Valena E Beety | West Virginia University (original) (raw)

Books by Valena E Beety

Carolina Academic Press Forthcoming 2018

Beginning in the 1990s, awareness of wrongful convictions in the legal community and the popular ... more Beginning in the 1990s, awareness of wrongful convictions in the legal community and the popular culture has grown dramatically, in large part thanks to the revolutionary use of post-conviction DNA testing to prove the innocence of scores of individuals and, ultimately, win hundreds of exonerations. During that same time period, and thanks in part to the data made available in a growing database of known wrongful conviction cases, there has been a virtual explosion in research and scholarship on the causes and consequences of wrongful convictions.

The purpose of this book is to provide instructors in law schools, graduate and undergraduate programs, with a course reader that can serve as a stand-alone text, or supplemental readings, for teaching about wrongful convictions. The Reader is designed to meet the needs both of instructors who are primarily interested in the policy and science of wrongful convictions and who might be addressing a general student audience, as well as instructors in law school clinical courses, practicums, or other focused, preparatory programs of practical training who wish to emphasize experiential teaching objectives. The Reader does this by gathering together the leading scholarship and, in some cases, investigative reporting, on the causes and consequences of wrongful convictions to provide students of wrongful convictions a sophisticated, comprehensive, state-of-the-art, and highly engaging exposure to the field. In addition, each chapter is accompanied with in-class exercises, simulations, and selected stories, or multi-media resources chosen or designed by the editors to facilitate an experiential-based curriculum for those who desire it.

Co-author: Russell Covey

Law Review Articles by Valena E Beety

82 Tenn. L. Rev. 975 , 2015

90 Denv. U. L. Rev. 331, 2012

The shooting of Trayvon Martin caused many to question what exactly led to the death of an unarme... more The shooting of Trayvon Martin caused many to question what exactly led to the death of an unarmed seventeen-year-old African-American teenager. This Essay discusses one piece of the puzzle: the brain, in creating and preserving memories, can distort our perception of events and people around us. This distortion of perception and memory can later influence eyewitness testimony often the most riveting and misleading information for a jury. Bringing these two separate but connected moments of inaccurate perception and inaccurate recollection together, this Essay examines the role of memory and perception in the death of Trayvon Martin and in eyewitness identification in criminal cases, ultimately supporting broad reform in our criminal justice system.

68 Fla. L. Rev. 1569, 2016

Innocence is an issue that pervades various areas of research and influences numerous topics of d... more Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea
bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if so, what does this mean for capital punishment? As these and other examples demonstrate, the importance and influence of the innocence issue is boundless. As the group, representing various perspectives, disciplines, and areas of research, discussed these and other questions, it also considered the role of innocence in the criminal justice system more broadly and examined where the innocence issue might take us in the future. What follows is a collection of short essays from some of those in
attendance - essays upon which we might reflect as we continue to consider the varying sides and differing answers to the issue of innocence.

Co-authors: LUCIAN E. DERVAN, RICHARD A. LEO, MEGHAN J. RYAN
GREGORY M. GILCHRIST, WILLIAM W. BERRY III

81 Miss. L.J. 1437, 2012

This Article posits that Mississippi’s growing willingness to rethink the death penalty in its cu... more This Article posits that Mississippi’s growing willingness to rethink the death penalty in its current financial and penal situation is indicative of changes in the death penalty dialogue nationally, changes that have revived debate about the death penalty on both economic and ethical grounds. Part I reviews the history of the death penalty in Mississippi to provide a basis for comparison with its current status in the state. Part II examines the actions of court justices in ultimately opposing the death penalty, whether these decisions were economically or ethically influenced. Part III examines the political climate surrounding the death penalty and prison growth in general in Mississippi, and how that climate is changing under economic pressures. Part IV addresses the cost of the death penalty, particularly in the face of budgetary constraints. Part V compares Mississippi to other states in similar circumstances.
Lastly, Part VI examines the cases of Paul Woodward and Kennedy Brewer, two men sentenced to death in Mississippi. Paul Woodward was executed in 2010, while Kennedy Brewer was proven innocent and exonerated in 2008. These two cases highlight the indispensability of post-conviction counsel, and the necessary costs of the extensive appeals process in death penalty cases. These Mississippi cases reveal the economic necessity of fully funding counsel and evidence preservation and analysis for capital cases, underscoring how the cost of the death penalty will always intersect with the ethics of the institution.

