exoneration of two North Carolina men who spent 30 years in prison — one on
death row — provides a textbook example of so much that is broken in the
American justice system. And it is further evidence (as though more were needed)
that the death penalty is irretrievably flawed as well as immoral.
In late September 1983, an 11-year-old girl named Sabrina Buie was found
murdered in a soybean field in Robeson County. She had been raped, beaten with
sticks and suffocated with her own underwear.
Within days, police got confessions from two local teenagers, Henry Lee
McCollum, 19 at the time, and his half brother, Leon Brown, who was 15. Both
were convicted and sentenced to death.
The crime was so horrific that it has echoed for decades through North Carolina
politics and beyond. In 1994, after Justice Harry Blackmun of the Supreme Court
announced that he opposed capital punishment in all circumstances, Justice
Antonin Scalia cited the Buie murder as a case where it was clearly warranted.
“How enviable a quiet death by lethal injection compared with that!” he wrote.
On Tuesday, a state judge ordered both men freed after multiple pieces of
evidence, some of which had never been turned over to defense lawyers, proved
that neither Mr. McCollum nor Mr. Brown was responsible for the crime. DNA taken
from a cigarette found at the crime scene matched a different man, Roscoe Artis,
who is already serving life in prison for a similar murder committed just weeks
after Sabrina Buie’s killing.
Virtually everything about the arrests, confessions, trial and convictions of
Mr. McCollum and Mr. Brown was polluted by official error and misconduct.
No physical evidence linked either man to the crime, so their false confessions,
given under duress, were the heart of the case the prosecutors mounted against
them. Both men’s confessions were handwritten by police after hours of intense
questioning without a lawyer or parent present. Neither was recorded, and both
men have maintained their innocence ever since.
Equally disturbing, Mr. Artis was a suspect from the start. Three days before
the murder trial began, police requested that a fingerprint from the crime scene
be tested for a match with Mr. Artis, who had a long history of sexual assaults
against women. The test was never done, and prosecutors never revealed the
request to the defense.
It was not until 2011 that the North Carolina Innocence Inquiry Commission, an
independent state agency that had taken on the men’s case, discovered the old
fingerprint request. The commission also found that multiple statements in the
two confessions were inconsistent with each other and with the facts of the
crime. In July, the commission finally got the full case file and matched the
DNA to Mr. Artis.
None of these pieces mattered to the prosecution in 1984. The prosecutor on the
case, Joe Freeman Britt, was listed in the Guinness Book of World Records as the
“deadliest prosecutor” for the nearly 50 death sentences he won during his
tenure. Almost all have since been overturned.
Mr. McCollum and Mr. Brown, who are now middle-aged, have a hard road ahead. In
addition to the difficulties of adapting to life after three decades behind
bars, both are intellectually disabled. (Since their conviction, the Supreme
Court has banned the death penalty for both juveniles and those with
Cases of capital prosecutions based on flimsy evidence or marred by
prosecutorial misconduct, not to mention racial bias, are distressingly common.
Yet, even as death-penalty supporters insist that only guilty people are sent to
their death, it is now clear that Justice Scalia was prepared 20 years ago to
allow the execution of a man who, it turns out, was innocent.
How many more remain on death row today? Can the American people be assured that
none will be killed by the state? For this reason alone, the death penalty must
A version of this editorial appears in print on September 4, 2014, on page A26
of the New York edition with the headline: The Innocent on Death Row.
“How has it gone on this long?” Justice Antonin Scalia asked a
lawyer for the State of Florida during oral arguments in March on a condemned
inmate’s appeal. The legal issue in that case had to do with how states define
intellectual disability, but Justice Scalia was troubled that Freddie Lee Hall
had been on Florida’s death row for more than three decades.
In that same session, Justice Anthony Kennedy noted that the last 10 people
executed by the state had spent an average of 24.9 years on death row.
“Do you think that that is consistent with the purposes of the death penalty,”
Justice Kennedy asked the state’s lawyer, “and is it consistent with sound
administration of the justice system?”
Last Wednesday, in an unrelated case, a federal judge in California answered
that question with a resounding no. The state’s death-penalty system is “so
plagued by inordinate and unpredictable delay,” wrote United States District
Judge Cormac Carney, that it violates the Eighth Amendment’s ban on cruel and
In a remarkable ruling overturning the death sentence of Ernest Dewayne Jones,
who was sentenced in 1995 for the murder of his girlfriend’s mother, Judge
Carney, an appointee of President George W. Bush, pointed out that of the more
than 900 people California has sentenced to death since 1978, 13 have been
executed. More than 40 percent of the rest have been on death row for at least
19 years, and the backlog is growing.
