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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Henry McCollum, left, and his half-brother, Leon Brown, are shown in these booking photos provided by the North Carolina Department of Public Safety in Raleigh on Sept. 2, 2014.

Handout/Reuters

The convictions of two mentally disabled half-brothers were vacated and the two men were ordered released by Superior Court Judge Douglas Sasser in North Carolina on Tuesday. They were freed from prison Wednesday. Henry Lee McCollum, 50, had been on death row for 30 years, longer than anyone else in North Carolina history. 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—in fact McCollum has recanted 226 times—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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

A cigarette found at the crime scene now implicates a man who lived a block away from the soybean field where the girl’s body was found. He is currently serving a life sentence for a rape and murder that happened less than a month after Buie’s rape and murder.

The two teenagers signed confessions after hours of coercive police interrogation, under the erroneous belief that they’d be allowed to go home afterward. Both have since always maintained their innocence, filing various appeals over the intervening decades. It wasn’t until 2010, when the North Carolina Innocence Inquiry Commission came into the case, that the evidence was re-examined seriously. In July, the DNA on the cigarette butt found at the crime scene was revealed to match the DNA of the known sex offender. This led to Tuesday’s extraordinary release order.

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This case highlights the same well-known and extensively documented problems that can lead to false arrests and 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 rather than protecting it; prosecutorial zeal that has far more to do with the pursuit of victories than the pursuit of truth; and a death penalty appeals system that treats this entire screwed-up process of investigation and conviction as both conclusive and unreviewable.

The events in Ferguson, Missouri, last month reminded us to question whether there is ever a reason for the police to shoot an unarmed black teenager. The events in North Carolina should teach us to ask if there is ever a reason for the police to arrest, interrogate, and convict 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 (or 16 percent) of the wrongful convictions happened when innocent defendants confessed to crimes they did not commit. (His updated data is here, showing that the patterns have held steady as the cases have increased.) As he reported 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.

The false confessions from the North Carolina cases fit Garrett’s template almost perfectly. After five hours of questioning, as he listened to his mother weeping out in the hallway, McCollum offered up a story of attacking and killing the girl with three others. As McCollum said in a recent videotaped interview, he believed he would be released if he confessed and, “I just made up a story and gave it to them so they would let me go home.” Brown, once he’d been told his half-brother had confessed, and having been warned that he was facing capital punishment, also signed a confession.

The details in these confessions later horrified jurors. But as Garrett observes, if someone with an IQ that at one point tested at 49 is able to give such precise accounts, that should be its own cause for concern. “The level of granular detail shows that police shaped this confession statement,” he explains. “Police may have asked leading questions or outright fed facts. We now know McCollum and his brother were innocent and could not have known those details about the crime scene. They were not just coerced into saying ‘I did it,’ but they were coerced into repeating whole cloth an entire account of the crime, with details that only the police could have known, and not those vulnerable and innocent boys.”  

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