Alford Plea a boon to NC Prosecutors… and overburdened public defenders

In the May 29, 2009th issue of “The News & Observer,” a headline blares, “Mexican bus attendant convicted in cocaine bust.” Victor Hugo Lopez, now an “ex-con,” is a Mexican national who was in this country illegally trying to earn extra money as an attendant on a tourist bus in the states. He stated that he was unaware that $3.2 million worth of cocaine was stashed in the bus's tires. To me, that sounds reasonable. However, he was arrested, along with Gerardo Vilchez, the bus driver. Both men, who constantly protested their innocence, faced a minimum 14 year prison sentence.

Now I don’t know what evidence the Wake County prosecutor in this case had against the men, other than possible “inconsistent” statements, but they were held for more than twenty months in jail before their cases came to trial. The case against Gerardo Vilchez resulted in a “not guilty” verdict. So, after spending 21 months in jail, Vilchez, a U.S. citizen who lives in Mexico, was released from custody. He was not compensated for his nearly two year stay in jail at tax-payer expense.

The Wake County prosecutors probably realized that their case against Victor Hugo Lopez would suffer the same fate as Vilchez, so they worked out with Mr. Lopez’s attorney for him to make an Alford Plea, rather than going to trial. The Alford agreement allows the defendant to plead guilty, yet maintain, for the record, his innocence. Furthermore, I believe that the defendant must acknowledge that the prosecutors had enough evidence to win a conviction.

Basically, the Alford plea is nothing more than a face-saving measure used by prosecutors who hold suspects in custody while trying to build up a case against them. If they are unable to get a reasonable case to take to trial, or if the defendant does not enter into a plea deal (in which his/her innocence is not acknowledge), then the Alford plea works nicely. When the Alford plea is taken, which in most cases releases the defendant from custody with certain restrictions, the prosecution team is freed from having to present a sometimes embarrassingly weak case to the jury, and the judge can, with a clear conscience, sentence the man to time served. Also, such a deal lessens the workload of the public defender. It is a win-win situation all the way around, except that the innocent defendant is labeled a criminal, is unjustly deprived of his freedom (anywhere from a matter of months to years), and he forfeits any compensation that may be due him for his wrongful incarceration. The Alford plea is one of the most popular weapons in the North Carolina state prosecutors’ arsenal.

The Alford plea was used most recently in the flawed and flimsy case the Wilson County prosecutors brought against James Arthur Johnson. Private sector Special Prosecutor W. David McFadyen was able to wrangle an Alford plea from Johnson on the charge that he did not report his knowledge of a crime to authorities quick enough. (He waited three days before going to Wilson police and giving them information that would lead to the arrest of a murderer. Without Mr. Johnson’s help, the crime would probably never been solved.) So, despite spending 39 months in jail for murder, kidnapping, rape, and armed robbery charges which were dropped, the Alford plea allowed Johnson to plead guilty to some "wrongdoing", and for the Wilson prosecutors to once again hold their heads high.

In my opinion, instead of using the Alford plea to justify the unjust incarceration of a criminal defendant who is awaiting trial, the prosecution should do the honorable thing and drop charges against the defendant and not waste further taxpayer money by taking the case to court. This is a concept which is, unfortunately, incomprehensible by the prosecutors in North Carolina. Personally, I would respect them more if they did, instead of their attempting to get guilty plea via Alford in order to paint a positive face on a merit-less case.

Wake Assistant District Attorney David Sherlin, who prosecuted the case against Mr. Lopez, had no probable cause for the charges which held Mr. Lopez in jail for 23 months. Yet, the biased media and the public are not calling for the punishment and disbarment of Mr. Sherlin. No one is complaining about Mr. Sherlin depriving Mr. Lopez of his civil rights. When compared with the Duke Lacrosse case, probable cause definitely weighs in favor of former Durham District Attorney Mike Nifong’s case against the Duke Lacrosse player. The lacrosse players had a history of rowdy, animalistic behavior at their parties, and the victim of the assault gave an identification of 80 to 100% certainty in picking her assailants.

