The Age of Innoncence: Neufeld’s DNA Crusade Rolls On

It’s been nearly nine years since Peter Neufeld’s name entered the national consciousness along with Marcia Clark, “the White Bronco” and “the house on Rockingham.” By destroying the credibility of the prosecution’s best evidence-the blood trail from Nicole’s body to O.J.’s car-Mr. Neufeld, with longtime partner Barry Scheck, is as responsible as Johnnie Cochran for O.J. Simpson’s acquittal.

Mr. Neufeld, a nice boy from Brooklyn who comes from a family with a strong tradition of activism, from Mississippi to the S.D.S., has been back from L.A. for a long time. He’s now using DNA for social justice, applying it to free the demonstrably innocent-not the probably guilty. As co-director of the Innocence Project, a New York–based clinic that uses law students and DNA evidence to overturn convictions, Mr. Neufeld, Mr. Scheck and the students at Benjamin Cardozo Law School have walked more than half of the 142 wrongly convicted souls in the country from their cells (13 of whom were on death row) into the sunlight.

Since his nine months of hyper-fame back in 1995, Mr. Neufeld has shaved the 70’s mustache, and his hair is probably a little more gray. On Feb. 26, in his downtown office, furnished with Mission chairs and Indian rugs, he was more casual in jeans and a denim shirt than he has been before Judge Ito’s courtroom cameras. He’s had time to reflect, he said, and he believes he’s the only lawyer on the old O.J. team who would not take the case if he could do it all over.

Is that because he feels a twinge of remorse for helping return to the golf courses of America a man most Caucasians believe to be a double knife-murderer? Of course not.

Actually, he said, what he regrets most about O.J. is his own lost faith in American journalism.

“I grew up believing there was no greater profession with more integrity than the press. The reporters who went overseas to unmask the evil of the war in Southeast Asia, they were my heroes. In L.A., reporters from The New York Times were getting tips from The National Enquirer ! At one point, I had a kidney stone. I am lying in the hotel waiting for the ambulance to arrive, and the phone rings and I pick it up, thinking it’s my doctor. It’s a reporter from The Times , and I say, ‘I can’t talk to you-I’m waiting for an ambulance to come get me.’ And he says, ‘I only have a few questions about something that happened in the courtroom today involving personalities.’ This was so offensive! To see great journalists reduced to that kind of pandering and crap led me to lose all respect for the fourth estate. And to have that bubble burst is not something I would choose to do.”

He said he now refuses to go on television to pontificate about any case in which he’s not personally involved. You won’t see him chatting with Greta on Fox about Michael Jackson, for example. “For so many of my colleagues, the microphone has become a sex object. I think the coverage of the criminal-justice system is so offensive.”

Like the other O.J. lawyers, Mr. Neufeld has had to live with his share of abuse. He said he’s heard that he and Mr. Scheck were dartboard targets in some police precincts. His own conflicted feelings about the case are evident in his discreet placement of a framed USA Today cover story: “Defense Attacks Evidence” reads the cover copy, above a photograph of O.J. and Mr. Neufeld together at the defense table. The picture leans against a wall behind a bookshelf, visible from Mr. Neufeld’s desk but not from the rest of the room.

Pressed, he concedes that O.J. was pretty good for business, though.

Besides the Innocence Project, Mr. Neufeld-again with Mr. Scheck-has his own civil-rights firm. Among its successes has been getting the New Jersey authorities to admit that their cops practiced racial profiling on state roads, and forcing the police union in New York to pay up and change its rules in the wake of the Abner Louima torture case. He says the civil-rights practice probably gets more cases thanks to O.J., and the blanket TV coverage of the case certainly induced more prisoners to contact the Innocence Project.

Over lunch at the Socrates Grill beneath his law office (the last Greek diner with a Tribeca lease, he guessed), he was congratulating himself for forcing prosecutors in Virginia to release documents showing exactly how they convicted the wrong man in a case the Innocence Project recently overturned. The defendant, Earl Washington, was mentally retarded, spent 17 years in prison, and had at one point come within seven days of execution before the team from New York forced a DNA testing.

“The prosecutors in ‘Culpeppah’ County didn’t want the public to see what kind of bile and pus sent this guy to jail,” Mr. Neufeld said. He took a sip of his coffee malted, visibly gloating. “See, Texas is clowns and cowboys, but Virginia is pinstripe suits. That’s why Ashcroft moves all the federal death-penalty cases to Virginia.”

The Innocence Project’s record of overturned convictions is now running at 50 percent, a figure that has surprised even the founder, and which has provoked the Project to expand (spin-off Innocence Projects are now being opened in law schools around the country) and get involved in policy reform.

Mr. Neufeld said the numbers suggest that many more innocent people are in jail. The Project has thousands of letters from prisoners backlogged, because there are only 20 law students in any given year to do the work. Of the cases they actually examine, 70 percent are excluded up front because critical biological evidence is lost or destroyed. Of the 30 percent that are left, DNA testing initiated by the Innocence Project has exonerated half.

“We know from those numbers that the real number of people in prison who could be helped by DNA is much, much greater,” he said. “And we also know the causes of those wrongful convictions also present themselves in all manner of cases where there is no DNA.”

Mr. Neufeld admits that the emotional high of walking innocent people out of jail was the original impetus for the Innocence Project. Now, though, he said, the work goes beyond the question of individual guilt or innocence.

“There are many, many thousands of factually innocent people languishing in prison for whom nothing can be done, and there are probably dozens on death row for whom nothing can be done. That will continue to go on unless we take advantage of this learning moment. If we don’t learn from these DNA exonerations now, we are doomed to commit these same screw-ups for generations to come.”

