Early exonerations of innocent prisoners, including those secured by Centurion Ministries, relied on traditional forms of evidence: confessions from true perpetrators, discoveries of perjury, and the like. But the notion of “actual innocence” sometimes remained shaky; after all, short of a murder victim turning up alive, how can one ever know if a prisoner is truly innocent?
Sir Alec Jeffreys had no intention of answering this question. When he entered his lab at the University of Leicester in England on the morning of September 10, 1984, he thought it was going to be a Monday like any other. Little did he know what awaited him. “My life changed on Monday morning at 9:05 am,” he once said. “In science, it is unusual to have such a ‘eureka’ moment.”1 What happened that morning, a discovery he and his team made in the science of deoxyribonucleic acid (DNA), would turn criminal justice on its head.
The first genetic fingerprint was discovered “purely by accident,” according to Sir Alec Jeffreys.2 A professor at the University of Leicester, Jeffreys and his team were studying the evolution of mammalian globin genes when they discovered variable patterns of DNA in almost all of the species tested. Further examination showed that they were present in most mammals and that the patterns appeared to be different in each animal. Thinking that these might act as markers that would help pinpoint the genes responsible for particular traits, they set up an experiment to look for them in humans.3
In September 1984, the experiment revealed several markers in the human genome, which appeared to be passed down through families and unique to each individual. At first, Jeffreys thought the results were too complicated. But “then the penny dropped,” and he realized they “had genetic fingerprinting.”4 The team first published its findings in 1985 and in a second article that same year concluded that the probability of two individuals having the same DNA fingerprint was less than one in 33 billion.5
Two implications of the discovery were immediately clear to the research team: criminal investigations and paternity cases. Jeffreys’s wife added immigration to the list, opening up his eyes to the “political dimension” of the discovery.6
The first immigration case came in March 1985 at the request of the family and attorney of 15-year-old Andrew Sarbah. Born in London, Sarbah had gone to live with his father in Ghana when he was only four. Returning to London 11 years later, with a passport showing he was born there, Sarbah was denied entry as a British citizen. He was granted temporary admission, but suspicion abounded that someone had tampered with the passport. The family’s attorney, Sheona York, collected evidence (including serological testing) to show that Sarbah was indeed the biological son of his mother, Christine. Still, the tampered-passport theory remained. As options were running out, a colleague of York’s showed her a newspaper article about Jeffreys’s discovery of genetic fingerprinting. York contacted Jeffreys, who agreed to run the tests. When the results showed that Andrew was Christine’s son, the Home Office reluctantly conceded the case.7
The case generated publicity for the newly discovered DNA technology, which was praised as a “new way to depoliticize controversial immigration decisions.”8 According to Jeffreys, the positive reception may have been partly due to the fact that the case “was to save a young boy and it captured the public’s sympathy and imagination. It was science helping an individual challenge authority.” The first paternity case soon followed, and then “the flood gates opened.”9
At this time, the forensic implications of genetic fingerprinting—that is, its application to law and criminal justice—were becoming clear, but the process originally developed by Jeffreys and his team was inadequate. Starting in 1985, they developed a variation of the technique, which they called “DNA profiling,” to be used for forensic applications.10 Like the first use of genetic fingerprinting in an immigration case, the first forensic application of genetic profiling captured public attention.
In November 1983, the body of 15-year-old Lydia Mann was found in the village of Narborough, England. She had been raped and strangled. The crime drew the attention of the community and sparked a major investigation but went unsolved. Three years later, in July 1986, a similar crime occurred in the neighboring village of Enderby, where another 15-year old, Dawn Ashworth, was found beaten, raped, and strangled. This time, however, investigators had a suspect: Richard Buckland, a 17-year old who worked in the kitchen of a local mental hospital. Buckland had a very low IQ and upon questioning confessed to Ashworth’s murder but not to Mann’s. Investigators asked Jeffreys to compare Buckland’s DNA with a sample taken from the Mann crime scene, which he did in September 1986. The results showed that the samples did not match. Surprised and unsure how to proceed, police asked Jeffreys to test Buckland’s sample against material from the Ashworth investigation, the crime to which he had confessed. The tests showed that the two crime-scene samples matched, but neither one matched Buckland, shocking not only the police but also Jeffreys, who found the result “blood-chilling.”11 After the Home Office’s Forensic Science Services confirmed the results, all charges were dropped against Buckland. Thus, “the first time DNA profiling was used in criminology, it was to prove innocence.”12
Police were unsure how to proceed. They knew they were dealing with a multiple-murderer, but their only suspect had been cleared. With no additional suspects, no leads, and increasing pressure from the community to solve the crimes, the police took a “revolutionary step”: they requested that all men between the ages of 17 and 34 who lived in the vicinity of the crime scenes submit voluntary blood and saliva samples. Their goal was to eliminate suspects using traditional blood tests. Those who could not be eliminated would have their DNA samples tested by Jeffreys.13
More than 4,500 men submitted blood and saliva samples. Of those, more than 500 could not be eliminated through basic blood testing, and the DNA tests began. None, however, matched the samples from the Mann and Ashworth investigations. The police yet again thought they had reached a dead end, until a woman who worked at a bakery in Leicester called the police and informed them that one of her coworkers, Ian Kelly, had said he fooled police by submitting a sample on behalf of someone else. When police questioned Kelly, he spoke of the plan he had concocted with a coworker: Kelly had agreed to submit a sample on behalf of Colin Pitchfork, who said he had already submitted a sample for another friend. Pitchfork was soon arrested and confessed to both murders. It was confirmed when DNA tests revealed that his profile matched both murder-investigation samples. Pitchfork pleaded guilty in January 1988 and was given two life sentences.
The Mann-Ashworth case “was hailed as the first significant success for the use of DNA typing in forensic investigation”14 and was later popularized by Joseph Wambaugh in a book titled The Blooding. Pitchfork’s positive test results and conviction were a relief for Jeffreys: “I felt relief because he was serial murderer and would kill again, and because if the operation had failed then the public’s perception of forensic DNA would have been shattered.”15 As it was, the technology was praised, and DNA fingerprinting spread quickly through the forensic community in the United Kingdom. The case also “triggered the application of molecular genetics to criminal investigations worldwide,”16 particularly in the United States.
After Jeffreys and his team handled the immigration dispute in the Sarbah case, they were inundated with requests for assistance. Jeffreys described this time as “simply insane.”17 In response to the incredible demand, Imperial Chemical Industries (ICI), the largest chemical company in the United Kingdom, opened its first DNA-testing laboratory in the summer of 1987. The company wanted to expand its market overseas, particularly in the United States, and did so after the Pitchfork case. ICI Americas started offering DNA tests in the United States in October 1987 through Cellmark Diagnostics USA. Although the company initially planned to focus on paternity testing, it soon began accepting forensic casework. Concerned about the stricter admissibility standards in U.S. courtrooms, Cellmark hired the former chief of the United States Bureau of Alcohol, Tobacco, and Firearms’ forensic laboratory Daniel Garner. Garner immediately began preparing the company to introduce its tests into court, hiring scientists and building a network of expert advisers to shore up the scientific and technical side of things.18
Cellmark also began to connect with criminal justice professionals through direct mail campaigns, advertisements in legal publications, and presentations at professional meetings. It presented its DNA fingerprinting technology as a definitive way to link offenders to a crime scene. In one 1988 advertisement, for instance, the company claimed that “criminals leave more conclusive evidence than ever before” and that DNA fingerprinting “may be the difference between conviction and acquittal.” The advertisement went on to say that the company could obtain “conclusive results in only one test,” even “from samples that are months or even years old.”19
Cellmark was not alone in the commercial DNA-testing business; another company, called Lifecodes, was in the picture. Whereas Jeffreys had stumbled on the DNA fingerprint, Lifecodes had been purposefully developing its technology for the purpose of commercializing it and applying it to forensic analysis under the direction of scientist Michael Baird.20 The Lifecodes team published two research articles in 1986 concluding that its technology could successfully identify individuals from dried bloodstains and biological fluids recovered after the fact.21 Like Cellmark, Lifecodes began to advertise its new test to criminal justice professionals, citing it as “exquisitely accurate.”22 It presented its test as not only valid and reliable but also relatively simple and ready to be presented in the courtroom, touting the number of Ph.D.-level scientists on its staff but failing to mention that the test had not yet been the subject of an admissibility hearing. That step came soon enough.
In the spring of 1986, a string of rapes and assaults struck the south side of Orlando, Florida. The attacks were similar: they occurred in the victims’ homes after midnight, and the man carried a knife, covered the victims’ heads with a sheet or blanket, and tended to flip the lights on and off during the attacks. The first victim, 27-year-old Nancy Hodge, had gotten a look at the attacker. It was not until the following year, in March 1987, that Tommie Lee Andrews—by then suspected of more than 20 incidents of prowling, breaking and entering, attempted assault, and rape—was arrested. Hodge identified Andrews in a photo lineup, and Andrews was charged with the sexual battery and armed burglary of Hodge, as well as a similar rape that occurred only a week prior to his arrest.23
The case was prosecuted by assistant state attorney Tim Berry. While Berry was building his case, he was talking to his colleague Jeffrey Ashton, who suggested that he consider a new type of genetic test, DNA typing. Ashton had heard of the new technology from a news report about the Pitchfork case in 1986 and had recently seen a Lifecodes advertisement in a Florida legal publication. Berry called Lifecodes, and it ran the tests in August 1987. The results were impressive: the results matched Andrews to the Hodge sample, and Lifecodes claimed that the frequency of the pattern was one in ten billion. As Michael Baird said of Andrews at the time, “In a world population of just over 5 billion, he’s the only guy who could have left his semen there.”24
During the pretrial admissibility hearing, the prosecution brought in expert witnesses to discuss the evidence. Things seemed to be going the prosecution’s way, and the defense attorney, Hal Uhrig, felt helpless. He tried to find experts to challenge the prosecution, but none agreed. Instead, he decided to challenge the DNA evidence on the most commonsense notion he had: with a world population of five billion, how could the possibility of a match be one in ten billion? The prosecution was caught off guard; Berry had not prepared for this challenge and could not convince the judge that the statistical evidence should be admissible. Without this evidence, the jury failed to reach a verdict, and the judge declared a mistrial.
