Technologies of Justice

by Peter Shorett

Peter Neufeld and Barry Scheck first gained notoriety for their role as defense lawyers in the O.J. Simpson murder trial. Using their expertise in forensic applications of DNA evidence, Neufeld and Scheck helped to undermine the prosecution’s use of blood samples to link Simpson to the scene of the crime. The case brought worldwide attention to the fallibility of DNA as a tool for determining guilt. Although few would dispute the science of DNA identification, the potential for human error, such as mishandling or contamination of samples by forensic scientists, has limited the admissibility of DNA evidence in the court system.

The work of Neufeld and Scheck, carried out through a legal clinic called the Innocence Project, continues to attract both praise and controversy. Created in 1992, the Project’s mission is to use forensic DNA analysis to exonerate wrongfully convicted prisoners. To date, the Innocence Project has freed 122 inmates through post-conviction DNA testing, and coordinates a nationwide network of law schools, journalism schools, and public defender offices to help inmates establish claims of innocence.
In November, I talked with Peter Neufeld in his office at the Benjamin N. Cardozo School of Law in New York City. At the time, he was preparing to defend Harold Nichols, an inmate on death row in Tennessee for serial rape and murder, who some suspect was coerced into confessing to crimes he didn’t commit.

GeneWatch: What led to the creation of the Innocence Project?

Peter Neufeld: Barry Scheck and I became involved in a case in the mid-to-late 1980s, before they started doing forensic DNA testing in the United States. A man was convicted who we thought was quite possibly innocent. We did some poking around and heard about DNA technology with forensic
applications being developed in Great Britain. It turned out that, for a variety of reasons, we couldn’t use it for our case — but it really piqued our interest. We thought this could be a very powerful technology for looking at old cases where people had been convicted on less reliable kinds of evidence. If, in fact, the biological evidence had been saved, then we could take a second look to see if misidentification was an issue.

Our original objective was to exonerate as many wrongfully convicted people as possible. That was a basically limited objective — ambitious in the sense that we thought there might be hundreds of people around the country, but limited in the sense that we were only going to look at old cases.

As we got going, two things happened that changed our direction, or at least expanded our scope. First, the FBI began to report that, in about 25% of all pending rape cases nationwide in which defendants had already been arrested and charged with a crime based on eyewitness information, police departments were sending them rape kits that cleared the suspect.
That gave us the sense that there were probably thousands of innocent people in prison. Not that anyone suggested that twenty-five percent of people in jail were innocent — but it was certainly a much larger number than we would have ever thought possible.

The second thing to happen was our studying the reasons for the wrongful convictions of the people we exonerated. It’s easy to understand how they got out — it’s just a simple DNA test — but how they got in is a much more intriguing question. What is it in the criminal justice system that causes so many factually innocent people to be arrested, prosecuted, convicted, and sentenced — in more than a dozen cases, to death?

We started doing post-mortems on all the cases where the convicted were later found innocent, and patterns began to emerge.

You mean patterns in law enforcement and the courts that led to wrongful convictions?

That’s right. Certain things happen with much greater frequency, such as reliance on particular eyewitness procedures that generated unreliable identifications. The fact that more than a quarter of these convictions were based on false confessions. A third of the cases involved scientific fraud,
or gross exaggeration by forensic scientists. Police and prosecutorial misconduct emerged in more than half the cases. We felt it was not enough to free wrongfully convicted people. We wanted to use the resulting data to reform the criminal justice practices so that the likelihood of this happening in the future would be reduced.

Consequently, the Project is now trying to re-open old cases, get access to DNA, and support needed reforms through legislation, education, and litigation. We’re also involved as a policy institute, putting forth proposals for reforming criminal justice, getting pilot projects started in different jurisdictions, and implementing some of these proposals.

Did the fraud involve forensic scientists exaggerating how much DNA can tell us?

No, it wasn’t about DNA. It had to do with other scientific disciplines which don’t have the same degree of “quality control” that DNA has: things like hair microscopy, handwriting, and — to a certain extent — fingerprints. There are a lot of other so-called forensic science disciplines that turn out to be more art than science.

