the Innocence Project website, I’m going to frame my introductory remarks to this conversation around a great poem by Seamus Heaney, called “The Cure of Troy,” which you can watch Seamus Heaney recite if you go to innocenceproject.org, because in one of the great ideas that we’ve had in I-can’t-remember at our … We have to raise a lot of money … So at our gala last month, I have a friend in Ireland. I called him up. I said, “You know Seamus Heaney? Would he recite ‘The Cure of Troy’ for us?” So he did! And it’s there on tape, and it’s a great poem. He wrote this in 1990 as part of a translation of Sophocles’ play Philoctetes—I’m sure I mispronounced that. When he wrote it, he was thinking about Nelson Mandela and the struggles in Ireland, and for my money, he was thinking about all these exonerations. Let me start with the first shooting stanzas from “The Cure of Troy”:
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.
So, I can only think about when I graduated college … I should start with when I was a freshman in 1967. It certainly seemed like a moment when a longed-for tidal wave of justice was rising up. We demonstrated against the war in Vietnam—hundreds of thousands of people in Washington, D.C. trying to levitate the Pentagon … Norman Mailer’s Armies of the Night captures it perfectly. I remember being there at the Yale Law School when he came and read an excerpt from it, pleasantly intoxicated. Then there was the “Dump Johnson” Caucus at the Yale Law School and trips to New Hampshire as a 19-year-old campaigning for Eugene McCarthy. And then President Johnson resigned. And then I went to Indiana to work for Robert Kennedy, and seeing all of the black and brown people and working-class people streaming to his side, I thought this was it. There was going to be a worker-student alliance; the civil rights movement was going to merge with the antiwar movement; we were going to end poverty in America—Michael Harrington told us how to do that; we were going to end pollution; we were going to institute universal health care. I actually believed that this could happen within four to eight years. And then they shot Dr. King; they shot Bobby; I wound up in Chicago in a police riot. And by graduation of May of 1971, after three years of demonstrations and efforts to close down the school, so I could get the incompletes that were necessary in order to finish my term papers, after lots of dreams that I didn’t have enough credits to graduate—have you ever had that dream? I don’t know, am I the only one that would wake up saying, “I don’t have enough credits to graduate”? [Laughter]
I remember distinctly feeling lost in 1971. Where was the revolution? Where was that tidal wave of justice? I had no idea what to do, and I could not figure out what was right. And along with many good friends, all I knew is that I couldn’t sell out. That was the most important thing [laughs], because probably I was terrified it would be so easy to get me. And the idea was that you really could not let the dreams of social justice die; whatever I did is a matter of self-respect.
So the first thing that I did was that I applied for a fellowship, a Danforth Fellowship, and I was going to go around the United States with a half-inch video machine, and I was going to do, on public-interest cable, social justice videos that were going to raise consciousness and start a revolution. If I had actually gotten that—and I came ridiculously close—I am sure that I would be making bad television in Los Angeles today. I am absolutely certain of it. [laughter]
And instead, by June I had applied to law school. I was the first college graduate in my family. My father said, “Get a license. Then you can do whatever you want.” I just couldn’t bring myself to … it was the default position, applying to law school.
Then I got into the University of California at Berkeley, right? And I realized that I could go there for $400 a semester—it’s a state school—and support myself playing poker … Berkeley, I think it was a liberated zone, so I went. Believe me, I had no interest whatsoever in law school. And then, when I got there, I was thinking, “Oh my Lord.” I thought law was supposed to be what they did on The Defenders with E. G. Marshall, and what they were doing in the civil rights movement was going to be an instrument for social change, and I got there, and it was just … how you rearrange people’s money, property in trusts and estates. Even then at the University of California at Berkeley, there was no clear pathway through the law school on what you could do if you really were interested in using the law as an instrument of social change. Now, I have to say, and if you wanted to be an interdisciplinary thinker and think about psychology and science and social science, there wasn’t a lot of ways you could do it. Just studying law. I can honestly tell you now, after 34 years of teaching law and being part of the academy, believe it or not, we may not be able to make much money these days, right away, going to law school, but we actually do have some pretty good pathways, and we really have changed the academy, and there really is a way, if you are really interested in law and social change—honestly I never believed I could say this—go to law school. There’s a lot you can do, in a lot of different areas. You don’t have to practice to do it.
