Can The West Memphis Three Sue For Wrongful Imprisonment?
The “West Memphis Three” have long been a cause célèbre, for good reason: the case had all the hallmarks of a railroad prosecution, from hysteria over Satanism to a coerced confession by a minor with a well below average I.Q. to the lack of any forensic evidence or eyewitness testimony connecting Damien Echols, Jason Baldwin and Jessie Misskelley to the brutal murder of three young boys in 1993.
NPR’s blog sums up much of the story:
The original convictions, based on a theory that Echols, Baldwin and Misskelley killed the three children as part of a Satanic ritual, were the subject of the 1996 HBO documentary Paradise Lost: The Child Murders At Robin Hood Hills and the 2000 follow-up Paradise Lost 2: Revelations. Paradise Lost 3: Purgatory is set to premiere at this year’s Toronto International Film Festival. All three come from filmmakers Joe Berlinger and Bruce Sinofsky.
The case is also the subject of the 2002 book Devil’s Knot.
The first two documentaries — and presumably the third — argue that the three were wrongfully convicted primarily because they were, in a word, weird, and because of fears whipped up in the community by mentions of Satanism.
As the films tell the story, they were misfits in West Memphis, teenagers who listened to the wrong music and dressed the wrong way and made people intensely uncomfortable. Misskelley, a 17-year-old with a reported I.Q. of 72 when he was arrested, confessed to the police after a lengthy interrogation, only to almost immediately recant. The Supreme Court of Arkansas later called the confession, in which he admitted being present but primarily incriminated Echols and Baldwin, “virtually the only evidence” against Misskelley, and noted that it contained “a confusing amalgam of times and events” and “numerous inconsistencies,” both internally and with the actual physical evidence in the case. The court nevertheless upheld his conviction.
After a long, long journey through the court systems, in November of last year the Arkansas Supreme Court unanimously ruled the West Memphis Three were entitled to hearings on whether they could use Arkansas’ DNA exoneration statute for post-conviction DNA testing. Those hearings were scheduled for December when, just yesterday, Craighead County Circuit Judge David Laser announced that the three would be in court the next day.
What The Heck Is Nolo Contendere?
The so-called West Memphis Three agreed to a legal maneuver that lets them maintain their innocence while acknowledging prosecutors likely have enough evidence to convict them.
“No contest,” a.k.a. nolo contendere, is indeed one of the strangest legal maneuvers on the books, allowing a defendant to plead neither guilty nor not guilty. Even the Supreme Court hasn’t figured out what the plea really means:
Courts have defined the plea of nolo contendere in a variety of different ways, describing it, on the one hand, as “in effect, a plea of guilty,” United States v. Food & Grocery Bureau, 43 F. Supp. 974, 979 (SD Cal. 1942), aff’d, 139 F. 2d 973 (CA9 1943), and on the other, as a query directed to the court to determine the defendant’s guilt. State v. Hopkins, 27 Del. 306, 88 A. 473 (1913). See generally Lott v. United States, 367 U. S. 421, 426-427 (1961), id., at 427-430 (Clark, J., dissenting), 21 Am. Jur. 2d, Criminal Law § 497. As a result, it is impossible to state precisely what a defendant does admit when he enters a nolo plea in a way that will consistently fit all the cases.
Hudson v. United States, supra, was also ambiguous. In one place, the Court called the plea “an admission of guilt for the purposes of the case,” id., at 455, but in another, the Court quoted an English authority who had defined the plea as one “where a defendant, in a case not capital, doth not directly own himself guilty. . . .” Id., at 453, quoting 2 W. Hawkins, Pleas of the Crown 466 (8th ed. 1824).
The plea may have originated in the early medieval practice by which defendants wishing to avoid imprisonment would seek to make an end of the matter (finem facere) by offering to pay a sum of money to the king. See 2 F. Pollock & F. Maitland, History of English Law 517 (2d ed. 1909). An early 15th-century case indicated that a defendant did not admit his guilt when he sought such a compromise, but merely “that he put himself on the grace of our Lord, the King, and asked that he might be allowed to pay a fine (petit se admittit per finem).” Anon., Y. B. Hil. 9 Hen. 6, f. 59, pl. 8 (1431). A 16th-century authority noted that a defendant who so pleaded “putteth hym selfe in Gratiam Reginae without any more, or by Protestation that hee is not guiltie . . . ,” W. Lambard, Eirenarcha 427 (1581), while an 18th-century case distinguished between a nolo plea and a jury verdict of guilty, noting that in the former the defendant could introduce evidence of innocence in mitigation of punishment, whereas in the latter such evidence was precluded by the finding of actual guilt. Queen v. Templeman, 1 Salk. 55, 91 Eng. Rep. 54 (K. B. 1702).
