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.”