by Lise LaSalle
It’s not Damien Echols first plea to the authorities to try to right the wrong that he and his two compagnons de misère suffered after the brutal murder of three boys in his hometown.
Dubbed the ‘’West Memphis Three’’, Damien Echols, Jessie Misskelley and Jason Baldwin were charged with the murder of three 8-year old boys in 1994 in West Memphis. They fought for their innocence but to no avail, because a confession made by Misskelley under duress, gave the prosecutors ammunition to convict them. As three indigent defendants, they did not stand a chance against the big powerful machine of the District Attorney’s Office, which was eager to find the culprits and appease the media and the area residents.
Misskelley and Jason Baldwin received life and Echols was sent to death row. They were released from prison after serving seventeen years pursuant to plea agreements reached with prosecutors: the three defendants entered ‘’Alford pleas,’’ in which they maintained their innocence but agreed that prosecution had enough evidence to convict them.
It is quite ironic that the three young men were falsely accused and had to falsely confess to get their freedom back.
The advent of plea bargaining in the legal system in the past century has rendered the classic ‘’trial’’ virtually obsolete. From 1976 through 2002, in terms of percentage of dispositions, state-court criminal trials declined from 8.5% to 3.3%, bench trials as a percentage of dispositions fell from 5.0% to 2.0%, and jury trials declined from 3.4% to 1.3%. While the guilty plea represents the largest share of adjudicated cases in federal criminal justice with 95.2%.
In the case of the West Memphis Three, the only substantial piece of evidence that existed linking them to the crime was, from all accounts, a coerced confession that was subsequently retracted and not even used during trial. They opted for an Alford plea to make sure Echols would be set free right away. They feared for his life on death row and wanted to avoid another lengthy legal fiasco.
Once entered into, this type of plea can only be undone by the Governor of the State who has the power to grant an executive clemency.
The Alford Plea
The Alford plea has evolved to encompass a small share of adjudicated cases in the United States. This plea derives from North Carolina v. Alford, in which the United States Supreme Court. in 1970, held that guilty pleas by defendants who maintain their innocence do not violate due process.
In Italy, Nolo Contendere is a plea that is the functional equivalent to the Alford doctrine which has the same legal effect as a plea of guilty on all further proceedings within the indictment. By entering such a plea, a defendant might be able to avoid formally admitting guilt at the time of sentencing, but he nonetheless consents to being treated as if he were guilty with no assurances to the contrary. In California, a nolo contendere plea is known as a West plea after a seminal case involving plea bargains.
In the Commonwealth countries such as England, Canada or Australia, the plea of nolo contendere is not permitted. The defendant must enter a plea of ‘’guilty’’ or ‘’not guilty’’. If a defendant refuses to enter a plea, the court will record a plea of ‘’not guilty’’.
Henry Alford was indicted for first-degree murder on December 2, 1963 and during his trial preparations, his attorney interviewed several witnesses who led him to believe Alford was guilty and that he probably would be convicted at trial. Even if there were no actual witnesses to the murder, some people swore under oath that Alford had taken his gun from his home. They also said that Alford confessed to the killing of the victim. But he maintained his innocence.
In view of these statements, Alford’s attorney recommended he plead guilty to a lesser charge of second-degree murder. Alford pled guilty to second-degree murder but stated to the court that he was innocent and that he was pleading guilty only to avoid the death penalty. The judge sentenced him to 30 years and Alford appealed on the constitutional ground that his plea was “the product of fear and coercion’’ and in violation of his constitutional rights.
In 1965, the state court found that the plea was entered into “willingly, knowingly and understandingly’’ and “made on the advice of competent counsel and in the face of a strong prosecution case.’’
Alford petitioned for a writ of habeas corpus, first in the United States District Court for the Middle District of North Carolina, which denied the writ based on its findings that Alford had “voluntarily and knowingly agreed to plead guilty,’’ and then in the U.S. Court of Appeals for the Fourth Circuit. A divided panel of the Fourth Circuit reversed and held that his plea was involuntary because it was motivated by fear of a death sentence.
The Supreme Court held that there are no constitutional barriers in place to prevent a judge from accepting a guilty plea from a defendant who wants to plead guilty while still protesting his innocence.
The Court stated, “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 Court also held that a judge can accept the plea only if “strong evidence of actual guilt’’ exists. The Court also noted that the defendant in this case was represented and advised by competent counsel and that there was substantial evidence that tended to demonstrate guilt; thus, the defendant “intelligently’’ concluded that it would be to his advantage to plead guilty in order to avoid the death penalty.