Two weeks later, Andrews went to trial for the second rape. This time, the prosecution team, led by Ashton, had done its homework and convinced the court to admit the statistical evidence. Within just a few days, Andrews was convicted and sentenced to 22 years, becoming the first person in the United States to be convicted based on forensic DNA evidence.25
By late 1987, the trickle of cases in which DNA was a factor became a flood. Cellmark and Lifecodes aggressively marketed their technology, and the media provided positive coverage. At this point, it seemed that the acceptance of DNA would go unquestioned and without challenge from the defense.
The Albany, New York, area was struck with two sexual assaults that eventually led to the first challenge of DNA evidence in which the defense actually called witnesses to combat the prosecution. The two cases—People v. Wesley and People v. Bailey—were similar in nature and time frame, prompting the court to hold a combined admissibility hearing that has been referred to as the “Wesley-Bailey hearing.”26
George Wesley, a man in his mid-30s who had spent most of his life in institutions for the mentally challenged, was charged in the 1987 rape and murder of 79-year-old Helen Kendrick. Blood was found on Wesley’s clothes, and the prosecution sought to use DNA fingerprinting to prove that the blood belonged to the victim.27 Cameron Bailey was on trial for the rape of a 17-year-old girl. The victim had become pregnant and had an abortion; the prosecution believed that Bailey fathered the child and wanted to use DNA testing to prove it.28 In both cases, the prosecution wanted to draw blood from the defendants to carry out the DNA tests that were crucial to securing convictions.
The admissibility hearing began in December 1987 to determine if the procedures used by Lifecodes, which would perform the tests, met the Frye standard, which asks whether novel scientific evidence is generally accepted in the relevant scientific community and thus admissible in court.29 The prosecution had a network of scientists willing to testify in support of the technology. The main expert was Lifecodes’ own Michael Baird, who explained the basic process and made the legal criteria for admissibility seem simple and clear. Other well-known scientists, Drs. Richard Roberts and Kenneth Kidd, agreed that Lifecodes’ protocols were sound.30
Defense attorney Douglas Rutnik began his challenge by arguing that Baird’s testimony was questionable because he had a financial stake in the outcome, but the judge quickly ended that discussion. Finding high-caliber expert scientists to challenge the prosecution was no small feat for the defense, but Rutnik found two: Dr. Neville Colman of the Mt. Sinai School of Medicine and Dr. Richard Borowsky of New York University. They challenged the foundations of Lifecodes’ tests and argued that their methods had not been subjected to adequate peer review.31
The defense challenges were met head-on by the prosecution’s experts. The decision of Judge Joseph Harris ultimately dismissed, even insulted, the defense experts, claiming they were underqualified to serve as experts on the issues at hand and severely overmatched by the prosecution’s witnesses. He ruled in favor of admissibility of DNA, a technology that could “constitute the single greatest advance in the search for truth . . . since the advent of cross-examination.”32
After failing to successfully challenge the DNA evidence in the Andrews case and the Wesley-Bailey hearing, the defense community was at a loss. By 1989, DNA test results had been admitted in more than 100 cases in the United States and had likely been used to acquire confessions in many more, all without substantial challenge from defense attorneys.33
Clearly, the strategies used in the previous cases were not working. As defense attorney Peter Neufeld put it at the time, “Mostly the evidence has come in without any objections, because the lawyers haven’t known how to respond to it.”34 The prevailing wisdom that the tests utilized would either produce the correct answer or no answer at all—with no real possibility of a false positive—echoed throughout the early cases. Historian Jay Aronson has argued that this is due in part to the fact that both Cellmark and Lifecodes had multinational parent corporations that were willing to spend billions of dollars each year to spread the use of DNA profiling as much as possible. Furthermore, the techniques were still not well-known outside of these two private companies, making defense use of experts a tricky proposition. Still, the defense community knew that if it wished to successfully challenge DNA evidence, it needed to find highly qualified expert witnesses to match the scientists on the prosecution side and to convince the court that the knowledge of these experts was significant for the admissibility of DNA-profiling evidence.35 It began to mount its first serious challenge to DNA evidence in early 1989, led by Barry Scheck and Peter Neufeld.
Scheck and Neufeld met in the 1970s while working as defense attorneys for the Bronx Legal Aid Society in New York. Their backgrounds were quite different, though both shared a passion for political activism and an aversion to inequality and injustice. Scheck came from an entertainment family; his father, George, was a tap dancer and manager for several celebrity entertainers. Scheck became a fierce debater in school and at Yale became involved in a number of political causes. Neufeld came from a politically active family; his parents, Muriel and Stanley, were leaders in the secular humanist ethical culture movement, and his brother, Russell, worked with the Students for a Democratic Society (SDS), an organization that opposed the Vietnam War and racial discrimination.36
The pair quickly became close friends.37 Both eventually left the Legal Aid Society, Neufeld for private practice, Scheck to be a professor and director of clinical education at the Cardozo School of Law at Yeshiva University, but they continued to work cases together. In retrospect, the most important one may have been that of Marion Coakley, as it sparked an interest that strongly influenced the next phase of their careers.
In 1984, Barry Scheck had been involved in a mistaken-identification case in which a man named Robert McLaughlin was shown to be innocent. A lawyer who worked with Scheck on the case, Richard Emery, then sent another one his way. It was from the same Bronx Legal Aid office where Scheck and Neufeld used to work and involved a man named Marion Coakley, who had been convicted of rape and robbery.38 The serologist who was involved in the case, Robert Shaler, was going to work for Lifecodes and told Scheck and Neufeld about the company’s DNA testing, suggesting that they try it in the Coakley case, but there was not to be enough evidence to get results.39
Although Scheck and Neufeld could not obtain DNA results to exonerate Coakley, other evidence pointed to his innocence, including a palm print that did not match, and Coakley was exonerated.40 Still, the case was an important one. As Neufeld recounted, “It was at that time that we first learned about this new technology called DNA typing. . . . That was our first window into the power of DNA technology.”41 Scheck echoed these sentiments, saying that although DNA was not used for the Coakley exoneration, from that point on they “knew, from how that was set up, that there were some classic problems in the way they were trying to transfer this technology from medical and research purposes” to the forensic arena. They quickly realized the potential power of DNA testing and decided to focus their efforts on its use in courtrooms.42 “We realized then that DNA was going to be extremely important, and it had not really been involved in the courts yet,” Scheck said. “So we held a forum at Cardozo Law School involving DNA testing—the first one, I think, in any American academic institution for its forensic application.”43
It is worth noting that neither Scheck nor Neufeld had anticipated becoming experts on a complex scientific technology. Neither had a background in science, according to Neufeld:
In fact, like a lot of other lawyers, it was the difficulty in comprehending chemistry that moved us to law school in the first place. The last thing we ever wanted to see, as lawyers, was any kind of physics or chemical equation. But what happens is that you have a client whose life and liberty are at stake, and it forces you to learn particular disciplines. It might be biology or chemistry. It might be a law of physics. It might be toxicology. It could be any of those sciences. And you have no choice but to learn them, because if you don’t learn them, then someone may abuse the information and send out an erroneous piece of information to the jury, and your client will suffer as a result.44
Despite their nonscientific backgrounds, Scheck and Neufeld became interested in DNA technology, and the 1987 forum at Cardozo garnered some attention. In mid-1988, both were named to the New York State panel on forensic DNA analysis.45 Thus, when defense attorney Andrew Rossmer needed help in handling the DNA evidence in the case of Joseph Castro, Scheck and Neufeld seemed like the perfect choice.
On February 5, 1987, Vilma Ponce, 20 years old and seven months pregnant, was found stabbed to death along with her two-year-old daughter. Ponce’s husband found the bodies in their apartment in the Bronx. The husband told police that he had seen a man leaving the building with blood on his hands. The man turned out to be 38-year-old Joseph Castro, a janitor’s helper and neighborhood handyman who lived in the adjacent building. Ponce’s husband could not identify Castro in a photo array, but the investigation continued.46
The “grim but unexceptional homicide”47 took a turn when detectives, questioning Castro several days after the incident, discovered on his watch a small spot of blood, which Castro claimed was his own. Risa Sugarman, an assistant district attorney in the Bronx, ordered a genetic test. The watch, along with samples taken from the two victims, was sent to Lifecodes for analysis. The tests were performed, and on July 22, Lifecodes issued a definitive, unambiguous report to the Bronx District Attorney’s Office: “The DNA-PRINT pattern from the blood of Ponce matches that of the watch with three DNA probes. The frequency of these patterns in the general public is 1:189,200,000.”48
Castro was charged with two counts of second-degree murder, and prosecutors sought to have the test results admitted as evidence. Sugarman knew that this meant a Frye hearing to determine whether the evidence would be admissible in court. Until this point, DNA identification evidence had never been declared inadmissible under Frye.49 There had not, however, been a substantial challenge to the evidence.
Castro’s defense was originally being handled by court-appointed attorney Andrew Rossmer. Unfamiliar with the technicalities involved in genetic fingerprinting and feeling as though he was in over his head, Rossmer asked Neufeld and Scheck to handle the Frye hearing. As both lawyers were serving on a state panel studying DNA forensic analysis, they seemed to be the perfect specialists to do so.50
Neufeld and Scheck, unlike many of their colleagues in the legal and criminal justice worlds, were skeptical of the oft-praised DNA evidence, concerned about its use in the courts, and “decided to make the Castro case the first in which there would be a comprehensive inquiry into the various issues that comprise DNA typing.”51 So although case law seemed to be against them, they forged on.
