Sunday, November 23, 2008

First draft, done

Today I finished the first full draft of my major legal writing project, my law review Note. It's 39 pages long so far, though it's likely to get longer when I return to it next semester. Without boring anyone (or pre-empting myself by writing about it online), I argue that a portion of the Virginia death penalty is unconstitutionally vague and misleading, and that in a recent case, the Supreme Court of Virginia wrongly interpreted two provisions of the Virginia death penalty statute, ignoring both a decision by the U.S. Supreme Court and modern science in the process. Look at me, picking on judges two or three times my age.

The publication process is a long one. There are 39 law review staff members in my class, and we've all written Notes between 5,000 and 10,000 words long. When we return in January, we'll defend them to three-person panels, comprised of 3L editorial board members, who will have read our papers and critiqued them. Then it's back to the editing process, and eventually we'll turn in completed copies. Sometime next spring or summer, a new editorial board will select about six or seven of those 39 Notes for publication in next year's William and Mary Law Review. Those of us who don't get published will have the opportunity to submit our papers to other law reviews and journals at W&M and other law schools.

For now, I'm done! Two and a half weeks until finals. This semester has gone so quickly.

Saturday, November 15, 2008

First Annual Innocence Symposium

Exonerees, attorneys, journalists, and politicians converged at the law school to express their unwavering, unanimous support for the wrongfully convicted, as W&M Law’s Students for the Innocence Project and the Black Law Students Association co-sponsored the First Annual Innocence Symposium on Friday, Nov. 14.

“No one really knows about the innocent, the people who are crying for help,” said Marvin Anderson, who was exonerated in 2001 after spending 15 years in prison and four years on parole for a crime he did not commit. “No one really knows about the exonerees, and that’s because the states do not want to admit there’s something wrong.”

An afternoon full of dynamic speakers and an evening of jazz by exoneree Michael Austin drew between 60 and 80 people to the first Innocence Symposium held at W&M Law.

Anderson’s mother, Joan, said that Marvin was the 99th person exonerated since the introduction of DNA evidence. To date there have been 223 such exonerations in the United States, exposing a wide range of flaws in the American criminal justice system.

Olga Akselrod, a staff attorney at the Innocence Project, works on innocence cases involving DNA evidence. She said the most common causes of wrongful convictions are mistaken eyewitness identifications; limited, unreliable, or fraudulent science; false confessions; and informants who provide bad information. Akselrod said recent studies show that wrongful convictions comprise between 3 and 5 percent of all convictions in the U.S.

“If we were going to be getting on an airplane with a 3 to 5 percent chance of crashing, we’d be concerned,” she said. “And yet, that appears to be where our criminal justice system is.”

The wrongfully convicted come from all over the country, Akselrod said, including 10 exonerees in Virginia alone.

Margaret Edds, who retired from the Virginian-Pilot last year after 30-plus years in journalism, spoke about the infamous yet ongoing story of the Norfolk Four, a quartet of sailors whose lives have been devastated by convictions for a rape and murder they almost certainly did not commit. DNA evidence at the scene matches only Omar Abdul Ballard, who confessed to the crime and is serving two life sentences for it. But despite overwhelming evidence that Ballard acted alone, three of the Norfolk Four remain in prison and the lives of all four have been ruined.

Although four former Virginia attorneys general, dozens of attorneys and retired judges, and most recently, 30 FBI agents, have spoken out on behalf of the Norfolk Four, prosecutors maintain that Ballard acted with the sailors in raping and killing Michelle Moore-Bosko on July 8, 1997. Clemency petitions, filed in 2005 during the waning days of Gov. Mark Warner’s tenure, remain before Gov. Tim Kaine.

“For Kaine to join in the proclamation of the Norfolk Four’s innocence would cement an indictment of the criminal justice system,” Edds said. Still, Edds believes that as the governor enters his final year in office, he may be willing to spend the political capital necessary to free the four sailors. “It’s time for us now to deal with it and clean this up.”

State Senator Henry Marsh helped lead the charge in the General Assembly to pass a DNA exoneration bill in 2001, eliminating the need for executive clemency in some DNA cases.

“To me, the idea of an innocent person being in prison for a crime they didn’t commit is unthinkable,” Marsh said. “It’s bad enough being in prison for something you did do.”

Steven Benjamin, a Richmond attorney who serves on the Virginia Board of Forensic Science and the Virginia Indigent Defense Commission, spoke of the wide-scale DNA testing ordered by Gov. Warner in 2005. The former governor ordered that DNA evidence of thousands of Virginia prisoners be tested after a 2004 random sampling of 31 pieces of evidence exonerated two more of Virginia’s inmates. Benjamin said that the odds that two of the 31 random samples would result in exonerations were “absolutely staggering.”

Still, Benjamin said, three years after the testing was ordered, only 34 more samples have reportedly been tested, and the $1.4 million budgeted for the wide-scale testing is gone. Speaking for himself and only himself, Benjamin suggested that the private lab contracted to do the testing and the Virginia Board of Forensic Science share the blame for a project that has stalled without much public explanation.