It is important to note that in its holding, the Court did not give all defendants a legal right to enter Alford pleas; rather, the Court left it to individual states and judges to decide whether they want to accept Alford pleas. The Court stated:
A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court…although the States may by statute or otherwise confer such a right. Likewise, the States may bar the courts from accepting guilty pleas from any defendants who assert their innocence…which gives a trial judge discretion to ‘’refuse to accept a plea of guilty’’We need not now delineate the scope of that discretion.
Justice Brennan, joined by Justices Douglas and Marshall, dissented, focusing on the death penalty aspect of the case. He stated that Alford’s guilty plea was not made voluntarily because he was “so gripped by fear of the death penalty”.
Currently, forty-seven states and the District of Columbia accept Alford pleas.
Federal courts have constantly discouraged Alford pleas and federal prosecutors are reluctant to encourage them because the policy of the U.S. Department of Justice discourages them. Statistics show that state defendants enter Alford pleas much more frequently than federal defendants.
In general, defendants use Alford pleas much less frequently than traditional guilty or not-guilty pleas.
FALSE CONFESSIONS AND THE INCEPTION OF THE INNOCENCE MOVEMENT
It is clear why attorneys whose clients have confessed would seek a plea bargain: most people do not understand why someone would confess to a crime that he did not commit. The United States Supreme Court has recognized the power of confessions as evidence of guilt. But psychologists have also commented on the persuasive power of confessions.
Confessions are so powerful for a judge or jury responsible for deciding factual issues in a trial that it is not surprising that innocent defendants and their attorneys might want to rush to enter Alford pleas in exchange for a reduced sentence when defendants have made false confessions.
False confessions usually arise from specific police interrogation tactics and can occur when police interrogators are pressuring and psychologically coercive. The Reid Technique is the most widely implemented police interrogation and it instructs the police “to use coercive and deceptive techniques to obtain a confession’’ such as “presenting false evidence, preventing the suspect from speaking unless he/she is making a confession, tricking the suspect into a confession by offering an understanding and sympathetic attitude, and minimizing the moral seriousness of the crime.”
Detective Flores comes to mind with his interrogation of Jodi Arias where he basically told her that Travis Alexander was a player and she was a nice girl. It was also used on Colonel Williams where the detective acted like his friend and used a very friendly tone to put him at ease.
Experts have uncovered at least 250 interrogation-induced false confessions over the last thirty years, and there are likely many more. The U.S. Supreme Court has also recognized that sophisticated police interrogation techniques can produce false confessions. In 2009, the Court found that “there is mounting empirical evidence that these pressures (associated with custodial police interrogation) can induce a frighteningly high percentage of people to confess to crimes they never committed.”
THE WEST MEMPHIS THREE
On May 6, 1993, the dead bodies of eight-year-old Steven Branch, Michael Moore and Christopher Byers were found submerged in a creek in a strip of woods next to a highway in an area of West Memphis, Arkansas, known as “Robin Hood Hills.” The boys had been reported missing the night before by Byer’s adoptive father, John Mark Byers. They were found in the nude, their hands and feet hog-tied with their own shoelaces, and they had been beaten and mutilated. The cause of death was ruled as drowning.
With no leads, the police began to suspect that the murders were a result of satanic cult activity.
Guided by a youth worker not too fond of Damien Echols, they focused their attention on this eighteen-year-old high school dropout, who wore black and was supposedly, engaged in Satanism. He was a troubled teen showing signs of personality disorders and depression, probably stemming from his family life.
A witness who had claimed to witness the murders, led the police to seventeen-year-old Jessie Misskelley. His statements were clearly unreliable, as she had told various versions and her story was full of holes.
Misskelley had a very low IQ, and it made him extremely susceptible to police interrogation techniques. Over the course of several hours (transcripts of the interrogation are unavailable, although transcripts of the confessions themselves are available), he confessed to seeing Damien Echols and his friend, Jason Baldwin, rape and kill the three boys.
However, his confession featured many characteristics that experts have identified as indicative of a false confession. The facts of the crime were wrong.
For instance, Jessie claimed that he, Damien, and Jason had picked up the boys and killed them at around noon; however, the murder had happened in the evening.
Misskelley refused to testify against Damien and Jessie. Defense attorneys later learned that one juror had actually read about Misskelley’s confession and told the other jury members during deliberations.
Echols and Baldwin were both found guilty of first-degree murder. Baldwin was sentenced to life in prison without the possibility of parole and Echols received a death sentence. The court of public opinion wanted to see them found guilty and they were.
