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.
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.
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.
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.”
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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.”
