Op-Ed

The conservative conscience of Beverly Lake and the NC death penalty

Behind Henry McCollum, sitting stunned after a judge declared him and his brother Leon Brown innocent after they spent 30 years in prison, is I. Beverly Lake Jr., founder of the Innocence Commission.
Behind Henry McCollum, sitting stunned after a judge declared him and his brother Leon Brown innocent after they spent 30 years in prison, is I. Beverly Lake Jr., founder of the Innocence Commission. cliddy@newsobserver.com

As someone who has spent a lifetime fighting on behalf of condemned defendants, I never imagined I would sing the praises of a man who, as a legislator, fought passionately for the death penalty. Who, as a trial judge, seemed to possess a blind faith in our justice system, even as it caused irreparable harm to the poor and mentally ill. Who refused to repudiate the views of his father, a prominent segregationist who called Martin Luther King Jr. a “man of deplorable character.”

Today, however, all I can think is how much better off North Carolina would be if our legislators followed the example of I. Beverly Lake, the former Republican chief justice of the North Carolina Supreme Court, who crossed ideological lines to create the N.C. Actual Innocence Commission.

Lake is the subject of a profile by the Marshall Project detailing his courageous efforts to bring about reforms that made our state a national leader in preventing and remedying wrongful convictions.

One result of Lake’s efforts was the Innocence Inquiry Commission, a first-of-its-kind state agency with subpoena power that works to root out innocent people in North Carolina’s prisons. In September, that commission proved the innocence of Henry McCollum, the state’s longest-serving death row inmate, and his half-brother, Leon Brown. The men spent 30 years wrongly imprisoned.

Freeing innocent people from prison, however, was only one of the Lake’s achievements. His Actual Innocence Commission crafted the nation’s first guidelines for preserving DNA evidence and allowing defendants access to it and the nation’s first standards for conducting police lineups in ways that discouraged false identifications. It also suggested the law requiring all confessions to be videotaped – a reform that might have helped Henry McCollum had it been in place when he was coerced into confessing to a rape and murder he did not commit.

In retrospect, these reforms all sound like common sense. But, at the time, they were controversial and difficult steps that could have been taken only by a man like Lake, who had conservative law-and-order credentials and was brave enough to alienate part of his base to do what was right.

Lake convened his first meeting about the commission in 2002, after the exoneration of Ronald Cotton, who spent 10 years in prison for rape before being exonerated by DNA testing. Lake invited judges, prosecutors, victims’ rights advocates and law enforcement, as well as those who had traditionally been considered their enemies: defense attorneys and liberal law professors.

The Marshall Project writes: The reaction to Lake’s out-of-the-blue invitation was mixed. Some conservatives were hurt, even stunned, by what they saw as an out-of-character attempt to “go back on my values and start over fighting for the bad guys, the criminals,” as Lake puts it. “I got letters from longtime friends saying, ‘You’ve lost your mind, Bev,’” he says. “Some of them haven’t spoken to me ever since.”

However, many people did show up. Lake forced the opposing sides to sit together until they had come up with a plan to protect the rights of the wrongly accused.

Our legislators remained mostly silent on the case, aside from then-House Speaker Thom Tillis’ bewildering comment that the case was proof that “the process worked.” Ask McCollum and Brown how well they think the process worked. Or ask taxpayers, who will pay $1.5 million to “compensate” McCollum and Brown for their wrongful convictions.

Contrast this legacy with the one our Republican lawmakers are now building. Last September, they watched as North Carolina made international news with the exonerations of McCollum and Brown, who were poor, intellectually disabled teenagers when they were stolen from their homes in rural Robeson County, coerced into confessing to a grisly murder they had nothing to do with and thrown in prison for most of their adult lives.

Our legislators remained mostly silent on the case, aside from then-House Speaker Thom Tillis’ bewildering comment that the case was proof that “the process worked.” Ask McCollum and Brown how well they think the process worked. Or ask taxpayers, who will pay $1.5 million to “compensate” McCollum and Brown for their wrongful convictions.

In the 11 months since the exonerations, lawmakers have not proposed a single law that would help determine whether there are more innocent people on North Carolina’s death row. More than two-thirds of the 148 people on death row were tried, like McCollum and Brown, before Lake’s reforms went into effect.

Instead, our legislators say the problem with the death penalty is that we aren’t executing people quickly enough. This summer, Republicans pushed through a law they hope will restart executions after a nine-year hiatus. The new law aims to remove roadblocks to executions, such as the requirement that a doctor be present (no doctors were willing to do it) and the requirement that the execution protocol be subject to public scrutiny. The law also makes the sources of execution drugs a secret, in hopes of thwarting protesters who might target drug suppliers.

Proponents of this law blindly support the death penalty, while ignoring glaring injustices that are likely to result in the execution of innocent people. This is not what real leadership looks like.

Leadership was Justice Lake, allowing himself to feel the enormous injustice of an innocent man imprisoned for a decade. It was Lake being willing to question the values he’d been taught, willing to sit down with people from the opposing side, willing to take steps that weren’t always popular.

Even today, at 81, Lake is still re-examining his views and moving toward justice. While he refused to take on the unfairness of the death penalty as part of the work of the Actual Innocence Commission, he now says he sees that the justice system is fundamentally unfair for poor and disadvantaged defendants and questions whether the death penalty should exist.

He said in one recent interview, “There’s always a chance we might execute an innocent person.”

Gretchen Engel is the executive director of the Durham-based Center for Death Penalty Litigation.

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