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Tuesday, October 9, 2012

The "Alford" Plea and the West Memphis Three

The West Memphis Three
There is a no-man's land in the criminal justice system.  This land exists between a plea hearing where an accused admits his guilt, and where serious capital counts are left on the table by the prosecutor in exchange for not having to conduct a difficult trial.

This is the land of the Alford plea.  In this rarely used procedure, the accused tenders a technical guilty plea through which he maintains his innocence while acknowledging that the prosecutor has evidence sufficient to convict him, of something...

Used following a mistrial, for example, or upon remand for a new trial, due to the always sea-changing grounds of "newly discovered evidence", the accused is prompted to accept this plea in exchange for a charge reduction, immediate release from incarceration, or dismissal of some of the more serious among an array of charges.  

The Alford plea received media attention last year upon the release of the notorious "West Memphis Three" from Arkansas prisons after serving 18-years of their capital sentences for the murders of three young boys in Arkansas in 1993.  One of the defendants, Damien Echols, formerly on Death Row, published his memoir, Life After Death, about his Job-like life, and is now the subject of a new documentary, West of Memphis, scheduled for wide release on Christmas Day.

The Alford plea was accepted by each of the West Memphis Three thus, each defendant pled guilty while maintaining their innocence relative to the grisly murders; the three were released for time served, but not vindicated.

The plea was fashioned by the United States Supreme Court in the case of North Carolina v Alford, decided by the Court in 1970.  In that case, the accused maintained his innocence in the face of first degree murder charges largely based on circumstantial, but nevertheless damaging, evidence.  Rather than face the death penalty, Alford agreed to plead guilty to second degree murder; the trial court accepted the plea, even without Alford's confession of guilt.

As a general rule, a court will not accept a guilty plea without an actual confession of guilt. SCOTUS fashioned the Alford plea as a flexible compromise to resolve situations where:
[f]aced with “grim alternatives,” the defendant's best choice of action may be to plead guilty to the crime, and the courts must accept the defendant's choice made in his own interests.  [Justice Byron White]
In the case of the West Memphis Three, both newly discovered evidence and DNA testing aided the Defendants' cause; a cause celebre that picked-up steam through early-era social media, drawing the attention of celebrities such as Johnny Dep, and rock stars like Eddie Vedder, Metallica, Slash, and the demigod, Henry Rollins.

Reasonable doubt seeped into the West Memphis case throughout the appeal process.  There was a huge evidentiary chasm wherein the prosecutor's theory -that the defendants ritually slaughtered three young boys right where the corpses were discovered on the banks of a creek that ran through the Robin Hood Hills- fell apart in the long-run due to a complete absence of blood or other physical evidence tying any of the Defendants to the murders.

Experts that examined the evidence post-trial opined that the cuts on the bodies were more consistent with animal predation [turtles] than with the serrated knife admitted into evidence at the trial.  Mr. Echols' trial, however, was all about Satanic rituals rather than the markings of a common swamp predator.

Looking back nearly 20-years later, there is a consensus among legal professionals that the police investigation was botched, and the court-appointed criminal defense lawyers for the defendants were ineffective, ignoring alibi witnesses and failing to really develop available defenses.

The West Memphis Three were fortunate to secure real legal counsel on appeal.  Appellate counsel had the case heading back to the trial court.

Rather than resurrect the rumored Satanic rituals and the local trailer park skater-trash culture from the mid-1990s that tore-out the soul of West Memphis, the prosecution agreed to accept the Alford pleas in exchange for a sentence of time served.  Given that the long-healed scars of the families of the murdered boys now have been ripped open, it is difficult to imagine the released convicts being able to sleep comfortably with both eyes closed.

We here at the Law Blogger have observed sentencing hearings where the accused feel compelled to admit to things that are not true in order to secure a guaranteed [i.e. more lenient] result.  The Alford plea affords the court sufficient flexibility to accept the compromise plea without an admission of guilt.

