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08.21.11

How the West Memphis Three Got Out

Jailed for 18 years for a triple murder, Damien Echols, Jessie Misskelley Jr., and Jason Baldwin were not exonerated or found to have been wrongfully convicted—but they still went free. Gerald L. Shargel on the rarely allowed Alford plea.

The words are chilling and, for anyone acquainted with the work of the Innocence Project, distressingly familiar: “My name is Damien Echols. I am 36 years old and released today from death row for a crime I did not commit.” Eighteen years ago, Echols and two others, Jessie Misskelley Jr. and Jason Baldwin, were convicted of the 1993 murders of three 8-year-old Cub Scouts who were beaten to death and found hogtied in a watery ditch in West Memphis, Ark. While Echols, the alleged ringleader, languished on death row, Misskelley and Baldwin were serving life terms. On Friday all three men were unconditionally released from confinement after being resentenced to “time served.”

This sudden freedom followed a long and torturous case history, much of which traveled along paths well worn. The verdict was immediately showered with doubt. A compromised crime scene, recantations, inconsistent forensics, and newly discovered DNA evidence all fueled the highly vocal supporters of the men who became known as the “West Memphis Three.” With public attention attracted by HBO documentaries and celebrity support from Eddie Vedder, Johnny Depp, and members of the Dixie Chicks, the claims of wrongful conviction turned very high profile.

As it is with so many of the exonerated, it was new DNA evidence that led the Arkansas Supreme Court to order hearings on new trial motions for the West Memphis Three, hearings that the trial court had scheduled for later this year. But then, suddenly and unexpectedly, a court appearance was hastily scheduled for this past Friday.

Watching the court appearance was, to the untrained eye, like watching a German opera without a libretto. At the proceeding, the three defendants withdrew their previous pleas of not guilty and entered formal pleas of guilty to charges that they had murdered the three second-graders. Stunningly, however, they pleaded guilty without admitting that they had committed the crime. In fact, each of them boldly asserted, without further explanation, that despite their pleas of guilty they were innocent of the charges. And, as if to highlight the disjunctive, the prosecuting attorney, Scott Ellington, told The New York Times that notwithstanding DNA findings, "The state still considered the men guilty.”

The last court proceeding for the West Memphis Three seemed to have an Alice in Wonderland quality about it. In virtually all guilty pleas, particularly those involving serious felonies, a confession or detailed admission to the facts that give rise to the charge is a mandatory element, without which the court will not accept the plea. The general rule is that the court must have a factual basis for the plea before accepting it. But what happened on Friday was not lawless. The “walk out” for the West Memphis Three stemmed from a rarely allowed and infrequently used procedure that has been found constitutional and permitted by the U.S. Supreme Court, as well as a number of state appellate courts.

More than 40 years ago, in North Carolina v. Alford, the court held that an accused may be permitted to plead guilty without the ordinarily required factual confession if he intelligently believes it is in his interest to plead guilty as an alternative to going to trial. In other words, an Alford plea allows a risk-averse innocent man or woman to plead guilty, even while protesting innocence, in order to avoid greater punishment if he were to lose the trial. “There’s a lot of concern about the [strength of the evidence] implicating these guys,” Ron Rychlak, a criminal-law professor at the University of Mississippi, was quoted by Memphis newspaper The Commercial Appeal as saying. “From the defense side, it would mean you get out. From the prosecution side, you might not be positive of guilt anymore. This may be a logical way to resolve the case.”

In the end, the West Memphis Three were not found in any judicial proceeding to have been wrongfully convicted. Nor were they, by any definition, “exonerated.”

But even armed with the Alford decision, the parties (prosecution and defense) and the judge had to see eye-to-eye to permit the release of the West Memphis Three this past Friday. First, the trial judge, David Laser, had to vacate the murder convictions. There had been no hearing on the new trial motion as the Arkansas Supreme Court directed. Vacating the earlier convictions and sentences seems nothing more than the parties' desire to get the deal done. Only with the convictions vacated did the opportunity for an Alford plea come about. The final issue was the sentence to be imposed. For sentencing purposes an Alford plea is no different than any other guilty plea. Based on the plea, the judge has the authority to impose a sentence to the fullest extent allowed by law. Thus, from the defense perspective, the enticement was likely the promise that the sentence imposed would be time served.

In the end, the West Memphis Three were not found in any judicial proceeding to have been wrongfully convicted. Nor were they, by any definition, “exonerated.” But on this past Friday, they were permitted to walk out the front door of the courthouse rather than the back door to the jailhouse. That, under any analysis, was a victorious end to a long and difficult struggle.