During the investigation and trial, HBO began filming a documentary about the murders that came to be titled Paradise Lost. This documentary shocked viewers and many supporters of the West Memphis Three decided to take action. Experienced appellate attorneys were brought into the case. The three defendants petitioned for a new trial on the basis of newly discovered evidence, including DNA-testing results that excluded Misskelley, Baldwin, and Echols as donors of genetic material recovered from the crime scene.
Lower court judges repeatedly denied these petitions. Finally, in November 2010, more than fifteen years after their convictions, the Supreme Court of Arkansas granted the petitioners’ request for an evidentiary hearing to determine whether a new trial was in order; the hearing was to take place in October 2011.
However, it was obvious that this process would drag on and the West Memphis Three would have to languish for years in prison while awaiting the outcome of the hearing and a possible new trial.
Defense attorney Steven Braga contacted the State and made a proposal: the defendants would enter an Alford plea; in exchange, all three would be released from prison. The State agreed to the deal. The decision to accept the deal was not an easy one for the West Memphis Three, and especially for Jason Baldwin, who wanted to fight for his innocence and obtain a full exoneration.
Damien Echols, on the other hand, had been in solitary confinement for most of his prison stay on death row; his emotional and physical health were jeopardized. Therefore, he accepted the agreement as a means to get out of prison as quickly as possible. Understanding the toll that his stay on death row was having on Echols, Baldwin generously agreed to the deal.
On August 19, 2011, the three men were freed
Each defendant made the choice that he felt best served his immediate needs at the time of the plea, but it is important that innocent defendants and their attorneys understand the harsh ramifications of Alford pleas regarding post-conviction remedies or hopes of proving “actual innocence.” After analyzing the potential benefits and negative consequences of using the plea, and given the recent success of the Innocence Movement in spreading awareness about the phenomenon of false confessions, legal experts think that a defendant should not enter an Alford plea if the State’s case against him rests on a confession lacking any corroborating evidence, such as was the case with the West Memphis Three.
If any new DNA evidence is found in the case of the West Memphis Three, for example, the defendants cannot use this newly discovered evidence to seek a new trial or a full exoneration by a judge. Rather, after the West Memphis Three entered their Alford pleas, prosecutors “declared the case closed.” This also has ramifications for the victims’ families. Assuming that the West Memphis Three are in fact innocent, as many have come to believe, the true perpetrator(s) of the crime will likely never be brought to justice. No more public investigations will be done and no new leads will be explored. Echols, Baldwin, and Misskelley will remain the convicted killers of Christopher Byers, Michael Moore, and Steven Branch unless the Governor of Arkansas grants them clemency. As previously mentioned, the West Memphis Three’s cases are procedurally unique because their Alford pleas were entered years after their convictions as a means of securing release for the defendants.
However, while the West Memphis Three are currently out of prison, they are not fully exonerated in a legal sense.
A better solution could lie in the judicial system itself. Maybe judges should refrain from accepting such pleas when the evidence of guilt is based solely on a confession. Or maybe as educated citizens, we should place more political pressure on prosecutors to refrain from bringing a case against a defendant based solely on a confession that exhibits classic signs of coercion and contamination. No matter the solution, one thing is clear: it is an utter travesty for our justice system to allow innocent defendants to sit in prison or to fail to give a defendant who has been released on an Alford plea the ability to clear his name.
The West Memphis Six
It is obvious that the defendants and the three young boys in this case, were victimized. The boys were killed under atrocious circumstances and three teenagers also lost their freedom and their future because of the prejudice and false presumptions of the prosecutors.
We might never know who perpetrated the crime against the three young boys. The scene of the crime was close to a truck stop so it could easily have been a crime of opportunity. The flimsy DNA found on the boys could be traced to one of the boy’s stepfather and his friend but not unlike the first case, it is not sufficient to draw conclusions. And once again, some unreliable witnesses are now pointing the fingers at supposedly guilty parties.
Three new witnesses even include a boy who like Misskelley, has a low IQ and is susceptible to suggestion. It seems to be destined to be a case of hearsay. And unless strong evidence is uncovered, the same mistakes should not be repeated.
Damien Echols published his book Life after Death in 2012 and the French version just came out. During his book tour in France, Damien took the opportunity to address President François Hollande and pleaded with him to ask Obama to reopen the case to clear the West Memphis Three’s names. Let’s hope that this plea will be more profitable.
You can spread the word by sharing and signing the enclosed petition.