DNA AND THE DEATH PENALTY

with Peter Neufeld

Monday, February 28, 2000, noon EST

It's a nightmare straight out of film noir: A crime is committed in your neighborhood. The police, going on a tip from a witness who swears you're the perpetrator, knock on your door. You have no alibi. No one believes you are innocent. You're convicted and sentenced to hard time, or maybe even to death. And as you languish in prison, you know that you're not guilty.

But the scenario above is no movie script. It's been the reality for hundreds of years for convicts who were poorly represented, or in some cases just poor.

In the last 10 years, DNA testing has uncovered the hard proof that sixty-five innocent people were sent to prison and death row. Our guest today, Peter Neufeld, co-author with Barry Scheck and Jim Dwyer of Actual Innocence: Five Days to Execution, and other Dispatches From the Wrongly Convicted, has, along with partner Barry Scheck, has helped free thirty seven wrongly convicted people.

Peter Neufeld is co-founder and co-director (with Barry Scheck) of the pro-bono Innocence Project at the Benjamin N. Cardozo School of Law, which seeks the release of wrongly convicted prisoners through DNA testing. He is perhaps best known for his work as a defense attorney in the O.J. Simpson case. He is in private practice in New York City.

Send your questions or comments for Peter Neufeld in NOW!

D.C.: What do you make of Govenor George Ryan of Illinois's decision to put a stop to executions until a review is done of death row cases? Why haven't other govenors followed suit?

Peter Neufeld: Gov.Ryan took a very courageous step but nevertheless an essential one to respond to the reality that whereas 12 people have been executed in Illinois, 13 on death row have been exonerated. A half dozen other states are considering suspending executions pending a review. There is no reason to think that this is particularly an Illinois problem. It's just that a dedicated group of lawyers and jounalist and their students have agressively reopened cases.

Glen Burnie, Maryland: The state of Maryland is currently considering legislation on DNA testing as a matter of post conviction relief for inmates. However, there are two procedural problems indigent inmates face: Problem -1- In the state of Maryland, inmates are allowed only one post conviction procedure. Most inmates needing DNA testing have long since used their allotted one post conviction procedure. and Problem -2- The only option left then is to file a Motion to Reopen a Concluded Post Conviction Petition. This can be done "in the interests of justice." However, at least two judges in Maryland have declared such a Motion to be a "second" post conviction proceeding, and ruled that it is therefore "not in the interests of justice" to consider it! Question 1: What other options are available to indigent inmates under these circumstances? Question 2: What language needs to be inserted into Maryland legislation to make DNA testing available to indigent inmates who are being denied access through the post conviction procedure?

Peter Neufeld: The option we recommend is new legislation that gives every inmate access to DNA testing notwithstanding any other procedural bars. The only criteria are 1. Identity was an issue at the original trial, 2. Biological evidence was collected during the initial investigation, and 3. The evidence exists. Check out the Illinois statute or Sen. Leahey's Innocence Protection Act Bill introduced last week.
In the absence of a new statute, we believe one approach is to go into federal court under 42 USC. 1983 to gain access to the evidence. In our book "Actual Innocence" we argue that under Herrera v. Collins, there are 5 Supreme Court justices who believe that it is unconstitutional to keep a factually innocenct man in jail or on deathrow.

Washington, D.C.: When did you first realize you were against the death penalty?

Peter Neufeld: I have been morally opposed to the death penalty for most of my life. But the point here is that, as Gov. Ryan concluded, whether you are for or against the death penalty, when 13 people are exonerated from death row, clearly the death machinery has broken down and needs to be looked at carefully to see if it can be fixed.

Alexandria, VA: Why isn't DNA testing used more often? Is it very expensive?

Peter Neufeld: DNA testing was not developed for criminal investigation until about 1990. Its use was not widespread until the mid 1990's. Today it is very common for police to use DNA testing on new cases. The problem is many prosecutors refuse to go along with testing on old closed cases which were tried before there was DNA testing.

Somewhere, USA: I don't have any data to back this up, but it seems to me that although Americans approve of the death penalty, in general they're hesitant about sentencing someone to death. Do you find that to be true -outside of places like Texas and Florida, that is-?

Peter Neufeld: The latest gallup poll suggests that support of the death penalty has dropped from 81% to about 66%. Moreover, when people are told that the alternative to death is life without parole, only about 51% still supported capitol punishment. I expect the trend to continue as more people learn about the conviction of the factually innocenct.

Orlando, FL: Will DNA testing be used to determine the guilt or innocence of Sam Sheppard when his case is reopened?

Peter Neufeld: DNA plays an important role in the family of sam sheppard's attempt to clear his name. Critical blood drops recovered from the crime scene do not come from either Dr. Sheppard or his murdered wife. If you can match the blood to another man, as the lawyer for the Sheppard family claims, inncocence will be strongly suggested.

Alexandria, VA: Congratulations on the success of the Innocence Project. Your work is truly commenable. Where do you get your volunteers? Are they only from the Cardozo School of Law, or from elsewhere? Do you ever get asked to consult in other countries?

