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Burden of Proof

DNA and Death-Row Convictions: Scheck and Neufeld Discuss 'Actual Innocence'

Aired February 17, 2000 - 12:30 p.m. ET



LARRY KING, HOST: If DNA is proving people, a lot of people have been released from prison from death row, then you should curtail executions in Texas?



BUSH: I've presided over executions in my state. I'm absolutely convinced that everybody who was convicted was guilty of the crime.

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: The people who support the death penalty, it seems to me, have an especially- heavy obligation to see that in cases where it is applied there is no question of whether the guilt was there, so the only issue left is whether, philosophically, it's the right or wrong thing to do.


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: innocent people on death row. Has forensic technology changed the dynamics of the capital punishment debate, and should states put executions on hold until the legal dilemma is resolved?

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello, and welcome to BURDEN OF PROOF.

Yesterday afternoon in Florence, Arizona, 45-year-old drifter Anthony Lee Chaney was executed by lethal injection for the 1982 murder of a sheriff's deputy. Chaney was just one of about 3,600 inmates on death row in the United States. But recent cases have shown that not all death row inmates are guilty, which also means that the real criminals are walking free.

GRETA VAN SUSTEREN, CO-HOST: On January 31, Illinois Republican Governor George Ryan suspended executions in his state after several death row inmates were found innocent of the crimes for which they were sentenced to die. The impact of DNA technology on death row convictions isn't isolated to Illinois, as 63 male inmates in the U.S. have been exonerated by the technology so far. But President Clinton isn't eager to make such a moratorium on the federal level.


CLINTON: In Illinois you had a situation where the exonerations and the executions were about equal in number over the last several years, so it -- he had a difficult situation and I think he did the right thing. And I think that if I were a governor still, I would look very closely at the situation in my state and decide what the facts were. There are, I think, not those ground for that kind of moratorium under the federal law because of the circumstances under which people are convicted.


COSSACK: And joining us today from New York is criminal defense attorney and DNA expert Barry Scheck. Also in New York, criminal defense attorney Peter Neufeld. Barry and Peter are co-authors of "Actual Innocence," which examines the cases of innocent death row inmates who were released because of DNA evidence.

VAN SUSTEREN: Joining us here in Washington, Stacy Sheerer (ph), Marta Mudri (ph) and Brandy Thorn (ph). And in our back row, Kim Gonzales (ph) and Robin Covey (ph).

But first, we go to CNN's Pierre Thomas for the latest on the Justice Department investigation into recent cyber-terrorism attacks.

Pierre, what is the latest in the investigation?

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Well, right now they have some promising leads. They've developed some screen names used by computer users. Among the names: Coolio, Mafiaboy and Nacho Man. Again, they don't know if these will be the people that actually did the hacking on eBay, Yahoo! and a number of other major Web sites, but they continue to make progress. Sources are telling us that one of the issues that they're seeing is, you know, whether some of these people, for example, covered their trails, perhaps even created these names, so that they don't necessarily know if this will actually be the final destination.

VAN SUSTEREN: Pierre, there was a report a few days ago that there may have been a concentration of FBI attention on the West Coast and universities. Is that still the direction the FBI is looking?

THOMAS: Well, they found that UCLA, the University of California at Santa Barbara, Stanford were used in these attacks, that what essentially happened is that supposedly these hackers planted malicious software on some of these university computers. Those university computers then sent out millions of messages to these various Web sites, essentially flooding them and blocking customer access. So, those universities were used. They are working very closely with the FBI. In fact, we're told by a number of sources, that many of the FBI leads have been generated by university security officials.

VAN SUSTEREN: All right. Let's go to Barry Scheck, who joins us in New York.

Barry, you've written the book "Actual Innocence" with Peter Neufeld, your co-counsel in the Simpson case, and Jim Dwyer.

Let me ask you first: Have innocent people been executed in the United States?

BARRY SCHECK, CO-AUTHOR, "ACTUAL INNOCENCE": I'm sure they probably have, but we don't have really DNA evidence that proves that yet, because in most of these cases the files have been destroyed, the evidence has been destroyed, and in a few instances the states have been resisting our efforts to do DNA testing on samples in cases where people have already been executed.

COSSACK: Barry, obviously, the premise of your book is that there's something wrong with the criminal justice system in the way we convict people right now. What are some of the things that you find wrong? I know that you articulate things such as ID evidence as being bad. Tell us about that.

