GIST: "On September 28, 1983, 15-year-old Leon Brown and his 19-year-old half brother Henry McCollum were detained for interrogation about the gruesome assault, rape, and murder of 11-year-old Sabrina Buie in Red Springs, North Carolina.
For hours, Robeson County Sheriff's deputies simultaneously cajoled, bullied, threatened, yelled, and lied to the two Black, intellectually disabled teenagers while feeding them information about a crime they didn't commit.
Police told them that they could go home if they signed a piece of paper.
Wanting it to be over, and not understanding that they were being coerced, the two teenagers signed false confessions.
But Henry and Leon didn't go home for 31 years.
Only after they signed the fabricated documents did the deputies read them their Miranda rights. A year later, they were sentenced to death.
The same night as the brothers' detainment, police ran into a man named Roscoe Artis, who just weeks later would lead police to the scene of another identical rape-murder he confessed to committing—in the same soybean field, in the town of 4,000 people. Artis lived a block away from where Buie's body was found.
Investigators didn't bother to run a background check on Artis the night of the murder. If they had, they would have seen his history of committing violent sexual attacks dating back to 1957, and the active warrant for his arrest in yet another rape-murder in which the victim was asphyxiated and left wearing only a bra—just as Buie was.
My own coerced confession to a crime I did not commit was a routine matter for interrogators.
But Artis was never mentioned in relation to the Buie case. In the decades to follow, as all three sat on death row, he repeatedly told attorneys that Henry and Leon had nothing to do with the murder, expressed guilt for Buie's death, and revealed new details about the crime.
Artis wasn't listed as a suspect in the case until 2014, when the North Carolina Innocence Inquiry Commission, a neutral state agency, developed exculpatory DNA evidence indicating Artis, and not the brothers—as all signs should have from the start.
Still, Sheriff Kenneth Sealy, deputy Joel Locklear, and State Bureau of Investigation agents Leroy Allen and Kenneth Snead, ignored him as a suspect—both on the night of the brothers' detainment, and for the next 31 years.
In 2015, in response to petitions and advocacy on the outside, Republican Governor Pat McCrory pardoned the brothers following an additional nine-month personal review of the case.
Henry and Leon filed a federal civil suit against the Town of Red Springs, the SBI, and the Robeson County Sheriff's Department for their wrongful imprisonment. Red Springs settled with the brothers out-of-court after their release, but law enforcement held out.
The SBI and the sheriff's department, represented by the Attorney General's' office, claimed that what happened to Henry and Leon was a product of "ordinary police work," and that the doctrine of qualified immunity kept the officers from liability.
Qualified immunity, based on the assumption that the officers were working in "good faith" and integrity throughout the investigation, protects law enforcement officers' rights above those whose lives they ruin. "Good faith" is what sustains wrongful convictions like Henry and Leon's—to the exclusion of facts, exculpatory evidence, or any other due diligence reasonable law enforcement officers are supposedly obligated to perform during the investigation of a crime.2 "Good faith" put the innocent teenagers behind bars, and allowed a rapist to murder again.
Last month, a jury in Raleigh determined that SBI agents Allen and Snead violated Henry and Leon's constitutional rights by coercing them into confessing to the crime they did not commit. Henry and Leon were awarded $31 million each in compensatory damages—$1 million for each year they spent wrongfully imprisoned—plus a total of $13 million in punitive damages. The payout represents the largest combined settlement in a wrongful conviction case in U.S. history.
This is the precedent-setting case for people who experience police brutality behind closed doors. But the fact remains that it took more than three decades to correctly assign guilt and prove the obvious—that these teenagers were not involved in this crime.
Hard-fought exonerations like these are not a sign that the system works, but a snapshot of who it works against: Racial minorities, the impoverished, and those people society is willing to throw away. It's just as much a measure of who it works for: The ruling class and the law enforcement charged with upholding power.
Foundational to our criminal justice system is an obvious truth: State authority trumps civil rights. Law enforcement testimony is accepted against the word of the accused, no matter what takes place behind closed doors.
I know this because I have been incarcerated for nearly 24 years as a consequence of such conduct.
The Third Degree
At the age of 19, homeless and suffering from mental illness, law enforcement detained me in the early morning hours of July 10, 1997, as a suspect in a double homicide. The officer who took me into custody did not read me my Miranda rights, stating only that I was wanted for questioning. Heavily intoxicated on Valium, alcohol, and a psychotropic medication prescribed during a recent hospital stay, I was held and isolated while, in another room, detectives interviewed a "witness" to the crime. An attendant officer kept prodding me awake until 6 a.m. When the detectives finally interrogated me, I was sleep-deprived, intoxicated, and mentally ill—all at an age when cognitive reasoning is not fully developed. During my interrogation, I was incapable of comprehending what the detectives were saying or asking of me. I was not cognizant of the fact that they were feeding me information about a crime I did not commit, obtained from another suspect—their sole "witness." In my case, officers used what's called the Reid Technique, which relies on psychological tactics to overcome a person's will during an interrogation. Law enforcement officers will isolate a suspect in a room, falsely claim overwhelming evidence or cooperation from a nonexistent witness, and then cajole, bully, threaten, yell, and lie about a lesser punishment for cooperation. Interrogators also feed the person information about the crime, details known only to law enforcement and the perpetrator, and use the suspect's memory of those facts in the course of a confession as proof of its validity."
