Begging for a pardon: Why some of the wrongfully convicted could go penniless

The 1983 rape and murder of 11-year-old Sabrina Buie rocked the small North Carolina town of Red Springs and led quickly to the arrest of two area men – Henry McCollum and Leon Brown.

From there the two brothers, whose IQs once measured in the 50s, withstood a trial and then four years later, retrials.

They spent thirty-one years behind bars — McCollum, on death row — while attorneys pursued allegations of prosecutorial misconduct and pushed for renewed examination of evidence.

In 2009, investigators from the state Innocence Inquiry Commission reopened their case and, after five years of review that included DNA evidence pointing to a different man, concluded the men were innocent.

“It was the most exhaustive investigation I’ve ever seen in a criminal case,” said Ken Rose, one of their attorneys at the time.

The Robeson County District Attorney agreed with the investigators, as did Superior Court Judge Douglas B. Sasser who, after a hearing last September, declared the men innocent and ordered them released immediately.

The men left prison with $45 from the state in their pockets, led to believe that by law they were entitled to, and would soon get, additional compensation for the loss of 31 years of freedom.

But that’s not happening quickly, due to a glitch in the statute requiring them to first be pardoned by the governor.

And that’s where the process overtakes the point.

Despite the findings of the Commission, the agreement by the District Attorney and the order of Judge Sasser, the governor’s office has apparently opened its own investigation into McCollum’s and Brown’s innocence – hence the delay.

Tired of waiting, attorneys for the men have planned a rally outside the governor’s mansion for May 19, hoping to bring some public pressure on the often-politicized pardon process.

“We’re going to have a bunch of people out there asking for justice, asking the governor to do the right thing and pardon these guys,” said Patrick Megaro, an attorney from Orlando who currently represents McCollum and Brown.

“As you can imagine, 31 years has taken a toll. The healing process really begins with a pardon because that’s when there will be an official acknowledgement that the state of North Carolina has made a mistake.”

September 1983

The case against McCollum and Brown opened with conflicting statements from a local high school student implicating McCollum initially in the rape and murder, based upon what she’d heard at school and upon the strange way he “stared at people” and “didn’t act right.”

It didn’t get much stronger from there.

Within days of the murder local police brought McCollum and Brown, then 19 and 15, in for a late-night questioning session that led to confessions – signed, according to their attorneys, with promises of being able to then go home.

Instead they were arrested.

Those confessions conflicted factually, no one witnessed the crime, and no physical or forensic evidence tied the men to the scene or the victim.

But the county district attorney at the time, Joe Freeman Britt – dubbed the “deadliest D.A.” for his record in securing death sentences – forged ahead, securing convictions and death sentences against both in 1984.

The state Supreme Court reversed those convictions in 1988, and the men were tried again, with McCollum convicted and sentenced to death in 1991 and Brown convicted and sentenced to life in 1992.

In 2004, a judge ordered DNA testing on evidence, as did the state Innocence Inquiry Commission in 2010 after it opened a review of the convictions.

None of that testing linked the men to the crimes, but testing on a cigarette butt found at the scene did match state prison inmate Roscoe Artis, who was already serving a life sentence for a similar rape and murder in Red Springs just a month after the Buie crime.

“This was ‘once in a blue moon,’” Rose said. “Not only did the evidence that Innocence Inquiry Commission discovered show that McCollum and Brown were innocent, but it also identified the person who committed the crime.”

That evidence sufficed to convince commission associate director Sharon Stellato that McCollum and Brown were innocent.

Stellato testified at length before Judge Sasser at a hearing in September 2014 about the extensive 4-year investigation the commission had undertaken.

Robeson County District Attorney L. Johnson Britt III agreed with Stellato, as did Sasser, who in his order dismissing the charges and requiring their immediate release made specific findings of their innocence.

Nine days later, on September 11, 2014, the men filed their request for a pardon by Governor Pat McCrory.

Why the pardon?

Under North Carolina’s compensation statute, the wrongfully convicted can recover for their losses in two ways: obtain a determination of innocence from the Commission that is then confirmed by an appointed three-judge panel, or otherwise receive a “pardon of innocence” from the governor “upon the grounds that the crime with which the person was charged either was not committed at all or was not committed by that person.”

Because McCollum and Brown were declared innocent by a judge, and not the commission followed by the three-judge panel, they’ll get nothing – other than the $45 they each got when they left prison — unless and until the governor grants their pardon request.

That glitch in the law – recognizing judicial determinations of one sort but not another – is problematic, not just for McCollum and Brown but for the hundreds of others seeking review of their convictions and ultimately compensation each year.