Assuming the West Memphis Three were telling the truth all along -that they had nothing to do with the sadistic murders- the real horror of the criminal justice system is that three innocent teenagers can do 54 combined penitentiary years, while a serial murderer lurks among the community of unsuspecting, God-fearing Arkansans, still at large.

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Anonymous Anonymous said...

Hello, my name is chris gunnon. I dont have a URL, I can be reached for question/comment at
First i would like to thank you for entertaining this question about the above case. I am not a lawyer. I am a veterinarian in IL, and have no ties to this case. I just watched a film about this case. It was an interesting story from many different perspectives. Prior to the end of the film I would have left it at that. But the Alford plea offered, And its acceptance by the men involved bothered me. I cannot reasonably question the motive of an individual to accept/reject a Plea. But I feel it is right to question the State of Arkansas. I was really upset that the focus of the case went from the murder of three boys, to the injustice against three men. We start with the crime. The state is passionate they will bring justice. Over the years it is found there were or were not mistakes. The injustice done to the wrongly accused begins to get more attention than the original crime. The state then takes this action (the plea) to right a wrong with these men. But at the same time they seemed to say (on a very public platform) " This case has become to much work for us to pursue justice for these boys and their families". My Question is why would the state pursue this course? It undermines them much worse than admitting they were wrong.

October 10, 2012 at 11:57 PM 
Blogger Timothy P. Flynn said...

Mr. Gunnon, thank your for your thoughtful post. It provides us with feedback that some of the topics we select here at the Law Blogger are of interest to a wide variety of the public.

There is an adage of criminal law that says: it is better that the guilty go free then one innocent man be imprisoned for something he did not do. Unfortunately, that did not happen here.

We agree with you that one of the many atrocities in this case is that the focus has shifted from three 8-year old boys whose lives were ripped from them in a series of brutal murders, to the side-show of the "West Memphis Three". Like you, we are troubled that the local law enforcement and prosecutor appears to have got it all wrong and that, not only have three young men had to pay a heavy price for something they apparently did not do, the real serial murderer remains at large.

At this late date, it now seems unlikely that justice will be done. There is another adage in the criminal law: justice delayed is not justice but rather, injustice.

On top of it all, Hollywood now has the story. All we can do now is sit back and watch the drama play out on the big screen.

Sure would be nice if there was a tad less violence to go round.

October 11, 2012 at 5:39 AM 
Anonymous Miranda Ward said...

Thank you for the blog on the ramifications of the 'Alford Plea'.

The more that intelligent and articulate people speak out then the greater chance that this case will finally be resolved.

It seems, at every turn, that the State of Arkansas seems to dig itself an ever deeper hole to fall into.

We only need one honest person with integrity and courage within the State's Judicial System to stand tall and call a halt to this farce.

Two of the families of the victims are still fighting for justice and are currently persuing a civil suit to enable them to be allowed to see the evidence and even to identify which items of clothing belonged to their children. It seems that over the years the wmpd have allowed all and sundry access to photograph, scan and make notes of what is held by them and now they have decided to bring the shutters down.

More information can be found at
A site still dedicated to getting justice in this case with many members only to willing to answer any questions.

Whilst I recognise the element of 'cringe value' at the Hollywood connection, it has to be recognised that without the input of people like Sir Peter Jackson the three would still be incarcerated.

Whilst Justice delayed is justice denied, we are all hoping that eventually the long wait will be over.

We still need all the help we can get and this blog too can play a part in getting justice!

October 14, 2012 at 6:37 PM 
Blogger Timothy P. Flynn said...

Thank you for your thoughtful comment; this really is quite a case. It seems to have ripped many families apart; most of all the families of the victims. Our main hope is that the real murderer will some day come forward; probably not though. And it certainly does not seem like the state has sufficient evidence to try anyone else for these crimes.

Therefore, in a case like this, the Alford plea is the way to go. Good luck out there in Arkansas.