The judge found that the delays are primarily due not to inmates’ repeated
appeals, as is often assumed, but to the state’s own foot-dragging and
underfunding of its indigent defense system.
California law provides for an automatic appeal of all death sentences, but it
takes three to five years before death-row inmates — all of whom are indigent —
are even assigned a lawyer. It takes four more years for the lawyer to go
through the voluminous trial record and file an appeal, and two to three years
for the State Supreme Court, which hears only 20 to 25 death-penalty appeals per
year, to schedule oral arguments.
Tack on another three to five years for state habeas corpus petitions, which
bring claims that often don’t arise in the first appeal, such as ineffective
assistance of counsel. Add 10 for federal habeas corpus claims, and the result
is what Judge Carney charitably called a “completely dysfunctional” system.
Executions that are so long delayed and so rarely carried out, the judge wrote,
are “antithetical to any civilized notion of just punishment.” They neither
deter future crimes nor serve society’s interest in retribution for past ones —
two common rationales given by supporters of capital punishment. Whether an
inmate is executed depends not on the nature of the crime or even the date of
his sentence, the judge said, but on “arbitrary factors” like the length of his
California is, of course, far from alone on the issue. Nationwide, the average
time from sentencing to execution is almost 16 years, and executions have hit
all-time lows as states fight litigation on multiple fronts. (Because of
continuing litigation over the state’s lethal-injection protocol, California has
not executed anyone since 2006.)
States including Florida, Alabama and North Carolina have responded to similar
delays by moving to streamline death-row appeals. But speed is not the point if
it comes at the expense of accuracy. As Judge Carney said, “death is a
punishment different in kind from any other,” and so requires more careful
scrutiny than any other.
That extra scrutiny is “vitally important,” the judge pointed out: Half of
California’s death sentences that were reviewed by a federal court were
A version of this editorial appears in print on July 21, 2014, on page A16 of
the New York edition with the headline: A Lifetime on California’s Death Row.
The New York Times
By BRUCE WEBER
It is not
you stand waiting for a train
or a bus that may never come
no friend drives by to catch a ride
call yourself a poet
but work all day mopping floors and looking out for thieves.
Those lines, describing the experience of an innocent man on death row, are from
a poem by Delbert Tibbs, who in 1974 was convicted in Florida of a rape and a
murder that he had nothing to do with, it was later found. He spent nearly three
years in prison before the State Supreme Court reversed his convictions, vacated
his death sentence and freed him.
Mr. Tibbs then campaigned for the abolishment of capital punishment and became
one of six people whose stories of wrongful conviction and near execution were
told in “The Exonerated,” a play by Jessica Blank and Erik Jensen, who assembled
their script from court documents, testimony, depositions and letters.
First presented in 2002 in Los Angeles and New York with celebrity-studded
casts, the play went on to help reshape the national debate about the death
penalty, reaching audiences in productions across the country and then on
television in a filmed adaptation starring Susan Sarandon, Brian Dennehy, Aidan
Quinn, Danny Glover and, as Mr. Tibbs, Delroy Lindo.
“People who once argued about the morality of executing the guilty now discuss
whether the capital justice system can be trusted to separate those deserving
death from the wholly innocent,” Adam Liptak wrote in The New York Times in 2005
in assessing the play’s impact.
Mr. Tibbs, whose poetic bent led Ms. Blank and Mr. Jensen to use his character
as a kind of Greek chorus, introducing and closing the play and appearing
intermittently throughout as a sagelike figure, died on Nov. 23 at his home in
Chicago. He was 74.
His death was confirmed by Andrea Lyon, a law professor at DePaul University who
is godmother to Mr. Tibbs’s daughter Mahalia. Professor Lyon said that the cause
was uncertain but that Mr. Tibbs had had cancer.
The crimes for which he was arrested occurred in Fort Myers, on Florida’s
southwest coast, on Feb. 3, 1974. A teenager, Cynthia Nadeau, was raped, and her
boyfriend, Terry Milroy, who was in his 20s, was shot to death. Ms. Nadeau’s
story was that while hitchhiking, they were attacked by a black man who had
picked them up in a green truck. The couple were both white.
Mr. Tibbs was rootless at the time, though not a drifter so much as a seeker. A
former seminary student in Chicago, he had himself been hitchhiking around the
country and had made his way to Florida. The case against him had holes.
Evidence showed that he was in Daytona Beach on the day of the killing, 250
miles from Fort Myers, and Ms. Nadeau’s initial description of her assailant was
at odds with Mr. Tibbs’s appearance. (She identified him from a photograph
several days later.)
