It is a legal curly-que of sorts and it has happened twice in Lawrence County within the last 30 days: A man walks into court and agrees to surrender his freedom, while still maintaining he didn’t do what they allege he did.

Experts said the Alford plea of guilty is not as widely known as other legal pleas.

What is it?

In most plea agreements, a person comes to court and admits their guilt in exchange for a less-than-maximum sentence. The crime is acknowledged. The criminal is punished and a trial is avoided.

In an Alford plea, the person accused of a crime accepts a plea offer from the prosecutor even though the person insists they did not commit the crime they are accused of committing.

Lawrence County Common Pleas Judge Charles Cooper said an Alford plea is “really an acknowledgement from the defendant that while he or she did not commit the crime, the evidence that would be presented at trial is such that the defendant is concerned he or she would be convicted regardless of what they know in their own mind to be the case and they want to accept a certain sentence the prosecutor’s office has agreed to recommend.”

Attorney Chris Delawder agreed.

“They’re saying they’re not guilty of the crime but it is so risky to proceed to trial where you could be found guilty,” Delawder said.

An Alford plea differs from a “no contest” plea as well. In a no contest plea, the defendant agrees with the facts of the case as presented by the prosecution.

“In a no contest, you’re not contesting the facts of the case. You’re saying, ‘if based on the facts of this case the court finds that’s a crime you can find me guilty but I won’t say I’m guilty,’” Assistant Lawrence County Prosecutor Mack Anderson said.

“With a no contest plea, occasionally the person is found not guilty,” Attorney David Reid Dillon said.

“If the judge thinks the facts are not sufficient for a conviction he or she is supposed to find the person not guilty. In the Alford plea, this is not the case. In the Alford plea there is usually strong evidence against the defendant.”

Cooper said the Alford plea is used in less than 2 percent of the cases he has handled. Fellow Judge D. Scott Bowling said he has seen three or four Alford pleas in the last 2 ½ years.

The judge does have discretion in deciding whether to allow an Alford plea.

Anderson pointed out that the Alford plea is relatively new.

“It’s probably 20 years old. No contest pleas have been around the long time.”

He said he suspects it is not used more often because some defendants don’t know about it.

Who has used it and why?

The two cases that recently ended in an Alford plea were that of Floyd McCann, accused of shooting a neighbor, Mark Robinson, in January 2009. He was sentenced to 10 years in prison.

If he had been convicted he could have gotten 16 years in prison. McCann had maintained that while he shot Mark Robinson, he did not intentionally or knowingly commit the act.

“Rightly or wrongly the defendant maintained his innocence as it related to culpability,” Bowling recalled.

McCann’s attorney, William Eachus, maintained the shooting was an accident.

But the prosecution maintained McCann had to have known if he was randomly firing a gun in an area where other people lived, there was the possibility he had to have known he could have shot someone.

“The key word there to prove is ‘knowingly,’” Anderson said. “You have to look at the definition. If you’re acting in such a manner that it is likely to cause a certain result it meets the definition of ‘knowingly.’ And this shooting did result in someone being hurt.”

The other case was that of Jesse Scarberry, charged with complicity to unlawful sexual conduct with a minor.

He was accused of arranging for his 27-year-old girlfriend to have sex with his 13-year-old son as kind of a hands-on sex education course.

He entered an Alford plea and got four years in prison and must register as a sex offender for the next 25 years.

Dillon represented Scarberry and acknowledged in court that Scarberry believed while he was not guilty of the crime, he would accept the four-year prison sentence rather than taking his chances in a jury trial where he may be found guilty and sentenced to more time in prison.

Dillon also recalls another incident early in his career that ended with an Alford plea. He was representing a man accused of arson.

The man, who was mildly mentally challenged, was taken by a local law enforcement agency and hooked up to a copy machine that the man thought was a lie detector.

The suspect didn’t know the copier had been loaded with preprinted paper that would, at the touch of a button, hurl an accusation of guilt.

“They (the police) would ask him a question and then a paper would come out saying ‘liar,’” Dillon recalled. The man then made “ a confession of sorts,” Dillon said. The police used the man’s confession to pursue a case against him.

“With all the charges, if he had been found guilty of all of them, it would have come up to something like 20 years,” Dillon said. “They offered him a year.”

The accused arsonist took the offer.

“The downside could have been much worse,” Dillon said. “He was likely to be convicted and that’s why we used it in that case.”

Pros and cons

Anderson said in spite of protestations of innocence, an Alford plea ends the same way other plea agreements and many trials end: With the criminal going to prison.

“They’re getting the same time as they would have if they had stood and pleaded guilty,” he said.

Bowling said an Alford plea can save the victim from the ordeal of a trial and having to re-live the incident that produced the criminal charges in the first place.

“That’s worth a lot, especially in sexual abuse cases and case where emotions are going to run high on both sides in the courtroom,” Bowling said.

Cooper, who was once an assistant prosecutor, said the Alford plea can leave unanswered issues for some people.

First, prosecutors deal with victims and some victims may perceive it as a slap in the face for the person who committed a crime against them to accept a deal without ever having admitted their guilt.

In the McCann case, the victim, Mark Robinson, was in agreement with the outcome to avoid a trial, authorities said.

Also, an Alford plea opens up questions of remorse, or lack thereof, a key factor in sentencing.

Does the Alford plea in a criminal case affect a victim’s proceeding in a civil case? Maybe, maybe not. Suppose a man is assaulted and criminal charges are lodged against the attacker.

The victim also has the right to sue the assailant for damages in civil court to recoup money for medical expenses.

If the defendant is found guilty or avoids a trial and pleads guilty to the criminal charges, that outcome in criminal court is almost always used in civil proceedings.

However, an Alford plea in a criminal case does not make it impossible to win a civil case but that is one less item in your favor when seeking civil remedy.

Cooper said people who enter Alford pleas may still appeal certain parts of their case, such as evidence against them that was deemed admissible in the lower court but may not be found so at the appellate level.

Who is Alford?

The Alford plea is named for Henry Alford, a North Carolina man who was indicted for first-degree murder in December 1963.

His attorney spoke to several witnesses and concluded, based on their statements, Alford was guilty and would probably be convicted in a trial.

The attorney recommended Alford plead guilty to the lesser charge of second-degree murder to get a lesser sentence, but left the decision to Alford, who did in fact plead guilty to the lesser charge but maintained in court he was innocent and was pleading guilty only to avoid the death penalty, which he could have gotten if he had been convicted of the first-degree murder charge.

The judge sentenced Alford to 30 years in prison and Alford appealed on the constitutional ground that his plea was “the product of fear and coercion,” in violation of his constitutional rights and the judge should not have accepted his plea for that reason.

A federal appeals court agreed.

But in 1970, the U.S. Supreme Court ruled it is not unconstitutional for a judge to accept a guilty plea from a defendant who wants to plead guilty while still protesting his innocence, hence the Alford plea of guilty.