“We do not trust things that are done in secret,” he said. “If you are acting as if you have something to hide, then you must have something to hide. We have got to return to the accurate and reliable determination of the truth. We should not be afraid of the truth.”

Concluding the day of speakers was Bernie Henderson, a senior deputy in the Office of the Secretary of the Commonwealth. He explained Virginia’s policies on executive clemency, which derive from the English common law, are mostly unwritten, and can change depending on who sits in the governor’s office.

Several exonerees and members of the Innocence Clinic at the University of Virginia attended the symposium.

Marvin Anderson, whose parents sat in the front row as he spoke, described his experiences both before and after his exoneration.

“You try not to focus on where you are, but on where you want to be,” he said. “No one knows exactly what a black hole looks like. But it’s a black hole with no bottom, when you know you did not commit a crime and no one believes you.”

Anderson, 44, said that the 2008 presidential election was his first opportunity to vote—26 years after his conviction and seven years after his exoneration. A certified welder and owner of a trucking company, he is attending night classes to become a firefighter, which he has wanted to do since he was a child.

“I am living my dream,” Anderson said.

If you have questions about the First Annual Innocence Symposium or would like to attend a viewing of the recorded event, please email

Tuesday, November 11, 2008

Redistributing the wealth

The self-described conservatives, libertarians, and Republicans here at Marshall-Wythe (and there are many) keep rekindling the phrase "redistributing the wealth," in relation to President-elect Barack Obama's middle class tax cut. One classmate of mine even managed to mention it during Evidence class this morning, in response to the professor's question about self-incrimination. I missed how those two concepts, wealth redistribution and self-incrimination, had anything to do with each other. Perhaps someone should ask Joe the Plumber.

Recall that it was Obama's conversation with Joe the Plumber in which Obama used the phrase, "spread the wealth around." Not long after that, conservatives (led by Matt Drudge) dug up this 2001 interview that Obama gave to WBEZ radio in Chicago, in which he talked about the Warren Court of the 1960s, which by Obama's account, did not engage in much "redistribution of wealth." For a much more academic discussion of this than I'm capable of, read this fascinating account of Obama's 2001 remarks. Obama's conclusion, as documented in the 2001 interview, is that redistributive change is not possible (or necessarily desirable) through the courts. One cannot know for sure if that is Obama's driving factor in leaving the Ivory Tower of academia for the political arena, at least not without asking him, but I tend to doubt it.

So what would Obama do with our wealth (now that we've lost $1 trillion of it)? For starters, Obama's middle class tax cut (which, by the way, he's been pitching since the Pre-Caucus Era) can be found here. Obama's plan, if enacted by Congress, would cut taxes for families making less than $250,000 a year (e.g., Samuel J. Wurzelbacher, my parents). For the wealthiest 2% of Americans, those making more than $250,000 a year (see the Clintons, Bushes, Obamas, McCains, et al.), taxes will increase to the same levels they were in the 1990s. This will have the effect of increasing, not redistributing wealth, to the vast majority of us. We'll be able to save it, or at least pay off some debt, while richer Americans will go back to paying a larger share. According to a few of these overwhelmingly rich Americans, that's quite alright.

Instead of all this talk about "redistributing the wealth" and socialism, then, perhaps we should spend a little more time debating the merits of a middle class tax cut, because that's what Obama wants to do while in office. It might not get as many laughs in Evidence class, but it's a more fruitful discussion.

Monday, November 10, 2008

Sorting through it all

I was heartened this morning to find that the #1 most emailed article on was a profile of Nate Silver, founder of I followed 538 religiously this campaign season. As the article today points out, Silver, a 30-year-old numbers whiz, started the website partially out of frustration with the mainstream media's treatment of polling data—i.e., the fact that the media often treat unequal polls equally. At FiveThirtyEight, Silver instituted a poll ranking system, so that trusted polls like Quinnipiac and Rasmussen get the credence they deserve, while obscure polls using faulty sample groups get their come-uppins. When a poll was published that suggested some shifting trend, Silver would delve headfirst into why the poll got the result that it did. (See "Anatomy of a Polling Disaster.") Often, he would find some monumental error with the way the poll was conducted, and he would give that poll a poor ranking. From this kind of astute analysis, Silver made it far easier to make sense of the way public opinion of the presidential election was progressing. Previously, when the media found one of these faulty polls, which Silver calls "outliers," they would trumpet it as a shift in the direction of public opinion (sometimes a self-fulfilling prophecy). Now, such polls are relegated to the scrap heap, and future polls from those organizations are treated with deserved skepticism.

I don't watch much TV anymore, so I didn't realize that Silver had also gained significant attention as a pundit, but it makes sense. I'm happy about this for two reasons. First, he's young, and it's fantastic to see that young people doing creative things get rewarded. Second, and more importantly, we live in a new internet age, in which more and more information is constantly being tossed at us from all directions. Even the most educated people get thrown off by this constant stream of data, thus it's extremely helpful when someone like Nate Silver comes along, with a scientific or mathematical solution to sort through it all. Silver's increasing popularity bodes well for people like him, and for the education of society generally.