For Neufeld and Scheck, a key issue was that the testing was carried out by private commercial companies—Lifecodes and Cellmark—and was thus unregulated. As Neufeld noted, “There was no accountability, and we were concerned with that as a matter of social policy.”52 One commentator described the work as a “black box,” where samples went in and results were spit out, which basically meant convictions were ensured, given the claims of certainty and reliability made by the companies.53
The defense needed expert witnesses to challenge the evidence, but at first, experts were hesitant to work with Neufeld and Scheck because they were concerned that an attack on the new technology would harm its image, thus compromising its potential value. But that perspective began to change. According to Neufeld, eventually, “the experts reached the conclusion that it was the sloppy work of some of these laboratories that was going to give DNA technology a bad name” and realized that they had “a professional obligation to do some house-cleaning.”54
In November 1988, just weeks after becoming involved in the Castro case, Scheck and Neufeld attended a symposium on forensic DNA typing at the Banbury Center at Cold Spring Harbor Laboratory on Long Island, New York. Neufeld described it as “the first conference where there was any discussion of potential problems with the technique. Previously, all you’d hear was how great it was.”55 The meeting included not only defense attorneys but also prosecutors, FBI representatives, molecular biologists, and other scientists.
At the conference, Lifecodes scientist Michael Baird, who had by then testified in more than 20 hearings in the United States, gave a presentation in which he showed several autoradiographs, or autorads—the x-ray images examined to determine if the patterns on two samples match—and claimed that he would sometimes call a match even when the patterns did not quite line up but were similar. Furthermore, he did not always conduct the proper control tests but knew from experience that the samples matched.56 One particular guest at Baird’s presentation was human geneticist and mathematician Eric Lander, of the Whitehead Institute in Cambridge, Massachusetts, who “was a little disturbed” by Baird’s claim.57
Neufeld met Lander at the meeting and showed him one of the autorads from the Castro case. Lander called some colleagues over and asked them if they thought it was a match, to which two of the three replied, “Garbage.”58 Soon after the conference, Lander was asked to serve as an expert in the Castro case. Lander declined the invitation but agreed to help Scheck and Neufeld understand the technicalities of DNA typing. Throughout the initial hearings, they asked Lander questions, sent him autorads and other data presented by the prosecution, and sent transcripts of testimony. To Lander, it was immediately clear that there were issues: “I could see all kinds of problems. I thought I would simply give the defense lawyers questions to ask, that they would force the prosecution witnesses to admit the problems, and the case would fall apart.”59 But it was not so simple. “Distressed and appalled” by Baird’s responses to the questions,60 Lander reluctantly agreed to testify, though he declined to accept the expert-witness fees. He ended up dedicating more than 350 hours of work on the case, including six days on the witness stand and preparation of a 50-page report.61 In Lander, Scheck and Neufeld knew they had found somebody “right up [their] alley”; Scheck described him as “this fast-talking New York Jew from Brooklyn who loved to argue and knew a lot of law.”62 Throughout the hearings, Lander and the defense team found several problems with the methods used by Lifecodes in the Castro case.
In late April, there was another meeting at Cold Spring Harbor on genome mapping and sequencing. Lander attended and met biochemist and molecular biologist Richard Roberts. The two discussed the Castro case; Lander explained his concerns and left his report with Roberts, who “quickly became rather concerned” and “soon realized that something had to be done.”63
A few days after reading the full report, Roberts suggested that the expert witnesses from the case, both from the prosecution and defense, meet and discuss the issue as scientists, with “none of this lawyerly talk.”64 There were ten experts in total, five for each side; only four were able to attend the meeting, but the remaining six gave their approval.65 Neufeld also approved of the meeting: “I was extremely surprised, but I thought it was a great idea.”66
The experts met and ended up drafting a two-page consensus statement concluding that the Lifecodes tests in the case were “not scientifically reliable enough to support the assertion that the samples . . . do or do not match.”67 Nine of the ten experts agreed with this conclusion; Baird was the only holdout.68 The report discussed the procedures for assessing the validity of novel scientific techniques: “All experts have agreed that the Frye test and the setting of the adversary system may not be the most appropriate method for reaching scientific consensus. The Frye hearing is not the appropriate time to begin the process of peer review of the data. Initiating peer review at this time wastes a great deal of the court’s and the experts’ time. The setting also discourages many experts from agreeing to participate in the careful scientific review of the data.”69 The report emphasized the “need to reach general scientific agreement about appropriate standards for the practice of forensic DNA typing” and encouraged the National Academy of Sciences to form a committee to do so.70
The meeting was described by Neufeld as “unprecedented in the annals of law.”71 The Castro decision basically followed the scientific conclusions, ruling that while DNA fingerprinting was generally acceptable and admissible, the specific analysis performed by Lifecodes in the case was not. That is, the theory underlying forensic DNA typing was accepted, and there were techniques that were accepted to produce reliable results; in this particular case, however, Lifecodes failed to perform all of the necessary tests, and the evidence was thus inadmissible.72 The prosecution conceded that the test results were unreliable, with Sugarman noting that this outcome “was a better service to the criminal justice system.” Speaking for both herself and Justice Gerald Sheindlin, Sugarman said they were both convinced that “you have to look at [DNA test results] very closely before you let it go before a jury.”73
To have a legal actor, particularly a prosecutor, share such a sentiment was no small feat. After all, it had been only a few years since forensic DNA fingerprinting was introduced to the U.S. legal system with the promise of revolutionizing the search for truth, a new type of scientific evidence that was “incapable of giving a wrong answer” and that would “reduce to insignificance the standard alibi defense.”74 The Castro case was thus a major victory for the defense; the perception of DNA evidence shifted from an infallible crime-fighting tool to that which should be questioned deeply and systematically. As Neufeld pointed out, prior to Castro, no challenges had “addressed the problems of forensic DNA typing that distinguish it from diagnostic DNA typing.”75
Still, Neufeld and Scheck were not fully satisfied. Although they had scored a major victory, the decision failed to account for the fundamental flaws with Lifecodes’ methods and the potential implications of those flaws. As Neufeld told a reporter, the judge “says in the abstract DNA tests are fine, when in the only test he ever looked at, it wasn’t fine, it was a shambles.”76 For Neufeld and Scheck, the troubling part was that Lifecodes had performed its tests in almost 1,500 criminal cases to that point, and the decision failed to mention that the flaws uncovered in Castro potentially tainted those earlier results. In what came to be an important part of the innocence movement’s mantra, Scheck described this issue as “a fundamental civil liberties problem.” Even if all of the scientific problems are fixed, “it is still wrong that these past cases are based upon unreliable science, and it is not inconceivable that some of these people have been unjustly convicted.”77 Some people, including Neufeld, thought challenges to previous Lifecodes cases might be one outcome of Castro. After the case, he and Scheck received numerous requests for help from attorneys around the country. Although they were unable to assist directly with most of the cases, they did make briefs and transcripts from Castro available through the National Association of Criminal Defense Lawyers.78
The Castro case, along with the Schwartz case in Minnesota in which Cellmark’s techniques were challenged, also led the media to share some skepticism of DNA evidence.79 While the cases did not disprove the potential power and reliability of DNA testing, they showed that the evidence must be carefully examined before being deemed admissible. As Eric Lander put it at the time, “No biologist questions the potential power of DNA typing. What is missing in forensics is a set of adequate guidelines.”80 Thus, perhaps the most important outcome of the Castro case was the push to establish national standards for forensic DNA testing.
Wanting to ensure that the reputation of DNA evidence was not further tainted, many people looked to the Federal Bureau of Investigation (FBI) to lead the development of standards for forensic DNA testing in the United States. The FBI began offering forensic DNA testing to law enforcement agencies in December 1988, and in the wake of Castro and Schwartz, it wanted to produce standards that would hold up to legal challenges. The FBI took the arguments used by Scheck and Neufeld—that forensic casework is fundamentally different from diagnostic work—to emphasize that only people within the forensic community could evaluate the scientific techniques. This served to protect the FBI against the challenge of many previously used defense experts.81
Heading into 1990, the FBI developed its own network of laboratories and scientists within the forensic science community, which developed techniques that became the standard in the industry. Certain aspects of the FBI’s procedures, however, still came under fire, as Scheck and Neufeld took aim in United States v. Yee et al.