My luckiest break is my first job, really, after law school—I was a public defender in the South Bronx. And I just believe it’s critical to be in the trenches and see how the system really functions firsthand and try to fight to change it. Now, when I started in 1975 in the South Bronx with the Legal Aid Society, I swear to you, it was like out of that movie Fort Apache: we were walking over derelicts to get into an office. We formed a union to strike, and our demands were everybody had to have access to a telephone. The original contract had the number of square feet that a lawyer should have. We fought for vertical representation of clients from the moment they are arrested, all the way through the trial. So many things have changed, and I will tell you, a lot of them for the better, in the criminal justice system.
One thing I wish I could tell you, that I can’t, on the 50th anniversary of Gideon v. the United States [Gideon v. Wainwright], the Supreme Court case that established the right to counsel for indigence and felony cases, is that we still have a perpetual crisis of indigent defense in the United States. Total felony convictions in the United States now approach a million a year. American incarceration rates have increased roughly sixfold in the last 30 years. Until 1970, the United States in imprisoned about 100 people per 100,000, a percentage that’s modestly higher than European countries today. But today the United States’ incarceration rate has increased to nearly 700 per 100,000, a percentage unprecedented in American history and among industrialized nations. And, needless to say, the statistics are so much more dire when you start looking at racial minorities. But funding for indigent defense is still in the tank. We have not got very far with that at all in the last 35 years.
And here’s the problem, to me: without adequate counsel for the poor, you cannot even begin to effectuate meaningful solutions to the debilitating problems posed by mass incarceration, overcriminalization and race. There’s a lot of people thinking about those. Problem-solving courts, whether you’re targeting drugs, juveniles, family violence or even focusing on communities, work best when there are quality defense teams. And I’m not just talking about lawyers but investigators, paralegals and social workers who can counsel clients and their families holistically (that’s the way we like to look at it). Strong indigent defense does not just provide insurance that the innocents are protected and that abuses by the state are exposed, but it holds families together, it helps addicts stay sober, it keeps young offenders in school, it facilitates reentry from prison and supports public safety and communities. Now, viewed from this perspective, strong indigent defense is a cause that should—and, I stay, still can—garner bipartisan political support and appeal across class and racial lines. But that hasn’t happened yet.
I have to tell you that a group of us have been getting together, and we are going to start bringing lawsuits again on systemic ineffectiveness in courts across the country, because it really is the judiciary that has to view itself as holding out as an independent branch of government that has to check the executive. I mean, I can’t begin to tell you: you walk into criminal courts across the United States today—white communities, black communities, but poor people across the country—they’re misdemeanors mills. People are just pleading out, pleading out, and there is no independent investigation of any of those cases.
And that ultimately—you know, we talk about innocents who were convicted of murders, rapes and other serious crimes, but just even to imagine (and some people are actually doing some pretty interesting and serious work trying to figure it out) how many innocents plead guilty to misdemeanors every day in this country, is truly appalling.
It’s something that we have to pay more attention to. In fact, just yesterday—to show you where this is going—the Florida Supreme Court was dealing [in which] the Miami public defender—this was a case five years in process—declared itself unavailable, saying, “We have too many cases.” The state legislature in Florida has now just passed bills saying that public defenders on appeals or trials, and capital lawyers in particular, can’t use as an excuse that they have to withdraw from the case because they have inadequate funding. They literally passed a statute to that effect. But the Miami public defender said, “I just can’t take any more cases,” goes to the Florida Supreme Court, and yesterday they said you can’t rely on that statute, saying that they can’t use inadequate funding as an excuse not to take more cases, because that violates the Sixth Amendment and the Code of Lawyers’ Professional Responsibility, and we don’t care what this legislature or this crazy governor says. And that’s not exactly, by the way, a liberal court anymore,the Florida Supreme Court.
