How many more innocent men on death row?

September 16, 2014

Lily Hughes of the Campaign to End the Death Penalty examines another case of innocent men freed from prison--but what it tells us about the broken injustice system.

HENRY LEE McCollum and Leon Brown are free today after serving 30 years in North Carolina prisons for a crime they did not commit. McCollum was on death row, and Brown had a life sentence. New DNA testing has cleared both men and points to another person as the likely perpetrator.

Stories of prisoners, on death row and off, who are proven innocent, but only after having the better part of their lives stolen from them, are all too common in the past several decades. But this case is striking a chord for several reasons.

For one, the two half-brothers were demonized as monsters at the time of their conviction. Right-wing Supreme Court Justice Antonin Scalia even singled out McCollum's case as an example of the kind of crime and criminal for which the death penalty is intended. But if Scalia and the racist lynch mob got their way, an innocent man would have been murdered by the state years ago.

Second, McCollum and Brown's exoneration comes on the heels of questioning of the lethal injection method following several botched executions, including the torturous death of Joseph Wood, whose state-sponsored murder took nearly two hours.

Henry Lee McCollum
Henry Lee McCollum

As a result, more mainstream voices are speaking up for the complete abolition of the death penalty. As the New York Times wrote in an editorial, the exoneration in North Carolina has exposed "a textbook example of so much that is broken in the American justice system. And it is further evidence (as though more were needed) that the death penalty is irretrievably flawed as well as immoral."

McCOLLUM AND Brown were convicted of the 1983 rape and murder of 11-year-old Sabrina Buie in Red Springs, N.C. At the time of their arrest, McCollum was 19 and Brown only 15--both have been shown to have intellectual disabilities.

There was no physical evidence linking the men to the crime. Like so many other people--especially young African American men--railroaded into prison, they were convicted based on false confessions--the confessions were written out by police after hours of interrogation, in which neither teen was allowed to talk to a lawyer or their parents.

McCollum described the ordeal in an interview with a North Carolina newspaper: "I had never been under this much pressure, with a person hollering at me and threatening me. I just made up a story and gave it to them so they would let me go home."

Both young men repudiated the confessions and explained how they were coerced, but Robeson County prosecutors pressed ahead with the case against them, going so far as to hide evidence that would have linked Roscoe Artois--the man now implicated by DNA testing--to the crime.

Artois was a suspect in Buie's murder and had been picked up within weeks of her death on charges of the rape and murder of another girl in the area. Three days before McCollum and Brown's trial began, police requested testing on a cigarette butt found at the crime scene, in order to match fingerprints to Artois. This test was never done, nor was the request revealed to McCollum's or Brown's lawyers.

The request for testing was only discovered a quarter century later--in 2011, during an investigation by the North Carolina Innocence Inquiry Commission. The panel's inquiry also revealed multiple inconsistencies between the signed confessions of the two defendants, including factual statements about the crime itself.

And still McCollum and Brown remained behind bars--they were only freed when DNA testing of the cigarette butt revealed Artois was present at the crime scene.

More than 300 people have been released from prison, 18 from death row, because of DNA testing. Each of these cases tells its own story of injustice. Yet this one contains so many of the elements common to cases of wrongful convictions: coerced confessions (in this case, from two men with intellectual disabilities); prosecutorial misconduct; and the rubber-stamping of shaky convictions by successive appeals courts, all the way to the highest court in the land.

THE ACTIONS of the prosecutor in the McCollum and Brown case are particularly galling. Joe Freeman Britt is infamous for his entry in the Guinness Book of World Records as the "deadliest prosecutor in America," having sent close to 50 people to death row.

With more and more people being proved innocent, prosecutorial misconduct is not only being revealed, but in some instances, district attorneys have faced charges for their role in wrongful convictions. But that isn't causing Britt to lose any sleep.

Despite the evidence clearing McCollum and Brown, Britt still believes the two men are guilty. "You find a cigarette, you say it has Roscoe Artis' DNA on it, but so what?" he said in a recent interview. "It's just a cigarette, and absent some direct connection to the actual killing, what have you got? Do you have exoneration? I don't think so.'"

Britt also referred to the current DA as a "pussy." When asked about the coercion of intellectually disabled suspects, he had this to say: "When we tried those cases, every time they would bring in shrinks to talk about how retarded they were. It went on and on and on, blah blah blah."

As badly as the prosecution behaved in this case, the wider court system did no better. After being denied by state and federal appeals courts, the case made its way to the U.S. Supreme Court in 1994. In the majority decision to turn down a review of the case, Justice Scalia insisted that the crime was so heinous that McCullom deserved lethal injection.

Then, in another opinion in favor of capital punishment, written for an unrelated case out of Texas, Scalia again referenced the McCollum case. He described the rape and murder of the 11-year-old Buie, and then wrote: "How enviable a quiet death by lethal injection compared with that!"

And like so many other cases, the justice system failed to find its mistake. Death penalty proponents like to claim that the system has all the necessary safeguards for correcting wrongful convictions. But in this case, it was lawyers and advocates working tirelessly to prove the innocence of the two men, despite countless legal hurdles and unwarranted rejections by appeals courts.

Again and again, the Supreme Court majority has maintained that it isn't specially concerned with preventing the execution of innocent people. In a 2009 Supreme Court decision denying relief to innocent Georgia death row prisoner Troy Davis, who was murdered by the state in 2011, Scalia again affirmed this position: "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 court that he is 'actually' innocent."

Despite all the evidence to the contrary, Scalia still maintains that no one innocent has ever been executed. "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" Scalia rote in a 2006 opinion in the Kansas v. Marsh case.

Anti-death penalty activists are shouting out the names of the innocent executed for years--Troy Davis and Cameron Todd Willingham. But Scalia and his compatriots don't want to listen.

PEOPLE ARE justly angry about the tragedy that is the modern-day death penalty. One of Henry Lee McCollum's lawyer's, Kenneth Rose, wrote about that anger in a recent essay about his client's release:

Now, with Henry finally free, some people expect me to feel satisfied, or even happy. The truth is: I am angry.

I am angry that we live in a world where two disabled boys can have their lives stolen from them, where cops can lie and intimidate with impunity, where innocent people can be condemned to die and where injustice is so difficult to bring to light.

As I lie awake at night, mulling over the maddening details of this case, I wonder: How many more Henry McCollums are still imprisoned, waiting for help that will never come?

Is it any wonder that 18 states have now abolished the death penalty? That others have indefinite moratoriums or are poised to abolish through new referendums or legislative decisions? Can it be any surprise that major newspapers continue to editorialize about the need to finally do away with this most gruesome and cruel punishment? Racial bias, lack of funding for defense of the poor, botched executions, executions of people with mental impairment (despite a Supreme Court ban), corruption in district attorney's offices and in the courts--all these are the modus operandi of the American "injustice" system.

The shout from the rooftops today is an indictment of the whole rotten system of capital punishment: The death penalty must go!

Further Reading

From the archives