On February 27, 1988, David Hartlaub stopped to make a bank deposit from the music store where he worked in Sandusky, Ohio.82 After parking his van, Hartlaub was attacked by a group of men who shot him, threw his body out of the vehicle, and drove off. The van was later found abandoned with the murder weapon inside. The bank bag containing nearly $4,000 was also left in the van, ruling out robbery as the motive for the crime. Police found three suspects: Steven Wayne Yee, Mark Verdi, and John Ray Bonds, all members of the Hell’s Angels motorcycle gang. The investigators posited that the three men had mistaken Hartlaub for a member of the rival Outlaws Motorcycle Club whom they had planned to kill.83
A significant amount of blood was found in Hartlaub’s van and the backseat of Yee’s car. When arrested, Bonds had what appeared to be a severe ricochet injury on his right arm. The FBI performed an analysis on the samples and found that Bonds’s DNA profile matched the blood samples from both vehicles. The FBI initially claimed that the probability of a random match was one in 270,000 but later lowered the figure to one in 35,000. With this crucial piece of evidence, both the prosecution and defense prepared for the admissibility hearing, expected to be a “showdown.”84 The importance of the decision was understood; while it would not be binding, it would likely be influential around the country. As one defense lawyer remarked at the time, “The decision . . . will be relied upon by judges all over the United States. I can’t imagine any judges doing this twice.”85
The defense was led by Scheck and Neufeld, who argued that forensic DNA testing was different from other uses of the technology, so the focus must be on the forensic setting as specifically as possible. They critiqued the procedures used by the FBI, which they suggested had not yet been subjected to scientific peer review. Rather than focus only on scientists from the human genetics research community, Scheck and Neufeld sought out scientists who had not been included in the FBI’s review process to provide reviews of the procedures. The critiques focused on both the actual testing procedures and the probability calculations. The FBI’s own experts responded and, in the end, won: the FBI’s techniques were deemed admissible. The district court adopted this finding, saying that the problems presented with the DNA testing procedures were not issues of admissibility but issues of weight for a jury to decide. The defendants were ultimately convicted in 1991 and lost their appeal.86
Few judges disagreed with the Yee decision, and it had relatively little impact on later admissibility hearings. It did, however, spark debate and controversy in the scientific community. Eric Lander wrote an editorial in the American Journal of Human Genetics (AJHG) in which he offered a critique of the FBI’s procedures that had been allowed in Yee.87 The article was followed by a series of letters to the editor from academics, forensic scientists, lawyers, and corporate executives, all critiquing Lander for his initial article. One prosecutor suggested that he “leave law to the lawyers.”88 Lander was allowed to respond to these letters, and while he suggested that some of the criticisms were unfounded, he offered a reasonable conclusion: “Society needs both voices of advocacy and voices of caution to ensure that new technologies achieve their full potential. We are all on the same side.”89
The exchange of letters in AJHG was significant and far more amicable than the one in Science. In a December 1991 issue, Science published two articles, one by Richard Lewontin and Daniel Hartl criticizing the common probability statements made regarding forensic DNA matching (such as those made by the FBI in the Yee case) and one by Ranajit Chakraborty and Kenneth Kidd suggesting that the methodology was sound and generally accepted.90 The debate between the two sets of scholars was fierce, but it was the circumstances surrounding the publications that really showed just how contentious things were.
Lewontin and Hartl’s article had been accepted by the journal first. When word of the upcoming publication got out, rumors flew that members of the FBI planned to halt publication of the paper. James Wooley, the prosecutor in the Yee case, called Hartl and expressed his concerns about the article being published. Lewontin then wrote Wooley, suggesting that it was inappropriate for a state official to try to intimidate a citizen. The editor of Science, Daniel Koshland, was aware of the controversy and took another look at the paper. He asked Lewontin for revisions, which upset the original authors. Koshland also solicited the rebuttal from Chakraborty and Kidd.91
Accusations were thrown from every direction. The scientists criticized one another, suggesting that philosophical and ideological beliefs were getting in the way of the science. But the lawyers were also involved. Neufeld and Scheck accused numerous scientists and federal law enforcement officials of “meddl[ing] in the peer-review process at leading scientific journals” and suggested that the journal editors were in cahoots with the FBI. They also accused Wooley of unethical behavior. Wooley’s allies fired back, suggesting that the scientists supporting the defense were simply hired guns.92
The debate over DNA evidence remained heated as Congress debated the DNA acts of 1991 that addressed the lack of funding and proficiency testing in state labs and the establishment of a national DNA databank. Scheck testified before congressional committees, focusing on the need for blind proficiency testing and suggesting that the FBI would not adequately regulate itself.93
The remainder of the debate in Washington involved a National Research Council report with which the FBI and others from the prosecution community were unhappy. A second panel was convened to draft another report, which was not seen until 1996.94 Much of the argument centered on technical issues that are beyond the scope of this discussion.95 Suffice it to say that by mid-1993, “almost all of the trial court decisions denying the admissibility of DNA evidence because of the population genetics controversy were overturned at the appellate level,”96 and DNA profiling was generally considered valid and reliable by the courts. The burden to decide whether particular case results were sound mostly shifted to the jury, due in part to the decision in Daubert v. Merrell Dow Pharmaceuticals, in which the Supreme Court made judges the “gatekeepers” of scientific evidence (rather than relying on Frye’s “general acceptance” standard). In other words, rather than count how many scientists accepted a certain type of scientific evidence, judges would determine whether the evidence was relevant and whether it was reliable enough to be heard by a jury. The post-Daubert years saw widespread acceptance of DNA evidence, and although DNA was generally seen as a prosecution tool to establish guilt, two important cases demonstrated its utility for uncovering errors, setting the tone for what later became the innocence movement.
On July 9, 1977, Cathleen Crowell was standing on the side of a road in the Chicago suburb of Homewood when a police officer passed by. He noticed her dirty clothes, and the 16-year-old recounted the story of being thrown into a car by three young men and raped as she was leaving work at a local mall. The rapist, she said, had scratched letters into her stomach using a broken beer bottle. Crowell was taken to a nearby hospital, and a rape examination was performed. Clothing containing what was believed to be a seminal stain was collected, along with several pubic hairs and a vaginal swab.
Cromwell worked with police to develop a sketch of the rapist. When shown a book of mug shots, she identified Gary Dotson, who was arrested the next day and identified in a lineup.97
Dotson went to trial with two key witnesses against him. The first was Cromwell, and the second was a forensic specialist who claimed that the stain from the victim’s underpants came from a type B secretor, which Dotson was. Since only about 10% of the population fits this profile, there was a good chance that Dotson was the source. The specialist also testified that the hairs recovered from the victim were “microscopically similar” to Dotson’s; the prosecutor later claimed that they actually matched.98 The evidence was enough to persuade the jury; Dotson was convicted of rape and aggravated kidnapping and given concurrent sentences of 25 to 50 years.
With the case seemingly closed, the victim moved on. She married (now Cathleen Webb) and moved to New Hampshire. It was not until March 1985—nearly eight years after the initial incident—that Webb expressed her guilt to her pastor. She informed him that she had fabricated the rape allegation as a cover story because she and her boyfriend at the time feared she was pregnant. She contacted a lawyer to represent her, but the Cook County prosecutors wanted little to do with the old case. She eventually went to the press, and the Chicago Sun-Times covered the story. The Chicago Tribune also provided limited coverage, though it mostly drew on information from the state attorney’s office, which tried to discredit the story. Dotson was released on bail the next month, but it was soon revoked.99 A clemency hearing was forthcoming, and the decision was far from a sure bet, as witness recantations rarely resulted in overturned convictions. Some people in the legal community, while respecting the precedent for not believing recantations, questioned the court’s logic in this case, which was different from similar scenarios, since there was neither a threat nor money involved. One prominent Chicago lawyer bluntly stated, “The law has made an ass out of itself and the judge has helped it out, if you want to know the truth.”100
The national media picked up on the story; a New York Times article suggested that the case could have wide ramifications for the criminal justice system: “Confidence in American justice cannot rest easily when [Dotson] is sent back to jail on the word of a woman who is, one way or the other, an acknowledged liar.”101 Webb even said she would stand trial for perjury if it meant Dotson would be freed.102
The following weeks were littered with stories in the Chicago Tribune that seemed to support the prosecution, but the public continued to support Dotson, circulating several petitions for his release. Judge Richard Samuels, however, believed the recantation to be “implausible”103 and denied clemency after a three-day hearing that was covered by the international media. In response to his decision, Judge Samuels was the target of public outcry, including death threats. The governor ultimately commuted Dotson’s sentence to time served as a matter of “basic justice”104 and placed him on parole, a move that garnered the governor some praise.105
Once released, Dotson made several national television appearances together with Webb, including Today and Good Morning America, to declare his innocence.106 The newfound freedom was difficult to manage for Dotson, however, and after struggling with alcoholism, unemployment, a strained marriage, and being a parent, a domestic incident landed him back in prison.107
Journalist Civia Tamarkin believed in Dotson’s innocence and recruited former assistant state’s attorney Thomas Breen to take up the case on his behalf. Breen saw an article in Newsweek about the new DNA fingerprinting technology and pursued it on Dotson’s behalf. The prosecution was open to DNA testing. The governor’s office contacted Sir Alec Jeffreys, who agreed to conduct the test, but the technology at the time could not produce a result because the sample was degraded. But newer tests, pioneered by Berkeley-educated forensic serologist Edward Blake, could work on degraded samples. Rob Warden brought Blake, whom Warden described as “the number-one forensic geneticist in the country,” onto the case,108 and a new test was conducted on the seminal stain and blood samples from Dotson and the victim’s old boyfriend, David Bierne.109
In August 1988, the test results excluded Dotson as a potential source of the semen. The governor, however, refused to grant clemency before being assured of the test’s scientific reliability, though the Prisoner Review Board unanimously recommended a pardon.110 Nine months later, still with no action, the state attorney’s office supported a motion in opposition to a new trial. It did not necessarily believe in Dotson’s innocence but that the trial outcome would have been different had the forensic evidence been available at the time.111 The motion was granted, charges were dropped, and Dotson was finally exonerated ten years after his original conviction.112
Gary Dotson’s case is usually cited as the first example of an American being exonerated through DNA testing. There were, however, two exonerations that year, and Dotson’s was the second of them.
