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On April 15th, Netflix released The Innocence Files, a new docuseries covering eight wrongful convictions overturned by the Innocence Project and other organizations within the Innocence Network. Over the course of nine episodes, the series exposes flaws within our criminal justice system and points viewers towards tried and tested reforms that, if implemented, would make the system more fair and just. I reached out to Barry Scheck and Peter Neufeld, cofounders of the Innocence Project, to ask about their experience executive consulting for The Innocence Files

Amanda Knox

How did this Netflix series come about?

Barry Scheck 

Well, president’s weekend in 2016, I got a call from Ari Emmanuel, and he said, “I’m sure you’re getting inundated with all these requests after Making of a Murderer and The Staircase. Would the Innocence Project want to do a series?”

Peter Neufeld 

So, I would say over the last 20 years, the Innocence Project probably receives on average about 100 requests a year from different producers who either want to do documentaries or scripted shows based on the Innocence Project and most of them were awful.

Amanda Knox 

What makes them awful?

Peter Neufeld  

Well, let’s see. Scripted shows where they wanted to focus on the private lives of the students in the clinic. Or the documentary filmmaker who would contact us and say, “We want to know the next case where there’s going to be an exoneration where the woman or man is still in and you haven’t done DNA testing yet, but, you know, the person will be exonerated.” You know, we explained that if we had that kind of ability, we’d probably become handicappers at the racetrack. But Netflix decided that what they would let us do is a show that was theme-driven. We really wanted to talk about the causes of wrongful conviction, and what kind of common sense remedies there were to reduce the likelihood of a wrongful conviction. And they were game for it. And so, we agreed that the first season we would pick three themes and each theme would look at two or three different stories to develop the theme. Netflix agreed to hire these three really fabulous directors. 

Amanda Knox  

Did you know them from before?

Peter Neufeld 

We were familiar with all of them. Barry, I think, knew Alex Gibney. I think we all knew Liz Garbus because her dad is a civil rights lawyer, and she’s also a wonderful filmmaker in her own right. And then Roger Williams, who we didn’t know as well, but you know, Roger is an extraordinary guy. He won an Academy Award for one of his documentaries. I think he might be the only, and if not the only, is certainly the first, African American director to win an Academy in the documentary area. So all three of these people, you know, were just incredible. They all were passionate about the subject matter. One was going to handle prosecutorial misconduct, one would handle eyewitness misidentifications, and the third person was going to deal with junk science. Three very important issues to the innocence movement. As you know. You’re two out of the three.

Amanda Knox

What made you want to focus on bad science, mistaken eyewitness identification, and prosecutorial misconduct?

Peter Neufeld  

So, we obviously could have had 10 major contributing factors to wrongful convictions and discuss those. In part we left it to Netflix. We gave them a menu and let them pick those issues that they thought would work best at this time. If the series receives a good reception, there could be a season two where we take on three more issues.

Amanda Knox  

How did you choose what cases to tell in this first season?

Barry Scheck 

It was more a question of which stories they liked. We served up a menu of cases. They picked which cases they thought best illustrated the issues, but more to the point, the best stories. And that was fine with us, as long as they were people that we believed in their innocence and the importance of the case.

Peter Neufeld  

When we dealt with junk science, the one area that we’ve really been litigating hardest at for a number of years, where we’ve proven again and again and again with exonerations that the use of bite marks to convict people is a travesty of enormous order, so we thought bite marks would be good. The other reason we wanted to do bite marks is that two of the three cases we suggested, Levon Brooks and Kennedy Brewer, take place in Mississippi. And we were really interested, as was the director, in dealing with criminal justice, particularly criminal justice for African Americans, in Mississippi. And not only dealing with the issue of what it was like for them when they were prosecuted and tried in the early 90s, but what it was like for them, in the 21st century, when the convictions were challenged, and they still had all kinds of racism to deal with in the criminal justice system, with respect to police, the prosecutor, the judges, soup to nuts. 

Amanda Knox

Your guys’s relationship with bite mark evidence and really being the force in having it be nationally recognized as junk science, is itself this incredible story. Is the story of the Innocence Project, and you and Barry, also a part of the series?