Eyewitness identification has been held by the state of North Carolina to be of sufficient value in establishing probable cause, as it was the basis for the North Carolina rape convictions of Ronald Cotton and Dwayne Dail. And although their convictions were eventually overturned by DNA evidence, with both men collectively spending nearly three decades wrongfully incarcerated, their prosecutors were not criticized, persecuted or disbarred. The media, in the meantime, went through great lengths to shield the identities of these prosecutors.

In the final analysis, the disparity in treatment Prosecutor Mike Nifong received by the state, biased media, and misguided public, is in marked contrast to that given to the prosecutors of Victor Hugo Lopez, Gerardo Vilchez, Ronald Cotton, Dwayne Dail, and a myriad of other defendants found to be innocent of charges for which they were jailed. (These comments, in no way, cast doubt about the validity of Mr. Nifong’s charges against the three Duke Lacrosse players. Intervention by Attorney General Roy Cooper into the case has all but assured that the facts surrounding the crimes committed on Buchanan Street that night in March 2006 will never be known.) The reason that Mr. Nifong has been treated so reprehensibly by the media and state is due to the unspoken tenet of North Carolina’s criminal justice system, which is one of “selective justice based on Class and Color.”

Department of Corrections lack credibility… from the Governor to the people

According to the Thursday, May 21, 2009, issue of the “News & Observer,” the correctional staff at Central Prison is at it again. In an article titled “Guard sprays disabled inmate: The prisoner banged on a door,” an unidentified guard sprayed Timothy Helms in the face with pepper foam. The foam is a more sinister weapon than the atomized spray, in that attempts to wipe it off merely pushes it deeper into the skin, eliciting more intense pain. However, Mr. Helms, who is mentally retarded and mentally ill, and was diagnosed as being a quadriplegic from brain injuries sustained while in solitary confinement, would probably not have been able to even attempt to try and remove the foam.

Mr. Helms evidently warranted this torture because he refused to obey a guard’s order to stop banging on a door and to stop cursing. According to Department of Corrections spokesman Keith Acree, Mr. Helms slid out of a wheelchair and hit the floor as the officer was attempting to handcuff him. In the newspaper article, Mr. Acree also gave assurances that Mr. Helms was not injured during this incident.

The DOC stated that the corrections officer involved, whose name was withheld, tendered his resignation after being notified that an internal investigation was going to be conducted. DOC Secretary Alvin W. Keller, Jr. stated, “This agency’s job is to protect the public safety and the safety of inmates and employees in our facilities. I will not tolerate anyone who operates outside of established policies and procedures that puts that safety at risk.” This statement comes from a man who stated that there was no evidence to support a theory that Timothy Helms was beaten in August 2008, despite the fact that he had two skull fractures and welts on his back and torso (consistent with those inflicted by a billy club). The department has refused to make public any records concerned with the incidents involving Mr. Helms, stating that to do so would “imperil the security” of the maximum security prison.

Secretary Keller (who believes Mr. Helms sustained two skull fractures from falling and hitting his head on the concrete floor), the State Bureau of Investigation (which has been unable to determine how Mr. Helms received his injuries while in solitary confinement at Central Prison), and the DOC mouthpiece, Mr. Acree, by their words and deeds (and/or lack thereof), have absolutely no credibility with the people of North Carolina. And judging by their silence on these atrocities, Governor Bev Perdue (who appointed Mr. Keller to head the DOC), Attorney General Roy Cooper (who commands the SBI), and other elected officials or politicians lack credibility in the North Carolina Department of Corrections leadership, as well.

There is no doubt in my mind that the torture, abuse, beatings, and mistreatment sustained by Mr. Helms, is standard practice at our state’s institutions. The veil of secrecy that is put up around what transpires behind the walls of our prisons is to shield the public from an awareness of the degrading, dehumanizing, and debilitating conditions in our correctional system… not the pretext of protecting security proffered by DOC officials. This secrecy allows correctional officers to assault and abuse inmates with impunity, and this condition is palatable for elected officials because the majority of those imprisoned are disenfranchised, poor, and people of color. And the people in power have little concern or empathy for their plight. This needs to change.