Seven months before Dotson was exonerated, in January 1989, David Vasquez was freed after DNA suggested he had not committed the rape-murder for which he had been imprisoned.113
The victim was 32-year-old Carolyn Jean Hamm, a lawyer who was raped, bound, and hanged in her home in Arlington, Virginia, on January 23, 1984. Vasquez, a 38-year-old who was described as “borderline retarded,”114 was placed in the neighborhood by two eyewitnesses, who described him as “creepy” and “strange.”115 Also found at the scene was a hair fiber that was said to be consistent with Vasquez’s.116 He was arrested and interrogated three times by the police. During the first interrogation, before which he was not advised of his Miranda rights, Vasquez gave a shaky statement with facts supplied by the detectives. During the second and third interrogations, he provided a “dream statement,” describing the incident as he had envisioned it in his sleep.117 He was charged with murder, rape, and burglary. Confused, frightened, and threatened with a death sentence, Vasquez entered an Alford plea—essentially, a no-contest plea that allows the defendant to maintain his innocence while acknowledging that the prosecution’s evidence could still convince a jury to convict—on the day before the trial.118
Nearly three years after Vasquez began his prison sentence, another rape-murder occurred in the same neighborhood that bore several similarities to Hamm’s. Detectives initially believed it was a co-conspirator of Vasquez’s from the Hamm case, but when Vasquez was offered an early release if he would identify such a person, he refused and again asserted his innocence. Investigators soon realized that a series of murders seemed to follow a similar pattern, and they began to think they might have a serial killer on their hands.
After realizing that none of the crimes in question had occurred between 1984 and 1987, the police examined criminal records to identify potential suspects, and one emerged: Timothy Spencer had been imprisoned in 1984 for a burglary and released in September 1987 to a halfway house mere months before the most recent killing. The detectives, aware of the recently developed DNA technology, pursued scientific testing of the evidence. Spencer provided blood samples, which matched the samples from numerous cases. There was not enough evidence from the Hamm case to test, but an FBI report found that the same offender had committed the string of murders.119 On July 16, 1988, Timothy Spencer was convicted of the most recent murder. He was later convicted and sentenced to death for three additional murders.120
Vasquez, meanwhile, had no judicial remedy under Virginia law. The DNA testing, however, had convinced the commonwealth attorney Helen Fahey that Vasquez was not involved in the Hamm murder, and she asked the Virginia governor for a pardon.121 His application was granted on January 4, 1989, making Vasquez the first exoneration in the United States based on DNA evidence.122
Unlike Gary Dotson’s case, which received national media attention, the Vasquez exoneration was mostly a local event. Searches of newspaper databases reveal coverage of the Dotson exoneration ranging from local papers to the New York Times. The Vasquez case, on the other hand, was covered by one writer for the Washington Post, a national newspaper, but essentially a local one for the events.123 Perhaps because of this, innocence lore sometimes overlooks Vasquez and points clearly to Dotson as the beginning of the DNA-exoneration era.124
One potential reason for this assessment is that some people may not consider Vasquez’s a DNA exoneration; DNA testing was not actually possible in the murder for which Vasquez was convicted, so it did not directly indicate his innocence. Rob Warden has suggested that this is the case, although one can argue either way.125 Still, Vasquez is listed by the Innocence Project as a DNA exoneree.126 Furthermore, there even seems to be some confusion, or at least lack of clarity, within the innocence movement as to which case constitutes the first DNA exoneration. Innocence Project data from mid-2014, for example, listed Dotson first and Vasquez second in exoneration order, yet the dates of exoneration in that same database clearly show Vasquez as being the earlier one.127
Despite this lack of clarity, these two cases together mark 1989 as the beginning of the DNA-exoneration era. Several more cases followed in the next few years: Edward Green was exonerated in March 1990, less than a year after being convicted of rape in Washington, D.C.; Centurion Ministries had its first DNA exoneration in the summer of 1991, when Charles Dabbs was cleared for a wrongful rape conviction in New York; and Bruce Nelson was freed a month later after being wrongly convicted of rape and murder in Pennsylvania.
These early DNA exonerations were crucial, and two entrepreneurs immediately recognized their importance. Barry Scheck and Peter Neufeld, having experience with wrongful conviction cases and recognized as legal experts with knowledge of DNA technology, followed the early cases closely.
In retrospect, it does not seem surprising that Barry Scheck and Peter Neufeld emerged to pick up the torch and spark the innocence movement. Both had formative experiences that made them ideal candidates to lead such a campaign.
Both had progressive parents who encouraged political activism. Scheck said his father “was always part of a progressive political movement, . . . so I grew up in a household where this tradition of political activism was alive.” He described himself as “a child of the 60s,” saying he “was pretty active in the civil rights and anti-war movements as a teenager.” He went to Yale University, carrying the activist spirit with him and engaging in a number of political activities.128
Similarly, Neufeld described his parents as “very inquisitive,” getting him and his brother involved in the civil rights movement when they were young; “From a very early age, we always thought about doing public-interest work.”129 Even in his preteen years, Neufeld’s parents engaged him in progressive activism, taking him to support the southern freedom schools during the civil rights movement.130 Like Scheck, Neufeld carried his activist spirit with him when he attended college at the University of Wisconsin. As a student, he was suspended for participating in a demonstration in 1969 involving the Black Student Union and later got in trouble for taking part in an antiwar protest.131
In addition to having backgrounds influenced by political activism, by the time the DNA wars came about both Neufeld and Scheck had been exposed to wrongful convictions. The issue entered Neufeld’s consciousness in the 1960s, when he was young and engaged in civil rights activism with his parents: “Basically from the time I was ten, I would hear stories about black men being wrongfully convicted, so it was a part of my zeitgeist, or consciousness, in my prepubescent days.” In the 1970s, as an attorney in the Bronx, he gained experience working on exoneration cases: “When I was a public defender, 1976 to 1977, I handled cases of people who had been sort of pressured or coerced into pleading guilty to crimes they didn’t commit, and I reopened their cases. So I was very much aware of wrongful convictions in that sense years before [Barry Scheck and I] ever did anything.”132
Scheck’s first wrongful conviction case was that of Robert McLaughlin, who had been convicted of taking part in a string of robberies and a murder in Brooklyn in 1979. The police had found the primary suspect and were looking for his supposed associate, Robert W. McLaughlin. Instead, however, they found Robert K. McLaughlin—who went by Bobby—and he was mistakenly picked out of a lineup by a 15-year-old witness. Despite a lack of physical evidence, a statement from a victim who said Bobby was not one of the offenders, and statements from others saying that Bobby had been elsewhere at the time of the crime, he was convicted and sentenced to 15 years to life.
Bobby McLaughlin’s foster father convinced prominent civil rights attorney Richard Emery to take up the case. Emery and Scheck mounted a media campaign with help from Jack Newfield, “a crusading journalist with the Village Voice when it was an extremely influential paper,” and John Miller of the local NBC News affiliate. They uncovered the mistaken identification and eventually secured McLaughlin’s freedom in 1986.133 The case was “a formative experience” for Scheck, who gained experience wrestling with the postconviction issues involved in securing exonerations but also expanded his knowledge of the social scientific research on eyewitness errors and gained a greater understanding of “the power of the press.”134
Thus, it was only natural that when Marion Coakley’s case came around, Scheck and Neufeld—who had been close friends since they worked together at the Bronx Legal Aid office—would work the case together. As noted earlier, they were unable to secure Coakley’s exoneration through DNA testing but freed him using more traditional evidence. Regardless of the means, the Coakley case was the first exoneration that Scheck and Neufeld secured together.135 Equally important, it was their first real introduction to DNA technology. It made sense, then, that they recognized the potential of DNA and engaged in the legal battles over its use.