82 Miss. L.J. 1337, 2013

Mississippi codified the death penalty because people thought a death sentence was a fair punishm... more Mississippi codified the death penalty because people thought a death sentence was a fair punishment for the most heinous of crimes. And, as predicted by behavioral economics, people were willing to sacrifice their own material well-being—in other words, willing to pay—to punish wrongdoers. But the death penalty is not fair. Regardless of whether the
death penalty is a just punishment,3 the financial toll that this policy places on citizens and counties is unfair. Because citizens have continually paid the costs of punishment, the costs have slowly disappeared from sight and knowledge in correlation to their growth. As the cost of a death penalty trial rises through subsequent appeals, counties must levy additional taxes to pay trial expenses, instead of using these taxes to pay for paving roads or repairing bridges. Few officials discuss the financial burden and consequences of the death penalty. This Article seeks to remedy that silence.

11 J. Gender Race & Just. 239, 2008

Asylum is generally granted based on the traits of the individual claiming asylum. An applicant o... more Asylum is generally granted based on the traits of the individual
claiming asylum. An applicant often proves she is persecuted through
various actions all centered on her identity. Examples include the harassed Christian whose church was set on fire, the labor activist who was detained and abused by the government,' the man, perceived to be a homosexual, who was raped and forced into prostitution." In contrast, for claimants who have been genitally mutilated, courts consider only the specific harm, not the basis for the harm. For a claim of female genital mutilation, the woman's identity does not matter as much as the act of mutilation itself.' A Jewish woman is injured by police, hurt on the streets by neighbors, and loses her job, because she is Jewish.' It is a
completely different standard to grant her asylum because of how she was hurt by her neighbors, rather than why; our immigration system often turns away applicants who can say they were harmed and forced to leave the country, but cannot say why. Through this unique asylum standard based on the harm itself, genital mutilation becomes a harm that stands alone and is disconnected from other harms against women. The woman is mutilated because her culture treats women a certain way. This treatment of women can include female genital mutilation, child prostitution, lack of property ownership and economic persecution, or other harms. However, when asylum is based on the act of persecution, rather than on the individual and the reason for her persecution, the applicant cannot prove she was harmed based on her identity as a
woman within her culture. Thus, other persecution she could face or did
face, such as prostitution or social exile,' does not matter because it cannot be connected to female genital mutilation.

81 Miss. L. J. Supra 55, 2011

The Mississippi Constitution protects the rights of life and liberty for all citizens. The intent... more The Mississippi Constitution protects the rights of life and
liberty for all citizens. The intent of Initiative 26 is to criminalize abortion in the State of Mississippi by defining life—and rights of citizenship—as
beginning at fertilization. Other possible outcomes include criminal charges against pregnant women accused of harming fetuses and increases in the prison population from newly incarcerated women. Such a trend is already observable in Alabama. If citizenship begins at the time of fertilization, then a tension develops between the unborn child’s right to life and the mother’s right to liberty. The question for the courts will be whether all citizens have equal rights, and how to balance these perhaps divergent and conflicting rights. The intent of Initiative 26 is to criminalize abortion in the State of Mississippi by defining life—and rights of citizenship—as beginning at fertilization. Other possible outcomes include criminal charges against pregnant women accused of harming fetuses and increases in the prison population from newly incarcerated women. Such a trend is already observable in Alabama. There the state prosecutes pregnant women who test positive for drugs while at the hospital, even if they are giving birth to apparently healthy newborns. Initiative 26, however, will not grant the state permission to
pursue such prosecutions. In Mississippi, the state currently does
not have the authority to prosecute a pregnant woman for actions,
intentional or unintentional, that are harmful to her unborn child.
If Initiative 26 passes, the state still will not have the direct
authority to criminally prosecute a mother for harm to the fetus,
because the initiative only changes the definition of person within
the limited scope of the Mississippi Bill of Rights. The definition
of person for all other statutes, including statutes defining crimes, will not be altered.

