Kenneth Kagonyera, 31, and Robert Wilcoxson, 31, were freed and exonerated after spending a decade in prison, after a panel of judges in North Carolina ruled they were actually innocent of the crime to which they had pleaded guilty. Both men, who had consistently maintained their innocence, had pleaded guilty to second-degree murder specifically because they had been threatened with the death penalty and feared execution.
Prosecutors and other death penalty proponents often cite the value of the death penalty as a bargaining tool which can be used to get those guilty to plead guilty rather than go to trial. But, as the coerced pleas of Wilcoxson and Kagonyera illustrate, the availability of the death penalty as a threat creates the very real risk of landing actually innocent persons in prison through coerced guilty pleas. Few experienced criminal defense attorneys would advise a client to risk a death sentence in a case where there was a substantial risk of execution; and, as the Wilcoxson and Kagonyera cases--and the case of Troy Davis as well--demonstrate, it is often many years after the crime that new (or unjustly hidden) evidence comes to light which exonerates the accused.
Wilcoxson and Kagonyera are not the only innocent defendants coerced into pleading guilty to avoid the death penalty: Derrick Allen is another. In February 1998, Allen--age 19--had been caring for his girlfriend's 2-year-old daughter with a cousin of his--but was alone with her for the 30 minutes before he called 911 to report that she was unconscious. The police arrested him; he was charged with first-degree murder and first-degree sexual assault; and prosecutors announced they would seek the death penalty. The primary physical evidence against Allen consisted of the apparently bloody panties of the little girl. In August 1999, facing the threat of the death penalty, Allen agreed to an "Alford Plea" (under which a defendant does not admit guilt, but pleads guilty and acknowledges that a jury could find him guilty), and was sentenced to 43 to 54 years in prison. At the time, Freda Black--the lead District Attorney on the case--trumpeted the result:
Black said the plea agreement accomplished the state's goal in the case.
"We wanted something that would equate to a life sentence, " Black said. "Given that correction officials say many defendants end up serving closer to the maximum sentence than the minimum, he won't get out until he is 70 years old."
Derrick Allen, maintaining his innocence, began a quest to clear his name. In 2004, his conviction was vacated and the case was remanded for a new trial on the original charges. After several years and changes in his legal representation, in 2010 Judge Orlando Hudson dismissed all charges against Allen. His conclusion was that the prosecution had intentionally misled the defense and suppressed exculpatory evidence:
Prosecutors in the case of Durham's Derrick Allen "knew that some information they intentionally failed to disclose was exculpatory information and that their suppression of favorable material was a violation of Mr. Allen's constitutional rights ..."
SBI Agent Jennifer Elwell had told prosecutor Black in August 1998 that tests of the victim's panties failed to reveal the presence of blood. Incredibly, Black and Elwell
decided to stop further testing of items for DNA testing because they believed further testing of physical evidence of the case would not prove inculpatory to the defendant Derrick Allen and could possibly inculpate others.
While the threat of the death penalty may be a "useful tool" for prosecutors in their efforts to secure guilty pleas, it is far from clear that this "useful tool" serves justice.