EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, April 21, 2012

The Good Wife, The Alford Plea, The Jewish Ban On Confessions, & The Times Of Emergency Necessity Exception

I finally caught up with last week's episode of "The Good Wife," "Pants on Fire." In it,

Alicia and Diane represent one of a trio of girls who was convicted of murder at a summer camp five years ago. Recently, however, it was discovered that the crime lab mishandled the DNA evidence and a judge has overturned their sentence pending a new trial. Not wanting to face a wrongful conviction lawsuit, the state has offered the girls an Alford plea – they can go free, but only if they all sign a statement admitting that they were guilty of committing murder

The episode itself didn't do a great job of explaining the Alford plea, but CBS has a nice feature on its website, Cary's Corner, which often does a good job of breaking down the legal jargon of the show. That was certainly the case this week, with Cary's Corner explaining that "[a]n Alford plea is an unusual plea in which a defendant does not admit guilt while at the same time admitting that the prosecution could likely secure a conviction based upon the evidence they’ve compiled." The site then goes on to explain that

The Alford plea is named after Henry Alford, who, in 1963, was tried for first-degree murder in North Carolina, where at the time a guilty verdict for first-degree murder meant Alford would face capital punishment. The prosecutors had witness evidence that Alford had argued with the victim on the night of the murder. He left the victim’s house to return to his own residence to grab his gun. Later there was a knock at the victim’s door, and when he answered it, he was fatally shot by an assailant using Alford’s gun. Personally, I believe that Alford’s gun was sitting right next to Occam’s razor on the shelf, but Alford insisted he was innocent. However, fearing an automatic death sentence, he pled guilty to a lesser charge of second-degree murder. Alford later appealed, arguing that he was forced into the guilty plea because he was afraid of the possibility of receiving a death sentence. His appeal eventually went before the Fourth Circuit Court of Appeals, which ruled that Alford’s plea was not voluntary since it was made under fear of the death penalty. 

The case made its way to the Supreme Court in 1970, where the highest court in the land decided that even if Alford could show that he only entered the guilty plea in order to receive a lesser sentence, the plea would not be invalid, since evidence existed that could support his conviction. Therefore, Alford’s guilty plea was allowable while Alford still maintained his innocence.

Alford pleas are not popular with federal prosecutors. In fact, the U.S. Attorneys’ Manual states that in federal cases, Alford pleas should be avoided “except in the most unusual circumstances.” Alford pleas are more common in local and state courts, however, because of the volume and nature of crimes prosecuted. 

An Alford plea, by its nature, acknowledges the plea bargain system and a defendant’s interest in minimizing potential loss. Over 95% of criminal and civil cases never reach trial; instead, they are settled through attorney negotiation. The Alford plea recognizes this reality and allows a defendant to maintain innocence while, without lying, still making the most advantageous plea bargain possible. For this reason, the Alford plea is also sometimes known as a “best interests” plea.

All of this leads me to an interesting article that I recently read, Compelled to Render Oneself Evil: American Plea-Bargaining from a Jewish Law Perspective, by Melissa Softness, a student at the Emory University School of Law.

In the article, Softness notes that 

The Talmud, Judaism’s main source of Rabbinic law, states unequivocally that “No man may render him self an evil person.” Rather than a rule applied only to individual conduct, Mishnaic texts indicate that the concept was wholly embraced by the criminal justice system of the Talmudic era. The state was not only forbidden to compel a man to testify against himself, but if he did so of his own accord, the testimony was rejected completely and had no status in a court of law.

Softness then points out that "[t]he law against self-incrimination derives from several sources in Jewish texts." Indeed, this has been recognized by the Supreme Court. In Miranda v. Arizona, the Court noted that the roots of the privilege against self-incrimination go back to ancient times:

Thirteenth century commentators found an analogue to the privilege grounded in the Bible. ‘To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.’ Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, 6, III Yale Judaica Series 52—53. See also Lamm, The Fifth Amendment and Its Equivalent in the Halakhan, 5 Judaism 53 (Winter 1956).

And then, the following year, in Garrity v. New Jersey, the Court found that confessions by police officers given the choice of incriminating themselves or forfeiting their jobs were "infected by...coercion[FN5]