Mr. Neufeld calls the Innocence Project “a civil-rights movement” aimed at changing the face of criminal justice. In recent years, the Project-which is classified tax-exempt and funded by foundations and private donations-has consulted with various criminologists, sociologists and other experts around the nation, looking for reforms. There are hundreds of options, but the three key changes are simple, he says.

Misidentification is the most common reason for false convictions, Mr. Neufeld said. That problem can be eased with a simple fix. Most identifications in the nation are made using the line-up or the so-called “six-pack” photo array. A victim looks at faces and selects the perpetrator from a group. In fact, according to Mr. Neufeld, often what happens is that victims compare the faces and pick the one that looks most like the guilty person. If law-enforcement officials would show them one face or one person at a time, that option would be eliminated.

False confessions are the second most common reason for wrongful convictions. In 142 DNA exonerations, 30 of the defendants gave prosecutors detailed confessions, apparently without coercion. Mr. Neufeld said the psychology behind these confessions is not understood, but that to avoid them a simple police procedure must be put in place: Interrogations should be videotaped from beginning to end, not just at the point of confession. Fully videotaped interrogations will allow judges to see whether police “fed” bits of crucial information to the arrested persons.

These two reforms have been enacted in 20 jurisdictions around the country, including the entire state of New Jersey. New York City police, however, have refused.

“We met with Ray Kelly and presented him with compelling data. Unfortunately, teaching old dogs new tricks is too much a part of policing in this country. Commissioner Kelly is, I think, a very bright guy and wants to do the right thing, but it’s hard. He has become the police commissioner of only two things: fighting terror and reducing overtime. As a result, he has not been that proactive in implementing these reforms.”

NYPD Deputy Chief Michael Collins, a spokesman for Commissioner Raymond Kell, said the NYPD is “looking” at both ID and videotape reforms, but is unlikely to implement them anytime soon. Changing the photo and lineup methods isn’t a proven fix for misidentifications, he said. “It is the belief of many other law-enforcement agencies that have looked at this that it would have no impact; it is just another way of doing things.” In fact, the group lineups in New York are currently required by the district attorney’s office.

Mr. Kelly believes that videotaping interrogations might be useful, but would be hard to implement. “We had over 350,000 arrests last year, and it would be logistically difficult to comply with that suggestion,” Mr. Collins said. “I am sure those jurisdictions that have implemented it do not do the amount of work that we do. But we are looking into it also.”

Mr. Neufeld said the third most needed reform is stringent regulation of crime labs around the country. “Most of forensic science is junk. It never went through rigorous validation.” Currently, crime labs are regulated by a forensic-science association rather than a disinterested watchdog like the government. Mr. Collins, on behalf of Mr. Kelly, denied that the NYPD loses or mishandles biological evidence. “We don’t even keep biological evidence. We recover it and send it to the medical examiner for analysis,” he said.

Mr. Neufeld well knows that a lack of rigor in that area can help the defense, as well as the prosecution. He and Mr. Scheck built their early careers on exposing the shoddy science, the dirty slides, the lost chains of custody.

It is, after all, what acquitted his most famous client.

Mr. Neufeld didn’t set out to become a DNA expert. He graduated from West Hempstead High School on Long Island after nearly failing 10th-grade chemistry and never took another science class in his life, focusing instead on history and politics. He and Mr. Scheck got into biological evidence in the 1980’s, when they were working as legal-defense-fund lawyers in the Bronx. In his own first foray into the area, Mr. Neufeld was a public defender and hired five experts to refute some biological evidence. That tactic led to a rule being put in place at the public defenders’ office limiting the amount of money that lawyers could spend on expert witnesses.

Their first DNA case came later. “Scheck was teaching, and I was doing some cases involving not just forensic science, but also behavioral science.” (Mr. Neufeld was the first lawyer in New York to successfully apply the battered-woman syndrome.) “Legal Aid asked Barry and me to look at a case on appeal where they thought the guy was innocent. We reopened the investigation and researched a new technology in England called DNA to see if we could do it. We couldn’t, because they had lost the evidence.”

Soon, prosecutors began using the technology more often, and Mr. Neufeld and Mr. Scheck began using scientific experts to challenge DNA admissibility. “We realized, ‘Wait, they never did a study to see whether [DNA technology] worked as well on crime-scene evidence as it did in the lab.'”

The two lawyers brought the first successful challenge in a case in the Bronx. The rest is history. “That gave us a certain notoriety in the field. No one was doing DNA. We knew not only the good things about it, but the problems.”

The double-edged sword of biological evidence in criminal justice remains Mr. Neufeld’s primary concern. “If there is a silver lining in the Simpson case, it was a wakeup call for the police crime labs across the nation. There is no question that the crime lab in L.A. was a sewer. In the aftermath of Simpson, the Department of Justice published a book about what every crime lab should know. It read like a cross-examination of ours in the Simpson case. All the stuff that Barry and I brought out that they didn’t do, they were now telling people they had to do. So [Simpson] was a watershed event in forensic science in this country, and that’s a good legacy.”

Besides following microscopic blood and semen trails, Mr. Neufeld’s great passion is movies. He tried filmmaking, working with Terrence Malick on Days of Heaven , and he has written a few screenplays, one of which, about a girl coming of age “without sex, drugs or rock ‘n’ roll,” was produced with Mary Stuart Masterson starring, but went straight to video.

Mr. Neufeld-whose wife, Adele Bernhard, is also a lawyer with a social-justice bent (she heads the legal-aid clinic at Pace Law School)-said he might take her to see The Passion of the Christ , merely out of curiosity. He doesn’t want to support the “reactionary” Mel Gibson, though, so he’ll be buying a ticket to another movie at a multiplex, and then sneaking in.

“That’s what I do when I want to see reactionary movies. Please print that so other people will try it.”