80 Mo. L. Rev. 629, 2015

Of the 1.6 million Americans in prison, most inmates are serving sentences for non-violent offens... more Of the 1.6 million Americans in prison, most inmates are serving sentences for non-violent offenses. Who is responsible? Hyper-incarceration is not simply due to outdated drug laws or stringent sentencing. Courts in the last thirty years have taken a lackadaisical back seat. Prosecutors are failing in their gate-keeping function nationally. Most simple arrests are prosecuted without even evaluating the substance of the case. Police stops can snowball into convictions through our plea system. In short, the criminal justice system provides no systemic accountability for its own results.

This Article focuses on this lack of accountability and proposes a conceptual shift, as well as a practical solution: pivoting accountability to the courts. Twelve states recognize the capacity of judges to dismiss cases in the interest of justice. Dismissal in the interest of justice allows a court to dismiss
a procedurally proper, but unjust or unjustifiable, cause of action.
Thus, dismissing cases in the interest of justice can provide a check where few exist for overzealous prosecutions, race-based patrolling, and overuse of “three strikes” laws. In addition, dismissals can require more consistency and reliability in evidence and in state prosecutions, whether on the misdemeanor or felony level. And ultimately all states can create this capacity through state laws and state rules of criminal procedure.

Transforming our prison paradigm moves beyond shifting individual
laws; court-initiated dismissals can address the underlying problem of accountability. By finding a practical application already in use by some
states, this Article creates a useful framework for both ends of the spectrum: conceptually reforming our system while practically assisting individual cases and lives.

119 W. Va. L. Rev. 519, 2016

West Virginia University has been a leader and innovator in interdisciplinary collaborations at t... more West Virginia University has been a leader and innovator in interdisciplinary collaborations at the intersection of forensics and the law. The University’s Forensics & Investigative Sciences (“FIS”) Department, which is nationally and internationally renowned, and the College of Law joined forces to develop the nation’s first Forensic Justice Master of Laws (“LL.M.”) degree. The West Virginia Law Review extended the trend by hosting the very first “Flawed Forensics and Innocence” symposium. Throughout the symposium, Law and FIS faculty led cutting-edge, forensic-centric discussions, challenging statisticians, scientists, journalists, lawyers, and professors to strategically engage and join the debate. Indeed, nothing better reflects the symposium’s scope, breadth, and public educational value than the six Articles contained in this Issue of the West Virginia Law Review.

117 W.Va. L. Rev. Online 63, 2015

This Article examines expungement in general, and the expungement statute in West Virginia in par... more This Article examines expungement in general, and the expungement statute in West Virginia in particular. Section I considers the historical basis of the West Virginia expungement statute, while Section II explains in detail the current West Virginia statute. Section III describes the collateral consequences of a criminal conviction in West Virginia, leading to incentives for modifying our expungement statute in Section IV. These benefits include supporting local economies and reducing recidivism. Section V concludes by comparing and contrasting West Virginia’s statute to other states and then by providing suggestions for modifying the West Virginia expungement statute. Support for reform of the statute comes from data on the impact of expungements on communities, on government fiscal responsibilities and capabilities, and on the ultimate impact on the functioning of our state criminal justice system. In line with the Justice Reinvestment Act, expungement reform is a next step along our path of broader prison changes in West Virginia.

112 Nw. U. L. Rev. 121, 2017

This Essay posits that certain structural dynamics, which dominate criminal proceedings, signific... more This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny. In the criminal system, the near absence of any pretrial discovery means the criminal defendant has little to no realistic opportunity to challenge forensic evidence prior to the eve of trial. We identify the impact of pretrial disclosure by exploring the admission of expert evidence in criminal cases from a particular forensic discipline, specifically forensic odontology. Finally, this Essay proposes the adoption of pretrial civil discovery and disclosure rules in criminal proceedings to halt the flood of faulty forensic evidence routinely admitted against defendants in criminal prosecutions.