Without doubt, Timothy Helms should be transferred from prison to a rehabilitation facility where he can receive optimal treatment for the paralytic condition he sustained while in confinement. The fact that he has evidently recovered some movement in his extremities supports such a move (which is also recommended by the DOC physician.) The correctional staff’s attitude towards Mr. Helms, whose situation has brought unwanted scrutiny upon them, is poisoned, and as long as he remains in custody, he will continue to be subjected to abuse.

Government officials and politicians often remain silent or choose not to get involved in situations in which state agencies have committed acts or pursued policies that are indefensible and immoral. That is what has happened with the state’s treatment of Timothy Helms, and that is what has happened with the state’s treatment of former Durham District Attorney Mike Nifong. Politicians, law school professors, and even the North Carolina legal director for the American Civil Liberties Union have refused to comment on the selective and unjust disbarment of Mr. Nifong (the only prosecutor to be disbarred by the North Carolina State Bar since its inception).

Like the North Carolina Department of Corrections, the North Carolina State Bar joins it as being an agency that is totally lacking credibility in the minds of independent, rational, intelligent, and objective thinking North Carolinians. It is past time for state leaders of good conscience to become involved and speak out against North Carolina’s system of “selective justice based on Class and Color.”

Man faces 14 year mandatory sentence for “inconsistent statements”

Before I comment about a recent North Carolina justice system travesty, I would like to thank those individuals who have taken time to post comments about my blogs. In my latest blog about physical abuse and torture of inmates in North Carolina prisons, there were comments made by Walt-in-Durham to which I feel compelled to respond. Walt acknowledged the horrendous prison conditions, then accused Mr. Nifong of wanting to send the three Duke lacrosse defendants there. The fact of the matter is that, as a prosecutor, Mr. Nifong had the unsympathetic mandate to try and take away the liberty of the defendants. Prosecutors Freda Black, Bill Wolfe, Thomas Keith, Ken Honeycutt, Scott Brewer, and all prosecutors within the state are obligated to do their best to try and place criminal defendants behind bars. I have no reason to feel that Mr. Nifong took any glee from prosecuting the Duke Lacrosse defendants. He was merely doing his job. As blog respondent Scarlet Hill wrote, the focus of the blog was on the inhumane and barbaric conditions in the state’s correctional facilities. Respondent Justice58 posed a very important question… what does NC Attorney General Roy Cooper have to say about this?

Attorney General Cooper, as well as Governor Bev Perdue, and other politicians should be outraged, and they should not only denounce the abuse, but take substantive steps to curb it. In my blog I mentioned a few measures that could be taken to address this problem of abusing prisoners, but I am sure that they will fall upon the deaf ears of the politicians, the Attorney General’s Office, and administrators in the North Carolina Department of Corrections.

Although being guilty of a crime does not give correctional staff the right to abuse inmates, there are a number of people incarcerated in North Carolina who are innocent of committing a crime (overwhelmingly these are people who are disenfranchised, poor, and people of color). Less than a week ago, the “News & Observer” reported that 51 year old Gerardo Vilchez had been in jail for twenty one months awaiting trial on charges of trafficking cocaine. Wake Assistant District Attorney David Sherlin had no case against Mr. Vilchez, and, in an interview with the reporter, stated that during the 21 months he was in custody, Mr. Vilchez made “inconsistent statements.”

Mr. Vilchez said that he was merely driving a tour bus and that he had no knowledge of the fact that the tires were packed with cocaine. The jury wisely chose to accept Mr. Vilchez’s position as being closer to the truth than Prosecutor Sherlin’s case. Had Prosecutor Sherlin been successful, Mr. Vilchez would have been forced to serve a minimum of fourteen years in prison.

