Washington Lawyer - September/October 2020 - 40

ON FURTHER RE VIEW

On the Challenges
of the Alford Plea

By Lloyd Liu

his column has mentioned
the vanishing trial and its implications. There are fewer trials
for a multitude of reasons, some
more troubling than others.
Defense attorney Stephen Braga
recently discussed with me
his experience with the West
Memphis Three in which the
circumstances made getting
a new trial essentially impossible.
A partner with Bracewell LLP, Braga chairs
the firm's government enforcement and investigations practice. He began his career clerking
for Judge Thomas Flannery, whom Braga
describes as "a very humble man, very quiet. He
was the perfect candidate to be a district court
judge. He had great trial skills. He would call it
as he saw it."
Braga says that Flannery made his decisions
"based on the evidence put before him,
not any broad policy arguments, not any reflections of contemporary society. What does the
evidence show? And how did that evidence
implicate the application of the law to the
problem before him?"
When Braga completed his clerkship, he
informed Judge Flannery of his interest in
becoming a criminal defense lawyer and asked
the judge for advice on where to go. Judge
Flannery, who had been the former U.S.
attorney for the District of Columbia, tried to
direct Braga to that prosecutor's office, telling
him: "Even as good as you might be as a
defense lawyer, a responsible prosecutor can
do much more good for the cause of justice.
A responsible prosecutor can serve justice by

40 WASHINGTON LAWYER

declining to bring ill-founded charges with the
stroke of his pen. The best a criminal defense
lawyer can do is try to talk people out of
potential guilt one charge at a time. And that's
a much slower process than the prosecutor's
ability to not bring charges in the first place."
In 2009, while at Ropes & Gray LLP, Braga began
pro bono representation of Damien Echols of
the West Memphis Three. Echols, Jessie
Misskelley Jr., and Jason Baldwin were charged
with the brutal murder of three eight-year-old
boys in the early 1990s in West Memphis,
Arkansas.1 The investigation and trial were
plagued with a litany of issues: a suspicious
confession, speculation over a satanic cult,
and questionable forensics work, among
others.2 Nevertheless, the three teenagers were
convicted. Echols received the death sentence.3

In November 2010, the Arkansas Supreme
Court granted the defendants' request for an
evidentiary hearing to determine whether to
have a new trial.7 Braga took that development
as an opportunity to talk the prosecutor out
of pursuing the charges any further. Despite
the significant new evidence, the state
remained steadfast in its desire to retry the
West Memphis Three. Braga persisted, however,
and negotiated an agreement for Echols to
maintain his innocence but also plead guilty
via the compromise device of an Alford plea.
The situation reminded Braga of Judge
Flannery's advice about prosecutorial
discretion:

The prosecutor expressly
defended the Alford plea by
citing the amount of money
he saved his constituents
by exercising his discretion
the way he had.

I've gone back and thought about this
in terms of Judge Flannery's statement
about the impact of a responsible prosecutor. There is one additional point
which complicates my feelings about
this further. I think a responsible prosecutor in this case would have had no
problem walking away from the guilt or
innocence aspect of the case if there
was never a civil liability question. In
such a circumstance, I think the prosecutor would have dropped the case
completely. He wouldn't have had a
dog in the fight.

The case drew national attention, garnering the
support of celebrities such as Peter Jackson,
Eddie Vedder, Natalie Maines, Johnny Depp,
and Henry Rollins. As the case gained notoriety,
new evidence and defense avenues emerged,
particularly a new DNA-testing statute.4 DNA
test results failed to link the defendants to the
scene, and instead pointed to other individuals
as the potential perpetrators.5 The defense
team offered additional evidence that
questioned the reliability of the state's case
as well.6

But there was a liability question,
potentially tens of millions of dollars,
and the prosecutor was an elected
official, too. He had to show he got
something out of the resolution of the
case, and that something became
saving the state a pile of money. In that
way, it's even a little more unseemly,
right? You have the decision of the
freedom of these three men not
turning entirely on questions of guilt or
innocence but also on the collateral
liability of the state and the electability
of the prosecutor.

SEPTEMBER/OCTOBER 2020

Washington Lawyer - September/October 2020

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