Although Neufeld and Scheck were on the side challenging the scientific evidence throughout the Castro case and the DNA wars, they did so not out of an aversion to the technology but because they, along with other lawyers and scientists involved, recognized its potential: “In terms of how the innocence movement, through at least our work, began to form, there was a focus at the very beginning on . . . the power of DNA technology. And we knew from the very beginning the power of this technology, not just to exonerate the innocent but to identify those who had committed crimes, and that would really begin to expose all these other causes of wrongful convictions. We really did understand that potential of it from the very beginning.”136 Their founding of the Innocence Project, then, was not a spontaneous moment of genius but a logical progression from the work they had been doing for years. What they realized by the late 1980s, “about the same time that the FBI opened up the first major DNA laboratory in the country to handle criminal cases, is that this is a much more robust technology than what they’ve been using for the last 30 years.” They already believed that some types of evidence, such as eyewitness identifications, might not be reliable and that this technology would allow them to go back and examine old cases. While they had technical issues with the ways in which DNA was being handled, they never questioned its utility for exonerating innocents who had been wrongly convicted. Scheck even discussed this point during his testimony to Congress about the DNA acts of 1991 when he pointed out that, just as DNA was a powerful investigatory tool that could be used to secure convictions, it could also be useful in freeing the innocent; it was “an amazing tool to revisit old cases where people had been dragged out of the courtroom screaming, ‘I’m innocent! I’m innocent! I’m innocent!’”137
Scheck and Neufeld were taking potential innocence cases on an ad hoc basis and had some early successes, and as word of their exploits spread, the letters piled up:
I think we were, even before [the Innocence Project] was formed in ’92, already thinking about doing a lot more with these cases. And to do a lot more with these cases, we would need an infrastructure, because up until then, we were basically doing things out of our hip pocket, and that’s not a great way to do something. Also, we all had other responsibilities and couldn’t do it that way. And so, frankly, when we first started thinking about the problems in DNA yet the advantages of DNA, to reopen old cases, you immediately understood that this was not going to be anecdotal like it had been in the ’70s or ’80s [but] that this was going to be something actually very substantial numerically, with much greater potential. And as soon as we realized that, which was in ’89 or thereabouts, we realized we had to develop an institution.138
So, in 1992, Scheck and Neufeld officially founded the Innocence Project as a clinical program at Cardozo Law School, creating an organized, systematic way to investigate old cases and use DNA to exonerate prisoners when possible. At first, the organization was a small outfit, and the massive number of incoming letters from prisoners was overwhelming. The staff was just four people “processing thousands of letters.” Neufeld added, with a laugh, that they were just “trying to hold the whole thing together with bubble gum and aluminum foil.”139
Today, when people want to establish an innocence organization, they often follow the Innocence Project’s model; in 1992, however, no such model existed. Centurion Ministries was the only organization dedicated to wrongful conviction cases, and Neufeld says he and Scheck were “totally aware” of what Centurion was doing.140 Scheck, in fact, had reached out to Centurion to introduce himself and explain that he and Neufeld were interested in DNA, had been working on some cases, and might be interested in working with Centurion if it needed lawyers. Indeed, Scheck and Neufeld did work with Centurion on several early cases together, including the case of Edward Honaker.141 When the Innocence Project was being formed, Kate Germond from Centurion shared its processes and practices with Scheck and Neufeld: “I spent a lot of time with Barry and Peter in the early days. I went up to New York a whole bunch and gave them everything about how we did it, the letters we sent out, why I did, where I looked for evidence . . . total open book. I was very excited about it.”142
Working with Germond and Centurion, which had already been a formal organization for nearly a decade, must certainly have been helpful for the formation of the Innocence Project, but the two organizations looked quite different. Centurion focused solely on casework, reinvestigating cases and exonerating individuals. From the start, the Innocence Project had broader goals; Neufeld and Scheck had a vision for reform that stretched beyond their cases. From the outset, they decided to focus only on DNA cases, hired a staff attorney, and “began slowly but surely building out the Innocence Project and the use of DNA testing.”143
The decision to focus only on DNA cases was a strategic one made, at least in part, on the basis of a long-term aspiration to become involved in policy reform: “If you want to do policy and not just do the exonerations,” Neufeld said, “you want cases that are simply non-controversial, where everybody agrees—prosecutors, judges, the defense—that these people are stone-cold innocent.” Neufeld spoke of the importance of establishing a “data set” to influence policy, specifically, a data set of indisputable cases:
One of the things I remembered going back into the ’80s was that a lot of people felt like, there in New Jersey, that Rubin “Hurricane” Carter—although as far as I was concerned he was innocent, and my reading of all the material was that he was clearly exonerated—there were tons of people in New Jersey who thought he was guilty. And one of the reasons you could have that kind of debate was because you didn’t have irrefutable evidence of innocence, scientifically irrefutable. So, beginning in ’89, with the first DNA exoneration, and then proceeding into our emphasis on DNA exonerations, our focus, you then would be able to build up a group of cases. So you had data, a group of powerful narratives, which is how things really change—people love a powerful story—all of which involve cases where there was no doubt that the person was innocent. And also, using DNA meant you could very quickly get a whole bunch of cases where there was no doubt that people were innocent. And so that gave us the ability then to think about reform and change that we couldn’t think about with whether it was Barry getting involved with Bobby’s case or me doing those cases in the public defender office in ’76, ’77.144
The data set of DNA cases developed substantially in the first few years of the Innocence Project’s existence. Scheck and Neufeld had a number of early successes, including the exoneration in late 1992 of Kerry Kotler, who had been convicted of rape 11 years earlier. The Kotler case received some media attention, including coverage in the New York Times.145 But perhaps the most important DNA exoneration of this era involved a Maryland man, a former marine convicted and sentenced to die for a most brutal crime.
The morning of Wednesday, July 25, 1983, was a pleasant one in eastern Maryland. Thomas Hamilton kissed his daughter, nine-year-old Dawn, goodbye before heading out for work shortly after six o’clock. They were staying with friends, Gary and Elinor Helmick, and their two children, Gary and Lisa, at their apartment in Rosedale.146
That morning, Elinor was not only watching her two children and Dawn but also looking after her niece, Missy, and nephew, John-John. She sent them outside to play but was soon informed that Lisa and John-John had gone into the woods, which were off-limits. Elinor asked Missy and Dawn to call them back into the house. Missy, Lisa, and John-John soon returned without Dawn.
Dawn had gone to nearby Bethke Pond and saw two boys she knew, Christian and Jackie. While there, a man approached her and asked what she was doing. After she told him she was looking for her friend Lisa, she went with the man into the woods. According to one report, the man said that he and Lisa were playing hide-and-seek and that Dawn could play with them; another suggested the man just offered to help Dawn search.
Elinor went looking for Dawn. When Christian and Jackie informed her that Dawn had gone into the woods with a man—described as an approximately 30-year-old white man with blond hair and a mustache—she became worried. Unsuccessful in her search, Elinor soon called the police. Within hours, more than 100 police officers were searching for the missing girl. Shortly after finding Dawn’s shorts and underwear hanging from a tree, her body was found lying face down, her head bloodied by a rock and with a stick penetrating her vagina.
The boys from the pond, Christian and Jackie, just ten and seven years old, respectively, were questioned by police and asked to construct a composite sketch. Christian went first and, though he was uncertain about a number of the man’s features, put together a sketch. Jackie gave a different description of the man but was unsure of his features and ultimately agreed with Christian’s composite.
The crime was front-page news in the local papers and sparked a manhunt. Tips poured in, theories were developed, and leads were followed, but none stuck. On July 28, an anonymous caller said that the composite looked similar to a local man named Kirk Bloodsworth. When police followed up, they found that Bloodsworth had left work, and his wife, Wanda, had filed a missing-person report. Wanda confirmed that Kirk had left town on August 3 and had been sick for a few days before leaving.147
Police found Kirk in Cambridge, Maryland, where he had been staying with friends. Christian identified Bloodsworth in a lineup—though the boy did not remember the man having red hair like Kirk’s—but Jackie failed to identify a suspect. Nonetheless, Kirk was arrested two weeks after the murder.148 He never confessed to the crime, though he was duped into mentioning the murder weapon.149
Over the course of the investigation, police found five witnesses who claimed to have seen Bloodsworth either with the victim or near the crime scene. There was also a pair of shoes that the prosecution said could have belonged to Kirk, and an expert testified that marks on the victim’s body may have come from them. Prosecutors also emphasized Bloodsworth’s comments that he had “done something terrible”150 and his mention of the murder weapon in building their case against him.
Despite a number of alibi witnesses who testified that Kirk was at home or with other people on the day of the murder,151 he was convicted on March 8, 1985, and sentenced to death. The conviction was overturned the next year by the Maryland Court of Appeals when it found that the prosecution had failed to tell the defense that there were other suspects.152 Bloodsworth was retried and convicted again, this time sentenced to two life terms.
Kirk maintained his innocence from the outset. After the 1988 appellate decision affirming his conviction, the case was taken over by Robert Morin, who in 1992 requested that all key evidence be reexamined.153 Forensic Science Associates, a California-based lab, discovered a small spot of previously undetected semen on Dawn’s underwear.154 The prosecution signed a letter to the defense saying that it would “agree to [Bloodsworth’s] release” if a laboratory ever “determines with scientific certainty” that any sperm found did not come from him and it was able to confirm the results.155
On the day before Thanksgiving in 1992, Morin received a call to inform him that the sample had been tested and Bloodsworth was excluded. He told Kirk on Thanksgiving Day. The FBI confirmed the results, and prosecutors joined the defense in asking for charges to be dropped. Bloodsworth was released on June 28, 1993, after a five-minute hearing,156 and in December, he was given a full pardon by Maryland governor William Donald Schaefer.157
Bloodsworth was the first person in the United States to be exonerated through DNA evidence after being sentenced to death, and his case made national headlines. At a time when the death penalty was increasing in use—there were more executions in 1992 and 1993 than in any years since the practice was reinstated in 1976158—the fact that it had been proven, with near certainty, that a man had been wrongly sent to death row was a monumental occurrence. Bloodsworth, however, was just one of the individuals who had been wrongly sent to death.
Richard Dieter was finishing up law school when the perfect opportunity came along. Michael Kroll was stepping down as executive director of the Death Penalty Information Center (DPIC), an organization founded in 1990 to provide information and analysis on a variety of issues surrounding capital punishment, and the organization was looking for someone to fill his position. Dieter was looking for a job and “welcomed . . . being able to work full-time on the death penalty right out of law school, which isn’t always possible.”159 He became the director of DPIC in 1992.
Initially, innocence was on DPIC’s radar only in a roundabout way: “We were looking at problems with the death penalty, and obviously this problem is, like, poor counsel or racial bias might lead to a wrong person being convicted,” Dieter said; but it was still the early days of DNA exonerations, and “it wasn’t clear that we would focus on innocence, . . . but we were open to such things.”160
Shortly after Dieter became director of DPIC, the organization received a request from the House Judiciary Committee’s Subcommittee on Civil and Constitutional Rights. Earlier that year, the subcommittee had heard testimony from death row exonerees and wanted to know more. The chairman of the subcommittee, Don Edwards, called DPIC and asked it to prepare a report on the risks of executing the innocent. The report suggests that the subcommittee asked DPIC to “compile information on cases in the past 20 years where inmates had been released from death row after their innocence had been acknowledged,”161 though Dieter told me that the organization had leeway in preparing the report and was responsible for making decisions about how to do so.