Barry Scheck 

Yeah, it does. Roger Ross Williams did a brilliant job with that. They focus on cases that Vanessa Potkin and Peter did. And also Chris Fabricant, who runs our special litigations unit, all of his colleagues, Dana Delger, they do a lot of bite mark work. You’re very kind to say that we’ve exposed it. We’ve gotten people from President Obama’s science team to say it’s completely junk, and the Texas Forensic Science Commission, with the great Lynn Garcia leading the way, also has reached that conclusion. But that’s what’s so crazy about it. It’s still used, and there are still lots of old cases out there that we can’t even find. It’s really one of the great examples of this kind of echo chamber. It was never validated. It was admitted by one court and then all of a sudden, all across the country, people said, “This is generally accepted, it’s reliable.” And it was just nonsense.

Amanda Knox 

Does the series ever get into how the Innocence Project chooses what cases to pursue?

Peter Neufeld 

A little bit. Initially, obviously, we were limited to DNA. They had to be cases where biological evidence existed that was collected during the initial crime scene investigation so we can subject it to DNA testing. But obviously, the kinds of cases we take on now are much broader. We’ve taken on cases where the issue turned out not to be who did it, but whether it was even a crime. And we’ve taken on cases where people were covering up for other people who committed the crime. So there’s a lot more now that we’re doing that we didn’t do 20 or 25 years ago. Some of that is discussed in these films. The main thing we’re trying to do here is to get across that these cases are not one-off cases. That they all represent systemic failures in criminal justice. Particularly right now, we should realize that the failures in criminal justice sometimes are also failures in healthcare, failures in education, housing. You know, we’re just seeing this week that COVID-19 is affecting black people and brown people way disproportionately to their numbers in the population. And that’s not a surprise, because the quality of healthcare they’ve had all along has been so much worse, that they do have more other underlying medical problems, that there is a greater unwillingness to give those people the care that is handed out more routinely to white people. And so it is in criminal justice. If you are black, you are more likely to be stopped by the police, you are more likely to become a suspect, you’re more likely to be held without bail, you are more likely to be convicted if you are innocent. Our numbers show that. You’re more likely to get more time for the conviction. It’s somewhat disappointing and slightly embarrassing that it takes us almost twice as long to get out an innocent person who’s African American than an innocent person who’s white. There’s that many more barriers, obstacles, and prejudices.

Amanda Knox

It sounds like there’s this greater narrative arc over the course of these nine episodes that transcends the individual cases. What is the story of that narrative arc? Are there heroes and villains? 

Peter Neufeld

In the area of prosecutorial misconduct, we’re looking at some pretty nasty players. People who are sworn to uphold the law and do justice who really wanted to win at any cost. The person who prosecuted Brewer and Brooks in Mississippi was a Bible-thumping white guy who was reported to have put more men on death row than any active prosecutor in the whole state of Mississippi. He was putting up witnesses who he knew were lying. It’s not a pretty picture, although there are a couple of good prosecutors in the film, who wanted to do the right thing. In the eyewitness section, there are prosecutors who realized that a young man named Thomas Hainsworth in Virginia was actually innocent, and those two prosecutors actually ended up writing affidavits supporting the claim for innocence. So there are judges who also fell short, prosecutors who fell short, defense attorneys who fell short, forensic examiners who cut corners and lied about the evidence or exaggerated the probative value of the evidence. There’s plenty of wrongdoing to go around here. And hopefully the viewers will understand that it’s not just individuals, it’s the systems. And ideally, if we’re going to change the system so that we won’t continue to have wrongful convictions in the future, you’re going to have to change the hearts and minds of all of us who live in this society. Maybe we have to change the way that prosecutors function. Maybe police have to think about cases differently than they have been. In almost all these cases, the police had tunnel vision. So they decide on a theory, you know this firsthand, and then any information that comes in that contradicts the earlier information, they simply ignore it. They’re wedded to that first theory. So we have to change the way people think about the policing function. When we finally get to a point where folks are able to do that, we’re going to have a different society. We’re going to have one that’s more accurate, one that’s a heck of a lot fairer, and ultimately one that’s more just.

Barry Scheck

There are common themes everywhere. You know this well, Amanda. You begin to get into these cases and you see the same kinds of factors all joining forces. It’s always systemic. All these factors at work. So yeah, I think that there are themes that emerge. I’d rather that the viewers tell us more about what they think unites them, then for us to give our views, because it’s less important what we think and more important how it lands with people. 

