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CNN Sunday Morning

Interview With Barry Sheck, Michael McDougal

Aired October 13, 2002 - 11:36   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


FREDRICKA WHITFIELD, CNN ANCHOR: Beginning Tuesday, the Prisoner Review Board in Illinois will begin hearings for most of the state's death row inmates. Among the issues expected to be discussed, DNA evidence, and whether it could help clear some of the inmates who might have been wrongly convicted.
Texas is one of the leading states of executions, and with us now to talk more about the issue of DNA testing and death row inmates involving some Texas cases are Barry Sheck in New York, he is the co- director of the Innocence Project, and from Houston, prosecutor Michael McDougal. Good to see both of you.

All right, Michael, let me begin with you. Since DNA testing is legal in the state of Texas, perhaps you can explain why there's been some argument as to the difficulties of some post-conviction prisoners being able to get DNA testing.

MICHAEL MCDOUGAL, PROSECUTOR: Well, I think the legislature passed a new statute I think in June or April of 2001 that said that they have to meet certain standards if they want to have the test made. And so we -- and we're involved with the case with Mr. Sheck, involving an inmate on death row, and it was our opinion that he didn't meet those -- the qualifications of the law as it was passed, so we opposed it.

WHITFIELD: Well, let's talk about the case specifically of Richard Cutsner, executed August 7, but now apparently according to his attorneys, DNA evidence from the crime scene is being made available post his conviction. So how is that justified? How could DNA testing possibly be helpful in a case of post convictions, if someone's already executed?

MCDOUGAL: Well, if you're already executed, it can't be helpful. But...

WHITFIELD: Then why would that evidence be made available after the fact as opposed to before he's actually executed?

MCDOUGAL: You cut out on me, I didn't hear what the question was.

WHITFIELD: If you agree that releasing any DNA evidence is not helpful post someone's execution, then why in this case was it released after his execution so it really couldn't potentially save his life or potentially help in his argument of innocence?

MCDOUGAL: Mr. Sheck and his organization said that they wanted it anyway, so we're agreeing to furnish it to them.

But the point with Cutsner was, he was convicted and sentenced back in '97, I believe, 1997, and never raised any issue about DNA until his execution date. And then they tried at the last minute, and that's one of the portions of the Texas law that says if it's just for delay that it's not acceptable. And he had every chance to request it at every stage before June of 2001, and never did. His original trial lawyer didn't. His appellate lawyers didn't. His original writ of habeas corpus lawyers didn't, so it was our opinion -- and even if it had been done, the statute requires that exculpatory evidence be obtained from the DNA test.

And in this case, you have to ask yourself, what would the result have been, and how would it have exonerated Mr. Cutsner, or undermined the credibility of the verdict he got? And it wouldn't, because the hairs that are the subject matter of this, and the fingernail scrapings, could have been anybody. And if it's not Mr. Cutsner and it's not the lady that was killed, it doesn't do any good.

WHITFIELD: All right, Michael, hold on right there. Barry, let me bring you in. If DNA testing has been proven to be successful in about 114 cases nationwide, what's your explanation as to why it seems to be so very difficult for certain prisoners in certain states who are about to be executed able to get the DNA testing and help in their last plea for life?

BARRY SHECK, INNOCENCE PROJECT: Well, we actually had another case with Mr. McDougal, Roy Kriner (ph), where DNA testing was done initially. Even after it was exculpatory, there was some resistance, and finally we did additional testing, and he's out of prison now.

The problem in the Cutsner case, frankly -- I'm glad that Mr. McDougal is consenting to let us do the testing after the execution. It shouldn't really be that way, but it's good that he's doing it. We'll find out one way or the other whether he is definitely guilty or there's a chance he's innocent.

There was fingernail scrapings under the victim's nails. Arguably, if you do a test on that and you put the DNA profile into a data bank, it could hit some convicted individual, or tie it to an unsolved crime that Mr. Cutsner couldn't have committed. There is also the possibility of saliva on ligatures, which was this wire that was used on the victim.

The courts found that they didn't think that was enough. I think that that was an unfortunate decision. But it's good that we're going to get the testing.

We have to pass now the Innocence Protection Act. This is a bill that has 246 co-sponsors in the House of Representatives, including people like Dan Burton. It's a bipartisan bill. Also, it's come out of the Senate Judiciary Committee. This would mandate post-conviction DNA testing for all those who could use it to raise a reasonable probability they were wrongfully convicted and sentenced in every state in the country, and I think it's just good law enforcement to do it. WHITFIELD: And as it stands now, or at least what is being exercised in some Texas jurisdictions is that a prisoner, a post- convicted prisoner on death row has to prove his innocence outside of the DNA before even being awarded a possibility of a DNA test. Is that your understanding, Barry?

