Henry Lee McCollum cleared by DNA evidence in North Carolina after spending 30 years on death row.

Antonin Scalia’s Favorite Murderer Is Innocent

Antonin Scalia’s Favorite Murderer Is Innocent

The law, lawyers, and the court.
Sept. 3 2014 5:37 PM

A Horrifying Miscarriage of Justice in North Carolina

How many times was Justice Antonin Scalia wrong about Henry Lee McCollum and the death penalty?

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The lack of any physical evidence linking the young men to the crime scene was no bar to their convictions. Fingerprints taken from a beer can at the scene did not match theirs. A local teen told the police she thought McCollum was involved, “because McCollum didn’t act right, riding a bicycle around staring at people, mostly women.” The two other suspects McCollum named were never charged with anything because there was no evidence. Lawyers for McCollum and Brown contend that local police hid boxes of crucial exculpatory evidence from the time of the trial in 1984. They were never turned over to defense lawyers or prosecutors.

Both McCollum and Brown, whose IQs usually test in the 50s and 60s, were originally given the death penalty. Both death sentences were overturned and then McCollum’s was reinstated after a second trial, while Brown was sentenced to life. As the New York Times notes, as recently as 2010, the North Carolina Republican Party featured McCollum’s booking photo on campaign fliers accusing a local Democrat of being soft on crime. The Times also points out that the defendants were prosecuted by Joe Freeman Britt, “the 6-foot-6, Bible-quoting district attorney who was profiled by 60 Minutes as the country’s ‘deadliest D.A.’ ” for seeking and getting the death penalty so often. (Britt told the Raleigh News & Observer last week that he still believed the men were guilty.)

One of the most infuriating things is that North Carolina at several points could have tested evidence known about years ago. We now know that three days before McCollum and Brown went to trial in 1984, local police asked the State Bureau of Investigation to examine a fingerprint on a beer can from the crime scene 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. Sharon Stellato of the commission testified on Tuesday that the man told her several times during interviews that McCollum and Brown were innocent.


It never fails to astonish me that the same conservatives who argue that every last aspect of 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 immeasurable political pressure to wrap up cases, even when the evidence is shaky and ill-gotten, and even as there are other avenues that have gone unexplored? Cops and prosecutors aren’t necessarily bad. But they are subject to political and community pressure that sometimes leads to improper conduct and the suppression of the evidence of that conduct.

Those who believe that we don’t execute the undeserving in America—or who aren’t too concerned about that possibility anyhow—have an ally in 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 famously announced in dissent that he would no longer “tinker with the machinery of death” and would never again vote for the death penalty in any case. As Blackmun put it at the time: “The problem is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.” In response, Scalia questioned why Blackmun hadn’t chosen a more grisly murder to make this announcement, specifically citing McCollum’s case as the more appropriate vehicle to announce that position. 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!” Never mind that “quiet death by lethal injection” has little to do with how our executions are carried out these days.

When McCollum’s own case came before the high court, Scalia voted not to hear it. Blackmun again wrote a dissent from that decision, again chastising Scalia for failing to understand the stakes: “Buddy McCollum is mentally retarded,” he explained. “He has an IQ between 60 and 69 and the mental age of a 9-year old. He reads on a second grade level. This factor alone persuades me that the death penalty in his case is unconstitutional.” Interestingly, Blackmun never seems to have doubted McCollum’s guilt. He simply believed the man was mentally unfit for execution. What a difference a few decades of DNA exonerations make!

Several years after he baited Blackmun over McCollum, 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 for himself and Justice Clarence Thomas, that “[t]his 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.”

It was once the case that McCollum was held out, to the collective members of the Supreme Court, as the very worst of the worst, deserving of death because of the heinousness of his crimes. Having shown that he never committed that crime, it seems high time to ask whether, in the view of some Supreme Court justices, that would have even made a difference had we executed him.