Finally, I'm sympathetic to Silver's point about what happens to his website, now that the election's over. He intends to continue using FiveThirtyEight to predict congressional votes on Obama initiatives, but he admits that the popularity of his site will likely dwindle.
“That’s the paradox,” [Silver] said. “You would think that you elect this guy and you want him to effect change, and then he gets elected, and people don’t care about bills being passed.”
Touché, Nate. Isn't a lack of curiosity how we got into this mess in the first place?

Friday, November 7, 2008

Our New President

This week's big event, the election of President Barack Obama, have meant so much to so many for reasons too numerous to count. One New York Times story on Wednesday aptly described it as a moment of "national catharsis."
It’s been a long time coming, but tonight, because of what we did on this day, in this election, at this defining moment, change has come to America.
To help do our part, as law students, my friend Aaron recruited a group of us to serve as the Obama campaign's official poll watchers on Tuesday. Virginia law allows for one observer from each campaign on Election Day, both inside and outside the polling place. So 50 of us law students and professors awoke early, some as early as 3:30 a.m., and traveled to precincts throughout Hampton Roads, from Virginia Beach to Newport News to Williamsburg and James City County. We witnessed history first-hand, as thousands of first-time voters, many of them black, helped turn Virginia blue for the first time since 1964.

When I arrived at 5:30 a.m., in the darkness and the rain, a line of more than 200 people had formed inside the hallways of Christian Life Church. Polls opened at 6 a.m., and it took an hour and a half before everyone in the original line had cast a ballot. By day's end, nearly 80 percent of the precinct's registered voters had cast a vote for Obama or Senator John McCain.

The crowning moment of my day came in the early afternoon, when an Obama volunteer, a middle-aged woman ripe with enthusiasm, accompanied an elderly black woman to the church. As the elderly voter showed her ID to poll workers, the volunteer told me that the woman was thrilled to have her chance to vote in this election — it was the first time she'd ever voted. After the elderly woman slid her ballot into the optical scanner, she stepped to the middle of the room and stopped. There, she threw both her hands in the air and exclaimed, "I have never felt so good in all my life! This is the first time I've ever voted!" Everyone in the room, perhaps 15 or 20 people, burst immediately into raucous applause. Tears streamed down the face of the Obama volunteer, as the elderly woman came to embrace her. The first-time voter proceeded to hug every person in sight as she made her way out of the church.

Stories like this one have come from all parts of the country, stories that serve to heal us and give us hope that this week, we live in a new kind of America — the kind of country that embraces all people equally. There are also stories that just feel good, like this one, from a friend of a friend who was at Grant Park in Chicago, where Obama made his acceptance speech:
It was totally amazing, but here's the moment of the night:

CNN was playing on the huge screens in the park. We watched as Wolf Blitzer called the states and the huge panel of pundits pronounced on whatever struck their fancy. Some time after Ohio was called, they turned the volume of the TVs down and shrunk the image of CNN to show pictures of the crowd that was present at Grant park. There was a whisper behind us that several networks had called the election for Obama. I was with a group of political scientists and since all of our phones were down and we could not confirm via the blogs and election maps that we've all become addicted to, we doubted. The crowd murmured and shifted.

Then, an unassuming skinny young white guy in a black hoodie came out onto the stage and said into the microphone, "Mic check 1, 2, 3. Mic check 1, 2. Mic check for the President Elect of the United States of America."

The crowd exploded.
The moment in Grant Park must have been the pinnacle of public euphoria, but since then, I know personally of many people who have had their own private moments of pure emotion. My own came on Wednesday afternoon. Still exhausted from a 14-hour day at the church (alright, and a full night of celebrating), I turned on the TV and caught a piece showing reactions to the election around the world. And there, just two days after Barack Obama's white grandmother had passed away in Hawaii, was Barack Obama's black grandmother, in Kenya. Sarah Obama's entire village was celebrating, as were young people in Greece, Israel, France, and even the children at Obama's childhood school in Indonesia. My girlfriend's friends from Canada and Australia called her this week to say that if they could have voted for Obama, they would have.

As I watched these scenes from around the world, the joy and relief overtook me, as it has so many people this week. Jesse Jackson Sr., whose tears were caught on camera at Grant Park Tuesday night, said that he cried for the happiness that Obama's accomplishment brought him, but also for the sad fact that Civil Rights-era people like Medgar Evers and Martin Luther King Jr.—the ones who made Barack Obama possible—weren't still alive to see this day.

Thank goodness for them, and all those who helped make Tuesday possible. Now there is much work to be done, and it will take many hands to rebuild this country. As our new president said himself: "to those Americans whose support I have yet to earn – I may not have won your vote, but I hear your voices, I need your help, and I will be your President too."

We have our country back, all of us. The change is palpable—it fills the spirit and brings a smile to faces all over the world. I like to think we owe it to people like the elderly black woman in James City County, Va., who on Tuesday mustered the courage to cast a vote for president for the first time in her life. We may live in the same country that we lived in on Monday, but because of people like her, today we live in a nation that is forever changed.