‘No Higher Calling’ : Long Before O.J., Barry Scheck and Peter Neufeld Were at the Forefront of Applying DNA Tests to Unravel Criminal Cases

Barry Scheck is on the phone with someone from Chicago.

“A straightforward witness misidentification?” he is asking. Ever since the Innocence Project began freeing falsely convicted felons from prison through the use of DNA testing, he has been deluged with letters and calls like this one. “And the witness still thinks he did it? Yes, I’m very interested.”

The landmarks of his office have vanished beneath an encroaching tide of paperwork; every surface is littered with legal briefs, airline tickets, notes. In another office, the pile of still-to-be-opened letters from prisoners beseeching the pro bono legal clinic to take their cases is inches thick.

“Welcome to Crazyland,” Scheck says, clapping his hand over the receiver for a moment as he acknowledged a visitor. Then, back to the Chicago matter, in which DNA test results seem to indicate that a man serving 60 years for the rape of a young girl is not the rapist. “You don’t know if there was any hair involved in this case?” Scheck asks.

Scheck and his pal Peter Neufeld, who co-direct the Innocence Project at Yeshiva University’s Cardozo School of Law, are in demand these days.

Too much demand.

It’s not only that they and the law students who staff the Innocence Project have been on a roll, though they have been: In September, client Brian Piszczek walked out of an Ohio penitentiary after serving four years of a 15- to 25-year sentence; a month later, Edward Honaker was pardoned after 10 years in jail in Virginia. In both cases, DNA tests demonstrated that the men could not have committed the rapes for which they’d been convicted.

Of the 15 to 20 former inmates around the country who have been exonerated by genetic testing, eight owe their freedom to the project.

“There’s no higher calling, no better thing to do as a lawyer,” Scheck says. Extrapolating from FBI data, he says he believes there are “thousands of people in jail who would probably be able to prove their innocence by DNA testing, if there were a sample available.”

But there’s also the consuming matter of Scheck and Neufeld’s other, better-known client, for whom DNA testing may prove crucial as well: O.J. Simpson.

As the DNA specialists on Simpson’s defense team, Scheck and Neufeld will be major players in the trial, arguing in this instance against relying on the blood samples that could help place Simpson at the murder scene. No matter how DNA evidence eventually figures in the trial, Scheck and Neufeld plan to make People vs. O.J. Simpson a legal primer on genetic testing.

If Neufeld can get to Los Angeles in time, that is: In an odd ancillary drama, last month a New York judge refused Neufeld’s request to postpone a previously scheduled murder trial and threatened to jail him for contempt if the trial didn’t begin at once. At the same time, Judge Lance Ito had ordered Neufeld into his courtroom. For a week or so, Neufeld was “America’s most wanted lawyer,” the New York Times noted, until the Simpson schedule was revamped. The New York trial, now under way, is expected to last several more weeks.

Crazyland, indeed. Meanwhile, the letters keep arriving. “I may not be O.J. Simpson, but I need your help,” one prisoner writes. Another letter, addressed to Scheck, begins: “Dear Legal Master.”

People who deal with forensics and the law were not surprised when Neufeld and Scheck were recruited for the Simpson team--although a defendant who can pay them $150 an hour is a rarity. Two former Bronx Legal Aid lawyers in their mid-40s, they’ve been immersed in the complex issue of DNA in criminal law for years, not only taking on landmark cases themselves but staging seminars and chairing a task force to alert other lawyers to the new science.

“They’ve been crusaders in ensuring that DNA technology is properly conducted and fairly applied,” says Cleveland attorney Terry Gilbert, who was Piszczek’s local counsel. “If Robert Shapiro is trying to find the best people for his team, there’s no question that Barry and Peter are the best qualified to handle it.”

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People tend to describe DNA testing in dramatic terms reminiscent of the way atomic power was portrayed in the ‘50s: All that enormous potential for good or for evil. It’s probably the most powerful new tool in crime and punishment since fingerprinting.

Earlier than most, Scheck and Neufeld were struck by its possibilities and its potential problems.

“It became clear that this was something that had to be pursued,” Scheck says. “And no one else was going to pursue it.”

DNA profiling became widely used in the late ‘80s, particularly in sexual assault cases. Once laboratories could extract deoxyribonucleic acid (which contains an individual’s unique genetic code) from cells found in body fluids and tissues--blood, semen, saliva, skin--prosecutors eagerly adopted the technology as a way to convict suspects whose analyzed DNA matched that retrieved from victims or from the crime scene.

But Scheck and Neufeld recognized that DNA tests could also work to clear people whose DNA was different from samples recovered at the scene--even people who had been tried and convicted when testing was unavailable (or was less precise than it has become). If evidence has not been discarded, if samples can be secured and sent to labs, if the results exclude him as a suspect--then a prisoner may well be on his way to a new trial or a pardon.

