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How the innocent end up on Death Row

Leon Brown and Henry McCollum hug in the front yard of their sister’s home in Fayetteville ater their release on Wednesday. Brown, at bottom right, and McCollum had spent 30 years in prison for a crime they didn’t commit.
Leon Brown and Henry McCollum hug in the front yard of their sister’s home in Fayetteville ater their release on Wednesday. Brown, at bottom right, and McCollum had spent 30 years in prison for a crime they didn’t commit.
Published Sep. 4, 2014

The convictions of two mentally disabled half-brothers were vacated and the two men were ordered released by a judge in North Carolina this week. Henry Lee McCollum, 50, had been on death row for 30 years. He and Leon Brown, 46, who was serving a life sentence, were convicted for the 1983 rape and murder of an 11-year-old girl. DNA evidence implicated another man, a known sex offender the police had not investigated, despite the fact that he lived next to the crime scene.

McCollum and Brown were 19 and 15 at the time local police were investigating the murder of Sabrina Buie. Both confessed to the crime after lengthy police interrogations. They recanted shortly after, but were convicted, largely on the basis of the false confessions, even though no physical evidence connected them to the crime scene. Police also hid exculpatory evidence for years.

DNA on cigarette found at the crime scene now implicates a known sex offender man who lived a block away from the soybean field where Buie's body was found. He is currently serving a life sentence for a rape and murder that happened a month after Buie was killed.

McCollum and Brown signed confessions after hours of coercive police interrogation, under the erroneous belief that they'd be allowed to go home afterward. For decades, both maintained their innocence, filing appeals. But it wasn't until 2010, when the North Carolina Innocence Inquiry Commission came into the case, that the evidence was re-examined seriously.

This case highlights the problems that can lead to false convictions: Police who are incentivized to find any suspect quickly, rather than the right one carefully; false confessions elicited after improper questioning; exculpatory evidence never turned over; the prosecution of vulnerable, mentally ill, or very young suspects in ways that take advantage of their innocence; prosecutorial zeal that has far more to do with the pursuit of victories than the pursuit of truth.

The events in North Carolina should teach us to ask if there is ever a reason for the police to interrogate mentally challenged teenagers, without cameras, lawyers, or family present, and to ask how we can fail to correct a system that does so.

• • •

Why would two innocent people confess falsely? This always seems beyond imagining. Brandon Garrett of the University of Virginia School of Law has done extensive research on the question of why people confess to crimes they did not commit. In his study of the first 250 DNA exonerations for his book Convicting the Innocent, Garrett found that 40 of the 250 wrongful convictions happened when defendants confessed to crimes they did not commit.

Garrett wrote in Slate in 2011: "Of those 40 exonerees who confessed, for instance, 14 were mentally disabled or borderline mentally disabled, and three more (at least) were mentally ill. Thirteen of the 40 were juveniles. All but four were interrogated for more than three hours at a sitting. Seven described their involvement in the crime as coming to them in a 'dream' or 'vision.' Seven were told they had failed polygraph tests. ... Despite all these hints that their confessions were lengthy and coercive, and despite the fact that they were mostly vulnerable individuals, none had any luck challenging their confessions before trial. The confessions were thought to be such powerful evidence of guilt that eight were convicted despite DNA tests at trial that in fact excluded them as the culprit.''

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The false confessions from the North Carolina cases fit Garrett's template almost perfectly. After five hours of questioning, McCollum offered up a story of attacking and killing the girl with three others. McCollum believed he would be released if he confessed. "I just made up a story and gave it to them so they would let me go home," he said. Brown, once he'd been told his half-brother had confessed, also signed a confession. The two other suspects McCollum named were never charged with anything because there was no evidence.

The lack of any physical evidence was no bar to the convictions. Fingerprints taken from a beer can at the scene did not match McCollum's or Brown's.

McCollum and Brown, whose IQs usually test in the 50s and 60s, were prosecuted by Joe Freeman Britt a district attorney who was profiled by 60 Minutes as "the country's 'deadliest D.A.' " for seeking and getting the death penalty so often.

One of the most infuriating things is that North Carolina at several points could have tested evidence years ago. We now know that three days before McCollum and Brown went to trial in 1984, police asked the State Bureau of Investigation to examine a fingerprint on the beer can to see if it matched the man now implicated in the murder. The state didn't bother.

In 2006, Brown's lawyers filed a motion to test the DNA on the cigarette butt. The results excluded both McCollum and Brown. But it wasn't until several years later, when the state's innocence commission got involved, that analysts found DNA on the cigarette butt matched up with the man convicted in the same neighborhood of a similar crime.

It never fails to astonish me that the same conservatives who argue that big government is irreparably broken and corrupt inevitably see a capital punishment system that is perfect and just. If you genuinely believe that the state can't even fix a pothole without self-dealing and corruption, how is it possible to imagine that police departments and prosecutors' offices are beyond suspicion, even though they are subject to political pressure to wrap up cases, even when the evidence is shaky and ill-gotten?

• • •

Those who believe that we don't execute the undeserving — or who aren't too concerned about that possibility anyhow — have an ally in Supreme Court Justice Antonin Scalia. He famously insisted in Kansas v. Marsh that "it should be noted at the outset that the dissent does not discuss a single case — not one — in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby."

That same Scalia, in an unrelated case before the Supreme Court 20 years ago, name-checked McCollum as the reason to continue to impose the death penalty. In that case, Callins v. Collins, Justice Harry Blackmun announced in dissent that he would never again vote for the death penalty. "The problem is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants,'' he said.

In response, Scalia questioned why Blackmun hadn't chosen a more grisly murder to make this announcement, specifically citing McCollum's case. Scalia noted that all sorts of cases of truly horrendous murders came before the court, "For example, the case of an 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable," he wrote, "a quiet death by lethal injection compared with that!"

When McCollum's case came before the high court, Scalia voted not to hear it. Blackmun wrote a dissent, chastising Scalia for failing to understand the stakes: "Buddy McCollum is mentally retarded," he explained. "He reads on a second grade level. This factor alone persuades me that the death penalty in his case is unconstitutional."

Years later, Scalia floated the notion that executing even innocents doesn't violate the Constitution. After the court ordered a retrial in a controversial capital case, Scalia wrote that "this court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."