[FN5] Cf. Lamm, The 5th Amendment and Its Equivalent in Jewish Law, 17 Decalogue Jour. 1 (Jan.—Feb.1967):‘It should be pointed out, at the very outset, that the Halakhah does not distinguish between voluntary and forced confessions, for reasons which will be discussed later. And it is here that one of the basic differences between Constitutional and Talmudic Law arises. According to the Constitution, a man cannot be compelled to testify against himself. The provision against self-incrimination is a privilege of which a citizen may or may not avail himself, as he wishes. The Halakhah, however, does not permit self-incriminating testimony. It is inadmissible, even if voluntarily offered. Confession, in other than a religious context, or financial cases completely free from any traces of criminality, is simply not an instrument of the Law. The issue, then, is not compulsion, but the whole idea of legal confession.‘The Halakhah, then, is obviously concerned with protecting the confessant from his own aberrations which manifest themselves, either as completely fabricated confessions, or as exaggerations of the real facts. * * * While certainly not all, or even most criminal confessions are directly attributable, in whole or part, to the Death Instinct, the Halakhah is sufficiently concerned with the minority of instances, where such is the case, to disqualify all criminal confessions and to discard confession as a legal instrument. Its function is to ensure the total victory of the Life Instinct over its omnipresent antagonist. Such are the conclusions to be drawn from Maimonides' interpretation of the Halakhah's equivalent of the Fifth Amendment.‘In summary, therefore, the Constitutional ruling on self-incrimination concerns only forced confessions, and its restricted character is a result of its historical evolution as a civilized protest against the use of torture in extorting confessions. The Halakhic ruling, however, is much broader and discards confessions in toto, and this because of its psychological insight and its concern for saving man from his own destructive inclinations.’ Id., at 10, 12."

This quotation gets to Softness' point, which is that the United States criminal justice system permits "voluntary" confessions while Jewish law has a blanket ban on all confessions, which are not accorded any probative value at all. Softness argues that the U.S. criminal justice should adopt the blanket ban on confessions, including guilty pleas, and thus abandon the plea bargaining process.

Of course, Softness then recognizes that such a shift is unlikely and likely not feasible given the statistic cited above that 95% of criminal cases are resolved by guilt plea. As an alternative, then, she maintains that the plea bargaining system could be maintained because of the necessity exception:

The main exception in the Talmudic courts was necessity. Judges were permitted to suspend the prohibition on self-incrimination, along with other procedural safeguards, in three situations: times of emergency, substantial threat to the community, or widespread disregard of the law. The overflow of criminal cases in the United States may be seen as constituting the “widespread disregard of the law” that the Talmudic exception was granted to alleviate. However, Maimonides noted that such exception was only permissible if used temporarily, meaning it could not be codified in law as it has been in the United States.

All of this is pretty interesting, and it has made me reconsider the much maligned Alford plea. In some ways, the Alford plea represents the very worst of the American criminal justice system. Just look at the Alford case itself. In Alford, the defendant claimed that he pleaded guilty only to avoid the death penalty, but the Court found that the plea was still "voluntary." An Alford plea is a oxymoronic in that the defendant is pleading guilty to very crime that he is claiming that he did not commit. And such a plea doesn't provide closure to the friends and family of the victim, who want accountability, apology, and closure, none of which the Alford plea provides.

That said, isn't the contradiction of the Alford plea absolutely appropriate considering the current state of the American criminal justice system? Previously, I've written about how,

[i]n 2007, indigent defendants in three Michigan counties sued the state, claiming ―that the public defender systems in their counties are so bad that poor people are pleading guilty because, for all practical purposes, they are given no other choice. Specifically, they alleged that ―cash-strapped public defenders [we]re violating the constitutional rights of defendants by allegedly too eagerly encouraging plea bargains, as opposed to vigorously fighting the charges.

These criticisms have also come from public defenders themselves. The following year, ― in November 2008, public defenders' offices from seven states either refused to take on new cases or sued to limit them, citing overwhelming workloads that prevented defendants from receiving adequate attention, time, and representation. According to these offices, the majority of a public defender‘s workload has turned into the processing of guilty pleas, leading them to claim ―that the hurried pace of their representation was less justice and more McJustice, as their representation essentially formed plea bargain assembly line[s].

In her article, Softness focuses on the "widespread disregard of law" necessity exception to the prohibition on self-incrimination, and I believe that a good argument can be made that the current public defender crisis triggers the "times of emergency" necessity exception. Prosecutors are told to avoid Alford plea and a number of states ban them. But given the realities of the current American justice system, maybe we should embrace them. The public defender system is in a state of emergency, and it means that the bulk of defendants charged with crimes cannot present a reasonable defense.

The Talmud states that "No man may render him self an evil person," but an Alford plea doesn't render a man an "evil person;" it merely renders him a "guilty person." And, if we think about it, it doesn't even do that. The defendant's Alford plea isn't accorded probative value; instead, it acknowledges the probative value of the prosecution's evidence and allows for a conviction based upon that evidence. Obviously, there are a plethora of reasons to be uncomfortable with the Alford plea, but there are also a plethora of reasons to be uncomfortable with the current state of criminal defense. And maybe a proliferation of Alford pleas will force us to confront that reality.



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Dear Legal Scholars:

How, and under what circumstances, would the Necessity Exception apply to a felon's prohibition of possessing a firearm? When can he defend himself, family and others with deadly force, if necessary, without fear of prosecution as a "felon in possession?"
The felony convictions were non-violent and more in the area of a "political prosecution and conviction." All cases went to trial. Two reversed and two affirmed. Plea agreements were steadfastly refused.

Posted by: Douglas | Apr 22, 2012 9:44:47 AM

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