Barry Scheck

O.J. got off, the nanny didn’t. They couldn’t have asked for a better lawyer.

Illustration by Steve Brodner

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 here.)

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.