This week, James Blackmon was freed after 35 years in prison for a murder he didn’t commit. He was convicted in Wake County, based on his own false confession — which police dragged out of him after hours of coercive interrogation. Here, CDPL attorney Elizabeth Hambourger explains how false confessions happen.
Most of us think, “I would never confess to a crime I didn’t commit.” But the sad reality is, people do it all the time.
More than a quarter of DNA exonerations involve a false confession. North Carolina’s longest serving death row exonerees, Henry McCollum and Leon Brown, were sentenced to death and spent a combined 60 years in prison because police interrogators manipulated them into taking responsibility for a terrible crime they had nothing to do with. And how many more Henrys and Leons are sitting in North Carolina’s prisons?
Many American law enforcement officers are trained to conduct interrogations in ways that recklessly encourage false confessions. Using the popular Reid Technique, interrogators first examine a suspect’s body language for clues that supposedly indicate guilt. In truth, these non-verbal cues often indicate simple nervousness. But once interrogators decide a suspect is guilty, their only goal becomes to obtain an admissible confession. They might weaken a suspect’s defenses by depriving them of sleep and food. Or lie to a suspect, confusing them with invented but convincing evidence of their own guilt. Or they might minimize the seriousness of the suspect’s supposed actions, offering morally acceptable motives, such as accident or self-defense, which the suspect might endorse in hopes of ending the interrogation.
You’ve probably seen all this on TV police dramas, but it’s ruining the lives of real-life innocent people. Today, a three-judge panel in Wake County exonerated James Blackmon, a man with severe mental illness who was manipulated into confessing to a 1979 murder at St. Augustine’s College. The flimsiest of evidence brought police to Blackmon’s bedside at Dorothea Dix, a mental hospital where Blackmon was confined. Four years after the murder of St. Aug’s student Helena Payton, long after the case had gone cold, police received a tip that an anonymous patient at Dix had confessed to a similar-sounding crime. Though there was no patient at Dix with the name the informant gave, police somehow ended up interrogating Blackmon.
Blackmon’s mental illness was immediately apparent. He compared himself to Dracula, claimed to have telepathic powers and the ability to cause natural disasters, and reported seeing UFOs. Officers noted that he wore a cape like Superman. In addition to suffering from schizoaffective disorder, a major psychotic illness, Blackmon’s IQ has tested as low as 69. Studies have found that those with mental and cognitive disabilities are more likely to give false confessions.
Despite his vulnerabilities and the lack of any evidence linking him to the crime, police interrogated Blackmon over and over. In fact, according to false confession expert Allison Redlich, they used Blackmon’s mental illness to manipulate him. Eventually, Blackmon agreed with the officers that “the bad James Blackmon” must have killed Payton while the “good James Blackmon” was somewhere else. But, tellingly, Blackmon did not even know basic facts of the crime, including how Payton was killed.
Blackmon’s “confession” was the only evidence against him. Detectives never found any physical evidence or eyewitnesses linking him to Helena Payton or the crime scene. In fact, there is physical evidence pointing to another suspect, and it now seems likely that Blackmon was in New York when Payton was killed. Yet, facing the possibility of a death sentence, Blackmon pled guilty and received a life sentence, even while still proclaiming his innocence.
Despite compelling evidence that the confession was false, Wake District Attorney Lorrin Freeman fought Blackmon’s exoneration. She could have agreed to his release, as the prosecutor did in Henry and Leon’s case. Instead, she said the burden was on him to prove his innocence, an extremely high bar that stops many innocent people from ever being released from prison. Now that Blackmon has been ruled innocent by the three-judge panel, his case casts further doubt on the reliability of confessions, the techniques law enforcement officers use to obtain them, and prosecutors’ decisions to rely on them to secure convictions and induce pleas. Today will be a hollow victory for a man who has spent 35 unjustified years in prison — unless prosecutors and police use this as an occasion to reevaluate the widespread practices that lead to wrongful convictions.