October 14, 2012 at 6:46 PM 
Anonymous Miranda Ward said...

Except that I am in the U.K.

One person who was never investigated does stand out by a mile. The least the State should do is actually re-open the investigation as they so very obviously no longer believe that the three men convicted for it actually did do it!

Sadly the burdon of proof rests with the wrongfully convicted and the State Prosecutor is now 'too busy' running for election.

Politics and the Law make for very strange bedfellows and is so very alien to those of us in other countries! Winning cases seems to take precedence over justice in order to win votes. Too many seem to have built their careers on this case whilst trampling underfoot all the concepts they should hold most dear.

The State of Arkansas somehow seem to think that this case will now be forgotten and 'go away'. Not a chance! For many supporters the case has always been about justice rather than just getting a guy off death row!

October 14, 2012 at 7:21 PM 
Anonymous Anonymous said...

Thank you so much for this excellent blog! I have followed this case since I saw the original("Paradise Lost: The Child Murders in Robinhood Hills") and am still amazed at the lengths to which the State of Arkansas will go in order to "save face" in this case. I, too, hope that eventually justice will be done in this case.

As a previous poster mentioned, I'm "into" this case because I want to see justice done. As was mentioned in your blog, it boggles the mind to believe that the State of Arkansas, having these guys in custody, would agree to the Alford Plea if they didn't know that the three were factually innocent. So, a killer has been on the loose for over eighteen years, and the State of Arkansas does nothing.

Again, thank you for this blog. Many "supporters" of the innocence of the West Memphis Three continue to fight for justice for all six families involved. We really want to see the investigation, trial and conviction of the real killer of Christopher, Michael and Stevie. We will continue to focus of the three victims because we believe that, by proving who the real killer is, exoneration for Damien, Jason and Jessie will follow.

October 15, 2012 at 11:33 PM 
Blogger Timothy P. Flynn said...


Thank you for taking the time to read our blog and post your comment. This post seems to have touched a nerve among readers in the blogoshpere. I've now nearly completed Echols' biography [excellent writer] and am looking forward to the documentary, West of Memphis.

It's funny, as personally, I can only vaguely recall this case back in the day when I was a newly-minted lawyer. I do believe there was some overlap on the timeline with that other "American Tragedy", the O.J. Simpson trial.

October 16, 2012 at 5:40 AM 
Anonymous Anonymous said...

Fortunately, the state of Arkansas is confident that the three men who pled guilty are in fact the murderers of the three boys. DNA evidence was inconsistent b/c only a partial profile was available due to the condition of the bodies found at the scene. The animal predation theory makes little sense considering the position that the Byers body was found. The ME report clearly states the wounds were inflicted before death despite supporters attempts to attack his credibility. At this point, there is no explanation why Misskelley would confess to police, deputies transporting him to jail, his lawyer, and the DA. Three of those confessions post-conviction with included evidence which substantiated Jessie's claim that he was at the crime scene.

November 28, 2012 at 3:21 PM 
Blogger Timothy P. Flynn said...

11/28 Anonymous, we have experience with defendants that, for whatever reasons, cave into persistent interrogation to the police and, in some cases, they cling to that initial lie to the bitter end.

It does appear that this case has divided the West Memphis community into two distinct camps; those that believe the WM3 committed the murders; and those that believe the WM3 were wrongly convicted and that the real murderer remains at large. Do you think the new documentary will shed any additional light on the subject? Or is the film really just another piece of propaganda for the WM3 crowd?

November 28, 2012 at 4:02 PM 
Blogger Tom McCollum said...

This comment has been removed by the author.

April 29, 2013 at 2:26 AM 
Blogger Monique Speake said...

It certainly does not seem like the state has sufficient evidence to try anyone else for these crimes.
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May 8, 2013 at 6:53 AM 
Blogger Aryan Smith said...

Having these guys in custody, would agree to the Alford Plea if they didn't know that the three were factually innocent.
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May 16, 2013 at 2:32 AM 

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