DPIC agreed to prepare the report and began compiling a list of those who had been freed from death row who otherwise may have been executed. In addition to a simple list, it explained how these errors occurred. It drew on news reports and files from the National Coalition to Abolish the Death Penalty, as well as the work of Bedau and Radelet, who had extended their earlier work and just published a book on the topic, In Spite of Innocence.162 DPIC decided, however, to place stricter limits on its cases than Bedau and Radelet had done. First, it chose to start its list at 1973, which although “somewhat arbitrary” was “a good year to start.” It also placed stricter limits on who would be included on its list. Bedau and Radelet had included a number of cases in which they believed an innocent person had actually been executed, but Dieter said DPIC “decided not to get into that. It’s a little hard to say who has been executed with definitive proof. But you could, with objective analysis, say how many people had received a death sentence and then were freed, all charges dropped, or were acquitted at trial.” This also marks a major departure from Bedau and Radelet, who had personally determined the probability of innocence; DPIC tried to remove this element of subjectivity: “We decided to make it a little tighter criteria for who would be on the list. We wouldn’t make any subjective judgments about innocence, but rather we would say, if a person had all charges removed for the crime that sent them to death row, then . . . their innocence would be restored. Their presumption of innocence would be restored. They would be exonerated. Despite having had a conviction, it was a wrongful conviction.”163 DPIC had gathered more than 40 cases in which DNA was used to clear someone who had been convicted and sentenced to death. Kirk Bloodsworth was exonerated as DPIC was preparing its report. Incidentally, Kirk’s attorney, Robert Morin, had been a professor of Richard Dieter’s in law school. Morin was aware of what Dieter was doing with DPIC and asked him to help get some publicity for Bloodsworth’s exoneration, to which Dieter agreed: “I said, ‘Sure.’ So [we] helped put out a press release, and there was a lot of media at the actual release, pictures of him, and, you know, he’s a gregarious person, and some of the news radio stations in Baltimore had supported him. . . . So it was kind of an event when he got released, and it blossomed into a huge media event. I mean, he traveled the whole circuit, national TV, and it continues, actually, to this day.”164 Bloodsworth, whose exoneration “triggered . . . a whole other way of looking at this issue through science,” made DPIC’s final report, along with three other 1993 exonerees. DPIC had 48 cases in its final report, Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions. The House subcommittee released the document as a staff report on October 21, 1993, and DPIC released it on its own to the media and the public.
According to Dieter, the report “got a very big reaction.”165 This was due, in part, to its timing. In January of that year, the United States Supreme Court decided Herrera v. Collins, which addressed the issue of innocence and the death penalty. Lionel Herrera, who had been convicted and sentenced to death for a 1982 murder in Texas, claimed that he was actually innocent and thus his execution would violate the Eighth and Fourteenth Amendments. While the Court did not expressly say that the Constitution permits executing the innocent, it ruled that without evidence of other constitutional violations, new evidence of innocence is not grounds for a new trial.166
Herrera gave increased attention to the issue of wrongful convictions and the death penalty, which “suddenly was on a lot of people’s minds.” Thus, Kirk Bloodsworth’s exoneration came at a time when people were thinking and talking about innocence and capital punishment, and DPIC’s report added significant weight to the conversation. “I think just having a list,” Dieter said, “having something concrete, having names and faces of people, really crystallized the issue.”167
DPIC did not just release its report and move on; it has maintained a list of death row exonerations since, a popular aspect of the organization’s work, though Dieter points out that it was not a great scheme or plan: “We’ve kept the list . . . since then. And we never intended to have a list, but it’s one of our signature things that we keep monitoring when people are freed and have followed that issue closely ever since.”168 DPIC’s list has been an important resource for both innocence and anti–death penalty advocates; as Samuel Gross pointed out, at that time in the 1990s, nobody had assembled, organized, and maintained information about exonerations.169 DPIC has produced follow-up reports, which remain popular. “We’ve done a number of other innocence reports since [the 1992 one],” Dieter said, “and each time the innocence issue captures the public’s and the media’s attention more than some other issues here.”170 DPIC’s reports and list became widely cited, and the organization became the key source for information regarding wrongful capital convictions.171
The importance of events like Kirk Bloodsworth’s exoneration and DPIC’s report to the history of the innocence movement is immense. As Jim McCloskey put it, quite simply, “Guys like Kirk have had quite an impact.”172 In fact, the DNA exonerations from death row in the mid-1990s even prompted Supreme Court Justice John Paul Stevens to take notice, as he said that reliable evidence “has made it possible to establish conclusively that a disturbing number of persons who had been sentenced to death were actually innocent” and that those errors “raise the question whether either the deterrent value of the death penalty or its therapeutic effect on the community outraged by a vicious crime justifies its continued popular support.”173
It was not just death penalty exonerations, however. By the mid-1990s, Bloodsworth was joined by more than two dozen others on the growing list of DNA exonerees, mostly from non-capital cases, as the technology was generally accepted as valid and reliable and was being used on a consistent basis. DNA was, in short, part of the legal landscape, but it had not yet become the public phenomenon it is today. That began to happen with the sensational media coverage of the O. J. Simpson murder trial, in which DNA grabbed the public eye.
On June 12, 1994, Nicole Brown Simpson and Ronald Goldman were found dead outside Brown’s townhome near Los Angeles, California. They had been stabbed, and police found a significant amount of forensic evidence: blood on a hat and a single leather glove, bloody shoe prints, and several drops of blood away from where the bodies were found. Brown’s ex-husband, former football star O. J. Simpson, was not in town, having left for Chicago on the night of the murders. The detectives, however, found blood on the door of Simpson’s car, a white Ford Bronco. Police entered Simpson’s property without a warrant, finding blood on the walkway and in the foyer of his house. They used this evidence to obtain a warrant and searched Simpson’s home. The only evidence seized was a pair of socks from Simpson’s bedroom; at the time, there was no mention of blood, though weeks later, the Los Angeles Police Department (LAPD) crime lab reported that a thick blood stain on the socks matched the profile of Simpson’s ex-wife, Nicole. Simpson was notified and flew home from Chicago immediately.
Upon questioning Simpson, police noticed he had a cut on his left hand. An LAPD nurse drew a blood sample from Simpson, which was turned over to detectives. The sample was not entered into evidence until later in the day, and the LAPD seemed unable to account for the entire sample: the nurse claimed to have drawn eight cubic centimeters of blood, but only six and a half cubic centimeters were accounted for. This became a source of fierce dispute, the defense claiming that the missing amount was used to manufacture evidence against Simpson, the prosecution arguing that it was simply a measurement or memory error on the part of the nurse.174
Simpson prepared for the ensuing trial by hiring a “Dream Team” of defense lawyers. Scheck and Neufeld initially became involved as consultants to assist and advise the defense team about the technicalities of the DNA evidence. “We had no intention of ever doing anything with the trial,” Scheck once said. “We were just telling them, ‘This is what it means. These are the potential problems.’ And then slowly but surely, in a very strange, inexorable way, we got drawn in as lawyers in the case.”175
The trial began in early 1995 and was followed incessantly by the media and general public. Although there was some criticism of Cellmark, which performed the DNA tests, much of the discussion regarding the evidence was about the way in which it was handled by police.176 In the end, the defense was able to cast enough doubt to convince the jury to acquit, and the verdict led to an uproarious, divided reaction among the public.177
In retrospect, images from the O. J. Simpson case often come first to mind when thinking about DNA in the criminal justice system. As Jay Aronson has written, “visions of white Ford Broncos, bloody gloves that don’t fit, and footprints from ‘ugly-ass’ Bruno Maglia shoes dominate our perceptions,” but the debate over DNA technology was largely over by that point.178 Still, several things emerged from the O. J. Simpson trial that are relevant for the innocence movement.
First, while the people involved in the case reaffirmed their belief in the power and potential of DNA testing, the case also emphasized, as Neufeld has pointed out, the healthy dose of skepticism and caution needed when working with the technology:
One legacy of the Simpson case with respect to DNA typing is it highlights, on the one hand, the tremendous potential of this technology, that it is a science that can be equivalent of the videotape of the commission of the crime. Yet, on the other hand, . . . we’re talking about applied science, . . . and whenever people get involved in the application of science, [there] is much opportunity for mistake, error, and for much worse. And so we have to be very rigorous in the kinds [of] controls that we exert when we utilize this tremendously powerful new technology to make sure that it’s used wisely and cautiously.179
Scheck seconded this notion, suggesting that the case influenced crime labs to be more diligent in doing a sound job with the technology, wanting to be certified and accredited.180 As he said, “They were using 19th-century evidence-collection techniques for 21st-century technology, which had more than the potential but the reality of producing contaminated results.” But the attack angle taken in the Simpson case “actually changed forensic science in a very profound way, because everybody understood that if you’re going to get anything out of DNA testing, you have to collect the evidence correctly [and] you have to make sure that the labs are handling it correctly so that you don’t screw up these results.”181 Scheck even worked with some of the defense’s opponents from the case, including Woody Clark, to later issue guidelines to help law enforcement learn what to do and what not to do with DNA evidence—in short, “to learn the lessons from the Simpson case.”182
A second impact of the O. J. Simpson case was on the public’s view of DNA. While some people outside the legal and scientific communities may already have been aware of DNA and its potential power in criminal justice, the Simpson case planted it firmly in the public consciousness. It was, in fact, impossible to avoid: the term “DNA” was used more than 10,000 times throughout the trial,183 and well over 100 articles appeared in the New York Times alone discussing DNA in conjunction with the case between June 1994 and October 1995.184
Finally, although Scheck and Neufeld were already well-known within the legal and scientific communities, their involvement in the O. J. Simpson case provided a new level of publicity, which was both a blessing and a curse.185 There is no doubt that their participation in the O. J. Simpson case increased their public exposure and cemented their reputations as all-star advocates and high-power legal experts, but it also brought with it some questions, given that their innocence work was growing. “Having long argued that DNA is reliable enough to free convicted rapists,” one Washington Post article asked during the trial, “can they now credibly argue that DNA evidence should not be admitted against O. J. Simpson? Experts will follow their reasoning, but the public may merely hear that the defense duo is ‘attacking’ the evidence, but not understand why or how.”186 Others more blatantly accused Scheck and Neufeld of hypocrisy; how could they on the one hand use DNA as a powerful tool for exoneration yet try to obstruct its use by the prosecution on the other? These accusations were accompanied by claims that they had “sold their public-interest souls for fame,” abandoning what was important to them in order to assist a wealthy client.187 For their part, Scheck and Neufeld have claimed that their principles had not changed but that it was important to ensure that the use of DNA by authorities remained honest; indeed, they did not attack the technology itself but its handling. They were, after all, believers in DNA. Furthermore, they had always maintained that the certainty behind an exclusion—showing that someone did not match—was higher than that of an inclusion.