“What we’ve done is create two classes of innocent people,” said Theresa Newman, co-director of the Wrongful Convictions Clinic at Duke Law School, “those who go through the courts and get exonerated, and those who go through the Innocence Inquiry Commission.”

(A bill that passed unanimously in the House in April to correct that glitch is now pending in the Senate.)

One reason that people don’t go the commission route is that the commission is limited by statute as to what they can do, Newman added.

The evidence being brought to the commission’s attention has to be new and it and it has to be evidence of innocence, not just of a wrongful conviction, she said.

Plus the commission has limited capacity and resources, so it can’t take many of the hundreds of claims it receives each year.

For McCollum and Brown, getting the two quickly out from behind bars after 31 years drove their process.

“We felt that there was an amazing case that they were innocent and should get out of prison immediately,” Ken Rose said. “Our thought at that time that we could achieve that much quicker through the courts than through the Innocence Commission.”

Why the delay?

Nearly eight months have passed since McCollum and Brown requested pardons, with little information coming from the governor’s office.

“I take this very seriously,” McCrory said in February, per a report in the News & Observer. “I’ve made a point to keep the politics out of that review process to let that team go at their pace without my interference.”

Governor’s spokesperson Ryan Tronovitch told the New York Times in March that the review was “extensive and ongoing.”

And yesterday in an emailed statement, governor’s counsel Bob Stephens expanded on that review:

When the Governor receives a request for a pardon of innocence, the Governor’s Office begins its own investigation of the case. This is a thorough and detail-intensive process, and it takes time to complete. We review evidence, transcripts, and other reports connected to the case. Interviews of relevant parties are also conducted. With respect to Mr. McCollum and Mr. Brown’s applications, the investigation is nearing completion.

The investigation is indeed extensive, according to Erich Hackney, an investigator with the Robeson County District Attorney’s Office.

Hackney said that he is working with the State Bureau of Investigation on two separate investigations: one into who may be responsible for the rape and murder of Sabrina Buie, and another – the “clemency investigation” – into whether McCollum and Brown are “culpable to any extent” in that rape and murder.

The request for that “culpability” determination came from the governor’s office, he added.

“Probably for the last three months, we’ve interviewed close to 20 people, re-interviewed all the prosecutors, the judges, officers, all SBI agents involved, other witnesses,” Hackney said. “We’re still reviewing the evidence, because we just got that back from this Innocence Commission three weeks ago. And we keep getting information. It’s one of those things that once you get into it, you start peeling the layers back, you start finding other things you want to go to, then you find additional things to look at. People have gone to other places in the country, some folks have died, and we’re following up as quickly as we can as we learn things.”

Other reasons?

A new investigation by the governor into “culpability” has some concerned that he may be caving to the political pressure inherent in the pardon process – particularly given the exhaustive review and judicial imprimatur that the McCollum and Brown cases have already received.

The original prosecutor, Joe Freeman Britt, has publicly opposed any pardon for the men. “There is no doubt in my mind that they’re not entitled to a pardon, and there is no doubt in my mind that they’re not entitled to compensation by the taxpayers,” he said in the March New York Times story.

But attorneys involved in the case and others who work in this area say that the governor’s work has already been done for him.

“A District Attorney would not have consented to their innocence, and a judge would not have put innocence in their order, if there was any level of culpability,” said Chris Mumma, executive director of the North Carolina Center on Actual Innocence.

“Once a District Attorney who’s very familiar with the case and all the files and the law consents that they’re innocent, then the governor’s office shouldn’t need to re-open the investigation.

Ken Rose echoed that sentiment.

“It should be a simple process for the governor,” he said. “First of all, there were findings of actual innocence in the actual order, which is rare. Second, it’s extraordinarily rare where the evidence exculpates the defendant. Most of our cases fall into the other category – where there’s insufficient evidence to go forward with a retrial. Here, not only are these two guys exculpated, but the evidence powerfully and unquestionably points to the actual perpetrator of the crime.”

Mumma called the “pardon of innocence” outdated, at least as a hurdle for those otherwise exonerated and looking for compensation.

“It doesn’t really fit into the criminal justice system as we know it today,” she said. “It was developed before we had DNA, before we had the Innocence Inquiry Commission, before you could have this scientific evidence where you could identify the true perpetrator. It was designed for cases where you couldn’t get judicial relief and you couldn’t get the scientific evidence we have now.”

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Editor’s note: A Rally for Justice to pardon Henry McCollum and Leon Brown will be held May 19th in Raleigh. Click here to learn more.