We often hear about wrongful convictions in death penalty cases, leading to innocent people spending years or decades on death row. But another, often hidden problem is wrongful death penalty prosecutions — cases where innocent people are charged with capital murder and tried for their lives only to eventually be cleared of all charges. These innocent people, while never convicted, spend years in jail, and lose their jobs, savings, reputations and family relationships. Dozens of people have been capitally prosecuted in North Carolina despite evidence too weak to prove their guilt, showing that the death penalty is used broadly and indiscriminately instead of being reserved for the “worst of the worst.”
In the Center for Death Penalty Litigation’s 2015 report, On Trial for Their Lives: The Hidden Costs of Wrongful Capital Prosecutions in North Carolina, authors pored over case files, court records, and news reports, contacted attorneys, and interviewed the accused to find cases in which a person was charged with capital murder and eventually acquitted by a jury or had all charges related to the crime dismissed by the state. The report found 56 wrongful capital prosecutions over 26 years, or an average of two each year. These unjust prosecutions had a devastating impact on the lives of the defendants — as well as a large public cost.
The report found that, between 1989 and 2015:
The state spent nearly $2.4 million in defense costs alone to pursue these failed cases capitally. (This conservative figure does not take into account the additional prosecution, court, and incarceration costs in capital cases.)
Defendants who were wrongfully prosecuted spent an average of two years in jail before they were acquitted by juries or had their charges dismissed by prosecutors.
The 56 defendants in the study spent a total of 112 years in jail, despite never being convicted of a crime.
By the time they were cleared of wrongdoing, many people lost their homes, jobs, businesses, and savings accounts, and saw personal relationships destroyed. They received no compensation after they were cleared of charges.
Serious errors or misconduct played a role in many cases. The 56 cases involved instances of witness coercion, hidden evidence, bungled investigations, the use of improper forensic evidence, and highly unreliable witnesses.
Read about some of the lives affected by wrongful prosecution below.
Jerry Anderson spent a lifetime building the 1,500-cow dairy farm he owned in rural Caldwell County. At age 46, he lost it all in the space of a few months, after he was arrested for the murder of his wife, Emily Anderson. He spent 18 months in jail and was tried for his life, even though no credible evidence connected him to the crime.
During his death penalty trial in July 2007, it became apparent that Emily died days after Jerry last saw her, during a time when he was searching for her with friends and family. The trial ended with a hung jury — eleven jurors voting not guilty and the lone holdout telling the press that he had a vision in which God told him to vote guilty. Prosecutors dropped the charges and never retried Jerry.
Jerry regained his freedom, but he says he will never be able to repair all the damage from being accused of a murder he did not commit. He moved back to his native Kentucky and settled into a mostly solitary existence, unsure how people would respond to his story. “You’re branded with it,” Jerry said. “To a lot of people, you’re guilty and they couldn’t prove it. You’re never innocent.”
Emily disappeared on Dec. 29, 2005. For days, Jerry and fellow church members searched the county. He allowed officers to search his farm and interview his employees. He submitted to a polygraph test, which he passed.
Nine days after she disappeared, Emily’s truck was found at a Quality Inn in South Carolina. Officers from the Caldwell County Sheriff’s Department went to pick it up, but failed to conduct a thorough search. It was the tow truck driver, after hauling the vehicle 120 miles back to North Carolina, who discovered Emily’s body in the large toolbox in the truck bed. She had been shot twice.
The sheriff’s department’s blunder made the news, and the sheriff, who was facing a contentious reelection campaign, had to admit to reporters that he had no suspects. Soon after, Jerry felt the investigation close in on him. He was arrested on January 27, 2006. His business collapsed quickly. Creditors auctioned off his cows, tractors, and farm equipment. He lost the down payment on a new home and dairy he and Emily were planning in Tennessee. Creditors and members of Emily’s family filed lawsuits against him.
After 18 months in jail, the prosecutor offered him a deal: If he pled guilty to second-degree murder, he could be out of prison in five years. Set on proving his innocence, he refused.
At his trial, two medical examiners concluded that Emily died two to four days before her body was discovered. The state’s theory of Jerry’s guilt hinged on Emily having been dead for at least nine days, but the prosecutor produced no medical experts to support that theory.
It also became clear that evidence that might have pointed to the killer was ignored. A rape kit was taken from Emily’s body but never tested. Witnesses who reported that they saw Emily alive in South Carolina after her disappearance were never interviewed. Hairs found in her truck were not tested.