So we are really reaching a crisis stage in this country, and we are going to go back to the courts again to try to do something about indigent defense and change the way that people look at this.
I should tell you now, very briefly, before I take your questions, something about the Innocence Movement as a whole and something that I have been privileged to be a part of. And I should say, Austin, we actually started the Innocence Project in 1992, before the O.J. Simpson case. Because my colleague Peter and I were very very lucky people. We just happened to have a case of somebody who was wrongly convicted in the Bronx who had 17 alibi witnesses but who was convicted on the testimony of three eyewitnesses, and we tried to get him out of prison, because everybody said he was innocent. And we tried to do a DNA test in 1987. And nobody had even heard of it then. And it turned out there wasn’t enough DNA to get a result, but we were able to prove him innocent the old-fashioned way, with palm prints and suppressed exculpatory evidence and other forms of proof. But we realized at the very beginning that this transfer of technology from medical and research purposes, DNA technology, through the forensic arena, was going to be extremely important. And we were lucky enough to be educated by a number of scientists, particularly Dr. Eric Lander and others who were very interested in this technology transfer being done reliably, and we just basically got in on the ground floor. The great benefit of having been a law professor and a public defender is that we knew this was going to affect everything. We really did, from the beginning. It was just a question of how to get it done. And, very quickly, everybody else realized this is going to be extremely important development as well.
Now, as Austin told you, if you go to our website, you will see that there’s 307 post-conviction DNA exonerations in the United States since 1989, and we’ve been privileged to work on 178 of them. But the key thing to realize is that, number one, in less than 10 percent of serious felony cases is there any biology that you can test to determine the identity of the person who committed the crime. And number two, out of those 370 cases, in close to 200 of them, we’ve been able to use DNA to identify the person who really committed the crime. And that really has caught the attention of the public and certainly of law enforcement. Now, by the way, it’s very important to note that our colleagues at the University of Michigan Law School, Sam Gross, and the Center on Wrongful Convictions, Rob Warden, have put together a website that you can find called the Registry of Wrongful Convictions, and they have gone back and started to track cases where, using not just only DNA evidence but non-DNA evidence as well, again starting in 1989—probably the right year to look at this—how many other people have been exonerated by new evidence of innocence, meaning they found new evidence, convictions were vacated, and they were either acquitted or their cases were dismissed. Well, that number is up to at least 1,053.
And we’re excluding mass exonerations like the Rampart scandal in Los Angeles or the Tulia drug scandal in Texas, and we’ve realized that we’re finding out about these cases just by reading the newspaper and by people calling in. It’s a selective perception affect—or, selection bias affect, I should say. People just weren’t keeping track of these things. When we finally start gathering all the data from the number of wrongful convictions from 1989 across the country, it’ll be thousands of them, thousands and thousands.
In a way, that’s not surprising. Why did we think there wasn’t so much error in the system? There plainly is, and we get sent from just looking at the causes of wrongful convictions. Seventy-five percent of our DNA exonerations involved eyewitness misidentification. And when you look at what was happening in the courts, there was 30 years of gold-standard, first-rate social science research by psychologists on eyewitness error that the courts were not paying attention to and law enforcement was not paying attention to. And I can now say that, with police departments across the country, we’ve been able to get a lot of these best practices implemented, that we know are going to reduce errors without reducing correct identifications. And now, finally, in the landmark decision by the New Jersey Supreme Court, and recently the Oregon Supreme Court, the courts themselves are beginning to take a lot of this science and apply it to the assessment and evaluation of eyewitness evidence.