An all-white jury nevertheless found him guilty on the basis of Ms. Nadeau’s
uncorroborated testimony and a cellmate’s claim that Mr. Tibbs had confessed to
the killing in jail.
Mr. Tibbs received a life sentence for the rape and the death sentence for the
But in the summer of 1976, citing the weakness of the evidence against him, the
Florida Supreme Court reversed the verdict on appeal and ordered a new trial,
saying it did not want to “risk the very real possibility that Tibbs had nothing
to do with these crimes.”
He was released from prison in January 1977, and after further legal wrangling —
Mr. Tibbs’s lawyers argued that a retrial would amount to double jeopardy — the
state dropped its charges against him in 1982. (In 2002, state prosecutors
nonetheless said they held to their belief in Mr. Tibbs’s guilt. No one else has
been charged with the crimes.)
“I’m a Southern boy,” Mr. Tibbs said in an interview with the oral historian
Studs Terkel for his book “Will the Circle Be Unbroken? Reflections on Death,
Rebirth, and Hunger for a Faith,” published in 2001. “My rationale to them for
being in the state was just that I wanted to roam across the country, which is
typical of writers and artists and so forth, but it’s not typical of black
people. It’s all right for Jack Kerouac, but not for Delbert Tibbs.”
Delbert Lee Tibbs was born in Shelby, Miss., on June 19, 1939. His father, Pete
Johnson, was a traveling salesman. He was reared by his mother, Lillie Bryant,
and her husband, Frank Tibbs, who were sharecroppers.
He moved to Chicago with family members when he was about 12 and, before he was
20, had married and had a son, Delbert Jr. The marriage ended in divorce. Mr.
Tibbs is survived by his son; two daughters, Mahalia Abeo Tibbs and Afrika
Rouselle; and three grandchildren.
Mr. Tibbs attended colleges in Chicago, including Chicago Theological Seminary,
though he never finished a degree, and worked as an insurance claims adjuster.
In the early 1970s, he left school and hit the road for the adventure that
landed him on death row.
“I’d dropped out of the seminary and now I don’t know what to do with myself,”
he told Mr. Terkel. “There was an agitation within my spirit, so I said, ‘Well,
I’ll take off. I’ve never been anyplace except Mississippi, Michigan, Illinois
and Indiana.’ I thought, you might not live that long anyway, so I took off and
I took off walking.”
In recent years, Mr. Tibbs did volunteer work tutoring at-risk young black men.
He also worked with anti-death penalty groups like Witness to Innocence, founded
by the activist nun Helen Prejean and Ray Krone, a former death row inmate in
Arizona who was exonerated in 2002, and the Illinois Coalition to Abolish the
Death Penalty, which succeeded in its aim when Gov. Pat Quinn signed a bill
repealing the state’s death penalty law in 2011 and commuted the sentences of 15
death row inmates. (The organization is now known as the Illinois Coalition
Against the Death Penalty.)
“Delbert was not only articulate, which many exonorees seem to be, but he had
this air of genteel thoughtfulness about him that greatly distinguished him,”
Robert Warden, a founder of the Center on Wrongful Convictions at the
Northwestern University Law School in Evanston, Ill., said in an interview.
As time passed, Mr. Tibbs grew more philosophical.
“When I meet people now,” he said more than 25 years after his release, “if they
try to make a big deal about me having been on death row, I sometimes gently
remind them that we’re all on death row.”
September 21, 2010
The New York Times
By ERIK ECKHOLM
“She is clearly the head of this serpent,” the judge said of
Teresa Lewis in 2003 when he sentenced her to death by lethal injection,
describing her as the mastermind of the cold-blooded murders of her husband and
his son as they slept in rural Virginia.
Late on Tuesday, the Supreme Court denied her last-ditch appeal for a stay, and
Ms. Lewis, now 41, is scheduled to die on Thursday night at 9. Her case has
drawn unusual attention, not only because she would be the first woman executed
in the United States since 2005, and the first in Virginia since 1912, but also
because of widely publicized concerns about the fairness of her sentence. Ms.
Lewis waited this week in her prison cell, reportedly soothed by intense
Her lawyers say her original defense against the death penalty was bungled. They
also cite new evidence suggesting that Ms. Lewis — whose I.Q. of 72 is described
by psychologists as borderline retarded — was manipulated by her
co-conspirators, who were out to share in savings and life insurance worth
hundreds of thousands of dollars. Her partners in the crimes, two young men who
fired the guns, received sentences of life without parole in what her lawyers
call a “gross disparity” in punishment.
