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DNA Sets Man Free After Scalia Mocked His Death Penalty Appeal

By William Peacock, Esq. | Last updated on

Ten years after the U.S. Supreme Court declined to review their case, and 30 years after they were convicted, two half-brothers have been cleared of a 1983 sexual assault and murder thanks to DNA. Henry Lee "Buddy" McCollum, 50, has spent three decades on death row, while Leon Brown, 46, was serving a life sentence. Both are expected to be released today, reports The New York Times.

Their case is notable for a number of reasons: McCollum's low IQ, said to be in the 60s, puts him at or near the territory for categorical ineligibility due to his intellectual disability. Brown, who also faced the death penalty at the time, was only 15 when the crime was committed (and would also now be ineligible for execution). And though there have been a handful of death row exonerations in the past, this case looks particularly weak in retrospect -- a coerced confession, an overlooked suspect, and little to no other evidence.

But most of all, it is a sarcastic quip about McCollum's case by Justice Antonin Scalia that's attracting attention.

'Weak' Case and a Cigarette Butt

The Times, in its coverage of the half-brothers' story, called the case against them "always weak." And though clichés about hindsight come to mind, indeed, this does look like a tragic and avoidable miscarriage of justice.

In 1983, after local police received a tip about the murder of 11-year-old Sabrina Buie, the two brothers were brought in and interrogated for five hours. McCollum cracked and made up a story about how he and three others attacked and murdered the girl. Brown also confessed after hearing that his brother had done so.

Both recanted almost immediately. The other two men implicated in the confession were never charged. After the state supreme court ordered retrials, McCollum was convicted of murder and sentenced to death, while Brown was convicted of rape and given a life sentence.

Recent DNA testing of a cigarette butt found at the scene matched to Roscoe Artis, a man who confessed to the rape and murder of an 18-year-old girl mere weeks after Buie's murder. Artis lived only a block from where Buie (and the cigarette) was found. He's currently serving a life sentence for the second murder.

The DNA, combined with the weak original case, was enough to set the brothers free.

An interview with McCollum from last week by The News & Observer.

Scalia's Quip

In 1994, Justice Harry Blackmun penned a passionate dissent from the U.S. Supreme Court's denial of certiorari in a death penalty case, swearing off the death penalty for good:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years, I have endeavored -- indeed, I have struggled -- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.

Justice Antonin Scalia, being Scalia, responded:

The death-by-injection which JUSTICE BLACKMUN describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which JUSTICE BLACKMUN did not select as the vehicle for his announcement that the death penalty is always unconstitutional -- for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet death by lethal injection compared with that! If the people conclude that such more brutal deaths may be deterred by capital punishment; indeed, if they merely conclude that justice requires such brutal deaths to be avenged by capital punishment; the creation of false, untextual and unhistorical contradictions within 'the Court's Eighth Amendment jurisprudence' should not prevent them.

Undeterred, a few months later, Justice Blackmun actually did dissent from the Court's denial of cert. in McCollum's case:

Buddy McCollum is mentally retarded. He has an IQ between 60 and 69 and the mental age of a 9-year old. He reads on a second grade level. This factor alone persuades me that the death penalty in his case is unconstitutional.

To be fair to Scalia here, both justices wrote their opinions on the assumption that McCollum was guilty, and both were incorrect. Scalia's point was simply that lethal injection itself is humane, especially compared to the gang rape and murder of an 11-year-old, a statement that is hard to disagree with. Blackmun's issue was with the uneven and unfair application of the death penalty. (In his dissent, he proceeded to highlight the fact that McCollum's three alleged co-participants were not on death row.)

Still, this is the problem with writing quotable bluster: It can come back to haunt you, especially when quoted out of context.

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