Jerry said he concluded that the criminal justice system is not about seeking truth. Rather, it’s about each side trying to prove its own theory, sometimes in spite of the evidence. “It’s about winning,” Jerry says. “It doesn’t matter who’s right and who’s wrong.”
At 46, Leslie Lincoln was making a comeback from a painful divorce. She had just bought a house across the street from the land where her three horses grazed. She had a new boyfriend. She had recently landed a good job as an administrator at an assisted living facility making $42,000 a year, the most she had ever earned.
Then, in March 2002, her mother, Arlene Lincoln, was found beaten and stabbed to death in her home in Greenville, N.C. Leslie, who lived nearby and visited her mother often, had been the last known person to see her alive. Six months later, Leslie was charged with the murder and the prosecutor said he would seek the death penalty.
It would take five years—during which she was falsely implicated by flawed DNA evidence—before Leslie was finally acquitted by a jury. During that time, she lost her home, her savings, and her stability. Since her acquittal in 2007, she has been diagnosed with post-traumatic stress disorder and has drifted in and out of homelessness. She still grieves her mother’s death and cannot accept that the person who killed her will never be found.
“It takes a hole out of your heart, and you just can’t fill it back up again,” she says. “You try to pour good memories in, but the bad ones get in.”
Leslie spent more than three years in jail awaiting trial, during which she was never allowed outside and saw the outdoors only through a frosted window. During one jail visit, her attorney shocked her with the news that police had found her DNA in a bloody handprint left at the crime scene. Her lawyer requested that the sample be retested, but the state lab refused. He went to a private lab instead, and new tests uncovered a critical mistake: the DNA samples had been switched, and the DNA identified as Leslie Lincoln’s had actually belonged to her mother. In truth, none of Leslie’s DNA was found at the crime scene. Leslie says she will never be sure whether the incorrect results were the result of an error or an intentional effort to implicate her.
After the bungled DNA testing, the prosecutor took the death penalty off the table but continued to pursue first-degree murder charges. Prosecutors began offering to dismiss charges against other jail inmates, in return for testimony against Leslie. They used the testimony of two snitches at trial. Still, the jury took less than an hour and a half to find her not guilty.
By the time she was exonerated, Leslie had little to return to. Her horses and truck had been sold, her dogs had died, and her boyfriend had left her. She couldn’t find a good job, and had to take part-time work in fast food restaurants. She moved into an apartment, but couldn’t earn enough to hold on to it. Her grief over her mother’s death, pent up for five years, began to overtake her. She saw a psychiatrist and was prescribed medications for anxiety and depression, but still wore out the patience of close family members. She ended up moving into a homeless shelter and, in 2013, she spent several months living in her truck.
She says she never received an apology from police or prosecutors.“You just feel so helpless because you’re just this one little person. You want to say, ‘Don’t do this to anybody else.’”
Mike Mead was newly engaged and about to have a child. Then, on July 16, 2008, he got a call: His fiancée, Lucy Johnson, had been shot to death and her house set on fire. Mead immediately thought of Lucy’s ex-boyfriend—the two were involved in a bitter custody fight over their infant son—but months went by and no one was arrested. Then, six months after Lucy’s death, police finally made an arrest. They charged Mike with capital murder.
“It’s like a light switch was flicked, and my entire world came crumbling down,” Mike wrote shortly after his arrest, in a letter to friends and family.
In 2011, Mike was tried for his life in Gaston County and acquitted by a jury. There was not a shred of physical evidence linking Mike to the murder.
Like many modern couples, Mike and Lucy met on an online dating site. They knew each other only three months, but Mike says they felt an immediate connection. By the time Lucy died, she was pregnant with Mike’s child. He says they were both excited about the baby, and less than a week before her death, he asked her to marry him.
Mike submitted to interrogation without an attorney, searches of his home, gunshot residue tests, and a polygraph test—believing that police would recognize his innocence. Instead, in January 2009, they issued a warrant for his arrest. The prosecutor announced he would seek the death penalty.
Mike owned a successful engineering consulting business, which quickly collapsed. He sold his possessions and declared bankruptcy. On top of his legal bills, he had to pay monthly for his electronic monitoring bracelet. By the time of his trial, the cost topped $15,000, and he was never reimbursed. The bank foreclosed on his house a few months after he was acquitted.