On Tuesday, blocking her only other chance for a reprieve, Gov. Bob McDonnell
said for the second time that he would not grant clemency for what he called her
Ms. Lewis’s guilt is not at issue. By her own admission, she plotted with the
men to shoot her husband, Julian C. Lewis Jr., 51, and his son, Charles J.
Lewis, 25, a reservist about to be deployed abroad.
Ms. Lewis, then 33, met her co-defendants, Matthew J. Shallenberger, who was 21,
and his trailer-mate, Rodney L. Fuller, 20, in a line at Wal-Mart and, according
to court records, they quickly started meeting and hatching murder plans. She
became particularly attached to Mr. Shallenberger, showering him with gifts, but
she had sex with both men and also encouraged her 16-year-old daughter to have
sex with Mr. Fuller, the records say.
Ms. Lewis withdrew $1,200 and gave it to the two men to buy two shotguns and
another weapon. The night of the murders, she admitted, she left a trailer door
unlocked. Later, she stood by as the intruders blasted the victims with repeated
shotgun blasts. As her husband lay dying, court records say, she took out his
wallet and split the $300 she found with Mr. Shallenberger. She waited at least
45 minutes to call 911.
Her husband was moaning “baby, baby, baby” when a sheriff’s deputy arrived and
he said, “My wife knows who done this to me,” before he died, the records
After initially claiming innocence, Ms. Lewis confessed and led police to the
gunmen. In 2003, she was sentenced by Judge Charles J. Strauss of Pittsylvania
Circuit Court, who concluded that Ms. Lewis had directed the scheme, enticing
the killers with sex and promises of money and showing the “depravity of mind”
that would justify a death sentence. In separate proceedings, the same judge
gave life sentences to the gunmen.
Ms. Lewis’s lawyers later unearthed what they called compelling evidence that it
was Mr. Shallenberger who did the enticing, including his own statements that he
devised the murder plan and a prison letter to a girlfriend in which he said he
“got her to fall in love with me so she would give me the insurance money.” Mr.
Shallenberger killed himself in prison in 2006.
But prosecutors, in fighting subsequent appeals, said that before and after the
crimes, Ms. Lewis had engaged in concerted actions to obtain money from her
husband’s account and then from insurance, showing that she was far more capable
than her lawyers now assert.
None of the evidence suggesting Mr. Shallenberger’s dominant role has been
presented in court, but it was provided to Mr. McDonnell in a plea for clemency,
along with details of her limited intellect, her diagnosis of “dependent
personality disorder” and her addiction to pain pills.
When he first turned down the appeal on Friday, Mr. McDonnell noted that appeals
courts have upheld her sentence and that “no medical professional has concluded
that Teresa Lewis meets the medical or statutory definition of mentally
Her lawyers argued in their petition to the Supreme Court that the case should
be reopened because her original defense lawyer failed to explore whether her
low intelligence and her psychiatric vulnerability would have left her able to
plan the scheme. State prosecutors disagreed.
Opponents of the death penalty, and others who feel Ms. Lewis’s sentence is
unjust, plan to hold vigils on Thursday, including one outside the Greensville
Correctional Center in Jarratt, Va., where the execution is to take place.
“She said she is leaving it in the hands of Jesus,” her lead defense lawyer,
James E. Rocap III, of Steptoe & Johnson in Washington, said on Tuesday, before
she heard of the 7-to-2 decision by the Supreme Court not to consider her case.
To the many excellent reasons to abolish the death penalty — it’s immoral,
does not deter murder and affects minorities disproportionately — we can add one
more. It’s an economic drain on governments with already badly depleted budgets.
It is far from a national trend, but some legislators have begun to have second
thoughts about the high cost of death row. Others would do well to consider
evidence gathered by the Death Penalty Information Center, a research
organization that opposes capital punishment.
States waste millions of dollars on winning death penalty verdicts, which
require an expensive second trial, new witnesses and long jury selections. Death
rows require extra security and maintenance costs.
There is also a 15-to-20-year appeals process, but simply getting rid of it
would be undemocratic and would increase the number of innocent people put to
death. Besides, the majority of costs are in the pretrial and trial.
According to the organization, keeping inmates on death row in Florida costs
taxpayers $51 million a year more than holding them for life without parole.
North Carolina has put 43 people to death since 1976 at $2.16 million per
execution. The eventual cost to taxpayers in Maryland for pursuing capital cases
between 1978 and 1999 is estimated to be $186 million for five executions.
Perhaps the most extreme example is California, whose death row costs taxpayers
$114 million a year beyond the cost of imprisoning convicts for life. The state
has executed 13 people since 1976 for a total of about $250 million per
execution. This is a state whose prisons are filled to bursting
(unconstitutionally so, the courts say) and whose government has imposed
doomsday-level cuts to social services, health care, schools and parks.
