Thanks in large part to the hard work of attorneys from BBA sponsor firm Wilmer Cutler Pickering Hale and Dorr, this week a North Carolina judge exonerated and ordered the release of half-brothers Henry Lee McCollum and Leon Brown based on DNA evidence. This outcome reaffirms the BBA’s four-decade-old position opposing capital punishment and highlights the importance of recent work by the BBA on the death penalty and on wrongful convictions.
McCollum and Brown spent more than 30 years in prison after being pressured into false confessions admitting to the rape and brutal murder of 11-year-old Sabrina Buie when they were 19 and 15 years old, respectively. Richard Johnston of WilmerHale represented them in their successful appeal, alongside colleagues Jared Cohen, Andrew Dulberg and Steven Finizio.
The judicial process that landed the brothers in prison – and McCollum on death row – showcased a litany of systemic problems that the BBA has been discussing for some time and made subjects of recent reports, including a failure by the prosecution to turn over required evidence that should have led investigators to a potential suspect who lived near the place where the victim was found, had a history of sexual assaults, and was convicted of a remarkably similar murder that occurred weeks later.
The brothers, both mentally-disabled, confessed after lengthy interrogations that took place in the absence of any lawyer or parent and with no audio or video recording – something a BBA task force on wrongful convictions warned against. But it was long-overdue testing of DNA evidence that ultimately cleared the two men and pointed to the overlooked suspect – a result made more likely in Massachusetts under a 2012 law, which the BBA fought for, expanding access to forensic testing.
The New York Times, featured the case on the front page, following up with an editorial stating that it “provides a textbook example of so much that is broken in the American justice system” and offers “further evidence (as though more were needed) that the death penalty is irretrievably flawed as well as immoral.” The BBA’s Death Penalty Working Group released a report in December 2013 compiling that evidence, and extending our opposition to the death penalty to include federal cases, and updating our reasoning for this stance. The BBA’s opposition to capital punishment stems from three main points:
1. The inevitability of errors in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants.
In the 40 years since the BBA filed its first death penalty amicus brief, more than 143 wrongfully convicted defendants on death row have been exonerated. This figure is unsurprising given the findings of the 2009 BBA Task Force to Prevent Wrongful Convictions, whose report, “Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts,” identifies the most common sources of wrongful convictions and makes many specific recommendations concerning the way police should conduct identification procedures, interviews of witnesses and suspects, post-conviction relief and forensic science, and standards of discovery, trial practice, and defense.
2. In practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities.
The Death Penalty Working Group found that it is sought by prosecutors, and applied by juries, far more often when the victims are white than when they are members of minority groups. Defendants in death penalty cases are more likely to be members of minority groups than white, as were the two wrongfully-convicted brothers from North Carolina.
3. Death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.
Death penalty cases take longer and cost more than other forms of justice. The median cost of defending a federal death-eligible case is eight times higher if the Department of Justice seeks the death penalty. Although total costs are hard to estimate, a study based on a single 2013 death penalty case pegged the total expense at $10 million — considerably greater than in non-capital cases, even factoring in the cost of incarceration for life. Capital punishment simply puts a remarkably high economic cost on society.
Thus, the BBA comes to its position through a close analysis of the basic facts: Error is inevitable, the death penalty is exorbitantly expensive for society, and racial and ethnic minorities bear the brunt of its effects. We are pleased that justice was served for Lee McCollum and Leon Brown — albeit 30 years late — but it underscores our opposition to the death penalty and our commitment to “getting it right” in the first instance.
The man linked to the Buie killing by DNA evidence is currently serving life in prison (commuted from a death sentence, as it happens) for another crime. But as the BBA’s task force stated in its report on improving the accuracy and reliability of the justice system, “For every innocent defendant convicted of a crime he did not commit, a truly guilty perpetrator remains free to commit other crimes, and the expectation of the victim and the public that justice will be done goes unrealized.”
– Michael Avitzur
Government Relations Director
Boston Bar Association