In 1994, Damien Echols, Jason Baldwin and Jessie Misskelley Jr. (known as the West Memphis 3), were convicted of murdering three 8-year-old boys: Stevie Branch, Michael Moore and Christopher Byers. Damien, tried separately from the other two defendants, received the death penalty. Jessie received life plus 20 years and Jason received life. Throughout the trials, they maintained their absolute innocence.
However, this was not a typical investigation and prosecution. There was sparse funding for the defense during the original trials, and the evidence against the defendants was not just circumstantial but deeply flawed. Other compounding factors included: ignorant/ untrained law enforcement investigators, a phony set of false confessions achieved by dubious means and immediately recanted, inflammatory pretrial publicity against the defendants regarding phony and contrived evidence of satanic rituals, a hostile community (with a lack of venue change), and inappropriately close relationships between prosecutors, the trial judge, and defense attorneys. To say nothing of the observation that the defense attorneys were not truly murder experienced or death qualified to the level that one would expect (if at all).
This author became involved in the case during post-conviction review. By a twist of fate, I was the first forensic scientist to be hired by the defense to examine the evidence, evaluate the investigation, and reconstruct the crime – ultimately going so far as to offer a profile of the offender responsible (in response to under-informed and generally inaccurate profile prepared by the FBI’s BAU, which was at the time supervised by John Douglas). I found some pertinent things that had been missed and pointed the defense in some important new directions. This won me few friends in Arkansas, where the West Memphis Police still keep a special fire of hatred alive for me (and others that have exposed their lack of competence and professionalism, I expect). This, however, comes with working the evidence objectively instead of being governed by ones emotions. And it’s why forensic experts, with no dog in the fight, are necessary in every legal proceeding that requires evidence interpretation.
In late October of 1998, I testified under oath to my findings regarding the biased and inept investigation conducted by the police, the flawed conclusions that had been reached about the evidence, and uninformed theories of the case that had been allowed to be put before the jury without competent refutation. This along with other forensic experts for the defense (a forensic pathologist and a forensic Odontologist), as part of a Rule 37 hearing to establish that the West Memphis 3 had suffered from Ineffective Assistance of Counsel (IAC), and therefore should be given a new trial with more adequate representation.
This attempt at a new trial quickly failed. None of us on the ground in West Memphis back in 1998 were surprised. The same judge who appointed defense attorneys, denied funding, and presided over the original trials (David Burnett), also made a point of presiding over every post-conviction hearing. In grading the quality of his own work, it was a foregone conclusion that Judge Burnett would never agree that he had acted improperly, denied vital funding to the defense, or appointed unqualified defense attorneys to represent the defendants.
It’s also worth noting that this 1998 post-conviction hearing, and the events leading up to it, were partially documented in the second of two documentary films about the case by Joe Berlinger and Bruce Sinofsky – Paradise Lost 2: Revelations (both films are being re-aired by HBO next week [August 29th and 30th, 2011, respectivel], and third film is soon to be released). An overview of the case and the evidence can be found at wm3.org and Salon.com. My report in the case was also published in the first edition of my textbook, Criminal Profiling, now it it’s 4th edition.
New Evidence, New Judge, and a Devil’s Deal
After 10 years of investigation, with multiple state’s witnesses having recanted, with new DNA testing that points to other suspects, and with a completely new legal team at work, the West Memphis 3 were set free on August 19, 2011. The circumstances that lead up to their release, and the devil’s deal that was struck with prosecutors to gain their freedom, were a sudden shock to the system for all of those caught unprepared. Myself included.
This deal came about because a new judge, David Laser, was presiding over a hearing set for this coming December regarding all of the newly discovered evidence in the case. Scott Ellington (pictured), prosecuting attorney for the 2nd Judicial District, has made clear that he believes Judge Laser would have overturned the convictions and granted the West Memphis 3 new trials. Moreover, that those trials would likely result in acquittals for all of the defendants (Jared, 2011). The fear of this eventuality, and the cost of wrongful conviction lawsuits, weighed heavily in the decision to make a plea deal before the December hearing, Ellington explained (Jared, 2011).
The devil’s deal was this: all three defendants would have their convictions vacated so long as they each agreed to immediately enter an “Alford Plea”, at which point they would be sentenced to time served and released after 18 years of imprisonment.
This unorthodox development has many asking an important question – what’s an Alford Plea? It also has some ignoring this difficult legal concept and merely stating that the West Memphis 3 have pleaded guilty in exchange for release. Makes for a better sound-byte, though wholly misleading. Having worked as a forensic scientist and testified in courtrooms around the United States for the last 15 years, I’ve encountered them only a few times. Each use was different. Some discussion is warranted, without which it is difficult to understand the kind of justice that has been achieved in this case, if any.
A useful history of the Alford plea is offered in Redlich and Ozdogru (2009; pp.468-469):
In brief, Alford pleas allow defendants who do not wish to risk their fates at trial to plead guilty while simultaneously asserting their innocence.
In 1963, Henry C. Alford was accused of first-degree murder in North Carolina. Alford was an African American man in the South at the height of the civil rights movement. His lawyer, who was just a few years out of law school at the time, recently stated it was a case fraught with racial overtones (Barksdale, 2007).