Money spent on death rows could be spent on police officers, courts, public
defenders, legal service agencies and prison cells. Some lawmakers, heeding
law-enforcement officials who have declared capital punishment a low priority,
have introduced bills to abolish it.
A Republican state senator in Kansas, Carolyn McGinn, pointed out that her
state, which restored the death penalty in 1994, had not executed anybody in
more than 40 years. In February, she introduced a bill to replace capital
punishment with life without parole. The bill gained considerable attention but
stalled. Similar arguments were made, unsuccessfully, in states such as New
Hampshire and Maryland. Colorado considered a bill to end capital punishment and
spend the money saved on solving cold cases. But this year, only New Mexico went
all the way, abolishing executions in March.
If lawmakers cannot find the moral courage to abolish the death penalty, perhaps
the economic case will persuade them to follow the lead of New Mexico.
Ky. (AP) -- John Delaney faced the toughest moment of his legal career -- his
condemned client wanted to drop his appeals and die by injection, an act Delaney
opposed and had been trained to try to prevent.
''What do you say?'' asked Delaney, a public defender in northern Kentucky who
represented Marco Allen Chapman.
It's a question that has arisen 131 times since states resumed executions in
1977, and each time it leaves defense lawyers struggling against their training
to act in the best interest of their clients and justice.
''We're trained as lawyers to be an advocate for someone and fight as hard as we
can,'' said Stephen Harris, a University of Baltimore law professor who
represented execution volunteer John Thanos in Maryland in 1994. ''Here's
someone who says, 'I don't want you,' then, 'I want to die.'''
The first volunteer after the U.S. Supreme Court reinstated the death penalty in
1976 was Gary Mark Gilmore, put to death a year later by a firing squad in Utah
for killing a gas station attendant. The 128 men and two women who have followed
suit often gave similar reasons -- mainly remorse, a desire for atonement and
not wanting to spend their lives in prison -- according to the Death Penalty
Information Center, an anti-capital punishment group that compiles statistics on
About 12 percent of the 1,133 inmates executed in the U.S. since 1977 abandoned
their appeals and asked for their sentences to be carried out, said Richard
Dieter, executive director of the center and a law professor at Catholic
University in Washington. Each time, the inmate either fired the defense lawyer
or told them to stop filing appeals.
''It amounts to the same thing,'' Dieter said.
Attorneys are required to follow the client's wishes or have themselves removed
from the case, said Michael Mello, a Vermont Law School professor who teaches
ethics and death penalty law.
''Their hands are pretty well tied,'' Mello said. ''These are the cases that
haunt you. This is the most hideous of cases.''
That's how Gus Cahill felt when his client, Keith Eugene Wells, told him he
wanted to die. Wells was convicted of beating a couple to death in 1990 in
Idaho. He went through the mandatory appeals, then decided to waive any
remaining legal options and was lethally injected in 1994.
''I really liked Keith,'' said Cahill, a public defender in Boise. ''You're just
thinking, 'Oh, my God, I feel so sorry for being part of what Keith wanted to
Harris, who opted not to try to talk Thanos into sticking with his appeals, said
cases of death penalty volunteers always come with second thoughts, but knowing
that a client went willingly to his execution is something attorneys just have
to come to grips with.
''I don't know what was in his mind,'' he said. ''You always have regrets about
that stuff. But I think I made the right decision.''
Chapman, 36, is to die Friday at the Kentucky State Penitentiary in Eddyville
for killing a 7-year-old girl and her 6-year-old brother six years ago in a
crack cocaine-fueled attack on a family for whom he'd worked as a handyman.
Delaney, 49, was assigned the case in 2004, and Chapman quickly made it clear
that he didn't want a defense and didn't want his life spared. Chapman said at
several court hearings and in letters to judges that he wanted to plead guilty
and be sentenced to death.
To Delaney, Chapman's reasoning for dropping his appeals made sense on some
''Marc wanted to try to make amends to the family,'' Delaney said.
That didn't make it easy to step out of the way of Chapman's execution. Delaney
repeatedly tried to get the inmate to at least let a jury determine what
sentence to impose. He refused.
Delaney told Chapman to fire him before pleading guilty.
''I wasn't going to help him,'' Delaney said. ''He wasn't in left field for what
he wants, though.''
A judge granted Chapman's request to dismiss Delaney and appointed him standby
counsel in case Chapman changed his mind.
Delaney tells himself he did everything possible for his reluctant client.
If the execution goes through as scheduled Friday night, he said, he'll be
having a drink and tell himself that at least one more time.