Peter Neufeld: The IP is based at Cardozo Law School in NYC. We have 16 students who receive credit for working on the cases. There are a handful of other law students from various NYC law schools who volunteer to work on cases. We are trying to establish a national Innocence Network at law schools, journalism schools, and anywhere else where people are willing to do the leg work. From time to time Barry and I consult on matters in other countries.

Charlottesville VA: Until recently, I have been sort of lacklusterly against the death penalty, thinking I had given a higher priority to other causes. Now, particularly with the new technology and the increasing number of wrongfully convicted persons coming into the news, I want to express my opinion more forcefully against the death penalty. What is the most effective action for a layperson to take to bring this about, or at least stand up and be counted?

Peter Neufeld: First you can contact the Justice Project in Washington 202-638-5855 and other groups focussing attention of cap punishment. In Virginia you can attempt to educate the governor and the state legislature on the need for a moritorium similar to what the Republican Gov. Ryan did in Illinois.

Alexandria, VA: If DNA can be used to prove innocence, can it also prove guilt?

Peter Neufeld: Absolutely. We report in our new book, "Actual Innocence" that of the now 70 post-conviction DNA exonerations, in 15 cases, DNA was used to identify the real bad guys.

Somewhere, USA: Your bio says you're in private practice. What kind of cases do you do? Are you exclusively a DNA expert, or do you do general defense work?

Peter Neufeld: I have no time for general defense work now. Half my time is with the Innocence Project, the remaining time is spent on civil rights cases representing people such as Abner Louima (the New York police torture case), the New Jersey Tpke 4: young basketball players shot at for driving while black, and others whose civil rights have been compromised by people acting under color of law.

washingtonpost.com: The back of your book says: "Incredibly, according to many trial judges, 'actual innocence' is not grounds for release from prison". Can you explain that?

Peter Neufeld: There is a difference between challenges to a conviction based on procedural errors as opposed to factual innocence. In the former, the accused may have committed the crime but nevertheless failed to receive a fair trial. In the latter, the man simply didn't commit the crime.
In Herrera v. Collins, Justice Renquist makes the remark about "actual innocence", a position more strongly held by Justice Scalia. Nevertheless we believe that a majority of the Court would think differently when confronted with persuasive evidence of "actual innocence".

New York, N.Y.: What do you see in the future of DNA science? There are some who fear that the mapping of a gene will lead to "genetic discrimination" in the workplace and by insurance companies.

Peter Neufeld: Genetic discrimination is a real concern that can not be ignored. The eugenics movement exploited by the Nazis started in this country. Not too long ago African Americans carrying the sickle cell trail were singled out. The larger the data bases become the greater the danger they will be mis-used.

washingtonpost.com: This weekend, I attended a Republican governors' press conference at which the issue of the death penalty was addressed. Governor Ryan discussed his reasons for the moratorium on executions in his state. Other governors were asked if they too intended to put a halt to executions until an investigation into the convicts' guilt or innocence could be conducted and whether George W. Bush was in any way inclined to follow Governor Ryan's example. One of the governors commented that he was confident that the problems found in Illinois could not be found in Texas (or indeed in any other state). Comments?

Peter Neufeld: George W is simply confused. The problems uncovered in Illinois are not limited to that state. It's just that a handful of crusading journalists and lawyers and their students have uncovered the puss and poison responsible for convicting many innocent man and putting 13 of them on death row. There is no reason to believe that Texas has a better criminal justice system than Illinois. If anything, the opposite is true. At least in Illinois there is a state wide public defender system, whereas in Texas there is none.

DC: What was your closest call, i.e., how close was someone to being executed before you stopped it?

Peter Neufeld: In our book we document the Kafkaesque story of Ron Williamson from Ada Oklahoma, a one time minor league baseball player who came within 5 days of execution.

Somewhere, USA: How long can a sample of DNA stay fresh? In other words, when someone says a sample is "degraded", what does that mean and how long does it take?

Peter Neufeld: The critical time for a forensic biological sample is when it is initially dried and stored. Samples degrade, and bacteria destroys the DNA, when they are subjected to moisture, heat, and light. Hence if you quickly air dry the specimen, and keep it in a cool, dry environment away from the sun, the DNA can avoid serious degradation and be testable for many years.

Rockville, MD: Are you opposed to the death penalty under all circumstances? What about the Nazis who were executed after the Nuremberg trials? Should they instead have been incarcerated for life? Do you feel the Israelis made a mistake executing Eichmann?

Peter Neufeld: As a general rule I decline to sit in judgment of what another people did in another time. But if confronted with those facts today, in this country, I would oppose capitol punishment. People forced to live out their lives, with the horrors of their actions is strong punishment and serves as a constant reminder for the living.

DC: It seems like in every election cycle, some politician wants to limit the rights of inmates to appeal. To back up their position, they circulate stories about prisoners suing the prison system for serving crunchy peanut butter instead of smooth, etc. What do you think?

Peter Neufeld: In any democracy where constitutional rights are taken seriously, there will be abuses of the system. However, I am less concerned with the inmate suing over dietary restrictions, then with the state's imprisonment or execution of a factually innocent man.

washingtonpost.com: Unfortunately, our time's up -- thanks so much to Peter Neufeld and to all of you for participating.