Meanwhile, Mike’s attorney found that police had virtually no evidence to support their case. The attorney focused on the father of Lucy’s 6-month-old son, James Spelock, who had become enraged when Lucy refused to name the child after him. Since the child’s birth, the pair had been fighting over custody and child support. Lucy told friends she was afraid of James, and she wrote in her diary that if anything were to happen to her, James would be the culprit.
At trial, Mike’s defense team presented a strong case that James was the person with motive and opportunity. They also tore apart the state’s case against Mike, and caught investigators in a lie. At trial, police claimed that, after Lucy was found shot to death, they never tested Mike for gunshot residue. On cross-examination, police finally admitted that a gunshot residue test had been performed; they then claimed the test results had been lost.
At the end of the trial, with no physical evidence and their case unraveling, the state put a jailhouse snitch on the stand to testify that Mike had confessed to him during the few weeks he spent in jail. Mike says he had never met the snitch. The man’s testimony was so unbelievable that, by the time the snitch left the stand, the judge and jury were laughing.
After the verdict, Mike walked across the street to a hotel bar, where he found several members of the jury. He says they bought him drinks and cheered his freedom.
Do innocent people get the death penalty in North Carolina? The answer is a clear yes. Ten innocent men have been exonerated after receiving the death penalty in North Carolina. They served a combined 155 years in prison for crimes they didn’t commit. Four of them spent more than a decade on death row. One — Henry McCollum — spent 30 years there before finally being exonerated by DNA. In many cases, it was largely by luck that these men were able to prove their innocence before being executed.
More exonerations are likely, as investigations continue to uncover wrongfully convicted people in prisons across the nation. In case after case, investigators have found systemic problems. Shoddy police investigations. Hidden or lost evidence. False confessions. Dishonest witnesses, some of whom were paid rewards for their false testimony.
One scientific study found that the death penalty is so deeply flawed that one in every 25 death sentences is imposed on an innocent person.
Read the stories of innocent people who faced the death penalty in North Carolina:
Henry McCollum and Leon Brown were intellectually disabled teenagers when they were taken from their homes in rural Robeson County, coerced into confessing to a brutal murder they had nothing to do with, and sentenced to death. The brothers spent 31 years in prison before DNA testing finally proved them innocent.
On Sept. 26, 1983, Sabrina Buie’s small body was found lying in a soybean field in Robeson County. She was 11 years old. She had been beaten, raped, and suffocated. The crime shocked the tiny town of Red Springs, and police were eager to solve it. Believing the killer must have come from outside the community, they began searching for suspects from out of town.
One police officer came across a high school student who repeated a rumor she’d heard at school: Henry McCollum, a teenager from New Jersey who was visiting family in Red Springs, had been involved in the crime. Henry, who was 19, went to the police station voluntarily. Within five hours, he signed a confession full of grisly details. Just a half hour later, his 15-year-old brother Leon Brown also confessed. Both were intellectually disabled and were alone in the room with investigators, who wrote the confessions for them. Both quickly retracted their confessions, but it was too late. In 1984, a jury sentenced them to death.
Leon appealed his conviction and was eventually resentenced to life in prison. But Henry remained on death row for three decades and became notorious nationwide. U.S. Supreme Court Justice Antonin Scalia pointed to the brutality of Henry’s crime as a reason to support capital punishment. During North Carolina legislative elections in 2010, Henry’s face showed up on political flyers as the example of a brutal rapist and child killer who deserved to be executed.
It took until 2014 for DNA testing to finally prove that neither brother had anything to do with the murder. The true culprit was a serial rapist who lived just a few hundred yards from where the girl’s body was found, and who committed an eerily similar rape and murder in the same small town just a few weeks after Sabrina Buie’s killing.
In 2015, then-Gov. Pat McCrory granted the brothers a full pardon of innocence. Also that year, U.S. Supreme Court Justice Stephen Breyer cited their caseas a reason to outlaw the death penalty. The story of their historic exoneration is one of police and prosecutorial misconduct, and it demonstrates just how difficult it is to overturn even the most egregious wrongful convictions.
