In Texas, Seeking the Truth About an Executed Man

Barry Scheck has used DNA evidence to free hundreds of the falsely convicted. But if he's no more than a crusader for truth, why is his mission so controversial?

By Nathan Thornburgh/Point Blank, Texas Monday, May 31, 2010
    • Mark Mahaney for TIME

    Barry Scheck, co-director of the Innocence Project

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    For the Defense
    The fight comes too late for Jones but at a perfect time for Scheck. The Innocence Project that he and fellow defense lawyer Peter Neufeld started as a clinical course at New York City's Cardozo School of Law in 1992 is now the centerpiece of the national Innocence Movement: 59 loosely affiliated law schools, journalism programs and nonprofit organizations aiming to prove the fallibility of outmoded evidence practices and, more broadly, of the entire legal system. They have successfully lobbied for changing postconviction DNA statutes (like the one that still applies only to living defendants in Texas) and for having stricter crime-lab oversight. Because of their work, the possibility that an unacceptably high percentage of U.S. prisoners did not commit the crimes for which they were convicted has redefined the way prosecutors, defenders and jurors approach their roles. "There are way fewer death cases in the last five years [in Texas]. Prosecutors ask for it less, and they get it less," says David Dow, a University of Houston Law Center professor who founded the Texas Innocence Network. "I think it's because the juries started to know about exoneration."

    Yet for all his success, Scheck has never landed what would be the holy grail of innocence in the U.S.: DNA proof that a prisoner was executed in the modern era for a crime he didn't commit. His team came close recently after investigations, first by the Chicago Tribune and then by the New Yorker, showed that a Texan named Cameron Todd Willingham was put to death for a deadly fire that he probably didn't start. But even that case, which prompted Texas Governor Rick Perry to sack key members of the Texas Forensic Science Commission before it issued a report that would likely have criticized the state's handling of the Willingham case, didn't offer the kind of scientific certainty that would come from a conclusive test on the hair in San Jacinto County. "That case is actually a very simple one in a fair world," says Scheck. "If it matches Dixon, then Dixon is the shooter."

    The idea of legal innocence has gripped the public imagination for a long time. Author Wilkie Collins probably invented the legal thriller with his 1874 book The Dead Alive, which told the true story of two Vermont brothers convicted of murdering a man who was actually living in New Jersey. (Early American justice actually featured almost a dozen murder victims who later turned out to be alive.) But it took Scheck — a self-described "schmendrick lawyer" who is still best known for his role on O.J. Simpson's defense team — to give real faces to the wrongfully convicted in modern America.

    At lunch in Manhattan, Scheck bears little resemblance to the man whose courtroom antics were once described by journalist David Plotz as "meticulous, obnoxious and unforgettable." The mop of hair is the same, but instead of a suit, he's wearing jeans, an off-the-rack blazer and Asics sneakers. There's none of the sneering showmanship that can be so devastating in court, just a savant's tour through his mental Rolodex. In between bites of salad, he manages to name-check former law students, celebrity clients, philanthropist friends, exonerated prisoners and congressional allies.

    It is perhaps not surprising that Scheck travels to Texas more than anywhere else. Crime-lab scandals in Houston and Dallas have given him steady work over the years, as have the reform efforts that followed. In his office, filled with plaques and awards as well as thank-you notes and artwork from the exonerated, he showed me a recent acquisition: a copy of Kinky Friedman's latest book, signed by the author, "From a real Texas Jewboy to an honorary one."

    In Point Blank, though, Scheck is not likely to be given the keys to the city anytime soon. His legal interactions with the county lawmen, whose courthouse is just a few blocks away from the broad oak that used to serve as the local hanging tree, have been adversarial. David Walker, a prosecutor from the next county over who is representing San Jacinto district attorney Burnett, sees the lawsuits as the product of "well-financed groups" with a hidden national agenda. "If you believe capital punishment should be done away with," he says, "then come out with it."

    So Burnett has done something that defense lawyers are usually accused of. He put process over outcome. That is to say, on technical grounds — he contends that the parties have no standing — he has prevented something that every other prosecutor I spoke with supports, at least in theory: using an available DNA test to find out the truth in a case. "I don't think there's anyone in America who, along with defense attorneys, cares more about getting innocent people out of prison" than prosecutors, says Scott Burns, executive director of the National District Attorneys Association.

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