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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    Thin Evidence
    It's unlikely that the original hair analysis could have delivered the "match" that was claimed several times in Jones' trial. Nicholas Petraco, an NYPD hair and fiber consultant who filed an affidavit on behalf of the Innocence Project in the Jones case, says microscopy is best used for screening, not for positive identification. In a lab at John Jay College of Criminal Justice, he put a couple of my hairs under a polarized microscope. He pointed out the medulla, the cortex, the cuticle — all of which vary not just from person to person but from follicle to follicle. That's not counting my gray hairs or the "bastard hairs" that all humans have, which have no resemblance to the rest of the hairs on one's head.

    In Jones' case, an independent lab confirmed Texas' finding that the hair could be Jones', but the examination was complicated because it was such a short fragment; the Texas crime lab originally found it "unsuitable for comparison" before deciding to examine it. Also, according to court documents, Jones' mother had given him a perm just after he got out of Leavenworth, which would have altered the hair's appearance. But the biggest knock on hair microscopy is that there are just no good data: there's no national database of hair evidence and no accepted statistics on how common any characteristics are. So you can say a hair could have been Jones', but you don't know how likely it is that it could have come from someone else. "Methods have a limitation, and you have to stay within those limitations," says Petraco. "I wanted the word match thrown out of the glossary."

    The Innocence Project gets thousands of letters a year from inmates who say DNA evidence will free them. Some of the petitioners are intensely formal; some can barely write. Many are desperate. "I am not the man that did this Rape," wrote Rickey Johnson from Angola prison in Louisiana in 2000. "All I wand is to go 'Home.'" (In the end, he did.) The letters are read by a small intake team led by a poet named Huy Dao. It includes a former high school teacher, an ACLU veteran, an ex-journalist and an anthropologist who once studied circuses around the world. They aren't looking to see whose stories they believe; they just want cases for which new DNA tests would provide firm answers. Those files are added to the some 2,800 cases in the long white "maybe" cabinets that line the hallways. (There are more than 8,000 cases in some stage of evaluation.) It can take from five to eight years for a case to get fully vetted — the project relies mostly on private funding and struggles to keep up with the volume of work — but if the seven staff lawyers decide to take a case, then that inmate joins a singular fraternity: the 200 or so active Innocence Project clients.

    The law students and regular staff work long hours for what Scheck charitably calls "public-interest salaries." The work vacillates between the tedium of paperwork and, as Dao says, exposure to "the terrible things that people do to others and to themselves." Even after the exhaustive vetting, nearly half of the DNA tests end up proving the client was guilty after all.

    To unwind, the staff go to the nearby Karaoke Cave, where anyone who drinks can sing for free. They've brought some of their exonerated clients out to sing with them. And those clients, says Nina Morrison, an Innocence Project attorney working on Jones' case, are what keeps them all going. "Most lawyers never have a day in their career like the ones I've had, walking a client out of prison," she says. "I've been to their weddings, went surfing with one, had them over for Thanksgiving."

    The work, however, remains hugely controversial with prosecutors. Many see Scheck as a defense lawyer above all else. (He still takes on high-profile private clients on the side.) The reforms he proposes, says St. Louis County, Missouri, prosecutor Bob McCulloch, "are designed to protect guilty people. That's a defense attorney's job." Others dismissively call innocence claims the SODDI defense — some other dude did it.

    Some prosecutors have learned to coexist with Scheck. "I actually don't have a problem with him now," says Jennifer Joyce, the St. Louis city circuit attorney, who was contacted by Scheck on her first day in office almost a decade ago. "He was very confrontational in the beginning, as was I. But now I have his cell number, and he has mine." In part to deflect lawsuits from Scheck, she ran her own version of the Innocence Project, which she called the Circuit Attorney's Justice Project. Joyce used law students too but had much stricter criteria for review. Of 1,400 cases, she says, 300 were thoroughly reviewed, and four were found to be not guilty.

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