SCHECK: Well, this book is really about the individual stories that Peter and I witnessed along with Jim Dwyer, who has won two Pulitzer Prizes and is an absolutely-brilliant journalist. We tell the individual stories of ordinary people, Marine corporals, grave diggers, school teachers, who all of a sudden were caught up in cases where they were wrongfully convicted. And chapter by chapter, we go through the causes of wrongful convictions: mistaken ID, as you mentioned, Roger, the greatest cause for the conviction of the innocent; false confessions; jailhouse informants; junk forensic science; fraudulent forensic science; the problem of race. We go through all of those and in each instance offer a -- after we tell these stories I think in a riveting way, we offer simple solutions that can help solve these problems that are already out there. Mainstream proposals.

COSSACK: Well, Barry, in terms of one of the things you point out that I found quite disturbing was you said that there was incompetence and corruption among police officers as well as prosecutors, as well as defense attorney, as well as judges and point that out as something that's wrong with the system. Speak on that, if you will.

SCHECK: Well, we -- I mean, I think people know that. We're not saying that all police officers or all prosecutors or all defense lawyers are not doing their jobs or are engaged in fraudulent acts, but there are enough examples in these 69 cases where people have been exonerated with DNA evidence, it's an unprecedented opportunity to learn what goes wrong. And what we're doing in this book is simply telling the stories and letting the facts speak for themselves. We've been on this show talk about. You had that fellow Fred Zane (ph) in West Virginia after the Glendale Woodall (ph) case, the grave digger in West Virginia. It was discovered that he had given false testimony in 133 cases in that state and he had moved on to San Antonio, Texas, where engaged in similar acts of forensic fraud, and the list goes on. VAN SUSTEREN: Let me ask -- Peter, one of -- Peter Neufeld is also joining us from New York. Peter, one of the issues that's coming up in the presidential election is the death penalty, and there is a debate -- Larry King hosted a debate the other night, and this is what Governor George W. Bush had to say about the death penalty. Listen, and then I want your comment.


BUSH: We had a series of people executed in my state. These are people who were found guilty by a jury of their peers. These are people who have had full access to the courts of law. There's no doubt in my mind that each person who's been executed in our state was guilty of the crime committed. I support the death penalty for this reason: When the death penalty is administered in a swift and sure and fair way, it will save lives.


VAN SUSTEREN: Peter, your comment on Governor Bush?

PETER NEUFELD, CO-AUTHOR, "ACTUAL INNOCENCE": Well, frankly, I mean, Governor Bush at best is confused. And you know what, it's actually a rather silly comment. The 13 people who were on death row and cleared in the state of Illinois, those 13 people had representation, those 13 people were found guilty by juries, those 13 people challenged their convictions through direct appeals and lost. Nevertheless, they were ultimately exonerated. George Bush has absolutely no information firsthand as to whether each and every person who's been executed in his state was, in fact, guilty. He's hoping that's the case, he'd like to think that's the case.

You know, we have one case in the book, in fact, where a fellow named Mr. Byrd, who was convicted and his conviction was affirmed on appeal in Texas, and then DNA evidence cleared him. And his lawyer, a wonderful lawyer in Texas, who went to the governor and asked for a pardon, and initially the governor turned it down even though the prosecutor and the judge joined the defense attorney in asking for this pardon based on DNA evidence. George Bush is not a person who, frankly, quite -- is quite willing to see the potential for miscarriages of justice in his own state.

VAN SUSTEREN: We're going to take a break. Up next, is DNA the answer? Stay with us.


On this day in 1870, the first female justice of the peace was appointed in South Pass, Wyoming Territory. Wyoming was also the first state to have female jurors (1870), adopt a constitution granting equal voting rights to women (1889), and to be admitted to the Union as a suffrage state (1890).


(COMMERCIAL BREAK) COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log on to We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.


WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: I think Senator Leahy has introduced some legislation to try to give convicted criminal defendants access to DNA testing and other things which might tend to disprove their guilt.


VAN SUSTEREN: Yesterday, President Clinton was asked if he would consider a federal moratorium on executions in light of the number of death row convictions overturned by DNA evidence. Last May, two former Oklahoma inmates were guests on BURDEN OF PROOF just days after their release.


VAN SUSTEREN: Did you ever think, within those few days leading up to that point where you were almost executed -- did you ever think that you would be here today, released and enjoying freedom?

RONALD WILLIAMSON, RELEASED FROM DEATH ROW: Not really. I don't really think that I thought too much. I had been told that it's a better chance to get relief from federal court than Oklahoma's court of criminal appeals.

DENNIS FRITZ, RELEASED FROM LIFE PRISON SENTENCE: Yes, it's been 12 years since I've seen my daughter, Elizabeth, and, Greta, this is the most joyous occasion in my life. I can't even begin to describe to you the tremendous feeling this is to finally be free.