SHECK: Well, yes. Unfortunately, I was part of the group that helped draft this statute. It said you can get a test, raise a reasonable probability of a different outcome, which is a phrase that has very clear meaning in the law. Unfortunately, the Texas Court of Criminal Appeals rewrote the statute. It said, well, now we have to make it a reasonable probability that you're actually innocent, which is a high standard and too high a standard. Because we want to have tests to see if we can identify convicted individuals.

Also, there was a problem that the court is interpreting this, and the statute maybe should have been drafted better, that if you have an application outstanding for a DNA test, but there's a death warrant, it doesn't automatically stay it until the DNA testing is done. So that's really a problem that has to be rectified by the legislature this session.

WHITFIELD: OK, now, Michael, an argument has been made on the prosecutor's behalf that to give a green light, so to speak, to DNA testing is only valid if it turns out that perhaps the trial was not fair. But if the trial was technically fair, that this convicted prisoner is not deserving of DNA testing. What does that mean, to be technically fair?

MCDOUGAL: I really couldn't tell you. And I can't speak for all the prosecutors. We've got 200 of them in the state of Texas. But in our situations, you have to evaluate what the DNA test is going to submit to the overall issue in the trial, and accompany the other evidence in the trial.

If you've got everybody -- 15 eyewitnesses say this is the guy, and identity is not an issue, the statute in Texas doesn't provide that you're allowed -- that you're entitled to have the DNA test. So you have to evaluate DNA evidence along with the other evidence. And if it's not going to do anything, if it's not going to -- actually, and that's another point that Mr. Sheck raises I'd like to oppose a little bit, because in the legislative debates over this law, it was clear that the legislatures did intend that the people that were going to submit motions under this law would have to come pretty close to proving their actual innocence before it would be granted, and I've got the context and the testimony from those legislators for him to read.

WHITFIELD: OK. Michael McDougal, thank you very much. Barry Sheck, thank you very much for joining us, both of you.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com







Aired October 13, 2002 - 11:36   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
FREDRICKA WHITFIELD, CNN ANCHOR: Beginning Tuesday, the Prisoner Review Board in Illinois will begin hearings for most of the state's death row inmates. Among the issues expected to be discussed, DNA evidence, and whether it could help clear some of the inmates who might have been wrongly convicted.
Texas is one of the leading states of executions, and with us now to talk more about the issue of DNA testing and death row inmates involving some Texas cases are Barry Sheck in New York, he is the co- director of the Innocence Project, and from Houston, prosecutor Michael McDougal. Good to see both of you.

All right, Michael, let me begin with you. Since DNA testing is legal in the state of Texas, perhaps you can explain why there's been some argument as to the difficulties of some post-conviction prisoners being able to get DNA testing.

MICHAEL MCDOUGAL, PROSECUTOR: Well, I think the legislature passed a new statute I think in June or April of 2001 that said that they have to meet certain standards if they want to have the test made. And so we -- and we're involved with the case with Mr. Sheck, involving an inmate on death row, and it was our opinion that he didn't meet those -- the qualifications of the law as it was passed, so we opposed it.

WHITFIELD: Well, let's talk about the case specifically of Richard Cutsner, executed August 7, but now apparently according to his attorneys, DNA evidence from the crime scene is being made available post his conviction. So how is that justified? How could DNA testing possibly be helpful in a case of post convictions, if someone's already executed?

MCDOUGAL: Well, if you're already executed, it can't be helpful. But...

WHITFIELD: Then why would that evidence be made available after the fact as opposed to before he's actually executed?

MCDOUGAL: You cut out on me, I didn't hear what the question was.

WHITFIELD: If you agree that releasing any DNA evidence is not helpful post someone's execution, then why in this case was it released after his execution so it really couldn't potentially save his life or potentially help in his argument of innocence?

MCDOUGAL: Mr. Sheck and his organization said that they wanted it anyway, so we're agreeing to furnish it to them.

