An Innocence Man

Barry Scheck talks Louima, Lyons, and whether the state has executed an innocent man

Published in 2015 New York Metro Super Lawyers — September 2015

In 1992, Barry Scheck and Peter Neufeld founded the Innocence Project, a clinical program within the Benjamin N. Cardozo School of Law that focused on overturning wrongful convictions using DNA evidence. Since then hundreds of convictions have been overturned thanks to DNA evidence, and their program has become a network, with organizations around the nation and globe. All told, innocence organizations have been part of nearly 400 exonerations worldwide. We spoke with Scheck this summer.

 

Q: You certainly wear a lot of hats: professor at Cardozo Law School, founder of the Innocence Project … 

A: … and the third is the private law firm that Peter Neufeld and I founded with Johnnie Cochran and our partner Nick Brustin. It’s now called Neufeld Scheck & Brustin. It’s had a lot of success in a variety of civil rights cases—not just getting judgments and compensation for people whose civil rights are violated, but also in getting injunctive relief in settlements that you otherwise can’t get under civil rights laws.

 

Q: Example?

A: We sued the city of Cleveland and the Cleveland Clinic in a case involving Anthony Michael Green, but there was a lot of scandalous testimony from a serologist and hair analyst at the Cleveland Crime Lab named Joseph Serowik. When the case was settled, our client provided a fund of $500,000—as I recall—to have an independent audit done of the Cleveland Crime Lab, which in turn led to the discovery of other cases where convictions were vacated.

The firm really started when we represented Abner Louima in the case where Justin Volpe and other cops assaulted Abner in a police station in Brooklyn. Before we settled that case—which at the time was the highest settlement in the city of New York in a police brutality case—we also got non-economic relief from the city of New York. We also sued the police union, the PBA, and got relief: not just monetary relief, but non-economic relief, to try to reform the system. That’s always been the purpose of the firm.

 

Q: To take cases that result in some kind of systemic change?

A: Systemic change happens when you win monetary awards for violations of people’s civil rights. You can’t find that when you just get an exoneration.

So we did Louima. There were four young men that were shot on the New Jersey turnpike by state troopers in a racial profiling case. They were basketball players. We did that one and settled it. Then we represented some black state troopers who had been discriminated against because they had blown the whistle on the racial profiling on the New Jersey turnpike. All that happened as we started this law firm.

We try to take on creative and remunerative—for the clients—civil rights work. It’s a shame that you can’t really get, since the Lyons case, injunctive relief in civil rights cases.

 

Q: The Lyons case?

A: Years ago there was a case [involving Chief] Daryl Gates and the Los Angeles Police Department, [and] a chokehold that led people to die. They tried to move for injunctive relief and the United States Supreme Court said you can’t get injunctive relief in a civil rights case unless you can demonstrate that you will be choked again by the LAPD. So that was a virtually impossible standard to get standing in these civil rights cases.

Eventually, Congress passed a statute allowing the civil rights division to come in when there were these continuing potential civil rights violations: the 14141 Statute, right? And it’s these consent decrees that the U.S. Department of Justice obtains. Technically they can hold police departments in trusteeship. You see that all across the country. That’s what’s going on right now—in Cleveland, in Ferguson, in New Orleans, you name it.

I have to say that Vanita Gupta, the new head of the civil rights division, has done a remarkable job.

 

Q: In what way?

A: She’s just great. Everything that’s going on in the Justice Department now and the civil rights division has been extraordinary in terms of trying to get these consent decrees, and best practices, and reform in these municipalities. That’s sort of the background to all this. It’s very rare that you can do what we did in some of these private cases.

Municipalities will not correct these constitutional abuses unless they are sued and you collect money from them. That’s just the nature of the American system in terms of tort liability, and civil rights cases are extraordinarily difficult because there is absolute immunity for prosecutors (which is a serious problem), qualified immunity for police actors (they get interlocutory appeals), and it’s an extraordinarily complicated area of the law. You’ll find that there are just a few boutique law firms that do it. It’s not by any means a gigantic bar. So it’s a real specialty.

 

Q: According to your website, there are 56 Innocence organizations around the country and 13 abroad, including one in China. 

A: Yes. I was in China the other month, with one of the people from the Taiwan Association for Innocence.

 

Q: The Chinese legal system comes from such a different place than our own.

A: [In] Japan, mainland China and Taiwan, they expect a confession in every case. So they have a real problem with false confessions in those countries. In mainland China now, when I went over there, they reported 200 documented wrongful convictions, including two cases where innocent people were executed. So the Chinese government is paying some attention to this.

 

Q: You wear different hats but they’re similar, right? Enacting reforms to the justice system, which is a big part of the Innocence Project.