Throughout its history, that is, the plea of nolo contendere has been viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency. Fed. Rule Crim. Proc. 11 preserves this distinction in its requirement that a court cannot accept a guilty plea “unless it is satisfied that there is a factual basis for the plea”; there is no similar requirement for pleas of nolo contendere, since it was thought desirable to permit defendants to plead nolo without making any inquiry into their actual guilt. See Notes of Advisory Committee to Rule 11.
The support for the West Memphis Three reaches some of the victims’ relatives who have questioned whether the right people were behind bars.
Byers’ adoptive father, John Mark Byers, said he believes Echols, Baldwin and Misskelley are innocent. He said prosecutors told him that they planned to reach a no-contest plea on Thursday.
“There’s certainly no justice for the three men that’s been in prison or my son and his two friends,” Byers said. “To me, this is just a cop-out from the state for not wanting to admit that they made a mistake.”
Exactly. Either the West Memphis Three murdered three young boys as part of a Satanic ritual or they didn’t. Agreeing to let them out now means the State of Arkansas believes they’re innocent. Like I wrote back when Fairfax County claimed it was “not an admission of liability” when it paid $2 million to settle a wrongful death lawsuit after its police officers pointlessly entrapped and killed an upstanding citizen in his prime, under the circumstances of that case and this case, it most certainly is an “admission of liability.”
The boys should never have been imprisoned at all.
Since most everyone, State of Arkansas included, believes they’re innocent, the question turns around to can they obtain any compensation for nearly twenty years of wrongful incarceration?
Four Legal Questions On The Road To Compensation
Twenty-seven states and Washington, D.C., currently have DNA exoneration compensation statutes, not including Arkansas. If the West Memphis Three want compensation for their wrongful imprisonment, they’ll have to sue the District Attorney’s office and the prosecutors within it.
Four legal questions come to mind. The most obvious first question is, do the West Memphis Three give up their right to sue by pleading no contest?
Recall how vague “no contest” is in the first place. The short answer, coming to us by way of an excessive force lawsuit in which the plaintiff was left paraplegic after a police shootout (in essence, he brought a knife to a gunfight), is “no“:
[The police officers argue] that Thomas pled nolo contendere to various state charges for events arising out of the incident, including one count of assault on a peace officer and one count of trespass based on his excursion through Forney’s apartment. But by pleading nolo contendere, Thomas did not admit that he assaulted Roach; rather, he only admitted his recognition that he probably would lose if he went to trial. See North Carolina v. Alford, 400 U.S. 25, 35-36 & n.8, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Thus, while a § 1983 action for arrest without probable cause may be barred by the arrestee’s conviction at trial or by the arrestee’s guilty plea, see Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir.1986); Roundtree v. City of New York, 778 F.Supp. 614, 619 (E.D.N.Y. 1991), Thomas’s § 1983 claim predicated on excessive force during his arrest is not barred by his nolo contendere plea to the offense for which he was arrested.
Thomas v. Roach, 165 F.3d 137 (2nd Cir. 1999). See footnote 2 for more about why nolo contendre doesn’t preclude a later civil rights lawsuit.
The second question: can they sue for civil rights violations?
The problem for the West Memphis Three, however, is that the bar for prosecutors has been set so low that it’s virtually impossible to prove they violated your civil rights.
As I wrote back in March when the Supreme Court decided Connick v. Thompson, the Connick opinion holds that “a district attorney has no constitutional obligation to ensure that the prosecutors under his or her command actually know the first thing about constitutional law. He and his city government are free from any responsibility to train the individuals vested with one of the greatest and most abuse-prone powers in the United States, the prosecutorial power.”
In Connick, John Thompson spent eighteen years in prison because the prosecutors failed to turn over exculpatory evidence, as they’re required to do under Brady v. Maryland, 373 U. S. 83 (1963). After he was exonerated, he sued, and a jury awarded him $14 million based upon evidence that the prosecutors were “deliberately indifferent” to Thompson’s rights but not turning over a crime lab report that would have exonerated him. A 5-4 Supreme Court overturned the jury verdict with the flimsy legal reasoning that citizens don’t have a constitutional right to competent prosecutors that respect their constitutional rights; if that sounds silly, it’s because it is.