VAN SUSTEREN: Peter, in these post-conviction cases where you want to have DNA tests to see whether someone's innocent or not, is there any resistance from prosecutors?

NEUFELD: Unfortunately, Greta, there's all too much resistance. In approximately half of the 63 DNA exonerations post-conviction in the United States, the prosecutors resisted testing in more than 50 percent of those cases.

VAN SUSTEREN: Why? Why would they release them?

NEUFELD: We were forces to go to...

VAN SUSTEREN: Why? What's their reason?

NEUFELD: Well, you know, they keep referring to this thing called the Doctrine of Finality, that once the jury has spoken and a person has exhausted his or her direct appeals, then that's the end of it. And it's very sad. It's sad because that's their position legally. Psychologically, it's their position because, number one, it means acknowledging, once there's a DNA exoneration, that there's been a terrible miscarriage of justice. It means acknowledging that the real perpetrator is still out there, and so neither the prosecutors nor the police nor the victim can have real closure. And thirdly, it's an acknowledgement that the system's failed. And for all those reasons, prosecutors have been very, very resistant.

COSSACK: Barry, we see now how important DNA evidence is. When crimes are committed today where DNA evidence would be important, is it now DNA evidence being used as just a matter of form as opposed to perhaps 10, 15 years ago when it wasn't?

SCHECK: Well, since 1994, I think we're beginning to see a lot of DNA being used appropriately when it can matter. We're still not, frankly, doing enough to do DNA testing within seven to 10 days after a crime is committed so that we can exonerate innocent suspects and get on the trail of the guilty.

COSSACK: Why not? Why isn't that being done? If DNA is such an important tool -- and it appears that it is -- why isn't that being done?

SCHECK: Well, we're not putting enough money into it. You know, one of the things people probably don't know is that Peter and I are commissioners of forensic science in the state of New York where we help regulate the DNA data bank in our state and help get our crime labs accredited. And, you know, we're just not putting enough money into effective DNA testing, both looking at the old cases, such as the Innocence Project cases, old, unsolved cases and new cases.

VAN SUSTEREN: Peter, in your new book, "Actual Innocence," towards the back of the book you have a chart that says, DNA Exonerations by State. The two leading states: 14 exonerated in Illinois, seven exonerated in New York, and then it drops off considerably. What's the explanation?

NEUFELD: Well, again, the explanation is that Illinois and New York are the only two states in the country which, by statute, give every convicted inmate the right to have access to the biological evidence for DNA testing. What we're trying to do right now is have similar statutes passed across the country. And, as you know, and as President Clinton was referring to a little while ago, Senator Leahy of Vermont has introduced legislation in Congress which would provide that right to every inmate. And hopefully we'll have hearings on that legislation pretty soon. Hopefully this will be a bill that both Republicans and Democrats can join behind, and let's hope that we get it passed as quickly as possible.

VAN SUSTEREN: Barry, how much does it cost? because that's always a consideration. I mean, maybe -- I mean it shouldn't be when you're talking about innocence, but how much does it cost to have DNA tested? SCHECK: Well, in the grand scheme of things, very little. I mean, between $3,000 to $5,000 in the garden variety case. Maybe $8,000, $9,000 in the more complicated case. You know, but it saves money. Take the case of Clyde Charles (ph) in Louisiana. The Innocence Project was able to help him get out of jail just after Christmas this year. He spent 19 years in what they call "The Farm," Angola Prison in Louisiana, for a crime he didn't commit; a man with no criminal record.

But think of this: For nine of those years, he was trying to get a DNA test in the state courts of Louisiana. He even tried federal court and failed. Finally, we were able to bring a civil rights action and get him a test, but we're still litigating in other parts of Louisiana and states all across the country, trying to get an opportunity for a DNA test. It doesn't even come close to the cost of incarcerating an individual for one year much less the many years that they're going to be in jail. And there aren't that many of these cases.

VAN SUSTEREN: Do you have an idea how much that is?


VAN SUSTEREN: Do you have some idea just to give me an idea how much it costs to incarcerate someone for a year?

SCHECK: Oh, gee, it depends state by state. You know, it could be as much as $20,000 or $30,000.

NEUFELD: Right, we actually figured this out. We did some calculations and, you know, it averages about $25,000 a year to house a prisoner. On average, of these 63 people who have been exonerated in the United States, on average, they remained in prison for about 3 1/2 years after their first request for DNA testing. So that's about $80,000 an inmate. As Barry told you a moment ago, had they had the test right away, that's $3,000 to $4,000 to $5,000. The state, on average, would have saved $75,000 times 63 people; you're talking millions of dollars right there.