Although the merits of Mr. Nifong’s case can never be objectively presented because the attorney general quashed the investigation and prosecution in the Duke Lacrosse case, there is no doubt in my mind that the actions of Prosecutor Sherlin were far more egregious than what Mr. Nifong has been accused of doing. There can be no doubt that the defendant of Mr. Sherlin suffered far greater injustice than the Duke Lacrosse defendants. Actually, there is another defendant in the cocaine trafficking case, Mr. Victor Hugo Lopez. He has served nearly two years in jail awaiting trial, as well, and Prosecutor Sherlin now says he doesn’t know what he’ll do with the charges against Mr. Lopez. Such an admission by Mr. Sherlin does not instill in me much confidence in the strength of his case against Mr. Lopez, who will probably end up being yet another innocent victim of the state, incarcerated on a flimsy charge for an excessively long period of time awaiting trial.

Because of the state’s Helmsian tenet of “selective justice based on Class and Color,” this abhorrent detention and treatment of these suspects (Vilchez and Lopez) is acceptable. The prosecutor responsible for the gross injustice is not demonized and vilified by the attorney general, the governor, the media, and there is no wave of public backlash against him. Had Vilchez and Lopez been from families of wealth and privilege, it is unlikely that they would have even been charged by Prosecutor Sherlin, much less held in custody.

Director Thomas Maher, of the NC Indigent Defense Services, states that records are not kept of how long people spend in jail awaiting trial. Record keeping on this statistic should be instituted immediately because many people who are suspected of crimes are incarcerated while the prosecutor attempts to build a case for conviction, often when there is no probable cause. Holding people in jail while awaiting trial is one way of trying to obtain a plea deal in a case that falls apart, or that had no merit in the first place. That was the unsuccessful strategy used by Wilson District Attorney Howard Boney and Assistant District Attorney Bill Wolfe against James Arthur Johnson, who was incarcerated 39 months while awaiting trial for murder, rape, kidnapping, and armed robbery (charges which were later dropped).

Finally, holding an innocent man, Mr. Vilchez, in jail for 21 months while awaiting trial did not make North Carolina streets safer, but it did cost NC taxpayers $46,000. That amount doubles to a minimum of $92,000 when you factor in the other trafficking suspect, Mr. Lopez, who will most likely be freed, as well. In cases such as those against Mr. Vilchez and Mr. Lopez, not only does Lady Justice suffer, but so do Tar Heel taxpayers.

Department of Corrections Chief Alvin Keller: a big disappointment

With experience as a military judge, and his imposing “no nonsense” persona, the newly appointed secretary to the North Carolina Department of Corrections seemed to bring promise to the position. However, not far into his tenure, those aspirations have been hopelessly dashed. Mr. Keller’s reaction and response to the crimes committed by his officers against a mentally ill inmate, Timothy Helms, only goes to verify that the deplorable situation in the correctional facilities in the Tar Heel state will continue.

There is a long litany of emotional and physical mistreatment and abuse of inmates in North Carolina prisons and jails. It is no secret that inmates are frequently subjected to inhumane treatment by correctional staff. They have gotten away with their criminal abusive activities in the past, and by judging the way Secretary Keller handled the case of Timothy Helms, they will continue to have free rein to inflict as much bodily damage to inmates without fear of any disciplinary action. The correctional officers have been given carte blanche to torture and inflict physical and mental injury on inmates based on the response to Mr. Helms’s beating by Secretary Alvin Keller, the purposefully inept investigation by the State Bureau of Investigation, and the deafening silence coming from the Attorney General’s Office and office of Governor Bev Perdue.

To its credit, the media has mentioned occasional instances of abuse, otherwise I would not be able to document what I know is taking place in North Carolina’s prison system. But the media could and should do more to bring this serious moral and humanitarian blight on our state and society to the attention of its subscribers, the public. Calls for serious and significant changes in our state’s penal system are lacking.

