Hunter Biden wanted an Alford plea. What's that?

Hunter Biden showed up on the eve of his tax evasion trial Thursday morning and offered to enter an Alford plea, a rarely used mechanism that allows a defendant to acknowledge prosecutors have enough evidence to convict him of the charges he faces, but also to deny any guilt.

Alford pleas present a host of complications for both prosecutors and the judge. For this reason, the U.S. Department of Justice typically requires local prosecutors to go through an extensive approval process -- up to the U.S. Department of Justice's chief of the criminal division -- to accept such a plea. Biden's case has the added wrinkle of having a special counsel as prosecutor, which could have added more layers to the approval process.

"Getting an Alford plea is so unusual. Most AUSAs have never heard of them. Biden is lucky!" Randy Sue Pollock, president of the Federal Bar Association's Northern California chapter, emailed after the offer became public.

Turned out, Biden wasn't lucky.

By midafternoon, prosecutors had refused to agree to an Alford plea and U.S. District Judge Mark C. Scarsi of Los Angeles said he was inclined to move forward with a trial. Then, in another dramatic turn, Biden said he would enter standard guilty pleas to the nine tax charges against him, exposing him to a sentence of up to 17 years in prison and $1.3 million in fines.

His lawyer, Abbe Lowell, said Biden did not want to go through another trial like the one he just endured in Delaware on gun-related charges. "Enough is enough," Lowell said.

But the morning gambit raised questions about what an Alford plea is. More than a dozen former federal prosecutors and public defenders contacted by the Daily Journal for analysis said they had never handled one. Most said they could not remember ever seeing one done at all. Some acknowledged that Biden's unusual move had prompted them to research the intricacies of such a deal.

"The United States Attorney's Office has long had a policy of not agreeing to such pleas precisely because they are not accompanied by admissions of guilt," former federal prosecutor Robert E. Dugdale, now a partner at Kendall Brill & Kelly LLP, emailed.

"Seeing an Alford plea in the Central District is like finding the golden ticket: it rarely, if ever, happens," said John Hanusz, a former deputy federal defender now in private practice.

An Alford plea rests on North Carolina v. Alford, 400 U.S. 25 (1970), in which the U.S. Supreme Court ruled that a defendant can plead guilty while still asserting innocence if they believe that doing so is in their best interest. It can help them avoid complications with immigration, pension, employment and professional licensure, attorneys said.

While the plea results in a conviction like any guilty plea, it leaves room for the defendant to maintain their claim of innocence, attorneys said.

"It's a way to keep your head up and say, 'I really didn't do this, but I want to put this behind me.' It's splitting hairs," said Brian A. Sun, a white-collar defense specialist at Norton Rose Fulbright USA LLP.

Dugdale said the downside is they are "functionally no different than a normal guilty plea."

"The defendant entering such a plea waives his right to contest his guilt at trial and waives a boatload of other Constitutional rights; he or she is subject to the same punitive consequences that a person who enters a normal guilty plea potentially faces (like the potential of being sentenced to prison); and he or she is stuck in the awkward position of having been convicted of a crime despite maintaining his or her innocence," the attorney added.

Sun is one of the few attorneys who have successfully negotiated an Alford plea in the Central District of California.

In that 2006 case, a former executive of Credit Lyonnais used the mechanism to enter a plea to two felony accusations that he lied to U.S. attorneys investigating the purchase of Executive Life Insurance Co. "I plead guilty under Alford, although I maintain my innocence," the former executive told the judge before being fined the previously agreed upon $500,000 and put on probation.

Unlike Biden's surprise "open plea" offer, successful Alford pleas are usually negotiated with prosecutors outside of court. Some judges have a policy of refusing to accept agreements that include a binding sentence, lawyers said.

James W. Spertus, managing partner at Spertus, Landes & Josephs LLP, negotiated an Alford plea in 2013 for a former city official who was already pleading guilty in state court to a raft of corruption charges that carried significant prison time.

As part of a global agreement, federal prosecutors agreed to allow the official to enter an Alford plea to related tax-evasion charges. "The state was the primary case," Spertus recalled. "I don't think the DOJ cared that much about the case. Tax wasn't the primary misconduct."

Allowing an Alford plea gave prosecutors a win, "and we just would have not pled guilty otherwise," Spertus said.

Some people compare Alford pleas to a nolo contendere, but legal experts said there are distinct differences. "With a nolo the defendant takes no position on guilt, and an Alford takes a position that he is not guilty," explained Ryan H. Weinstein, a former federal prosecutor who is now at Ropes & Gray LLP.

A defendant asserting Alford does not have to acknowledge wrongdoing, but prosecutors still must demonstrate to the judge that they have evidence to convict the defendant, but without the benefit of a trial record.

"It falls to the court to determine whether there is a factual basis for the guilty plea," explained Weinstein. "With a typical plea, it is easy because the defendant will admit that he's guilty. An Alford plea makes it trickier."

Courts must carefully review Alford pleas to ensure the defendant understands the consequences of pleading guilty while asserting innocence, as well as the rights they are waiving, such as the right to a trial by jury, attorneys said.

"They are certainly disfavored in federal court," said Alyssa D. Bell, another deputy federal defender now at Cohen Williams LLP, who said she had practiced in federal court for 15 years and never seen one.

If there is no binding agreement on a sentence, the judge then must determine whether the defendant is eligible for a reduced sentence under federal sentencing guidelines.

"Although there's no per-se rule that an Alford plea precludes the two-point deduction for acceptance of responsibility under the Sentencing Guidelines, it's certainly a relevant factor for [a judge to determine if a defendant] has, in fact, accepted responsibility," Weinstein said.

Dugdale said: "I would strongly suspect that, when it comes to sentencing, a defendant who has entered an Alford plea may be in a worse position than a defendant who entered a normal guilty plea and admitted his or her guilt."

"It is not a reach to argue that a defendant who resolved his or her criminal case in a manner that does not include an admission of guilt has exhibited a lack of remorse for having engaged in the criminal conduct alleged," Dugdale added.

Before it was announced that Biden's Alford offer was not accepted, Spertus predicted it would be unsuccessful. "The day after sentencing, Hunter Biden could say, 'I am innocent,'" he said.

"But I compliment the defense lawyer," Spertus added. "It's a creative approach. I just don't think he'll be able to get it across the finish line."

New York Times News Syndicate contributed to this report.