VAN SUSTEREN: Not to mention the time the lawyers spent, the prosecutors in the courtroom and the judge and the clerk and everybody else fighting about it.

COSSACK: All right, let's take a break.

SCHECK: Well, look at this.

COSSACK: Barry, let me ask you to hold on one second while we take a break.

Up next: DNA technology isn't only helpful in freeing innocent people. It may also aid the prosecution in a 21st century high-tech whodunit. Stay with us.


Q: Since when has DNA been used in the U.S. courts?

A: 1987.



COSSACK: Prosecutors in Sacramento County, California plan to file rape charges against a John Doe. Their evidence: DNA. In an effort to beat a six-year statute of limitations on a March, 1994 rape, prosecutors say they'll file charges based solely on the suspect's genetic code.

Barry, that brings up a real interesting question: if DNA can be used to exonerate, can it be used to convict?

SCHECK: Of course...

COSSACK: But doesn't that mean it's open for interpretation?

SCHECK: No. I don't think so, not necessarily. Look, there is always cases where you can have mishandling of evidence or ambiguity. But ordinarily, if the tests are run correctly, you get definitive results. But look, in the '69 DNA exonerations, in 15 of those cases we were able to use DNA testing to find the real perpetrator. And with the advent of DNA data banks, we should be able to do that much more in the future.

COSSACK: So then you would agree with the idea of filing a complaint against a DNA code without the name of a suspect, and totaling the statute of limitations on that alone?

SCHECK: Well, if done very, very carefully. In other words, the way it was done by the prosecutor in Wisconsin and I hope the Sacramento prosecutor is doing the same thing, he's only picking up cases where, A, we can definitively identify that the person who left the DNA is definitely going to be the perpetrator of the crime and attempted to flee the scene. It's really a case where we know it's not a consent matter, it's a question of violence. Carefully crafted exceptions by warrant and application to the court are better than just destroying statute of limitations.

VAN SUSTEREN: Peter, what's the life like for those men who have been exonerated after spending 10 or 15 years on death row? I mean, are they bitter? Can they find jobs? What happens to them?

NEUFELD: Well, actually, one of the most astonishing factors that Barry and I encountered is the lack of bitterness. So many of these guys come out, and we greet them at prison gates, and they are warm, they are forgiving, they are even forgiving of the victims, who albeit victims mistakenly identified them.

But there is no question that all of them, without exception, are scarred for life. These are people who have had great difficulty getting job. I mean, you know, we've had clients who call us up because they fill out a job application, where you have to fill out what you've been doing for the last 15 years, and you put down state prison. And that's the end of the job process.

SCHECK: You know, that's why we wrote this book, because these are incredible stories. I mean, they are such compelling individuals, and each of the cases is different. They are unbelievable. It's gut- wrenching.

VAN SUSTEREN: Barry, I remember a client of mine once who was in for 22 years, and he got out. He went in in the mid '60s, and he got out 22 years later. And the thing that he was so amazed at were how bumpers on cars had changed. I mean, there is the cultural as well that is -- For many of these people have been kept away from society for so long.

COSSACK: Barry, would you agree with the call them -- for a call, then, for a national DNA database?

SCHECK: No, when you talk about a national DNA database were you thinking...

COSSACK: I mean, all citizens.

SCHECK: ... blood from everybody from birth?

COSSACK: Or hair or something that would give their DNA and put it in a national data bank, why not?

SCHECK: Well, because then you have a total surveillant society. Why not take everybody's fingerprints and put them in a computer and be able to identify everybody for everything.

COSSACK: But if we are concerned with serving crime, wouldn't that be a quick way to do it?

VAN SUSTEREN: Peter, five seconds, Peter, you got five seconds.

NEUFELD: Roger, again, don't forget that the United States started a lot of -- well, a lot of systematic problems in the beginning of the century that discriminate against people based on their genes. And we have to be concerned about those privacy interests right now as well.

VAN SUSTEREN: All right, and that's all the time we have for today. Thanks to our guests and thank you for watching.

At 3:00 p.m. Eastern time today, pro football player Ray Lewis, who's out on bail for murder charges, will hold a press conference at the Baltimore Ravens complex. CNN's "TALKBACK LIVE" plans live coverage. Among "TALKBACK"'s guests: Roger and me.

COSSACK: And tomorrow on BURDEN OF PROOF, our guests will be former attorney for Sam Sheppard, F. Lee Bailey, who is now a witness in a case brought by Sheppard's son against the state of Ohio. Join us then for another edition of BURDEN OF PROOF.


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