When innocent defendants falsely confess: analyzing the ramifications of entering Alford pleas in the context of the burgeoning innocence movement.

• Author: Schneider, Sydney

1. INTRODUCTION

   On August 19, 2011, Damien Echols left death row and faced the world for the first time in seventeen years. (1) Dubbed the "West Memphis Three," Echols, Jessie Misskelley, and Jason Baldwin were convicted of the brutal murders of three children in West Memphis in 1994 based on Misskelley's confession. (2) 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 prosecutors had enough evidence to convict. (3)

   In Virginia, meanwhile, twenty-seven-year-old Robert Davis has been sitting in a prison cell for the past eight years. Charged with arson and the murder of a woman and her son, Davis entered an Alford plea in 2004. (4) He was sentenced to twenty-three years in prison. (5) Davis and his attorney maintain that his confession back in 2003 was coerced and Davis never committed these crimes. (6) Because Virginia bars defendants who enter Alford pleas from seeking postconviction relief, Davis's only hope for release rests in the hands of Virginia Governor Robert F. McDonnell, who has the power to grant executive clemency. (7)

   While the defendants in these cases currently find themselves in very different predicaments, these two cases share one common theme: both feature defendants who were charged with murder and falsely confessed. Thus, each case serves as an excellent lens through which to view the issues surrounding Alford pleas in today's justice system. Specifically, this Comment will analyze the use of Alford pleas in cases where the only substantial piece of evidence linking the defendant to a crime is a confession.

   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%. (8) While the guilty plea "represent[s] the largest share of adjudicated cases in ... federal criminal justice" (95.2%), (9) the Alford plea has evolved to encompass a small share of adjudicated cases in the United States. (10) This plea arrangement derives from North Carolina v. Alford, in which the United States Supreme Court held that guilty pleas by defendants who maintain their innocence do not violate due process. (11)

   Numerous scholarly articles have been written about Alford pleas, addressing their constitutionality, their place in relation to the traditional justifications for punishment, and their perceived accuracy. (12) This Comment will focus specifically on the practical aspects of the Alford plea. It will provide insight into the circumstances in which attorneys should not recommend that their clients utilize the plea.

   Part II of this Comment provides the history of the Alford plea and the recent scholarship and case law surrounding false confessions. Part III discusses the factors leading to false confessions. It also looks at the advent of the Innocence Movement, which has been characterized by growing numbers of exonerations of defendants who have falsely confessed. Part IV analyzes the two aforementioned case studies--Echols and Davis. Through the analysis of these cases, it argues that given the strength of the Innocence Movement, innocent defendants should not enter Alford pleas in cases where the sole piece of evidence is a confession. Part V summarizes major points and provides an overall conclusion to the Comment.

2. BACKGROUND: THE ALFORD PLEA

   A. NORTH CAROLINA V. ALFORD

   The Alford plea received its name from the 1970 Supreme Court case North Carolina v. Alford. (13) Henry Alford was indicted for first-degree murder on December 2, 1963. (14) Throughout his trial preparations, Alford's attorney interviewed several witnesses who led him to believe Alford was guilty and that he would probably be convicted at trial. (15) While there were no eyewitnesses to the actual murder, there were witnesses who swore under oath that Alford had taken his gun from his house and stated that he was going to kill the victim. (16) These witnesses said that Alford told them that he had killed the victim. (17) Although Alford maintained his innocence, faced with these witness statements and no evidentiary support for his innocence claim, Alford's attorney recommended that he plead guilty to a lesser charge of second-degree murder. (18) Alford pleaded guilty to second-degree murder but stated to the court that he was in fact innocent and that he was pleading guilty only to avoid the death penalty. (19) The judge sentenced him to the maximum sentence for second-degree murder--thirty years in prison--and Alford appealed on the constitutional ground that his plea was "the product of fear and coercion" and in violation of his constitutional rights. (20)

   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." (21) Alford petitioned for a writ of habeas corpus, first in the United States District Court for the Middle District of North Carolina, (22) 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. (23) A divided panel of the Fourth Circuit reversed and held that his plea was involuntary because it was motivated by fear of the death sentence. (24)

   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. (25) 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." (26) The Court also held that a judge can accept the plea only if "strong evidence of actual guilt" exists. (27) 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; (28) thus, the defendant "intelligently" concluded that it would be to his advantage to plead guilty in order to avoid the death penalty. (29)

   It is also 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. (30) 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 their 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. (31) 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." (32)

   B. THE ALFORD PLEA ACROSS THE STATES

   The Alford opinion explicitly noted that judges have the right to accept this plea, just as they have discretion to accept guilty pleas under Rule 11 of the Federal Rules of Criminal Procedure. (33) Currently forty-seven states and the District of Columbia accept Alford pleas. (34) Defendants in Louisiana, Mississippi, Missouri, Pennsylvania, and Ohio frequently use the Alford plea. (35) But courts in Indiana, Michigan, and New Jersey have rejected the plea. (36) Even in states that have explicitly accepted Alford pleas, judges still maintain discretion to reject the plea. (37) For example, states such as North Carolina, Washington, Rhode Island, and Wisconsin construed Alford pleas very narrowly. (38)

   Federal courts have consistently discouraged Alford pleas, (39) and federal prosecutors are reluctant to encourage Alford pleas because the policy of the U.S Department of Justice discourages them. (40) In its sentencing instructions, the Justice Department observes that the public may not approve of prosecutors pushing a defendant who claims innocence to plead guilty. (41) This discouragement is reflected in statistics showing that state defendants utilize the Alford plea much more frequently than federal defendants. (42)

   C. CHARACTERISTICS OF DEFENDANTS WHO ENTER ALFORD PLEAS

   In general, defendants use Alford pleas much less frequently than traditional guilty or not-guilty pleas. (43) A 1997 survey of inmates in state and federal correctional facilities found that approximately 3% of inmates had entered Alford pleas. (44) When looking only at inmates in state facilities, the percentage was significantly higher (6.5%). (45)

   In 2002, Professor Stephen Bibas conducted a Westlaw search for cases involving this plea. (46) He found 2,500 cases that involved Alford pleas; 27% of these cases involved sex offenses, 27% involved other violent offenses, and 12% involved white-collar offenses. (47)

   From 2003 through May 2004, the Department of Justice conducted a survey of inmates in state correctional facilities. (48) Researchers sampled 16,152 state inmates; the U.S. Census Bureau interviewed inmates in person. (49) This study found that 949 of these inmates, or 6.5%, had entered Alford pleas. (50) Within the three types of guilty pleas (guilty, Alford, and nolo contendere), Alford pleas accounted for 8.5%. (51) This percentage was essentially identical to the percentage of state inmates who had entered Alford pleas in 1997...