The Innocence Commission
for Virginia (ICVA)
It is sometimes said that we academicians live in an ivory tower, weighing philosophical issues under ideal conditions without having to get our hands dirty in “the real world.” By the same token, lawyers in private practice, particularly those in large law firms, are sometimes accused of trading ideals for wealth and prestige. Who cares about justice, it's said, when you can attain the good life representing the highest bidder. Whether these adages have any truth to them—and I, for one, would challenge their general application—the Innocence Commission for Virginia is proof that representatives of academia, private law firms, and public-interest organizations can come together to advance an issue of reform that speaks not only to the real world but also to the common good.
The story starts for me in the spring of 2000, when I was teaching a large undergraduate course on constitutional procedure. We were just beginning to discuss the Sixth Amendment and its guarantee of a right to counsel when a student blurted out, “I don't think the Sixth Amendment protects anything.” Taken aback a step, I asked him to explain what he meant. The student mentioned a case from the news in which a defense attorney had slept throughout the trial. On appeal from a habeas corpus petition, the U.S. Court of Appeals for the Fifth Circuit had affirmed the conviction, concluding that an “unconscious counsel” is not in itself prejudicial.1 “Come on,” the student told me, “if the courts consider a sleeping lawyer 'effective,' then what protection does any defendant really have that his rights will be protected in a case?”
The student's outburst set in motion a lively discussion about the Sixth Amendment and the bounds of its protections, but the student's message resonated in my gut. Not only did I share his concern, but having once practiced law, I also was aware that a client's fate can often