Alford went to visit a prostitute at a drink house and allegedly got into a fight with Nathaniel Young. Young was later killed from a shotgun blast. Despite Alford’s claims of innocence, there was seemingly strong evidence of his guilt. Specifically, although there was no eyewitness to the crime, there were witnesses who claimed that shortly before the murder, Alford returned home to get his gun, stated he was going to kill the victim, and then upon returning home, stated that he carried out the killing. Alford also had a lengthy criminal history, including a prior conviction for murder.
At his arraignment, Alford was expected to plead guilty but then testified that he did not kill Young and was pleading guilty only to avoid the death penalty. Specifically, Alford stated, ‘‘I pleaded guilty on second degree murder because they said there is too much evidence, but I ain’t shot no man, but I take the fault for the other man. We never had an argument in our life and I just pleaded guilty because they said if I didn’t they would gas me for it, and that is all.’’
After some discussion that Alford indeed spoke with his attorney and family members about his decision to plead and that he had been informed of his rights, the following exchange occurred between Alford and his attorney:
Attorney: ‘‘And you authorized me to tender a plea of guilty to second degree murder before the court?’’
Alford: ‘‘Yes, sir.’’
Attorney: ‘‘And in doing that, that you have again affirmed your decision on that point?’’
Alford: ‘‘Well, I’m still pleading that you all got me to plead guilty. I plead the other way, circumstantial evidence; that the jury will prosecute me on - on the second. You told me to plead guilty, right. I don’t - I’m not guilty but I plead guilty.’’
According to published news reports at the time, Alford was unable to read or write (Barksdale, 2007). Despite his claims of innocence, the trial judge allowed Alford to enter a guilty plea and sentenced him to the maximum 30 years for second degree murder. Alford then repeatedly sought relief. Alford’s conviction was eventually overturned by the Fourth Circuit Court of Appeals, but then re-affirmed in the now famous Supreme Court decision, North Carolina v. Alford, U.S. 400 25 (1970). In this six to three decision, the court recognized that while there are usually two components of pleading guilty—the waiver of the right to a trial and the admission of guilt—the latter is not a constitutional requisite to imposing a criminal sanction. In his dissent, Justice Brennan remarked that Alford was ‘‘so gripped by fear of the death penalty that his decision to plead guilty was not voluntary but was the product of duress as much so as choice reflecting physical coercion’’ (p. 40). As a result of this landmark decision, defendants can now enter ‘‘Alford pleas’’ (sometimes called ‘‘best-interest pleas’’ or, in New York, Serrano pleas) when they claim to be innocent but perceive their chances for acquittal at trial to be too much of a risk. Alford died in prison in 1975.
According to the U.S. Supreme Court’s ruling in North Carolina v. Alford (1970): "An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." The Alford plea is intended as a unique sub-class of guilty plea, where a defendant maintains their innocence while simultaneously admitting that the state might be able to convict them at trial. In doing so, the defendant accepts the penalties associated with an admission of guilt while declaring their innocence. In other words, “pleading guilty without admitting factual guilt,” (Gooch, 2010; p.1757). By contrast, a stronger sub-class of the guilty plea, wherein the court levies legal penalties associated with guilt and the defendant admits neither guilt nor innocence, is the nolo or no contest plea. These sub-pleas are not, by any stretch, the same as a straightforward admission of guilt, and suggesting otherwise conceals important factual realities.
It is important to recall at this point that scientific fact and legal truths are not at all the same thing, governed by very different rules and realities (Thornton and Peterson, 2002). Scientific fact refers to information and events that have been established based on a broad factual record to a reasonable degree of objective scientific certainty by scientists using the scientific method. Legal truth refers to information and events that have been established by a court ruling based on a narrow factual record—at the discretion of a judge and/or jury (Turvey et al, 2010). This is why factually innocent people can get convicted of crimes they did not commit, and the factually guilty can avoid being convicted, depending on what is presented in courtroom and how it is perceived.
A Strong Factual Basis
A distinguishing feature of the Alford Plea is the requirement of a strong factual basis for accepting the legal consequences of guilt. In other words, as explained in Natapoff (2008; p.986):
The Alford court noted that the guilty plea in that case was acceptable in part because the trial court had before it a "strong factual basis for the plea" and "telling evidence" of guilt." In other words, even where a defendant declines to invoke the adversarial process in order to contest the government's information, waiver is not enough: guilt still requires some supporting information.
The judge, in accepting an Alford Plea, is required to ensure that such a factual basis exists. As explained in Redlich and Ozdogru (2009; p.470):
In theory, courts are supposed to find a sufficient factual basis of guilt before allowing the plea. Although Alford pleas are guilty pleas, with traditional guilty pleas the admission of guilt via the plea itself or the in-court allocution serves as the factual basis. With Alford pleas, however, because the person insists on innocence, the judge must determine there is sufficient evidence of guilt in order to allow the plea. However, as Shipley (1987) argues, ‘sufficient’ was never defined, guidelines were never forthcoming, and as a result, the pleas are accepted—or not accepted—for a variety of reasons, with differential standards applied. Further, the judge often relies on a summary of the evidence provided only by the state without a similar summary provided by the defense (Shipley, 1987).