For some observers, Scheck’s and Neufeld’s involvement in the O. J. Simpson case might be seen as their defining professional moment, and there was some concern that it might have a negative impact on the innocence work. As one reporter noted, “Here and there, people who’ve worked with Scheck and Neufeld on DNA issues worry about the impact of the Simpson trial.”188 Similarly, one interviewee remarked to me that Scheck was at least somewhat concerned that “their involvement in that case might have hurt the [innocence] movement,”189 though this did not come to pass. By the end of the Simpson trial, the debates over whether DNA profiling was a reliable and accepted science were mostly over. Now, the public was aware of the technology, and it had been used to develop a significant database of known wrongful convictions. By mid-1995, there had been nearly 30 DNA exonerations, and innocence was gaining momentum.
The string of DNA exonerations in the early 1990s captured the attention of the United States attorney general, Janet Reno, a position she had come to almost by chance in 1993. President Bill Clinton had first nominated corporate lawyer Zoe Baird, but she withdrew after admitting that she had hired illegal immigrants and had not paid their Social Security taxes. Clinton then looked toward district court judge Kimba Wood, who backed out before being officially nominated for reasons similar to Baird’s.190 Unsure of where to turn and desiring to appoint the nation’s first female attorney general, Clinton’s attention shifted to Reno, of whom he knew because his brother-in-law, Hugh Rodham, was a public defender in the drug court that Reno had helped establish.191
Reno had been the state’s attorney in Miami since 1978, the first female state’s attorney in Florida’s history. Her reputation was that of “a straight-shooting and tough law-enforcement advocate”192 whom Clinton described as “‘a front-line crime fighter’ of ‘unquestioned integrity.’”193 Reno showed a commitment to justice during her time as a prosecutor, making “a career of going after crooked police officers, judges, and other public officials,” and was “aggressive in controversial civil-rights cases.”194 She was best known for her prosecution of William Lozano, a police officer who had killed two black motorists in 1989, a crime that sparked riots in Miami.195
Reno’s time as a state’s attorney also included her involvement in an exoneration. James Richardson was convicted of murder in 1968 after his seven children died from eating food poisoned with a powerful insecticide. Richardson was sentenced to death but was spared the electric chair when the Supreme Court placed a moratorium on capital punishment in the 1972 case Furman v. Georgia.196 After evidence surfaced of Richardson’s innocence, Florida governor Bob Martinez appointed Reno as special prosecutor to examine the case, which soon made national news.197 After several months of review, Reno concluded that Richardson had been the victim of a miscarriage of justice. His conviction and sentence were vacated on April 25, 1989, and he was granted a new trial. He was not retried. Reno suggested that the state did not even have enough valid evidence to charge Richardson. She filed a memorandum saying, “James Richardson was probably wrongfully accused”198 and on May 5 announced the dismissal of the case.199
It may just be serendipity that someone who thought about criminal justice in such a progressive fashion, someone so dedicated to the pursuit of justice, was serving as the United States attorney general at the beginning of the DNA-exoneration era, but given her background and experiences, it is not surprising that wrongful convictions caught her attention. Reno made a phone call to the director of the National Institute of Justice, Jeremy Travis. She was intrigued by the idea that there was now a way to scientifically assess whether a convicted person was actually guilty of the crime and wondered how many cases there were in which DNA had been used to uncover an error, so Travis and a team of researchers began exploring the topic.
Travis and his team began by searching newspapers. Travis also reached out to Barry Scheck to see what cases he had on file. By early 1996, they found 28 cases in which people had been exonerated through DNA testing. In a June 1996 report, Convicted by Juries, Exonerated by Science,200 the authors described the cases and some basic patterns they found: the types of crimes, time served, the types of evidence presented, and so forth.201 The study also included a brief survey of DNA laboratories, asking them how many cases they handled and how often suspects were excluded.
The study’s findings are interesting on their own, but it is perhaps the next section, covering the policy implications of the cases, that is most important. The chapter describes “the need in the legal system for improved criteria for evaluating the reliability of eyewitness identifications,” drawing on the work and words of psychologist Elizabeth Loftus, who had long been critical of eyewitness evidence.202 Several pages are also dedicated to forensic evidence, including the reliability of non-DNA evidence, the competency of the labs that carry out the testing, the preservation of evidence, the training of attorneys on the forensic uses of DNA testing, and the complications that come with using DNA in criminal cases. This policy discussion was significant; Marvin Zalman suggests that the report “was obviously designed to be as much a popular policy tract as a scholarly study.”203 The policy discussion was indeed by design. When Reno had first requested to Travis that NIJ study this issue, her request “was not just to get a number, but she was—this says a lot about her—she was always interested in, what can we learn about the system by reviewing the cases of individuals who had been exonerated? In essence, what went wrong?”204
In addition to analyzing and presenting the cases and describing what went wrong, the report was also “positioned . . . as a discussion document.” The report brought together key minds from inside and outside the system, individuals who were known in their respective fields, to comment on the cases and offer their perspectives. Nearly one-fifth of the document is made up of commentaries from various people who were not involved in the actual study, including several professors, prosecutors, a judge, and a police chief. The issues covered in these commentaries vary but include, among others, the admissibility rules governing the introduction of forensic evidence in court, expert witnesses, collection and preservation of evidence, and training to ensure that forensic evidence is handled properly. This was important for Travis and his team; as the research entity of the Justice Department, it was their job “to use their research to promote better policy formation,” and they wanted to spark discussion to that end.205
Perhaps the most significant commentary was that offered by Neufeld and Scheck. In four carefully worded pages, they discussed the systemic nature of wrongful convictions and the need for change. They painted a picture in which wrongful convictions are a fairly widespread problem, describing the 28 cases in the report as “just the tip of a very deep and disturbing iceberg” and citing data from the FBI’s DNA testing that suggests an extraordinarily high exclusion rate.206 These known cases imply that the error rate in criminal justice is “much greater than anyone wants to believe.”207
As Neufeld and Scheck had done since founding the Innocence Project, they emphasized the incredible opportunity that DNA provides to reexamine cases and to learn about the flaws in the criminal justice system. They mentioned that the factors found to contribute to the wrongful convictions in the report’s cases “do not seem strikingly different” from those found by Edwin Borchard more than 60 years earlier, suggesting that the time had come to finally implement reforms to prevent such errors from occurring. “Are there systemic weaknesses that can be identified in DNA laboratory tests (hair, fiber, etc.), police interrogation techniques, or other investigatory methods used by police and prosecutors that are conducive to false or true arrests and convictions?” they asked. “Perhaps there has never been a richer or more exciting set of cases for criminal justice researchers to explore in terms of shedding light on how law enforcement methods impact the crucial problem of factual innocence.”208 They were also careful, somewhat defensive even, in saying that, while it is absolutely possible for laboratory error to lead to incorrect results in both inclusion and exclusion cases, the DNA testing in exoneration cases is done in such a way as to minimize the risk of this occurring.
While the National Institute of Justice report received fairly little coverage in the general press, it did receive its fair share of attention among criminal justice practitioners.209 The report represents an agency of the federal government recognizing wrongful conviction as an issue worthy of attention; for the first time, errors were viewed on a national level as a problem, and a call for reform was made. Zalman suggests that Neufeld and Scheck’s commentary “can be viewed as the most public, and perhaps the first clarion call, of an innocence paradigm manifesto,”210 but this is true of the entire document, not just their commentary. Throughout the various commentaries and the chapter on policy implications, a number of issues are raised that became staples in the innocence reform agenda. Convicted by Juries, Exonerated by Science thus stands as an important component of the innocence developments in the 1990s; as the Innocence Project’s current executive director, Maddy deLone, put it, “it was a moment,”211 and it came as part of the larger development of DNA as a tool for justice.
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The importance of DNA to the innocence movement cannot be overstated. The development of DNA profiling and its use in the legal system was not the result of a simple process. The way in which it developed—from its discovery and use in Great Britain to its initial use in the United States as a powerful tool to solve crimes, through the legal battles over its validity, reliability, and admissibility—provide important context for understanding the innocence movement. After all, Barry Scheck and Peter Neufeld, who became leaders of the movement, developed their scientific knowledge base during this period. As Scheck once recounted, “We got involved at the ground floor with the leading scientists, trying to think through how to use this technology correctly, how to develop standards for it, how to think about civil liberties implications of its use. That was a great place to be. We got in on the ground floor of the application of this technology with the criminal justice system. I didn’t know anything about DNA, neither did Peter, and we got educated by the best teachers in the world in the context of litigation. It’s extraordinary.”212 From the outset, Scheck and Neufeld saw that DNA evidence had unique and powerful potential for reevaluating convictions and made it their focus. If innocence work had first become a nonprofit industry with the work of Centurion Ministries, its first major step toward becoming a movement for broader change happened with the Innocence Project.
This period from the first DNA exonerations in 1989 to the National Institute of Justice report in 1996—the beginning of the DNA-exoneration era—is one of the most important formative periods for the innocence movement. As noted earlier, 1989 is often considered the beginning of the movement, and it is easy to understand why. These developments mark the penetration of DNA into the legal and criminal justice world as a tool not only for capturing the guilty but also for exonerating the innocent. In short, innocence was beginning to enter the spotlight.
What existed at that point, however, was certainly not what anyone would call a “movement”; a handful of successful cases, a small circle of supporters and crusaders, and two organizations with disparate goals and aspirations would hardly satisfy any definition of a movement. But over the next decade, a series of events led to an expansion of the advocacy network, greater attention on wrongful convictions, the formulation of an agenda, and ultimately, the emergence of the modern innocence movement.