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In Praise of the Righteous Prosecutor

The banality of wrongful convictions–yet again innocent imprisoned men were discovered and freed this week:

One of North Carolina’s longest-serving death row inmates was freed from prison Wednesday, a day after a judge overturned his conviction because of new DNA evidence in the case.

Henry McCollum, 50, walked out of Central Prison in Raleigh, hugged his mother and father and thanked God for his release.

His half brother, 46-year-old Leon Brown, also had his conviction in a 1983 rape and murder overturned on Tuesday. Brown was expected to be freed later Wednesday.

McCollum and Brown were convicted in 1984 for brutally raping and murdering Sabrina Buie the prior September.  How brutal?

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.”

Tell that to Cameron Todd Willingham, but I digress.

That same Scalia, in an unrelated case before the Supreme Court 20 years ago, name-checked McCollum as the reason to continue to impose the death penalty. In that case, Callins v. Collins, Justice Harry Blackmun famously announced in dissent that he would no longer “tinker with the machinery of death” and would never again vote for the death penalty in any case. As Blackmun put it at the time: “The problem is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.” In response, Scalia questioned why Blackmun hadn’t chosen a more grisly murder to make this announcement, specifically citing McCollum’s case as the more appropriate vehicle to announce that position. Scalia noted that all sorts of cases of truly horrendous murders came before the court, “For example, the case of an 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable,” he wrote, “a quiet death by lethal injection compared with that!” Never mind that “quiet death by lethal injection” has little to do with how our executions are carried out these days.

I guess Antonin Scalia will need a new whipping boy.  The prosecutor from 1984, however, can’t let go:

Joe Freeman Britt, who prosecuted the brothers in 1984, said he was stunned by the outcome.

“It’s a tragic day for justice in Robeson County,” said Britt. “That case was fought with powerful arguments, but apparently the district attorney just threw up his hands and capitulated.”

Ken Snead, a retired SBI agent and lead investigator, said he was disappointed.

“Someone should have been called today to refute the evidence.”

Refute this evidence?

The brothers were ordered freed after the N.C. Innocence Inquiry Commission found DNA evidence tying the killing to Roscoe Artis, a sexual predator with a lengthy criminal history, including a similar rape and murder in Red Springs one month after the arrest of Brown and McCollum.

Prosecutors had argued at trials in the 1980s and 1990s that the killer left a cigarette at the crime scene. Recent DNA tests of that cigarette found Artis’ DNA on it.

Sharon Stellato of the N.C. Innocence Inquiry Commission testified Tuesday that Artis, who is in prison in Warren County, told her in several interviews that Brown and McCollum were innocent.

Is DNA refutable?  Hard to say, though I am tempted to take the word of the state-funded (which might explain why N.C. Republicans are trying to kill its precursor) N.C. Innocence Inquiry Commission in 2014 over a retired investigator whose knowledge of forensics might be stuck 30 years in the past.  But this isn’t about investigators and prosecutors living in the past.

My post salutes the honorable prosecutor that holds office today:

The main evidence against the brothers was two detailed confessions, written in longhand by law enforcement and signed by each brother.

The other two men cited in the confession were never prosecuted; one was in another town that night and there was no evidence against the fourth.

McCollum and Brown have said they were coerced into confessing.

Johnson Britt, the district attorney, said Tuesday that the DNA evidence destroyed the case against the brothers and supported their exoneration.

“Time and time again, confessions have proven to be insufficient and at times inaccurate,” Britt said.

Before agreeing to their release, Britt read aloud the ethics rules governing prosecutors.

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate,” Britt said. “The prosecutor’s duty is to seek justice, not merely to convict.”

Bravo.  This decision certainly wasn’t easy to make:

Britt said his decision was stressful, given that Sabrina’s slaying was the most notorious in the modern history of Robeson County, and perhaps of North Carolina. He remembered fellow law students at Campbell University missing class to attend the trial about “the little girl who had her underwear stuffed down her throat.”

Robeson County D.A. Johnson Britt (no relation to Joseph Britt) ignored his emotions and went with his conscience and intellect.  He should be held up as a model to be followed.
District Attorney Johnson Britt
Seek Justice
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