A: Right. The Innocence Project has a very strong policy component on both the state and federal level. Obviously one of the major areas is forensic science. There’s been an enormous amount of activity now with the National Commission on Forensic Science and what they call the Organization of Scientific Area Committees, headed by the National Institute of Standards and Technology. These organizations were formed after the 2009 National Academy of Sciences report that talked about strengthening forensic science and pointed out all the weaknesses in forensic science.

Last year, the National Academy of Science did a report on eyewitness identification, and that’s long been a prominent area because most of our DNA exonerations have involved eyewitness misidentification. We deal with the issue of false confessions, jailhouse snitches. We do a lot trying to correct law enforcement misconduct, particularly prosecutorial misconduct.

We’ve been active in trying, on the one hand, to hold prosecutors accountable when they break the rules, and on the other hand we’ve been working to create what are called “conviction integrity units,” where Innocence Organizations and defense attorneys and others can work with prosecutors to jointly re-investigate potential wrongful convictions. In the Brooklyn district attorney’s office, Ken Thompson has done a very fine job of putting together a conviction integrity unit that has resulted in quite a number of exonerations.

Of course, the Texas state bar has brought a grievance against John Jackson, who was the prosecutor in the Cameron Todd Willingham case. I hope you’ve been reading about that.

 

Q: David Grann had a big piece about it in The New Yorker.

A: Yes. But take a look at the last few articles written by Maurice Possley in The Washington Post. Obviously [the conviction was based upon] unreliable arson evidence, which now the forensic science commission in Texas and everybody recognizes was unreliable. But they found this unreliable arson evidence just before he was executed. … The prosecutor in the case, John Jackson, said, “There were two pillars to our case.” One was the arson evidence, which was completely discredited, and the other was the confession to jailhouse inmate Johnny Webb, who, somehow, was saying, “Willingham confessed to me through a food hole within earshot of everybody that he decided to kill his three kids because his wife had injured them in the morning, and when she left he decided to burn down the house and kill his own children to protect her.” Which was crazy.

But the most important thing about the case … Webb testified that he was getting nothing in return for his testimony. Nothing. Nobody could do anything for him and he knew he was at great risk because he was turning state’s evidence. He could be assaulted in jail. That’s what he testified to.

We now have evidence that a few weeks after his testimony … There’s a document that was found in the files of the clerk’s office which says, “This should be a robbery in the second degree per John Jackson. …” But Webb was processed as having been convicted of robbery in the first degree, and a number of things were done by Jackson to help him out when he was in jail. That’s not really the issue. The issue is that four years later, in 1996, Jackson came back into court and, on Webb’s behalf, told the judge that, “We have to nunc pro tunc this.” Nunc pro tunc is illegal in this situation because it has to be a ministerial error to nunc pro tunc something. But he had Webb’s conviction for robbery one reduced to robbery two to accelerate his parole release date. On the file, Jackson wrote, “This is in return for cooperation in the Willingham case.” Then he wrote a letter to the board of parole, saying, “Reduce this to robbery in the second degree. I spoke to the defense lawyer and our records show it was never intended to be a robbery in the first.”

What’s extraordinary about this case right now is that, if he’s saying in 1996 that he now knows there was a deal with Webb, doesn’t he have the duty to correct the record? So that’s what the bar complaint is about—that he obviously had a duty to correct. That action is pending. [Editor’s note: A 2014 CNN story reported that Jackson stands by the verdict and denies promising leniency to Webb in exchange for his testimony. There has been no decision on the grievance that the Innocence Project brought against Jackson and filed July 25, 2014 with the State Bar of Texas.]

 

Q: Is the Willingham case an example of an innocent man being executed by the state?

A: I don’t think there’s much argument about it.

 

Q: In 2006, Justice Scalia said that if there was an innocent man who was executed by the state, then people would be shouting it from the rooftops.

A: They are.

 

Q: But are enough people shouting?

A: There are a lot of people shouting now, including a recent dissent by Justice Breyer in the Glossip case. The last seven years, you’ve had seven states repeal the death penalty—with Nebraska, a conservative state, repealing the death penalty this year. The number of executions has dramatically decreased, the number of capital sentences has dramatically decreased, support for the death penalty in principle has declined dramatically, and if you ask people, “Are you for capital punishment versus life without parole,” it’s about 50/50 according to Pew and other pollsters.

A lot of the people now who defend capital punishment are admitting that there’s a risk of executing innocent people, and innocents have probably been executed. You can tell that from the high rate of exonerations of people that have been on death row, convicted of capital crimes, recently estimated by our colleague, Sam Gross, as being something like 4.1 percent of capital cases.

The death penalty supporters would say, “That’s the price of doing business.” Many, and I’m one of them, feel that it’s an intolerable risk.

 

Q: If an attorney or law firm is interested in doing pro bono work for an Innocence organization, what should they do?

A: Just call us. We have tens of thousands of hours from the best firms in the country assisting us pro bono, and it’s absolutely instrumental to all of the success of the organizations in the Innocence Network, and the Innocence Project in particular.

 

This interview was edited and condensed.

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