This would suggest that while the requirement exists, it is weak in practice because of the necessity of the Alford plea in making certain expedient plea deals.
The plea deal in this case has been described as the releasing of hostages in exchange for immunity (from civil wrongful conviction lawsuits). This is an accurate analogy in my view. And questions remain as to whether an Alford plea makes sense for these defendants, under these circumstances.
From the defendants’ perspectives, the answer must be an unwavering “yes”. Any improvement in their circumstances at all is an order of magnitude greater than anything that has happened, from a legal perspective, in the past 18 years. Being released and free to live out their lives while still relatively young is a condition that I’m sure they would be unable to put a price on. It also allows them to proclaim their innocence and continue legal battles while not constrained by incarceration.
From the perspective of the prosecution, it also makes sense. It allows them to claim victory and declare the legal guilt of the defendants without admitting to any of the wrongdoing that the case is now known for. And this is where we run into problems.
- Alford requires a strong factual basis for guilt to be provided by the prosecution. Given that the states key witnesses have recanted at this point, that no physical evidence connects the defendants with the crime, and that strong physical evidence suggests other suspects, this Alford requirement is not met. This is actually not my opinion, but the opinion of Scott Ellington, prosecuting attorney for the 2nd Judicial District. He made it very clear in his statement to the press that the lack of evidence and witnesses made acquittals a very real possibility – which is why he agreed to the Alford plea deal.
- Scott Ellingson also made it clear that part of the reason for the plea deal was to avoid having to make massive payouts that would necessarily result from wrongful conviction lawsuits. He even started to do the math in his press conference, counting into the tens of millions. He even stated, explicitly, this decision was based on the math. This would seem to indicate a complete lack of confidence in the state’s case.
- Despite acknowledging the utter absence of evidence of guilt (other than the ability to secure a conviction when the deck is stacked), and that the convictions were likely going to be overturned, Mr. Ellingson, the States’ Attorney General, and now the governor of Arkansas have all made clear that they stand behind the convictions and that no further inquiry is required. This position is at odds with the clearly stated reasons for making the deal in the first place – fear of lawsuits and cost (as so eloquently stated by Peter Jackson in his response to the verdicts: “So the West Memphis three are finally released”). And with the anticipated findings of the Judge Laser.
- Without acknowledging the problems that led to the wrongful convictions of these individuals, reforms will not be possible and further harm may be done by those that have been protected by this deal. And there are many.
It is easy to understand the state’s internally conflicted positions as an example of cognitive bias reified, (as suggested in an article by UCLA Law Professor Jennifer Mnookin; see: The 'West Memphis Three' and combating cognitive biases). However, this makes their lack of logic no less acceptable. In this case, justice has indeed been negotiated; by extorting Alford pleas from the defendants in exchange for their freedom.
We should expect more from our justice system. In point of fact, we need more from our justice system. Otherwise, we teach our legal professionals and our politicians that justice can be negotiated, and that it is better to save face than admit wrong, and let actual criminals escape justice. If those responsible for this plea actually believe that they have let guilty defendants walk free, then it is an affront to justice. The same is true if they are simply making a deal to save face. In either case, it would seem that they are generally unfit for public service.
So from the perspectives of criminal justice practitioners and the general public, this agreement should be unacceptable – not just in terms of what an Alford plea legally requires, but what we require from our public servants as well. We should, as they say, consider not just what we kill with these kinds of agreements, but also what we let live.
Barksdale, T. (2007) “Piedmont profile–(Not) guilty: Lawyer in case that led to Alford plea says he worried about later questions,” Winston Salem Journal; Retrieved June 5, 2007 from http://www.accessmylibrary.com/coms2/summary_0286-30144461_ITM.
Gooch, A. (2010) “Admitting Guilt by Professing Innocence: When Sentence Enhancements Based on Alford,” Vanderbilt Law Review, 63(6); pp.1755-1792.
Jared, G. (2011) “Prosecutor: ‘We made right call’ in WM3 case,” Paragould Daily Press, August 23.
Natapoff, A. (2008) “Deregulating Guilt: The Information Culture of the Criminal System,” Cardozo Law Review, 30(3); pp.965-1021.
North Carolina v. Alford (1970) 400 U.S. 25.
Redlich, A., and Ozdogru, A. (2009) “Alford Pleas in the Age of Innocence,” Behavioral Sciences and the Law, Vol. 27; pp.467-488.
Shipley, C. J. (1987) “The Alford plea: A necessary but unpredictable tool for the criminal defendant,” Iowa Law Review, 72, 1063–1089.
Thornton, J. and Peterson, J. (2002) “The General Assumptions and Rationale of Forensic Identification,” In: Faigman, D. L., Kaye, D. H., Saks, M. J. and Sanders, J. (Eds.) Modern Scientific Evidence: The Law and Science of Expert Testimony, vol. 3, St. Paul, MN: West Publishing Co.
Turvey, B., Ferguson, C. and Petherick, W. (2010) Forensic Criminology, San Diego: Elsevier Science.