Amanda Knox

What do you hope that people do in response to seeing the series?

Barry Scheck 

I hope what they do is get involved and get active and start diving into the various different cases, get connected and involved in working on these issues. There’s nothing more important than that. That’s the only way we’re going to get change, when people themselves from the bottom up see what’s going on and get active.

Peter Neufeld

We’re going to have a whole section of the website dedicated to how people reacting to this series can do stuff in their own city, their own county, their own state, and help to bring about major criminal justice reform.

Amanda Knox 

Has the Innocence Project ever had this kind of exposure before?

Barry Scheck 

When you look back, you know, now close to three decades of innocence work, when we started there were shows on Dateline on NBC that ran five days a week, there was 60 Minutes and something called Street Stories. So there were investigative journalism shows on television, on CBS, five days a week. And then there was 20/20, PBS had Frontline. Ofra Bikel, this really great documentary filmmaker, made a movie called The Case for Innocence that featured a whole bunch of clients. I can point to maybe 60 or 70 people that were exonerated just based on appearances that we made on Phil Donahue, so at the beginning, the Innocence Project got an enormous amount of publicity. 

Peter Neufeld

Most of the time, though, we would do those while a case was pending, while our client was still in. Nothing like this. I think people are gonna like it because it really sort of takes the whole true crime dynamic and stands it on its head. It’s no longer like, “What happened here? How do we find out who did it?” as opposed to “What happened that allowed these innocent people to lose 10, 20, 30 years of their lives, to be sentenced to death row, to come within days of losing their lives? What went wrong? And how can we fix it?”

Amanda Knox

Do you anticipate there being any backlash from prosecutors or police officers?

Peter Neufeld 

We’ve been very fortunate in the workings of the Innocence Project that, in addition to a policy team that’s gotten a lot of laws passed, we’ve also been very successful at getting different national associations of police to adopt our remedies. There are plenty of police and plenty of prosecutors who are thinking about these issues, and are like-minded. There are people who are going to just say this is all junk, but they tend to be the same people, frankly, who think that the COVID virus is not real. I don’t think people who are logical and rational and really believe in justice, that they’ll push back. I think they’re going to see this as a great opportunity. 

Amanda Knox 

What do you think about Hollywood’s interest in criminal justice and criminal justice reform?

Peter Neufeld 

Well, Hollywood has always been interested in crime. I think we all have a fascination with crime and criminal justice. For a long time, people’s fear of crime pressed them to focus on solving a crime. Right? Now, with the whole DNA revolution, and all the people who’ve been exonerated, the public is still interested in crime and criminal justice, but they just have a much more sophisticated consciousness of it.

Barry Scheck

The great thing about innocence cases is that everybody is interested in the wrong person convicted, in the impact on their families. They get that. That’s something that people understand. And it’s been a very, very good pathway for people to look at all the other problems of the criminal justice system. How horrible it is, the conditions of incarceration, right? And these ridiculous mandatory minimum sentences. The inability to get a trial in this system. All these things people connect with better, it seems, when they see through the eyes of somebody wrongly convicted. On the other hand, with the Black Lives Matter movement, people are saying, “What about all these other people are in prison? What did they do? Do they really deserve to be there so long? Why do we have more people in prison per capita than virtually any other country on Earth? What’s wrong with this American criminal justice system that we lock so many people up this way? Isn’t there another way to do it? What about restorative justice?”

Amanda Knox

One positive thing that I’m trying to hope the world comes away with from the pandemic, is an understanding that the criminal justice system doesn’t actually have to work the way that it always has been. And in fact, there are certain places that are letting people out. Do you think that any of these changes and actions that have been in response to the pandemic are going to lead to permanent changes within the criminal justice system?

Barry Scheck

You put your finger on it in a very smart way, Amanda. I think that that is exactly right. We need a whole reorientation, and I think that that was happening, but now in the pandemic, there’s so many lessons to be learned. When you see people getting out of prison earlier than they were supposed to and they’re going to do fine, because we just know that people age out of crime, I think people are beginning to see this, and the pandemic is going to change the way that we look at a lot of injustices. Hopefully they will question the appropriateness of this whole pattern of mass incarceration that we have in this country and whether that really makes sense from any perspective that you look at it. The pandemic is bringing that out in a very salient way.