Interview with Barry Scheck. He is a law professor at the Benjamin N. Cardozo Law School at Yeshiva University and co-founder of its Innocence Project. The Innocence Project has successfully exonerated over 35 inmates using DNA testing. Scheck is also co-author of Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted.

And so we have to fight that. And we have to go through state courts and then into federal court. And we have to litigate getting access to the evidence. And then finally we get a test. And then we get a test result and it exonerates somebody--it proves that that person couldn't have committed the crime. And then even after that, it's taken us three, four, five years in some instances to get the person out of jail.

Prosecutors resist?

Don't get me wrong. In some cases prosecutors fully and completely understand their responsibilities and are really terrific about it, and they say, "We live by this, we die by this. I don't want to keep an innocent person in jail." And they consent to their release and it happens very quickly. But unfortunately there are so many of these cases where it's a battle from day one to the very, very end.

Wouldn't most Americans be appalled to know that justice is such an uphill battle for someone wrongly convicted?

Any decent person recoils at the horror of an innocent person being put in jail for the rest of his or her life, or facing execution. And that's what we're talking about in these cases: the worst nightmare one can imagine. And yet there is resistance to doing the tests, there's resistance to letting them go once the results come in, that at times just absolutely astonishes me and frankly drives me nuts.

Why is there such resistance?

Each case is different, but I think that, in some instances, there is an institutional inability to admit mistakes for whatever it is. I can't understand it in some cases because the prosecutor that we're dealing with was not the prosecutor at the time of trial, and that person is no longer in office. And yet almost as an institutional matter: They don't want to admit that the system can make these kinds of horrible, horrible errors. . .

Even when the fate of innocent people hangs in the balance?

The burden of proof shifts, as it should, once you're convicted. You're not presumed innocent anymore, you're presumed guilty. And the burden of proof then shifts to the person who's trying to make out a claim of innocence. The problem is that even if you can put in very substantial proof of innocence, there aren't any courts that really want to hear it. And there are statutes of limitations and procedural hurdles that prevent you from even presenting the evidence and even getting an opportunity to be heard. . . There should not be a limit that forever prevents somebody who can prove he or she actually is innocent, did not commit the crime, from getting into court. The Constitution ought to allow people to prove that they shouldn't be rotting away in jail if they didn't commit the crime. That's basic isn't it?

It may seem basic, but in practice the criminal justice system doesn't seem to be set up to acknowledge its mistakes.

And these are the worst kinds of mistakes. This is total system failure. We're not talking about some procedural due process matter, some matter of unfairness in the way the trial was conducted. We're talking about people who are actually innocent. And that has to command our respect and attention and concern unlike any other kind of case. And in fact it's quite the opposite. . . I think [prosecutors] just don't want to deal with it. They regard the exoneration of an innocent person wrongly convicted as an attack upon the system. And that's a very bad way to think. In fact if we can come clean, if we can face up to these problems and say, "Aha, here's a mistake, there's a lot of mistakes like this. Let's look at it--let's take innocence seriously and we can learn from the mistakes and fix the system." Then we'd all be better off. And that's what we're urging these people to do.

Innocence isn't taken seriously?

No. The system is set up where we care more about procedural fairness than we do about the substance of whether somebody is really innocent. Now, I'm not against procedural fairness, I'm greatly an advocate of it, but I'm an even greater advocate in many ways of saying, let's look at the person that was wrongfully convicted and face up to the truth of it and learn from these kinds of serious mistakes. But we have the system stacked against the innocent person in all ways. You run into the statute of limitations problem in state after state. You run into trained incapacity-- Thorstein Veblen called it trained incapacity--that is, this kind of bureaucratic wall that people throw up. "I don't want to look for that evidence, that's too old. It may be in some warehouse. It must have been destroyed." So I'll just say to you, "It must have been destroyed." When in fact--when we push and push and push and look harder--we find it. And that becomes the key to freedom. . . We have need for statutes in every state, or one federal statute essentially that would give people a right of access so they could get to evidence which we can use with DNA testing to prove their innocence. That should be a right. And if somebody can't afford a test that could prove they're innocent, the state should provide them money for it.

And, even then, the DNA cases may be just the tip of the iceberg?

Well, the one thing that the DNA revolution in the criminal justice system has taught us over the last decade is that there are more innocent people in jail than we ever thought. We have the data from the FBI itself where, in sexual assault and murder cases, they come in to the FBI laboratory for DNA testing--after people for the most part have been arrested-- they get an exclusion of the primary suspect 26 percent of the time. That's quite an extraordinary number. It doesn't mean that each of those people would have been convicted if there weren't DNA testing, but a considerable percentage of them probably would have been. Even if you want to figure one half of one percent of these people would have been convicted, when you look at the hundreds of thousands of cases over time that still translates into thousands of innocent people in jail. So there's a lot of them out there.

And this is using conservative estimates. . .

Yes, and then you ask the next question: If DNA testing is showing that so many people are innocent because of mistaken eyewitness identification, false confession, jailhouse snitch testimonies, and one of the biggest causes, bad lawyers--lawyers that are ill-trained, lawyers that don't have enough funds for investigation, or to do their job correctly, lawyers that are just plain no good at their job or have given up; nothing guarantees the conviction of an innocent person faster than a bad lawyer. . . When you look at all these causes of wrongful convictions, and then you ask the question, Well what about all those other cases where there isn't any biological evidence, where we can't do a DNA test?