Henry and Leon are the most egregious example of how innocent people get the death penalty in North Carolina. To read the full story Henry and Leon’s dramatic exoneration, read the Saved From the Executioner by the Center for Death Penalty Litigation
Eleven of 12 jurors wanted to execute Darryl Hunt, but one refused to waver. Only because of that single juror was Darryl spared the death penalty for a rape and murder he did not commit. He was not spared, however, from spending 19 years in prison — 10 of those after DNA evidence showed that he was not the culprit.
In 1984, a 25-year-old newspaper copy editor, Deborah Sykes, was raped and stabbed to death while on her way to work in Winston-Salem. The crime against a young white woman sparked community outrage, and 19-year-old Hunt was quickly arrested.
At his 1985 trial, the only evidence tying Darryl to the crime was the testimony of witnesses who said they saw him with the victim before her death, or saw him at a hotel disposing of bloody towels. Their identification of Darryl was shaky at best. Darryl testified that he did not know Deborah Sykes and had no involvement with the crime. He was sentenced to life in prison, because of that single juror who refused to make it a unanimous vote for death.
In 1989, Darryl’s conviction was overturned on appeal because prosecutors had relied on the statements of a witness who later recanted. Prosecutors offered Darryl a deal. He could be freed by pleading guilty and accepting a sentence of the five years he had already served. He refused to admit to a crime he did not commit. Darryl was retried for murder, and again sentenced to life imprisonment.
In 1994, scientific advances allowed for DNA testing, which revealed that the DNA of the rapist did not match Darryl’s. In a hearing about the newly discovered DNA, the state changed its story, now insisting that there was more than one assailant and that Darryl killed the victim while another man raped her. The judge ruled in the prosecution’s favor, and Darryl remained in prison for another decade.
In 2004, after immense public pressure, the state finally ran the crime scene DNA through a database of convicted felons and found a perfect match — a man who had committed a similar rape just months after Deborah Sykes’ murder. He confessed, and Darryl was finally freed. Darryl received a rare pardon of innocence from the governor.
Darryl spent the rest of his life advocating to end capital punishment and ensure that no more innocent people get the death penalty in North Carolina. “If I had gotten a death sentence,” he said, “there’s no doubt in my mind I would have been executed.”
In a loss to us all, Darryl died in 2016.
For more, watch The Trials of Darryl Hunt, a gripping documentary about Darryl’s 19-year fight for freedom and read Professor Mark Rabil’s My Three Decades with Darryl Hunt. Four years out of law school and just twenty-nine-years-old, Mark was appointed to represent Darryl Hunt. He couldn’t know then that he would spend decades fighting for his client’s freedom. “To be clear, my anger over the injustices in Darryl‘s case was well-founded, as shown by the following,” writes Professor Rabil, before breaking down ten reasons for his justifiable outrage, including documented racism and falsification and misrepresentation of information and evidence.
Levon “Bo” Jones served 15 years in prison, 13 of those on death row, after being wrongfully convicted of robbery and murder. The state’s case was based almost entirely on the testimony of a single witness, who presented at least five conflicting stories to police throughout the course of the investigation. Despite widespread recognition of Bo’s innocence prior to his exoneration, he was not freed until the witness officially recanted her testimony in 2008.
Many people on death row have been sent there by the testimony of a single witness. Often, it’s a person with something to gain: testimony in exchange for a cash reward or a reduced sentence for their own crime. A number of the men and women sentenced with such flimsy evidence remain on death row today. But Bo was lucky enough to find a judge who recognized that the evidence against him was flimsy and unconvincing. The judge freed Bo in 2006, thirteen years after he was sentenced to death.
Leamon Grady, 67, was robbed and shot in his Duplin County home in 1987. Police failed to collect key evidence from the crime scene, like fingerprints and blood samples, so were without a suspect for three years. Only after they posted a $4,000 reward for information did Bo’s ex-girlfriend, Lovely Lorden, come forward to say Bo was the culprit. Lovely gave shifting stories of a robbery that, on first telling, Bo committed alone, but then expanded to involve several people. At Bo’s trial, the jury never heard about the $4,000 reward Lovely received for her testimony.
