Barry Scheck
If there is a special corner
of hell reserved for O.J. Simpson's lawyers--and I'm sure there is--Barry
Scheck has spent the last week roasting in it. Scheck had conducted a
magnificent defense of accused baby killer Louise Woodward, complete with his
trademark sneering speeches, windmilling arms, and devastating
cross-examinations. Then Scheck watched, stunned, as his client was convicted
of second-degree murder and sentenced to life in prison.
What does
this have to do with O.J.? Well, one alternate juror hinted that one factor in
the verdict might be an O.J. backlash. The alternate says he heard other panel
members talk about getting Scheck--about punishing him for his courtroom
histrionics (à la the Simpson trial), his sarcastic attacks on prosecution
witnesses (à la the Simpson trial), his "hocus pocus" medical evidence (à la
the Simpson trial).
This is Barry Scheck's torture: to be forever yoked to the
Simpson case. Not just yoked to the Simpson case, but yoked to the worst
of the Simpson case. Scheck and fellow O.J. attorneys did the impossible: They
managed to lower the public's estimation of criminal defense lawyers. Johnnie
Cochran race-baited and spun wild conspiracies. Scheck badgered witnesses and
split hairs. His destruction of the prosecution's heralded DNA evidence was
meticulous, obnoxious, and unforgettable. Many lawyers consider Scheck's
eight-day evisceration of criminalist Dennis Fung ("Where is it, Mr. Fung?")
the greatest cross-examination since the Scopes trial. The verbs "to Scheck"
and "to Schecktify" entered the legal vocabulary. Scheck came to personify the
grotesque defense attorney, bullying, self-righteous, melodramatic. (In a
priceless moment during the Woodward trial, O.J. himself phoned Court TV to
defend Scheck against charges of obnoxiousness. For more on this, click .)
And yet,
of all O.J.'s lawyers, Scheck is the one who least deserves public disapproval.
He is, in fact, the very model of what a celebrity defense attorney should be.
Scheck has spent his entire professional life in pursuit of (usually) worthy
causes. His motto could be: always righteous, often right. As an undergraduate
at Yale in the late 1960s, for example, Scheck was a fervent anti-war
protestor. Big deal--so was everyone else. But Scheck's protest was inspired
and brave. He fought to abolish all student deferments, figuring that the war
would end only when white, middle-class parents saw their white, middle-class
kids (like him) die in Vietnam.
The same creative skepticism toward authority
defines his legal career. After law school, Scheck worked for several years
trying to expose grand jury abuse, and then spent five years as a Legal Aid
lawyer in the Bronx. Eventually, Scheck's vigor and intelligence landed him a
job as a clinical law professor at New York's Cardozo Law School. The job gave
him the freedom to pursue cases that interested him. In 1988, Scheck
represented Hedda Nussbaum, adoptive mother of the murdered Lisa Steinberg.
Paid only $25 an hour, Scheck helped Nussbaum escape prosecution for Lisa's
death, and shifted blame to her companion, Joel Steinberg, who had battered and
abused Nussbaum.
Scheck
found his forte in the mid-1980s. He and his law partner, an equally pugnacious
lawyer named Peter Neufeld, handled a case where prosecutors carelessly used
DNA evidence to railroad a suspect. He and Neufeld made themselves the
legal experts on DNA testing. It became a cause for Scheck: He was convinced
that prosecutors would overstate their DNA evidence to secure conviction. So
five years ago, Scheck and Neufeld launched the Innocence Project. You would be
hard-pressed to find a more admirable enterprise. Scheck, Neufeld, and their
law students use DNA evidence to spring wrongly convicted criminals--frequently
"rapists" and "murderers." So far, the Innocence Project has cleared more than
30 inmates, including a dozen on death row. (Scheck is not perfectly consistent
about DNA: He uses genetic fingerprinting when it exonerates his clients and
criticizes the technique when it implicates them. But defense lawyering is a
rough trade.)
The O.J. case was Scheck's Faustian bargain. It gave him
useful fame, but it tarnished him as someone who had helped O.J. get away with
murder. Scheck doesn't see it that way. For him, the O.J. case was as much
about the misuse of medical evidence as about murder. His devotion to his
cause--scientific evidence--allowed him to avoid larger questions (such as,
say, "Did he kill 'em?"). Within that narrowed framework, Scheck could
construct an intellectually honest defense: There was reasonable doubt because
police forensic work was shameful.
Scheck
began the case on the periphery of the defense team and ended it in the center.
There are very good reasons for this: Scheck was probably the smartest of the
defense lawyers, and he was certainly the hardest-working; he spent weeks
poring over complex evidence that other defense lawyers didn't bother with. In
Jeffrey Toobin's O.J. book, The Run of His Life , the chapter about
Scheck is titled "The Best Trial Lawyer."
O.J. made Scheck one of the most famous lawyers
in the world, and Scheck doesn't seem to mind. He writes for Newsweek
and comments for NBC on big trials. (He did the O.J. civil case, and was
surprisingly evenhanded.) But mostly, he has used his celebrity to advance his
causes. Scheck is constantly in court for Project Innocence. He has spoken out
against the new restrictions on federal habeas corpus. He serves on the New
York State Commission on Forensic Science and he lectures to police departments
and prosecutors across the country about proper use of genetic fingerprinting.
He is representing Abner Louima, the Haitian immigrant who allegedly was
sodomized with a toilet plunger by New York City cops. The defense attorney is
even advising Colorado investigators (prosecutors!) on the medical evidence in
the JonBenet Ramsey case.
Estimates of Scheck's fee in
the nanny trial range from $100,000 to $300,000. But the Woodward case--his
second Trial of the Decade--reflects Scheck's high-mindedness as much as his
greed. (After all, Scheck earns a pittance compared with what he could if he
were a full-time criminal defense attorney.) The nanny case jibes perfectly
with Scheck's obsession. The case turns on questionable medical testimony about
injuries to 8-month-old victim Matthew Eappen. Scheck, commentators agree,
poked huge holes in the prosecution's claim that Woodward shook the baby and
then dashed his head against a hard object. If the wound to Eappen's skull was
new, asked Scheck, why had scar tissue formed around it? If Woodward had shaken
the baby, why did his neck show no signs of damage? Scheck's questions didn't
convince the jury, but they may well persuade the judge to toss out Woodward's
conviction or reduce her conviction to manslaughter. (The judge will not make
that decision until Nov. 10 at the earliest.)
During the Woodward trial,
Johnnie Cochran has occasionally devoted his daily Court TV show, Cochran
& Company , to the case. He has interviewed other lawyers, alternate
jurors, experts. Tuesday night, Scheck himself was billed as a guest, but he
never appeared. There was something fitting about this. Cochran pontificated
windily for the camera. Scheck was too busy being a lawyer, too busy trying to
redeem a (possibly) innocent client, to join him.