That is cause for very, very serious concern and we're not taking it seriously enough. . . This is a profound moment in our recent history in the criminal justice system and by that I mean the last 200 years. We have these DNA exonerations that are giving us an opportunity to examine the error rate of the system., and we don't look. . .

Instead we lay down more restrictions on appeal?

Yes. One of the great and cruel ironies of the last decade of the 20th century in American jurisprudence is that as we enter into this DNA revolution in criminal justice, where we're showing that there were all these wrongful convictions, these total system failures, on the other hand there was this movement in Congress to pass this restriction on the writ of habeas corpus that we had in this country practically since its founding, where you could go into court and say, "Look I'm being held unconstitutionally, let me out of jail." And they set statute of limitations and restricted the writ of habeas corpus. Now you can't get into federal court on an ordinary felony if you don't bring the motion within one year of your conviction. And in a death penalty case you get six months. So these restrictions along with some other things they've done to the writ of habeas corpus have made it harder for the innocent person wrongly convicted to come to court and prove innocence than it five years ago . . . There was a belief. . . that post-conviction applications were being abused--that applications were being put in again and again and again just to prevent executions from taking place. And in reaction to this, it was a big overreaction frankly, Congress restricted the writ of habeas corpus and we have the same thing on the state court level. And in the process what has been done is a lot of people that were wrongly convicted are really being kept out of court. . .

So there are legislative blocks in addition to prosecutorial resistance. . .

And there are judges who are reluctant--in fact, hostile-- to reopening a case, even though they know that a test is going to confirm that the person was really guilty or show that there was a horrible mistake. It is mind-boggling to me. In fact, what's very interesting is that we had this commission that the Attorney General appointed called "The Commission On The Future Of DNA Evidence." The Attorney General Janet Reno feels very strongly that these tests should be done. And this commission that we've put together of law enforcement types-- the former director of the FBI and the heads of crime labs and prosecutors, police chiefs--they all got together and we all go in a room, we passed these recommendations. It didn't take very long at all in many ways. Everybody was in agreement that in theory this should be done and that people should consent to testing regardless of what the statute of limitations are, regardless of what the procedural problems are--that everyone in the system, prosecutors, judges, should just consent and do justice. That's fine in theory. We passed these recommendations and I mail them out to people and I say, "Let's get together in the spirit of reason." And then they just don't work in the spirit of reason. In too many cases, there is this willful ignorance, this determination to defend a result against what obviously could be a strong probability that it's a mistake, for reasons that are infuriating.

When there is a DNA exoneration, is there anyone who tries to go back and study what went wrong?

One thing that's really extraordinary is when somebody is exonerated with new evidence of innocence, be it DNA testing or something else, usually the way the case ends is that a judge will simply sign an order saying, "Conviction vacated." And there's no written opinion. So all my law students if they go on the computers and they do their electronic research and they look for an opinion: They won't find one. They look for an analysis of what went wrong: They won't find one. The only thing you're lucky to get is press reports, and frankly press reports, it's not exactly the same as a judicial opinion in terms of fact-finding and even accuracy in many ways.

You really need an analysis of what happened. Now think about this: What kind of system, what kind of institution that is responsible for the life and liberty of citizens can get away with not doing a post-mortem when there is a total system failure? If there's a hospital that has a malpractice situation where somebody dies, everybody's called in and we have an assessment to see what went wrong and then we try to correct it and we write it up. Or if there's a car manufacturer, or an airplane manufacturer and all of a sudden a plane falls from the sky or cars are blowing up, there's a huge post-mortem and there's an evaluation and we try to find out what happened and we write a report about it. But in the criminal justice system when you have the ultimate error, the conviction of an innocent person, they just cut an order and there's no analysis. There's no attempt to find out what are the weak points to the system, who made a mistake in this case? Nobody will ever name names. So that is a serious problem. . .

Aren't governors the safety net?

The Supreme Court thought that the governors would be a good safety valve. And in theory they are the safety valve because they can issue pardons. But governors are political animals. Governors have a process for clemency that doesn't involve fact-finding. Governors at the last minute for reasons that are purely personal and not rooted in facts or justice will just pass the buck. Courts are not supposed to be like that. Courts really are supposed to make findings of guilt or innocence and when you have proof of innocence you should be able to get to court. We've got to change the law to make sure that that can happen with greater regularity. . . .

What change would you make to the criminal justice system?

In Great Britain they have come up with an institution that we should follow here in the United States. After the Guilford Four and the Birmingham Six, these cases where there were wrongful convictions, the country took it very seriously, the judiciary took it very seriously, and they set up a program called, the Criminal Case Review Commission. This is a commission that has subpoena power, it has prosecutors, defense lawyers serving as the lawyers in charge. They have former police chiefs and investigators. And after the appellate process is over, if somebody has a good claim of innocence you can go to the CCRC and they will evaluate your claim of innocence and then issue a report to a judge and a court saying, we think a mistake was made, the conviction is unsound. That institution's been in existence for two years and I think it's very successful. It's something we should look at in this country.