08/25/2011 09:10 pm ET | Updated Oct 25, 2011

"I Am Guilty, But Innocent": Does This Make Any Sense?

On August 19, three convicted murderers in West Memphis, Arkansas, had their convictions, under which they had served 18 years, thrown out -- only to plead guilty to murder, be sentenced to time served and be released from jail, all the while telling the judge and the rest of the world that they were innocent. Essentially, "I plead guilty, but I am innocent."

Not "guilty with an explanation," as one does in traffic court when the parties want to clear the deck of an insignificant offense -- but rather, simply innocent. Meaning, "I didn't do it, period." Just imagine that you are the victim's survivor, listening to a man ostensibly "guilty" of killing your loved one who has the temerity to say "guilty" in open court in virtually the same breath that "I am actually innocent" -- as if he was crossing his fingers while uttering the word "guilty."

And just imagine being the defendant who, to gain his freedom after 18 years for a crime for which he has unwaveringly claimed that he is innocent, having to publicly state that he's guilty.

Not to mention being the judge who hears all of this and agrees to preside over what appears to all the world -- probably, including himself -- to be nothing less than a legal charade. And put aside those commentators from outside the system -- commentators not constrained by the legal fraternity's protocols -- who try to explain to visiting Martians how American criminal justice actually works when there is no other way to mete out rough justice.

Just conjure up the irony: had the defendants refused to plead guilty, they would have had to risk life in jail, when a seemingly false pronouncement of guilt would set them free. (Parenthetically, had Jesus, atop the Mount of Olives (John 8:32), heard that 2000 years later "the false will set you free," he would certainly have had another arrow in his quiver against the Pharisees.)

But put that aside. Doesn't it seem tone deaf for the criminal justice system -- let alone the United States Supreme Court, which in its 1970 decision in North Carolina v. Alford legitimized the use of such guilty pleas (although they are only infrequently used around the nation) -- to allow defendants to be jailed (maybe, for life) or, for that matter, freed, by a process that seems so counterintuitive to the concept of justice?

Yes, sometimes the law seems perverse and illogical. But there are many legal rules that are counter-intuitive, meaning that they do not make sense logically, but are made for reasons of policy and expediency. For example, when a trial witness answers a question with an unresponsive and highly prejudicial response, it is commonplace for the judge to strike the answer and admonish the jury to disregard the witness's statement. Does anybody seriously believe that jurors who have heard a witness give a highly incriminating answer are able or willing to put it out of their minds? The alternative to the judge's instruction would be for the judge to declare a mistrial, as happened recently in the federal criminal trial of former baseball player Roger Clemens.

Or take the case of a prosecutor who strikes from a panel of prospective jurors every minority juror. When the defense challenges the prosecutor's conduct as racially motivated and therefore unconstitutional, the prosecutor typically responds with innocent -- sounding reasons for the strikes -- I didn't like this juror's "body language," that juror gave "unresponsive answers," the other juror was a crime victim -- when in fact everybody in the courtroom finds the prosecutor's response illogical and disingenuous.

So, when a criminal defendant seeks a plea deal but does not want to acknowledge guilt, what should the judge do? It indeed does look like a charade, and it does not enhance the integrity of the criminal justice process and the public's confidence in that process, if the judge says OK. But what's the alternative? Consider the case where a defendant is charged with capital murder. He claims he is innocent, but knows that if he is convicted after a trial he will face the death penalty. To avoid that prospect, and with the prosecutor's consent, he willingly pleads guilty to non-capital murder while all the while claiming his innocence. It should be noted that in Alford-type pleas, it is common for the prosecutor to outline the proof of the defendant's guilt so the judge knows there is a valid basis for the charge. Otherwise, it may allow prosecutors to bring heavy charges to coerce defendants to take pleas to lesser charges without any accountability.

In the West Memphis Three case the prosecutor did outline the evidence of guilt, and maintained that the defendants were in fact guilty of the atrocious killings. Nevertheless, because of legal errors a new trial was ordered; and because of the passage of 18 years convictions would have been unlikely. The plea deal preserved for the prosecution the defendants' official convictions of murder, and gave the defendants their liberty. The deal appears to have served some vague concept of justice, but may have appeared to the public to be dishonest gamesmanship.

Is there a better way? A plea of nolo contendre ("no contest") has historically and remains authorized in some jurisdictions as a means to allow a defendant to accept punishment without admitting guilt -- but only in some jurisdictions. In the case of a nolo plea, the prosecutor places on the record the proof of guilt and the defendant simply says "I plead nolo contendre" -- Latin for no contest. In other words, essentially, "I don't contest, for these purposes, the evidence against me, but I don't say in open court that I'm guilty or that I'm innocent. And I recognize that the court can punish me to the same extent as if I were to plead guilty." (Perhaps a slightly more satisfying result for the parties and the victim or survivor family, and for the public at large -- although, parenthetically, such a plea still doesn't demonstrate the defendant's acceptance of responsibility which may indeed be an important component of the plea process.)

Lawmakers, by enacting legislation, could give the veneer of legitimacy to "Alford" pleas. Or, the so-called Alford plea should be abolished, with the consequence that defendants to receive leniency from the judge must acknowledge guilt. Such a rule would have the simplicity of being logical, but would it be fair?