We helped free two Death Row innocents, but others are at risk

It has been three years since we watched our client, Henry McCollum, walk free after spending 30 years on North Carolina’s death row.

There was never any physical evidence connecting Henry or his brother, Leon Brown, to the horrifying crime for which they were sentenced to death. They were intellectually-disabled teenagers with no history of violence, who were tricked into confessing to a crime they had nothing to do with. But their innocence was stubbornly hard to prove, until DNA testing finally linked another man to the murder.

Their exoneration made headlines across North Carolina and the world. We were interviewed on national news shows and contacted by filmmakers. The governor granted a rare pardon of innocence. Now that the hoopla has faded, we are left asking: What did we learn from this miscarriage of justice?

For us, the lesson is in how the death penalty distorts our justice system. Even now that no one has been executed in North Carolina for 11 years, people are still being tried capitally and sentenced to death. And the death penalty is still threatening innocent people.

Consider how it played out in Henry’s case. On the night of his arrest, law enforcement interrogated 19-year-old Henry for hours and threatened him with the death penalty if he did not confess. They told him his only way out was to sign a detailed confession, which they wrote for him. They did the same to his 15-year-old brother Leon.

Under that pressure, they broke and signed false confessions, unwittingly giving prosecutors the evidence they needed to try them for their lives. This was before we had laws requiring police to record confessions – a modern reform intended to prevent wrongful convictions.

Their trial attorneys might have spent more time investigating Henry and Leon’s claims of innocence, had they not been desperate to save their clients’ lives. They might have looked into a similar crime, committed in the same small town just a few weeks later, and discovered the real killer.

Instead, facing long odds and working in a state that at the time had one of the nation’s highest death sentencing rates, they pushed Henry and Leon to confess again. The attorneys hoped that their clients’ cooperation would persuade the jury to spare their lives. Leon’s attorneys eventually got him off death row, but Henry’s couldn’t.

When we began working on Henry’s case in 1994, he told us he was innocent. But we were faced with these facts: Our client had signed a grisly, detailed confession and was at imminent risk of execution. We focused our energy on legal arguments we felt had the best chance of keeping him out of the execution chamber, which meant we emphasized proving his intellectual disability above proving his innocence.

It took the involvement of the N.C. Innocence Inquiry Commission, which matched DNA on a 30-year-old cigarette butt to a serial rapist, to finally prove Henry and Leon’s innocence. Had the killer not dropped that single cigarette at the crime scene, Henry and Leon would still be in prison. Henry would still be on death row.

The fact is, the death penalty makes the conviction of innocent people more likely by putting them under greater pressure to confess. Even today, innocent people continue to admit to crimes just to avoid the death penalty. People with mental illness, among those most vulnerable to false confessions, continue to be tried for their lives.

The death penalty also distorts juries. Only jurors who support the death penalty are allowed to serve in capital trials, which studies show creates juries that are more likely to convict. Prosecutors continue to disproportionately exclude African-Americans from capital juries, although diverse juries have been proven to make better decisions.

Some improvements have been made since Henry and Leon were wrongly convicted. For example, confessions are now recorded, and police lineups are conducted according to guidelines intended to discourage false identifications.

However, three-quarters of our state’s 144 death row inmates were sentenced at least 15 years ago, before those reforms took effect. They were sentenced during an era when, instead of sending one new person a year to death row, we sent dozens – some of whom were innocent.

As we mark this anniversary, we are grateful that Henry and Leon are free. However, we cannot forget that innocent people will remain at risk until the death penalty is wiped off the books.

Ken Rose and Vernetta Alston are attorneys who represented Henry McCollum.

Related stories from Raleigh News & Observer