A DISCUSSION OF LAW AND JOURNALISM

Full of Hot Air

By Victoria Rosner

After originally telling authorities that his six-year-old son was captive aboard an errant UFO-shaped balloon drifting high over eastern Colorado, Richard Heene pleaded guilty in state court to a felony charge of attempting to influence a public servant. Investigators had determined the balloon release was part of a hoax, and that Heene’s young son, Falcon, had been safely hiding in the family attic throughout the internationally televised ordeal.

But despite his guilty plea in November 2009, Heene continues to maintain his innocence. In a series of recent press appearances, USA Today reported that Heene insisted that the incident was “absolutely not” a hoax. He further insisted that he pleaded guilty—not because he was guilty—but only to prevent his wife, who is not a U.S. citizen, from being deported. Heene’s wife, Mayumi, had also previously admitted to investigators that the balloon incident was a hoax intended to gain notoriety for her family.

Prosecutors have characterized  Heene’s public assertions of his innocence (post guilty plea) as “irritating,” but said his statements don’t constitute a parole violation, and thus prosecutors have no further legal recourse against him. But if a criminal defendant pleads guilty in court, and then holds a press conference on the courthouse steps saying he’d just lied and wasn’t guilty at all, why wouldn’t he be held accountable for perjury?

While there is no precedent precisely on point, a 1970 U.S. Supreme Court decision provides useful guidance. The Supreme Court held in North Carolina v. Alford that a defendant could validly plead guilty to a criminal charge in court while simultaneously proclaiming his innocence. This has been termed an “Alford” plea.  So long as the Alford plea is made voluntarily and intelligently, is not the result of undue influence or coercion, and there exists a factual basis for the imposition of guilt, it acts as a valid guilty plea in all respects. The effect of the plea is the same as if the defendant had been tried before a jury and found guilty.

In Alford, the defendant pleaded guilty to second-degree murder, but told the court he was only doing so to avoid a first-degree murder conviction at a trial, which could have resulted in the death penalty under North Carolina law. In essence, the Supreme Court said this was fine, reasoning that there was no material difference “between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when . . . a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.”

After Alford, Heene’s guilty plea is most certainly valid under the U.S. constitution. In fact, Heene didn’t even go as far as the defendant in Alford, who made his innocence proclamation on the record in open court at the same time as his guilty plea; Heene waited until he left the courthouse. Therefore, Heene’s proclamation of innocence probably has even less effect on the validity of his original guilty plea.

Heene’s public proclamations of innocence would generally not be punishable unless they constituted a violation of his parole. However, there is a limited circumstance under Colorado law in which a defendant’s proclamation of innocence after pleading guilty could constitute such a parole violation: when the defendant has been sentenced to rehabilitative treatment as a sex offender, and an admission of guilt is a required component of that treatment. See the decision of the Colorado Supreme Court in People v. Birdsong (1998).

Unlike the defendant in Birdsong, Heene is not required to undergo therapeutic counseling sessions in which he must admit guilt, and his protestations of innocence are not a parole violation. They have no effect on his conviction, nor do they open him to any new criminal liability.

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  1. Kristoff Grospe says:

    great story

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