33. In some jurisdictions, plea deals are openly used to win
convictions in cases where evidence is weak and may
not suffice to convict the defendant at trial.48 There are
numerous US cases in which prosecutors have entered
into plea deals with full knowledge that a defendant is
factually innocent. The so-called Alford plea,49 in which
a defendant accepts a conviction without admitting
the factual basis of the charges, demonstrates that
courts are willing to accept the constitutionality of
convictions explicitly accepted for pragmatic
purposes, rather than in acceptance of true
responsibility for the charges.50 This type of functional
plea deal was used, for example, in the case of the socalled “West Memphis Three”.51 In that case, three
young men were wrongfully convicted following a full
trial for the rape and murder of three eight year old
children. After years of litigation, an appeals court
remanded the case to the trial court for further
evidentiary hearings that doubtless would have led to
exoneration. Given the fragile health of one of the
defendants, all three agreed to accept Alford pleas to
sentences of time served rather than remain detained
during further lengthy proceedings to prove their
innocence.52
34.
Cooperating witnesses, while clearly key to
investigations of complex and organised crime, can
also threaten the quality of investigations. Participants
in the Washington roundtable expressed concern
about the reliability of testimony by witnesses who are
incentivised with discounted sentences and immunity
for certain charges.53 Indeed, 45.9% of death row
exonerations in the US since the 1970s involved
convictions based on testimony by cooperating
witnesses, according to the Center on Wrongful
Convictions.54 Beyond concerns about cooperating
witnesses providing untrue, incomplete or misleading
evidence, over-reliance on cooperation agreements
can also have a corrosive effect on the ethical and
procedural compliance of prosecutors and investigators.55
35.
However, establishing evidence of poor practice in
relation to investigations is particularly difficult in the
context of trial waiver systems, which do not produce
an extensive evidential and procedural record in the
way that trials do, and which severely limit the
availability of appeals or other post-conviction review
or relief. Therefore concerns about the effect of plea
bargaining on the quality and reliability of prosecutions
remain speculative – pointing again to the lack of
transparency associated with trial waiver systems as
opposed to open trials.
48. See Turner, J. I., “Prosecutors and Bargaining in Weak Cases: A Comparative View” (Aug. 31 2011), from The Prosecutor in Transnational Perspective, Luna, E. and
Wade, M., eds., Oxford University Press (2012). Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1862161.
49. North Carolina v. Alford, 400 U.S. 25 (1970). Alford faced the death penalty were he to be convicted at trial on a murder charge. He strategically pleaded guilty to
second degree murder to avoid the possibility of a death sentence at trial, while denying responsibility for the crime as a factual matter. He later appealed against his
initial guilty plea, saying he was coerced by the threat of receiving the death penalty were he convicted at trial, but the court held that even if the defendant would
not have pleaded guilty “but for” the threat of the death penalty, a guilty plea remained valid as long as evidence existed to support the prosecution and the
defendant pleaded guilty in order to avoid the harshness of sentencing (though note the dissenting opinion by Justice Brennan, who stated that the conviction
should have been vacated because the plea was not voluntary, but was given under duress due to the threat of the death penalty, which he considered to be
unconstitutional).
50. See also Blume, J. H. and Helm, R. K., “The Unexonerated: Factually Innocent Defendants Who Plead Guilty”, Cornell Law Faculty Working Papers, Paper 113 (2014).
Available at: http://scholarship.law.cornell.edu/clsops_papers/113.
51. Moriarty, E., “48 Hours Mystery: Unusual Plea That Freed the ‘West Memphis 3’”, CBS News (Aug. 10 2012). Available at: http://www.cbsnews.com/news/48-hoursmystery-unusual-plea-that-freed-west-memphis-3/.
52. Shargel, G. L., “How the West Memphis Three Got Out”, The Daily Beast (Aug. 22 2011). Available at: http://www.thedailybeast.com/articles/2011/08/21/
west-memphis-three-freed-using-rare-alford-legal-plea.html.
53. See Warden, R. et al., “Jailhouse Snitch Testimony: A Policy Review”, The Justice Project (2007) for discussion of safeguards for such testimony. Available at:http://
www.pewtrusts.org/~/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/death_penalty_reform/ilhouse20snitch20testimony20policy20briefpdf.pdf.
54. “The Snitch System”, Center on Wrongful Convictions, Northwestern University School of Law (2005), p. 3. Available at: https://www.aclu.org/other/center-wrongfulconvictions-snitch-system?redirect=center-wrongful-convictions-snitch-system.
55. See Baer, M. H., “Cooperation’s Cost”, Washington University Law Review, Vol. 88, Iss. 4 (2011), p. 931: ‘Prosecutors and agents will become less vigilant and cease
monitoring each other when they rely on cooperation as a means of encouraging defendants to refrain from filing motions to suppress illegally obtained evidence.
The failure to follow procedural rules, moreover, may undermine law enforcement’s legitimacy, force prosecutors to enter into agreements with suboptimal
cooperators, and increase the overall likelihood of unchecked corruption and abuse within law enforcement agencies, all of which may lead to an increase in criminal
conduct and a decrease in the prosecution of guilty actors.’ Available at: http://openscholarship.wustl.edu/law_lawreview/vol88/iss4/3.
16.
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