But the point with Cutsner was, he was convicted and sentenced back in '97, I believe, 1997, and never raised any issue about DNA until his execution date. And then they tried at the last minute, and that's one of the portions of the Texas law that says if it's just for delay that it's not acceptable. And he had every chance to request it at every stage before June of 2001, and never did. His original trial lawyer didn't. His appellate lawyers didn't. His original writ of habeas corpus lawyers didn't, so it was our opinion -- and even if it had been done, the statute requires that exculpatory evidence be obtained from the DNA test.

And in this case, you have to ask yourself, what would the result have been, and how would it have exonerated Mr. Cutsner, or undermined the credibility of the verdict he got? And it wouldn't, because the hairs that are the subject matter of this, and the fingernail scrapings, could have been anybody. And if it's not Mr. Cutsner and it's not the lady that was killed, it doesn't do any good.

WHITFIELD: All right, Michael, hold on right there. Barry, let me bring you in. If DNA testing has been proven to be successful in about 114 cases nationwide, what's your explanation as to why it seems to be so very difficult for certain prisoners in certain states who are about to be executed able to get the DNA testing and help in their last plea for life?

BARRY SHECK, INNOCENCE PROJECT: Well, we actually had another case with Mr. McDougal, Roy Kriner (ph), where DNA testing was done initially. Even after it was exculpatory, there was some resistance, and finally we did additional testing, and he's out of prison now.

The problem in the Cutsner case, frankly -- I'm glad that Mr. McDougal is consenting to let us do the testing after the execution. It shouldn't really be that way, but it's good that he's doing it. We'll find out one way or the other whether he is definitely guilty or there's a chance he's innocent.

There was fingernail scrapings under the victim's nails. Arguably, if you do a test on that and you put the DNA profile into a data bank, it could hit some convicted individual, or tie it to an unsolved crime that Mr. Cutsner couldn't have committed. There is also the possibility of saliva on ligatures, which was this wire that was used on the victim.

The courts found that they didn't think that was enough. I think that that was an unfortunate decision. But it's good that we're going to get the testing.

We have to pass now the Innocence Protection Act. This is a bill that has 246 co-sponsors in the House of Representatives, including people like Dan Burton. It's a bipartisan bill. Also, it's come out of the Senate Judiciary Committee. This would mandate post-conviction DNA testing for all those who could use it to raise a reasonable probability they were wrongfully convicted and sentenced in every state in the country, and I think it's just good law enforcement to do it. WHITFIELD: And as it stands now, or at least what is being exercised in some Texas jurisdictions is that a prisoner, a post- convicted prisoner on death row has to prove his innocence outside of the DNA before even being awarded a possibility of a DNA test. Is that your understanding, Barry?

SHECK: Well, yes. Unfortunately, I was part of the group that helped draft this statute. It said you can get a test, raise a reasonable probability of a different outcome, which is a phrase that has very clear meaning in the law. Unfortunately, the Texas Court of Criminal Appeals rewrote the statute. It said, well, now we have to make it a reasonable probability that you're actually innocent, which is a high standard and too high a standard. Because we want to have tests to see if we can identify convicted individuals.

Also, there was a problem that the court is interpreting this, and the statute maybe should have been drafted better, that if you have an application outstanding for a DNA test, but there's a death warrant, it doesn't automatically stay it until the DNA testing is done. So that's really a problem that has to be rectified by the legislature this session.

WHITFIELD: OK, now, Michael, an argument has been made on the prosecutor's behalf that to give a green light, so to speak, to DNA testing is only valid if it turns out that perhaps the trial was not fair. But if the trial was technically fair, that this convicted prisoner is not deserving of DNA testing. What does that mean, to be technically fair?

MCDOUGAL: I really couldn't tell you. And I can't speak for all the prosecutors. We've got 200 of them in the state of Texas. But in our situations, you have to evaluate what the DNA test is going to submit to the overall issue in the trial, and accompany the other evidence in the trial.

If you've got everybody -- 15 eyewitnesses say this is the guy, and identity is not an issue, the statute in Texas doesn't provide that you're allowed -- that you're entitled to have the DNA test. So you have to evaluate DNA evidence along with the other evidence. And if it's not going to do anything, if it's not going to -- actually, and that's another point that Mr. Sheck raises I'd like to oppose a little bit, because in the legislative debates over this law, it was clear that the legislatures did intend that the people that were going to submit motions under this law would have to come pretty close to proving their actual innocence before it would be granted, and I've got the context and the testimony from those legislators for him to read.

WHITFIELD: OK. Michael McDougal, thank you very much. Barry Sheck, thank you very much for joining us, both of you.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com