This is what the Innocence Project does. Stuffed into narrow cubicles with phones and old computers, 18 third-year law students work eye-straining hours rereading trial transcripts, tracking evidence, keeping tabs on a collective caseload of 250 to 300 mostly indigent clients.

“Who else would have the time to work on all these cases, take on complicated issues, on an essentially pro bono basis?” Scheck asks.

Student Dana Sherins, pursuing a rape case on Long Island, N.Y., is close to a breakthrough: After many phone calls, she has located evidence from 1983, when her client was convicted of raping a young boy; the man has been imprisoned ever since.

“No one could say if the evidence was moved or if it was destroyed,” says Sherins, 28. Today, though, an assistant district attorney called to say that swabs and slides had been found in a sealed plastic parcel in a police station file. Sherins will be there when the parcel is opened.

“You know people are depending on you,” adds student Jonas Kant, who shares Sherins’ cubicle. “You get caught up in the excitement. You see results.”

Kant was proudly watching CNN in the Cardozo Law School student lounge as Honaker was freed this fall. It took not one but two pro bono groups to persuade Virginia Gov. George Allen to pardon Honaker, who would have spent the rest of his life in jail. Centurion Ministries, a New Jersey-based advocacy group, did the field investigation and then called in the Innocence Project, which secured the release of evidence for definitive DNA testing.

Phillip Payne, the Nelson County, Va., prosecutor, didn’t oppose Scheck’s motion to send vaginal swabs from the rape victim to a California lab.

“My expectations were that (Honaker) would be further nailed down as the culprit,” Payne says. But the DNA results showed that the semen on the swabs wasn’t Honaker’s.

“I don’t think any court would have failed to exonerate him with that evidence in hand,” Payne says now. “As a legal matter, he wouldn’t be convicted. Couldn’t be.”

Says Honaker of his rescuers: “There aren’t enough words in the English language to express what I owe those people.”

A rape victim tearfully pointing to her assailant can have a potent effect on juries--but she can also be wrong, the lawyers point out.

“Eyewitness identifications are not very reliable, and when an eyewitness who is sincere but mistaken takes the stand and says, ‘I’ll never forget that face,’ that leads to more unjust convictions than any other factor,” Neufeld says. “And the likelihood of that happening in a cross-racial identification is even higher.”

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The use of DNA samples to rule out a suspect is scientifically incontestable. “An exclusion is an exclusion,” says Paul Ferrara, director of Virginia’s Division of Forensic Sciences.

What still triggers plenty of controversy, however, is the use of DNA to incriminate a defendant--as People vs. O.J. Simpson, with Scheck and Neufeld facing off against Prosecutor Marcia Clark’s own cadre of experts, is about to demonstrate.

Here and there, people who have worked with Scheck and Neufeld worry about the impact of the Simpson trial. Having long argued that DNA is reliable enough to free convicted rapists, can they now credibly argue that DNA evidence should not be admitted against 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.

“We think we’re intellectually and scientifically consistent about this,” Neufeld says. “We’re very careful to draw those distinctions in court and in all of our papers.”

Their arguments may not prevail in the Simpson trial. “I’d eat my hat if Judge Ito, or anybody with any sense at all, would not admit” the DNA evidence, Ferrara says. But the trial will give Scheck and Neufeld the biggest legal soapbox they’ve ever had, which is one reason they agreed to join the defense.

They’ll say what they’ve been saying for years, to a far bigger audience.

“Here’s this revolutionary technology,” Scheck says, “and it must be handled in accordance with the best standards of science, because we are prepared to cede extraordinary power to it.”

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For some years, between legal bouts, Scheck and Neufeld wrote screenplays together. The one about a public defender in the South Bronx, who would have been played by Farrah Fawcett, came close to being filmed.

Now, all sorts of dramatic possibilities are opening up. Consider: A cadre of good-looking law students labors feverishly to free innocent prisoners, complete with heartwarming ending. Or: Two fearless defense attorneys, ‘60s veterans known to have once concluded a petition with lyrics from Bob Dylan’s “I Shall Be Released,” wade into the most celebrated murder case in decades.

The drama of DNA, however pivotal, may not play that compellingly on television. The testimony will be technical (the last time Judge Ito heard DNA arguments, empty seats materialized in the courtroom) and prolonged. Some legal types foresee a fascinated public becoming educated about the subtleties of genetic profiling; others predict that even court buffs will grow weary of the alphabet soup and tune out.

Among those tuning in, however, will be Piszczek, who has been living with his parents in Ohio since he left prison, working at a factory, saving up for a car. Piszczek has never met the lawyers and lawyers-to-be who secured his release, but he’s grateful to them and he’ll be watching them work.

There are limits to the similarities between his case and Simpson’s, even though DNA is central to both. “I’d never get a trial like that; most guys won’t get a trial like that,” Piszczek says. “That’s what money does for you.”

He and Simpson do share a lawyer, however. “I’m real interested to see what they say about DNA,” Piszczek says. “I’m interested to see what happens. Barry Scheck’s got a job to do.”