Or take false confessions: 25 percent of the wrongful convictions involve false confessions. People are first beginning to understand, yes, this happens, which is to so many counterintuitive. There’s a lot of great psychological research being done in this area. But there are some pretty simple fixes. Hard to get, simple to do. Videotape interrogations, right? President Obama, that was his signature bill in the Illinois legislature. Why can’t we get it everywhere? And Illinois, I have to tell you, Scott, is definitely the home of false confessions. It is America’s capital … there is nothing quite like it.
The other thing to realize, and we’re beginning to go through the court system now, is that courts have always evaluated confessions in terms of “voluntariness.” We just looked to see whether the confession was voluntary. They don’t look to see whether or not the confession is reliable. And, in fact, what we’ve learned about interrogations is that the first thing a police officer or a court will be looking at is: Is the information that I’m getting from the suspect something only that the police officer and the real perpetrator would know? And has this suspect been given the information that would lead us to other incriminating information? And we can’t even inadvertently ask leading questions that feed information to the suspect, because, in so many of these false-confession cases, we find there was feeding of false information by the officers, either purposefully or inadvertently, that led to the false confession and the convictions by the juries. And it’s going to be a pretty heavy lift, because the United States Supreme Court decided a case called Colorado v. Connelly that doesn’t allow reliability to be considered, but we’re going to start going through the state courts and legislatures and try to get the courts to look at reliability as a basis for assessing the admission of the confession which juries should be told about.
And then take the area of forensic science. Fifty percent of our cases involve unreliable or fraudulent forensic science. I think, perhaps, in the final analysis, this is the area where we’ve had our greatest impact, because in 2009 the National Academy of Sciences commissioned a landmark report finally saying what scientists knew for years, and that is that DNA testing, with databases and real identifiers, that was validated science. When you started looking at fingerprints and ballistics and tool marks and bite marks, the microscopic hair comparisons, all these forensic assays had been admitted into court for decades, but they had not been validated scientifically. Now some of them, like bite marks, I probably believe will never be validated. But many of these others, now, we realize in the scientific community, and gradually law-enforcement are beginning to realize, they have to be validated.
Just in the past few months, the government has finally agreed. We couldn’t get legislation in Congress after the National Academy Report, but we have got the federal government to agree that they are going to form a National Commission on Forensic Science. For the federal labs, it’s composed of two parts: One part is the United States Department of Justice will select people, but the other one is the National Institute of Standards and Technology (NIST), and that is a venerable scientific organization that sets all the standards for weights and measures for all kinds of industries across the country, from the tensile strength of the beams in this building to bulletproof vests, and NIST is going to assist in setting the standards for fingerprints, for ballistics, for a whole host of disciplines that obviously, in the final analysis, will have some probative value, but right now we have no idea what it is.
We have no idea, when we’re taking an analysis of a small latent fingerprint that I leave on this podium and then try to compare it to the rest of you, in making an assessment as how much information means that it’s a match or not. And what does it mean to say that it’s a match? Does it mean that this fingerprint, this partial latent, came from somebody here, to the exclusion of everybody else in the universe, with a zero error rate? That’s nonsense, scientifically. National Academy said so.
We’ve been [it] saying back in courts for 100 years. Same thing about bullets that have fired out of guns and fallen on the ground: They look under a microscope, at the striations in the bullet, and they take the bullets from the suspect, they fire it out of the gun, they look at the two bullets, and somebody comes into court and says there is sufficient agreement here. “I can tell you this bullet was fired from that gun, to the exclusion of all other guns in the universe. And I have a zero error rate.” Well, on what basis? Where is your database? What do you mean, “zero error rate”? I mean, the scientific community couldn’t believe this. And now we are in a struggle to finally get real validation and real scientific standards, and I believe that is going to happen.