That’s not to say that it’s impossible for the West Memphis Three to win compensation, just that conservative appointees to federal appellate courts and the Supreme Court have made it exceedingly difficult for the victims of wrongful incarceration to obtain fair compensation.
Which brings us to our third question: can they sue for anything other than civil rights violations?
Consider the Salvati, Limone, Greco and Tameleo case, in which the FBI intentionally let four men take the fall — and serve 29 years in prison — for a murder they knew had likely been committed by one of their informants, Vincent “Jimmy the Bear” Flemmi. Federal Judge Nancy Gertner award Salvati, Limone, and the families of Greco and Tameleo (both of whom died in prison) $101 million, an amount later sustained by the First Circuit and eventually paid by the U.S. government.
How did they win? By coming up with a way to relief other than civil rights claims: they also alleged malicious prosecution and intentional infliction of emotional distress. Like Limone, the West Memphis Three might be able to circumvent the Supreme Court’s attack on wrongful incarceration claims by also alleging intentional infliction of emotional distress against the police officers and prosecutors involved in their case. Just like how the Federal Tort Claims Act leaves government officers liable for intentional conduct, and thus permitted the Limone suit, the Arkansas Supreme Court recognized in Deitsch v. Tillery and Grine v. Board of Trustees that “intentional torts overcome the immunity extended to State officers and employees.”
And so the fourth question: how much compensation might they receive?
The Limone case also produced a number of fascinating court opinions discussing, in essence, the value of each year of wrongful imprisonment. As the First Circuit held on appeal:
We have said before, and today reaffirm, that “there is no scientific formula or measuring device which can be applied to place a precise dollar value on matters such as restraint of freedom, fright, anxiety, loss of face, or emotional scarring.” Wagenmann, 829 F.2d at 216.
The wisdom of that statement is evident here: placing a dollar value on the emotional pain incident to wrongful incarceration, the dreary sameness of life behind bars for years on end, and the loss of freedom, relationships, and hope cries out for approximation. … Viewed through this prism, we cannot say that the district court’s choice of baseline was unreasonable. …
That leaves the naked claim of excessiveness (a claim that encompasses the government’s charge that $1,000,000 per year is simply too rich). This question is not free from doubt. The district court’s awards are considerably more munificent than the amounts that this court would have awarded in the first instance. In our view, the awards approach the outermost boundary of what might be thought conscionable. Cf. Baba-Ali v. State, 24 Misc.3d 576, 878 N.Y.S.2d 555, 568 n. 7 (N.Y.Ct.Cl.2009) (chronicling awards of lesser amounts).Still and all, the awards are by no means unprecedented, and the “shock-the-conscience” test cannot be administered in a vacuum. What is shocking under one set of facts may be acceptable (even if only marginally so) under different circumstances. See United States v. Santana, 6 F.3d 1, 6 (1st Cir.1993).
We are frank to say that, here, the awards for wrongful incarceration are high enough to be troubling. But when we take into account the severe emotional trauma inflicted upon the scapegoats, we cannot say with any firm conviction that those awards are grossly disproportionate to the injuries sustained. After all, some cases involving analogous factual scenarios have resulted in comparable damage awards. See, e.g., Thompson v. Connick, 553 F.3d 836, 865-66 (5th Cir.2008) (upholding jury award of $14,000,000 for 18 years of wrongful incarceration), vacated on other grounds by562 F.3d 711 (5th Cir.2009) (en banc); Newsome v. McCabe, 319 F.3d 301, 302-03 (7th Cir.2003) (involving award of $15,000,000 for 15 years of wrongful incarceration); White v. McKinley, No. 05-203, 2009 WL 813001, at *22 (W.D.Mo. Mar.26, 2009) (upholding jury award of $14,000,000 in compensatory damages for 5½ years of wrongful incarceration); Sarsfield v. City of Marlborough, No. 03-10319, 2006 WL 2850359, at *1 (D.Mass. Oct.4, 2006) (reflecting judicial award of more than $13,000,000 for 9½ years of wrongful incarceration). Consequently, we conclude that the district court’s awards must stand.
It is up to the particular jury or judge to determine the actual number, but a million dollars a year wrongfully imprisoned appears to be the rough standard.
All in all, despite the best efforts of conservative judicial activists to deny civil justice for people whose lives were quite literally ruined, the West Memphis Three may prevail after all, as they should.