The Reid Technique increases the chances of false confessions and wrongful convictions. In a 2004 Northwestern University study, researchers identified at least 125 cases in which false confessions were obtained using the Reid Technique, including high-profile cases in which convictions were eventually overturned, like the Norfolk Four, Central Park Five, and Beatrice Six.
This high likelihood of producing false confessions with the Reid Technique even prompted North Carolina to become the sixth state to pass a law in 2007 requiring the complete electronic recording of interrogations in homicide cases that happen behind closed doors—although the law is not retroactive, and even audio-video recordings can fail to prevent false confessions.
In the absence of any electronic recording of my own interrogation, proving that it was a false confession may be difficult, but not impossible.
Still, my own coerced confession to a crime I did not commit was a routine matter for interrogators.
Law enforcement officers have a long history of physically torturing suspects, applying what is colloquially called the "third degree" to grant a confession. Fists or phone books, burning cigarettes or wielding batons, these examinations are not about whether the person subjected to their brutality provides accurate information. The goal has always been to score a conviction.
In a just world, the state would hold law enforcement to a higher standard than ordinary citizens, not a lower one.
This was true during the infamous Burge torture cases in Chicago, which showed that between 1972 and 1991, Police Commander Jon Burge and fellow officers beat, suffocated, electrocuted, and generally tortured over 118 African American citizens, coercing them into false confessions and wrongful imprisonment for decades.10 The press, political class, and most of the public were largely apathetic about Burge's "house of screams" until an FBI investigation revealed the allegations of torture were true.
Jon Burge was prosecuted in 2010 and received a laughable three years on house arrest. Legislation for a Reparations Fund for Burge Torture Victims passed in 2015.12
But investigations like these are the exception rather than the rule. Besides, modern interrogations involve more subtle coercion than that of the third degree, the nuances of which seldom become public knowledge. Last year, at the height of anti-police brutality protests, the FBI launched a national database on law enforcement's use of force. Only 40 percent of police participated.
'Good faith':
Qualified immunity, on principle, severely undermines Section 1983 of The Civil Rights Act of 1871 (42 U.S. Code § 1983), which allows for the right to file a lawsuit against public officials, including in cases of excessive police force. Passage of the section came by way of the Reconstruction Congress as part of the Ku Klux Klan act, a piece of legislation designed to help combat lawlessness and civil rights violators in the postwar South.13Intended to protect Black voters, it was enacted a few years after the Fourteenth Amendment of the U.S. Constitution to "give teeth to the promise of liberty and equality enshrined in the amendment's provisions."
Nearly a century later, in reaction to civil rights legislation, the U.S. Supreme Court, in Pierson v. Ray (1967), developed the doctrine of qualified immunity to limit the impact of liability to state actors who violate someone's federally protected rights "in good faith.”
In 1982, the court made that standard even harder to prove. With the addition of the standard of "clearly established law" in Harlow v. Fitzgerald, plaintiffs also had to demonstrate a case with "functionally identical facts" to their own mistreatment, for a shot to prove if their civil rights were indeed violated.
In so doing, the court created the ultimate Catch-22, making it all the more unlikely that law enforcement would be held accountable for civil rights violations. To even get before a jury, civil rights plaintiffs must essentially first win two prior cases in a row—once before the district court, and again before the court of appeals. This precedent continues to govern qualified immunity today.
For Henry and Leon, coerced just a year after the Harlow v. Fitzgerald decision, this meant that their case required proof that RCS deputies and SBI agents violated both standards during their investigation. Since Brady v. Maryland requires the release of exculpatory evidence—and because no reasonable law enforcement officer would have ignored Roscoe Artis as a suspect—one would assume that an easy point to prove.
But the letter of the law is not that simple. The brothers were tasked with more than just proving their innocence: They not only had to demonstrate an instance in which law enforcement withheld exculpatory evidence, coerced innocent defendants into confessing, and lied to cover it all up, but one in which the officers were held liable for it. The list of law enforcement's self-preserving internal protections only piles against them from there.
'Why didn't somebody figure this thing out?'