Lovely officially recanted her testimony in 2008, saying that officers coached her and threatened her with arrest if she did not testify against Bo. Bo was one of three men who were wrongfully convicted based on Lovely’s accusations, but the only one sentenced to death. All three have now been exonerated.
At Alan Gell’s 1998 murder trial, the crucial evidence came from two teenage girls. The girls said they watched Alan shoot Allen Ray Jenkins to death in the driveway of Jenkins’ Bertie County home. It happened on the night of April 3rd, 1995, they told the jury, during a robbery gone wrong. The jury sent Alan, then 22, to death row. In exchange for their testimony, the girls were allowed to plead guilty to second-degree murder and sentenced to just ten years.
Alan’s defense attorneys wouldn’t find out until years later that the prosecutor had a recording of the girls plotting to make up a story to incriminate Alan. What’s more, Mr. Jenkins’ body was not discovered until April 14th, eleven days after the robbery the girls described. And the prosecutor withheld statements from seventeen of Mr. Jenkins’ friends and neighbors, who told investigators they saw him alive well after April 3rd. The statements proved that Alan could not have been the killer, because he was out of state or in jail on a car theft charge from April 4th until after the time Mr. Jenkins’ was found dead.
In 2002, four years after Alan was sent to death row, a judge overturned his conviction because of the hidden evidence. The state medical examiner reversed her earlier testimony, and said she now believed the date of death was days after Alan could have been involved in the killing. Nevertheless, the N.C. Attorney General’s Office continued to press for Alan’s execution. In 2004, the state retried Alan for Mr. Jenkins’ murder.
The jury deliberated less than three hours before acquitting Alan and sending him home. He married the love of his life in 2015.
In 2008, 14 years after Glen “Ed” Chapman had been sentenced to death, a judge granted him a new trial: “The notion that a defendant can be put to death when no crime in fact occurred is troubling at best,” Superior Court Judge Robert Ervin wrote. He also cited hidden evidence, destroyed documents, the use of weak, circumstantial evidence, and false testimony by the lead investigator.
In the summer of 1992, the bodies of Tenene Yvette Conley and Betty Jean Ramseur were found in abandoned houses in Hickory. Betty Jean Ramseur had been hit in the head and Tenene Conley, police said, had been strangled. Both murders were pinned on Ed. Ed admitted to using drugs with both women and to having consensual sex with one of them, but said he was innocent of murder. In late 1994, a jury sentenced him to death.
Ed’s two trial lawyers were notorious alcoholics. One was disciplined by the bar for alcohol abuse and the other, Tom Portwood, later admitted to drinking 12 shots a day and going to court drunk. They failed to do even the most basic investigation of their client’s guilt. Had they hired forensic experts, they would have learned that Tenene Conley most likely died of a cocaine overdose and was not the victim of a crime at all. The state also withheld witness statements saying Conley was seen alive after the day she’d supposedly been killed, with a man who had a record of violence toward her.
In Betty Jean Ramseur’s case, there was scant evidence linking Ed to her death, aside from a homeless man who claimed to have seen the two together around the location where her body was found. The jury never heard that another man confessed to killing her, or that a different suspect had been identified in a photo lineup.
After a judge granted Ed a new trial, prosecutors elected not to re-try him and he was set free.
During his years in prison, Ed’s two young sons grew up without a father and his wife died from liver cancer. After his exoneration, he traveled around the state to bring attention to flaws in the criminal justice system. “I can forgive,” he said. “That doesn’t mean I have to forget.”
At the urging of a DA who often wore a noose-shaped lapel pin, an all-white jury sentenced Jonathan Hoffman to death.
In 1995, Danny Cook was found shot to death in his Union County jewelry store. Police had no leads until months later, when an anonymous tip led them to Jonathan. There was no physical evidence linking Jonathan to the murder, and when the case went to trial in 1996, the only evidence came from witnesses who said Jonathan confessed the crime to them.
One witness was a folk healer who claimed to have sold Jonathan a special root that would protect him from arrest. The star witness, however, was Jonathan’s cousin, Johnell Porter, who received thousands of dollars, immunity for crimes he admitted on the witness stand, and a reduced sentence for a bank robbery he committed. Prosecutors made the deal in secret, hiding it from both the jury and the judge.