What I would recommend would be for the state to take the following rudimentary, but important steps:
1. Change the mindset of the staff to understand that even though inmates may be caged like animals, they are, in fact, human beings. They should be treated, at the minimum, with respect.
2. Change the mindset of the staff to understand that they will be held accountable for their actions towards inmates, and that if they act outside of professional, legal, or moral bounds, they will be held liable.
3. Change the mindset of the staff to understand that inmates are not incarcerated for the purpose of being subjected to punishment. The purpose of their detention is to protect people and property outside the prison walls.
4. Allow inmates better access to family members will help assure that they are treated better by the staff. I’m not suggesting that supervision of visits or communications should be eliminated; the amount of supervision should be based on a case by case model.
5. Assure that prisoners are watched by staff of the same gender. Unclothed inmates subjected to observation and handling by staff members of the opposite sex is a situation that is not only humiliating and embarrassing, but can result in emotional and psychological damage. Specifically, inmate Bill Rayburn stated that while he was naked a female guard sprayed him in his genitals with pepper spray and laughed about it. This Abu Ghraib type of activity is deplorable and should not be allowed in North Carolina or this country.
6. Attempts should be made to identify those inmates with mental illness and see that they get appropriate treatment. Definitely actions should not be taken to exacerbate emotional problems, such as holding Mr. Helms in solitary confinement much longer than is recommended.
7. Finally, I would recommend that the Department of Corrections opens up its records, investigations, and other activities for public scrutiny in order to help assure that the inmate population is not mistreated.

Although most of the inmates in custody have been convicted of a crime, that does not necessarily mean that they are all guilty. Nor does it mean that they are necessarily bad, malicious, and evil people. Some may have made bad choices, or been especially hard hit by the downturn in the economy… and some may be innocent. Whatever the reason for their incarceration, the bottom line is that all inmates are human and deserve to be treated humanely. If the correctional officers treat the inmates better, I am certain that they will find that the inmates will reciprocate and be more cooperative with them.

Unfortunately I do not have much hope that any of the aforementioned recommendations will be adopted by the DOC, especially in light of recent action by its secretary, Alvin Keller with regards to Timothy Helms.

N & O holds NC Department of Corrections blameless in Mark Lyttle deportation fiasco

Once again, the News & Observer has jumped to the defense of the state by laying all of the blame for the unbelievable odyssey of United States citizen Mark Lyttle on the federal government’s Immigration and Customs Enforcement (ICE) agency. Mr. Lyttle, who suffers from mental illness and who is mildly retarded, was serving a sentence of several months at the Neuse Correctional Institution in Wayne County. According to state officials, Mr. Lyttle allegedly told state prison officials that he was born in Mexico. And based on that statement alone, according to Department of Corrections (DOC) spokesman Keith Acree, the prison was required to report Mr. Lyttle to the ICE. The ICE subsequently flew Mr. Lyttle to Reynosa, Mexico, where he was released on foot without food, money, or spare clothing. For the next four months he was bounced around from homeless shelters and jails in Mexico, Honduras, Nicaragua, and Guatemala.

Although Mr. Lyttle was mildly retarded and mentally ill, he did know his Social Security number and the names of his mother and two brothers (who are serving in the U.S. Army). If the state’s DOC seriously questioned the status of Mr. Lyttle’s citizenship, all they needed to do was check his Social Security number, or attempt to reach one of Mr. Lyttle’s relatives, two of whom were in the armed service.

The question of Mr. Lyttle’s citizenship should have been established by the state when he was first placed in custody in Wayne County. Regardless of any statements allegedly made by Mr. Lyttle about being born in Mexico, if prison officials knew such statements to be false, it would be irresponsible for them to contact the ICE, as Mr. Acree said was mandatory. Common sense suggests that if U.S. embassy officials in Guatemala City, Guatemala, could verify the U.S. citizenship of Mr. Lyttle, surely prison officials in Wayne County should have.

Although he was born in North Carolina’s Rowan County, and was living in North Carolina, he is currently staying with his brother in Kentucky. He says that now he is afraid to return to North Carolina, which shows that although he may be retarded, he is not dumb. North Carolina’s DOC should be ashamed of itself and take responsibility for its reckless actions regarding Mr. Lyttle. The News & Observer does not serve the public well by trying to absolve the state of any guilt… it only serves as the state’s enabler.