13 Ohio St. J. Crim. L. 543, 2016

Sandra Guerra Thompson’s book, Cops in Lab Coats: Curbing Wrongful Convictions Through Independen... more Sandra Guerra Thompson’s book, Cops in Lab Coats: Curbing
Wrongful Convictions Through Independent Forensic Laboratories, debuts when forensic flaws are reaching a pinnacle of exposure. The Federal Bureau of Investigation (FBI)—arguably the best of the best in the forensics world—has conceded that it is currently re-examining thousands of closed cases for errant and faulty forensic testimony. While the FBI has conducted this type of review on a previous occasion, this time the review is public and all of us—including criminal defendants—know about it. Law enforcement’s past cover-ups of faulty forensics is at the heart of Thompson’s book: she posits that forensic labs should be independent rather than controlled by prosecutors and used to convict persons no matter the human cost. In brief, Thompson’s book captures the recent history of forensic validation—and invalidation—and its critical impact on the criminal justice system.
Cops in Lab Coats traces the recent history of forensic reform in
the context of the criminal justice system and exposes the damage
inflicted on that system by forensic fraud. Thompson’s inclusion of
wrongful convictions in her discussion mirrors the national
conversation. Innocence is the primary impetus to ensure that forensic
disciplines become more reliable, forensic findings more testable, and
forensic inquiries more independent.

45 Hofstra L. Rev. 365, 2016

Innocent people have been convicted of crimes they did not commit throughout history. The exact n... more Innocent people have been convicted of crimes they did not commit
throughout history. The exact number of wrongful convictions is
unknowable. In 2014, however, the National Academy of Sciences
("NAS") released a study of the cases of criminal defendants who were
convicted and sentenced to death and concluded that 4.1% were
wrongfully convicted.' The researchers explained that "this is a
conservative estimate of the proportion of false conviction among death
sentences in the United States." 2 According to the U.S. Department of
Justice, Bureau of Justice Statistics, 1,561,500 adults were incarcerated
in federal prisons, state prisons, and county jails in 2014, with an
additional 4,708,100 adults under community supervision programs such
as probation and parole.3 If we apply the NAS conservative estimate to just those who are incarcerated, there are more than 90,000 people
wrongfully convicted and imprisoned in the United States.

Co-authors: Gwen Jordan, Aliza B. Kaplan, Keith A. Findley

3 Tex. A&M L. Rev. 179, 2015

The Innocence Network is “an affiliation of organizations from all over the world dedicated to pr... more The Innocence Network is “an affiliation of organizations from all
over the world dedicated to providing pro bono legal and investigative
services to individuals seeking to prove innocence of crimes for which
they have been convicted, and working to redress the causes of wrongful
convictions.”1 Beginning in 1999 and 2000 in Chicago, Illinois, a
small group of interested legal and social science scholars and clinic
directors met at the Northwestern University School of Law to discuss
ways to investigate and litigate claims of actual innocence. The first
recognized National Innocence Conference took place at the California
Western School of Law in 2002, and included 130 registered attendees.
The Innocence Network, building upon the successful 2002
conference, formally established an advisory Board of Directors in
2005. An annual Innocence Network conference has been held each
year since 2002, with the May 2015 conference in Orlando, Florida,
generating more than 500 attendees, including 150 exonerees.

Co-authors: Robert Schehr, Aliza B. Kaplan.

73 Wash. & Lee L. Rev. Online 580, 2017

This Essay responds to Professor Brandon Garrett’s Constitutional Regulation of Forensic Evidence... more This Essay responds to Professor Brandon Garrett’s
Constitutional Regulation of Forensic Evidence, and, in
particular, his identification of the dire need to change the culture
of disclosing forensic evidence. My work on forensics is—similarly
to Garrett’s—rooted in both scholarship and litigation of wrongful
convictions. From this perspective, I question whether prosecutors
fully disclose forensics findings and whether defense attorneys
understand these findings and their impact on a client’s case. To
clarify forensic findings for the entire courtroom, this Essay
suggests increased pre-trial discovery and disclosure of forensic
evidence and forensic experts. Forensic analysts largely work in
police-governed labs; therefore, this Essay also posits ways to
ensure complete Brady compliance as well as obtain accurate and
reliable forensic findings. Correctly understanding forensic
findings can remedy a lack of transparency surrounding whether
results were completely disclosed and whether the results support
the testimony of lab analysts. Finally, to assist the court with its
gate-keeping role of admitting forensic science disciplines and
findings, this Essay recommends that courts appoint independent
experts under Federal Rule of Evidence 706.