Prosecutors Ken Honeycutt and Scott Brewer were later criminally and civilly investigated for not revealing the deals promised to the witness — and for removing a reference to the deal from the case notes they handed over to the judge. After the secret deal was exposed, a judge granted Jonathan a new trial in 2004. In 2006, Johnell told the Charlotte Observer that he lied at Jonathan’s trial to get revenge on his cousin, because he believed Jonathan had stolen money from him and gotten him in trouble with the police.
Prosecutors finally agreed to drop all charges against Jonathan in 2007.
Since Arkansas shocked the world by trying to execute eight people in 10 days just to beat the expiration date on its lethal drugs, there has been more talk about the death penalty in North Carolina.
Most recently, WUNC’s Rusty Jacobs did a piece on where the death penalty stands, almost 11 years after North Carolina’s last execution. It revealed serious concerns about executing innocent people, and explained why it’s far more expensive to execute than to sentence people to life in prison.
However, one concept goes unchallenged in many stories about the death penalty: The naïve idea that the death penalty is used only in those rare, “worst of the worst” cases. Having spent my entire career up-close with North Carolina’s capital punishment system, I can tell you that’s not how it truly works.
First, let’s look at the 147 people on death row in North Carolina. More than three-quarters of them were sentenced more than 15 years ago, during an era in which North Carolina had one of the highest death-sentencing rates in the nation — even higher than Texas and Florida. Far from using the death penalty only in a handful of the most shocking crimes, execution was pursued Wild West-style in nearly every first-degree murder case.
During those years, we had a law unlike any other in the nation, which required prosecutors to seek the death penalty in every first-degree murder case with an aggravating factor. And, of course, the law is written so broadly that an aggravating factor can be found in almost any intentional killing.
Prosecutors were required to push for execution without regard to mitigating factors, or evidence that pointed to possible innocence. Even they thought this was a terrible idea, and they recommended the law be changed.
The General Assembly ended this requirement in 2001, but by then, death row had swollen to more than 200 people, more than 100 of whom remain there today. All of them were tried without the benefit of reforms intended to ensure fairness and prevent the conviction of innocent people.
There was, for example, no requirement that confessions be recorded. In many cases, the state presented unreliable forensic testing and “junk” science, and defendants were sentenced to death by juries selected in a racially-discriminatory fashion. Some of them, like Henry McCollum and Leon Brown, were innocent. Most would never have received death sentences under today’s laws. These are the people who would be first in line if our execution chamber were to crank up.
Next, consider how the death penalty is used today. Do prosecutors use their discretion to carefully cherry-pick death penalty cases? Absolutely not.
In reality, our justice system runs on pleas. Prosecutors use the death penalty as leverage, to persuade reluctant defendants to plead guilty and accept life sentences.
It works like this: The vast majority of murders are initially charged capitally, and pleas are negotiated from there. The theory is that a defendant facing the threat of execution is more likely to accept whatever deal the state offers. Pursuing the death penalty even when the prosecutor thinks the case is not execution-worthy makes a mockery of justice.
Defendants who refuse a deal are often our most vulnerable clients: those who are mentally impaired, those who least trust their lawyers, or those who are innocent and refuse to plead guilty. People who refuse plea deals represent the vast majority of people who are tried capitally in North Carolina today.
This means a defendant’s chance of facing the death penalty depends less on the crime than on a willingness to accept a life sentence without a trial. Often, several defendants are involved in a crime. Some accept a deal and get a life sentence, while another — maybe not even the most culpable — ends up on trial for his life.
Juries can see that the people who go to trial are not the “worst of the worst.” Look at the two capital trials in North Carolina this year. Both defendants were offered pleas but insisted on going to trial.
The first trial, in Wake County, ended with a verdict of life imprisonment. This marked eight times in a row that a Wake jury has chosen life over death. In the second, just this month, a Robeson County jury not only rejected a death sentence but refused even to convict the defendant of first-degree murder. He was found guilty of second-degree murder.
Prosecutors might tell you they need the death penalty to punish the “worst of the worst.” But in practice, our state spends millions to pursue death sentences that are arbitrary and unnecessary, and uses the threat of death as a negotiation tactic — sometimes putting innocent lives on the line.