Elvis Brooks spent forty-two years in a Louisiana prison — nearly two-thirds of his life — for a murder he always insisted he did not commit. Arrested in 1977 at the age of nineteen, Brooks was charged with robbery and murder. No physical evidence connected him to the crime. At trial, three white witnesses identified Brooks, an African American, as one of the armed robbers. Brooks presented twelve alibi witnesses who swore under oath that Brooks was elsewhere at the time of the offense.

Photo by Hédi Benyounes on Unsplash

Brooks was found guilty and sentenced to life in prison.

In mid-October, 2019, flanked by lawyers from the New Orleans Innocence Project, Brooks was finally back in a Louisiana court for a hearing about newly discovered evidence. It turns out the prosecution at trial did not turn over to evidence to the defense that could have helped prove his innocence. There were previously undisclosed fingerprints — not Brooks’ — on two beer cans held by the actual robbers. There were previously undisclosed records which showed neither of the two black victims identified Brooks just one-half hour before the white witnesses claimed they knew it was him. There was social science data showing that cross-racial identifications are notoriously unreliable.

Instead of a hearing, however, things took an unexpected turn. The prosecution made Brooks an offer. Plead guilty to manslaughter and three armed-robbery counts, and you’ll be free.

Brooks took the deal. As Brooks explained, he didn’t want to take the plea, but he wasn’t “getting any younger.” A judge accepted his guilty plea and re-sentenced Brooks to what essentially was time served.

After four decades behind bars, Brooks finally went home. It was bittersweet. He left prison not as an innocent man, but as a convicted felon.

What is gut-wrenching about the case is that the prosecution, even after all these years, refused to acknowledge that Brooks’ guilt was even possibly at issue.

This exact scenario plays itself out in courtrooms around the country. Defendants found guilty at trial but who— years later — are able to present strong cases of innocence may be offered plea deals by prosecutors. The deals are tantalizing “get out of jail” cards with a cost: defendants must abandon their long-held innocence claims and plead guilty to crimes they have said all along they did not commit.

Plea consequences are dire

It can be argued that a modicum of justice is served because people who have again and again insisted on their innocence are finally free.

But take Willard O’Neal. He served 18 years in prison for a murder he did not commit. Then the Innocence Project of Oklahoma proved his innocence through DNA evidence.

The prosecution, however, insisted O’Neal plead no contest to second-degree murder in exchange for his prompt release. He took the deal because he knew a battle for exoneration can take years, and he wanted to get home to his 87-year-old mother. He left prison a free, but technically guilty, man on September 12, 2019.

Prosecutors refuse to admit that mistakes may have been made.

Mark Godsey, Director of the Ohio Innocence Project and author of Blind Injustice, writes about prosecutors who refuse to believe that innocent people are ever convicted, and certainly never by them. These “innocence deniers” engage in unthinkable legal contortions to avoid admitting that an error could have been made. Law Professor Daniel Medwed suggests that these staunch denials may be a coping mechanism to “avoid facing the unfaceable,” that the prosecutor or someone in their office was responsible for sending an innocent person to prison.

Prosecutors vehemently deny defendants’ innocence even in the face of overwhelming evidence. Ha’im Al Matin Sharif (who changed his name from Charles Robbins while he was in prison) was convicted in 1988 of murdering his girlfriend’s 11 month-old-daughter Britany. After nearly thirty years on Nevada’s death row, medical evidence conclusively established what Sharif had insisted all along. Britany had not been murdered. Instead, she died of an overlooked and undiagnosed illness.

When presented with the new evidence, a court vacated Sharif’s conviction in 2016, and ordered a new hearing. Even after the prosecution’s own expert reviewed the medical records and agreed that Britany died from an illness and not abuse, the prosecution refused to dismiss the murder charges. Instead, the prosecution offered Sharif a plea to second degree murder in exchange for his immediate release.

Sharif took the offer and plead guilty. He is now free from prison, but lives forever branded as a felon for a murder that never even happened.

Because O’Neal, Brooks and Sharif plead guilty, they are not entitled to compensation from their respective states for the years they spent in prison. And like any other convicted felon, they face significant obstacles to obtaining employment, housing and benefits. O’Neal and Brooks are destitute after their many years in prison; their respective attorneys have started fundraisers to support the struggling men.

If they were wrongly convicted but are actually innocent (and in the above cases, new evidence found after their convictions strongly suggests they were), why are prosecutors offering plea deals at all?

Where are the judges?

Judges also need to shoulder their fair share of responsibility here.

It is true that unlike prosecutors, judges have a more passive role in plea bargaining. Judges are often not part of plea negotiations. Their task in the plea process is to ensure that defendants understand and knowingly agree to waive their constitutional rights to a trial and related protections in exchange for the promised plea agreement and sentence, and that their admissions of guilt are voluntary.

But here’s the thing. Plea bargaining rests on the premise that defendants admit their guilt to gain benefits in the form of lesser charges or lower sentences. The prosecution agrees to the plea deals because it saves them the time and resources of having to prove their case beyond a reasonable doubt.

If the prosecution cannot prove a defendant’s guilt beyond a reasonable doubt, perhaps because new evidence has come to light that the convicted defendant might actually be innocent, they should not proceed with the case. They should dismiss it outright.

And this is where judges need to step up.

When judges are presented with compelling evidence of innocence after a defendant was already convicted, they need to be more demanding of prosecutors. While no judge wants to reject plea agreements that allow defendants claiming innocence to be released from long prison terms, they can certainly do more to ensure that justice is served.

Judges could inquire on the record as to whether the prosecution in fact could proceed with the case if a new trial were to occur, and even require the prosecution to lay out the evidence it has in its possession to determine whether there is any merit to the prosecution’s case. Even more radically, in the face of an intractable prosecutor and highly compelling evidence of innocence, judges (with the consent of the defendant) could suggest a short “bench trial” right then and there, and issue a “not guilty” verdict if the evidence were found lacking, or order a jury trial and issue a directed verdict if that’s what the evidence required.

Hobson’s choice for the wrongly convicted

It is hard to know how many innocent people, wrongly convicted of crimes they insist they did not commit, reluctantly plead guilty after their convictions were overturned or on the eve of new evidentiary hearings. They do so to avoid the risk of another lengthy sentence or even the risk of more time in prison while waiting for the outcome of their quest to be declared innocent.

Who can blame them? Prisons are bleak overcrowded places of deprivation and violence. Prison time for the factually guilty is hard enough, but perhaps even more painful for those who should never have been behind bars in the first place.

The Death Penalty Information Center identifies more than twenty-five men who were sentenced to death but who entered guilty pleas after their convictions were overturned rather than risk more time on death row. They all had strong claims of innocence.

The seemingly innocent men and women who plead guilty after they have served time for their wrongful convictions are technically guilty in the eyes of the law, even if they are factually innocent. Although prosecutors, and to a lesser extent judges, seem fine with that outcome, we should demand that they do better.

As officers of the court, prosecutors and judges are tasked to serve justice. Justice is not served by presenting wrongly convicted defendants with the Hobson’s choice of pleading guilty to crimes they did not commit — and that the prosecution likely cannot prove they committed — simply so they can once again be with family and breathe fresh air.

Just ask Elvis Brooks and Willard O’Neal. They’ll tell you.