Other Publications by Valena E Beety

FEMINISTING , 2008

Available here: http://feministing.com/2008/05/15/georgia\_rape\_case\_dismissed\_be/

JACKSON FREE PRESS , 2010

CHARLESTON GAZETTE , 2012

Available here: http://www.wvinnocenceproject.law.wvu.edu/r/download/152604

The West Virginia Lawyer, 2013

Carolina Academic Press Forthcoming 2018

Co-author: Russell Covey

82 Tenn. L. Rev. 975 , 2015

90 Denv. U. L. Rev. 331, 2012

68 Fla. L. Rev. 1569, 2016

Co-authors: LUCIAN E. DERVAN, RICHARD A. LEO, MEGHAN J. RYAN
GREGORY M. GILCHRIST, WILLIAM W. BERRY III

81 Miss. L.J. 1437, 2012

82 Miss. L.J. 1337, 2013

11 J. Gender Race & Just. 239, 2008

81 Miss. L. J. Supra 55, 2011

80 Mo. L. Rev. 629, 2015

119 W. Va. L. Rev. 519, 2016

117 W.Va. L. Rev. Online 63, 2015

112 Nw. U. L. Rev. 121, 2017

13 Ohio St. J. Crim. L. 543, 2016

45 Hofstra L. Rev. 365, 2016

Co-authors: Gwen Jordan, Aliza B. Kaplan, Keith A. Findley

3 Tex. A&M L. Rev. 179, 2015

Co-authors: Robert Schehr, Aliza B. Kaplan.

73 Wash. & Lee L. Rev. Online 580, 2017

FEMINISTING , 2008

Available here: http://feministing.com/2008/05/15/georgia\_rape\_case\_dismissed\_be/

JACKSON FREE PRESS , 2010

CHARLESTON GAZETTE , 2012

Available here: http://www.wvinnocenceproject.law.wvu.edu/r/download/152604

The West Virginia Lawyer, 2013

Oxford Human Rights Hub, 2016

Available here: http://ohrh.law.ox.ac.uk/justice-antonin-scalias-rebuke-of-innocence/

JURIST, 2017

Available here: http://www.jurist.org/forum/2017/03/Valena-Beety-death-penalty.php

Clinical Legal Education Association Newsletter , 2016

ABA Insights on Law & Society Magazine , 2017

Guest, PBS television show “The Law Works” , 2012

Available here: https://www.youtube.com/watch?v=w9SsK\_lwKIc&t=418s

Guest, PBS television show “The Law Works,” , 2013

Available here: https://www.youtube.com/watch?v=fCloCDAJh4A&t=595s

PBS television show “The Law Works,” , 2013

Available here: https://www.youtube.com/watch?v=MZy1vXhaxW4&t=955s

WCHS radio show “Ask the Expert,” , 2014

Available here: http://stationcaster.com/player\_skinned.php?s=88&c=815&f=2373463

UMPR News with Kerri Miller , 2017

Available here: http://www.mprnews.org/story/2017/01/10/rising-rate-of-women-in-prison

Undisclosed Podcast , 2017

Panel Discussion , 2017

Available here: https://www.youtube.com/watch?v=FUqFKjiffxA

Fire science, a field largely developed by lay "arson" investigators, police officers or similar ... more Fire science, a field largely developed by lay "arson" investigators, police officers or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages in justice. As science-proficient commentators have noted, "[f]ire scene investigators are subject to very little proficiency training, and the field's requirements call for no more than a high school education." 2 Perhaps surprisingly, courts have largely spared many of the now-debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Essay contrasts the courts ongoing lax admissibility of unreliable fire science evidence in criminal cases with their strict exclusion of the same flimsy evidence in civil cases notwithstanding that both criminal and civil courts are required to operate under the same expert evidence exclusionary rules.