In 2005, the Center for Death Penalty Litigation had a cigarette butt from the 1983 Buie crime scene tested for DNA. It excluded Henry and Leon as a match. Not until 2014 did the state crime lab finally upload the DNA profile into its database, when they found that it matched Roscoe Artis. When the results reached Robeson County D.A. Johnson Britt, he said: "Oh my god, the same [rape-murder], a mile apart… Why didn't somebody figure this thing out?"
The question was disingenuous, asked by a career prosecutor who benefits from absolute immunity just like his predecessor, Joe Freeman Britt, who maliciously prosecuted the teens. It's a question as disingenuous as the answer is obvious: There is little to no accountability behind the closed doors of police work.
It was later revealed that other evidence sat buried for decades too. After Artis' conviction, the Red Springs Police Department asked the SBI to test fingerprints on a beer from the crime scene for a match, three days before Henry and Leon's 1984 trial. That detail alone should have raised suspicion for the district attorney, but the test went unchecked.
But prosecutors often accept shoddy work, tenuous theories, falsified evidence, or maintain the same biases and tunnel vision as the officers they oversee. Moreover, bad actors rely on the institutionalized cronyism of police unions to protect them. Those unions, in turn, campaign against reformist agendas that attempt to remove barriers to greater scrutiny and accountability of law enforcement officers. As a result, police crime and misconduct take on a protected status.
Official misconduct, which includes law enforcement, prosecutors, judges, and other government officials who abuse their power, is the primary reason why wrongful convictions stand for as long as they do. According to the University of Michigan Law School's National Registry of Exonerations, between 1989 and 2015, nearly half (47 percent) of 1,740 noncapital exonerations were due to official misconduct. Of the 116 recorded death row exonerations, 76 percent were due to official misconduct.
This small sampling does not include those people who had a conviction or sentence overturned but were not exonerated, nor does it include the many people in prison who struggle to get their cases heard. There is no database that tracks official misconduct in the criminal legal system. We only know it happens because older cases sometimes make it through innocence projects like the North Carolina Innocence Inquiry Commission, which has exposed corruption in the case of nearly every person it helped exonerate.
Punitive damages in an unjust world:
Maybe the worst of it all, the insult to injury, is how law enforcement and prosecutors typically continue to view exonerees as criminals who escaped punishment. By law, exonerees are not viewed as crime victims. This is reflected in the state's refusal to publicly acknowledge wrongful convictions, and manifests in their disqualification from state victims' services.
An understanding of the racist, classist, and sexist roots of the U.S. police system help to show how—and why—the current structures work to keep certain people out of society more than they work to enforce justice or fairness.
While reading this article, consider the following questions:
How has the system been set up to reinforce "innocence" as a measure of racial and socio-economic status?
What historic events have influenced why qualified immunity works to protect who it protects?
In a just world, state agencies would discipline or fire bad actors for misconduct—and improve transparency during investigation of a crime. In a just world, the state would hold law enforcement to a higher standard than ordinary citizens, not a lower one. In a just world, "accountability" in the mouths of the oppressed would not be a curse against public officials, or a hammer in the hands of the state. Transparency throughout the criminal legal system would be a good thing that enables justice for all, not a thing resisted by public officials trying to control the narrative and hide their own crimes.
In a just world, Henry and Leon's precedent-setting case would not be a rarity, nor would it be ignored by the legislators that continue to support half-measures that don't even scratch the surface of what is offered by task forces seeking to retroactively overturn false convictions.
In a just world, the courts would see the burden put on the brothers as motivation to do better.
Henry and Leon may have received millions, but other exonerees don't even qualify for reentry programs post-prison. After release, some are lucky to get $45 for a bus ticket. Not all exonerees—or even most of them—receive compensation from the state, which in North Carolina is capped at $750,000 no matter how many decades are spent wrongfully imprisoned.
"Fair? What's fair?" Recent exoneree Ronnie Long said when asked if he thought $750,000 was adequate compensation after spending 44 years in prison for a crime he did not commit, the third-longest imprisonment in U.S. history for an exonerated defendant. "Ask yourself that question when these people took away your 20s, your 30s, your 40s, your 50s, and they started on your 60s."
Equal protection means everyone is accountable to the same laws in the same ways, that no special treatment or punishment is affected because of status, class, or race. That was the intended design behind the 1871 laws—to work toward a more just world.
But much like the numerous Confederate monuments erected in the wake of the 1965 Civil Rights Act, qualified immunity is a memorial to division and injustice in the face of past progress. And just like those monuments, as long as qualified immunity stands, there can be no real justice. Pull it down.""
The entire story can be read at:
https://mail.google.com/mail/u/0/#inbox/FMfcgzGkXwGgQxfzvpVnnPXtSqQPRrhS
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog; -----------------------------------------------------------------
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project.