… I have no solutions for the problems of race—I wish I did. We are really making some progress, I have to say, on the disclosure of exculpatory information and prosecutorial misconduct; I believe is beginning to—we’re beginning to make some progress there. We have rules from the American Bar Association that prosecutors are supposed to disclose before trial all evidence that tends to negate guilt or mitigate punishment. I hope some of you might have seen in a recent case that we had on 60 Minutes involving a fellow named Michael Morton who was wrongly convicted of killing his wife in Texas, and it turned out that the prosecutor in his case, who hid all this exculpatory evidence, who subsequently went on to become a judge—we were able to find the real perpetrator and prove that the prosecutor had hid the exculpatory evidence. Because there was a court order asking him to turn over the evidence, we were able to get him charged with criminal contempt in the state of Texas. Even though he is a sitting judge. Just the other week, he was arrested in court in Texas. And then, in Texas, we got a bill passed saying that all prosecutors had to turn over all evidence that “tends to negate guilt or mitigate punishment,” which is the ethical rule. We’re going to go round this country asking every judge in state and federal court to issue similar orders, so that if the prosecutor does not do that, they can be subject to contempt. All of us sit around saying, “Why didn’t we think of this one before? That could actually work.”
Also, the American Bar Association has passed Rules 3.8 (f) and (g) to the Code of Professional Responsibility, which now requires prosecutors to disclose, post-conviction, when they have evidence that is “material to innocence,” meaning very important evidence of innocence, and if they have evidence that’s clear and convincing, then they have to do something about it. Now, only nine states have adopted this, but I believe all will eventually. What this has created now is really an ethical requirement that there be what we like to call “conviction integrity units” in the prosecutor’s offices, where they will really look and try to develop independent basis for deciding whether or not there is a miscarriage of justice. Also, try to learn from error, try to learn from near misses, try to take quality-assurance and quality-control learning that the medical community, frankly, is beginning to look at much more seriously in the last decade and apply it to the criminal justice system.
I’ve already told you about how little progress we’re making on indigent defense, so that sort of runs the gamut of the causes and the remedies of wrongful convictions, and what is the substantive work of our movement, no small agenda. But right now there are 51 projects in what we call the Innocence Network: mostly in law schools, some in public defenders’ offices, some in private law firms, in the United States. There are seven such progress projects outside of the United States, in Norway and the United Kingdom, Taiwan… It’s moving across the world, anywhere where there’s the rule of law; we believe that this is an international human rights movement. And in any country where there is the rule of law, whether you are the inquisitional system or an adversarial system, there has to be a right to correct a wrongful conviction and, most importantly, a process in place we can really put on proof to do it. That’s not so simple, even today in the United States.
Why do I have optimism that this is really going to succeed, even greater than it has so far, and we’re only at the beginning of this movement? I’ll just end by telling you it has to do with the spiritual power of the people that get out of prison and the way that affects everyone in the community. You know, people say to us all the time, “My God, that so-and-so got out of jail, and he or she is not bitter.” Well, that’s not true: they have resentments, of course. The prospect of reentering society after spending two to three decades behind bars for a crime you didn’t commit is daunting, to say the least. But what we find among all of these exonerees is that two or three or four years in, of course they are infuriated and they’re angry, but they realize that if they allow that to fester, it’ll destroy them. So they have a kind of spiritual transcendence that’s remarkable, and I think that’s what Seamus Heaney was talking about. Our people are seeking accountability, not vengeance, and they are bearing witness. So let me read you the last three stanzas of this poem and then open it up to questions and a conversation, and again, let me remind you: we raise money. Go look at the Innocence Project website, and you can see Seamus Heaney himself reciting the poem. I can’t begin to tell you how personally excited I am about that, because he’s just incredible. So here’s how he ends:
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 fire on the mountain
Or lightning and storm
And a god speaks from the sky
That means someone is hearing
the outcry and the birth-cry
of new life at its term.
It means once in a lifetime
justice can rise up,
And hope and history rhyme.