How precise are current techniques in DNA analysis? To what extent can it provide definitive proof of innocence or guilt?

That depends on two factors besides the science itself. One is the human factor. Obviously, people can mishandle evidence, and that can undermine the integrity of the DNA result. Secondly, and more importantly, what is the relationship between the biological evidence and the crime? For instance, DNA testing on semen recovered from an elderly rape victim is probably concrete evidence of the identity of at least one of the perpetrators. Whereas the DNA profile of hair found in the corner of a bedroom where someone was raped is not. In each case, the DNA evidence will give you a very accurate idea of who deposited the biological materials, but it may not be related to the crime.

DNA is most persuasive in sexual assault cases for two reasons. One is that it generally comes from semen inside a vagina; there’s usually only one way for it to get there. As a general rule, it’s intrinsically more probative.

Secondly, the way they do the laboratory science in sexual assault cases now, they can readily distinguish the sperm’s DNA profile from all other biological material in the mixture. So, if a rape victim goes right to the hospital an hour later, a vaginal swab produces a mixture of her vaginal secretions and semen left by the rapist. It would be very hard for the rapist to argue that he was being framed. The profile they’re getting from the male component has to be from sperm; it couldn’t come from blood, skin cells, or saliva — and it would be very unlikely that the real perpetrator could somehow separate his own semen from the mixture and substitute someone else’s.

Does Massachusetts provide inmates with these kinds of tests?

They may have. I don’t know. But Massachusetts is awful in another respect. They don’t have a compensation bill. We’ve produced about six exonerations in Massachusetts, and those people haven’t received a penny.

How controversial were these forensic technologies in the early 1990s? Has that changed since then?

There were more concerns then. It was unregulated, and there were not adequate quality assurance and control programs in place. Grand statements were made based on very little data. They were coming up with overblown statistical probabilities, such as error rates as low as one in a billion or one in a trillion, based on four genetic markers. Now they’re relying on thirteen markers, using the short tandem repeat (STR) method.

All of this seems to indicate that DNA is an increasingly powerful tool for prosecution. And reports seem to indicate that criminal DNA databanks are becoming more common. Do you see any risks in this?

It depends. We do think it’s appropriate to have convicted offender databases if the specimens are not retained; once you’ve been convicted of a serious crime that hasn’t been reversed on appeal, you do give up certain rights. But the dangers of abuses and inappropriate invasions of privacy as we develop bigger databanks is a serious concern, especially in the Ashcroft era.

We don’t approve of arrestee databases. Virginia, for instance, just passed a statute permitting the DNA sampling of anyone who is arrested. Right now, if someone is arrested and charged with a homicide or rape, you can get a biological sample and compare their genetic profile to evidence in the case — but you couldn’t necessarily take that profile, stick it in a database, and then run it against all unsolved crimes. These statutes will allow them to do that. We oppose this because it invites police to engage in pretext arrests: arresting somebody without probable cause, just to get a biological specimen.

Also, the victims of that kind of discriminatory police conduct are generally people of color. You’ll see a lot more racial profiling by law enforcement to create arrestee databases of black and brown Americans.

There’s also an emerging problem of grand proportions called “Dragnet Databases.” These are databases comprised of people who are being asked to volunteer specimens in order to help law enforcement solve a serious, serial crime. Recently, in New Orleans, eight hundred men were asked to give samples so they could be ruled out as suspects in a case. If they didn’t, they were told, they would be dragged into court, harassed, and placed under surveillance. In Florida, after a string of serial rapes were committed in a black part of Miami, the detectives collected samples from 2800 black men — none of whom had been arrested.

After the investigation, when the perpetrator was caught, identified, and his DNA matched with that in seven other cases, the state of Florida retained the samples of those 2800 men — who, once again, were neither arrested nor convicted of any crime — and put them in their database. And that made an “usual suspect” database they will have for perpetuity.

So we are very, very mindful of how data-banking can be abused by the state, and it is critical that we distinguish
appropriate use from inappropriate.

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Peter Shorett is CRG’s Director of Programs.