The Odor Seeping Out of Our Criminal Justice System

First there was Ferguson, Missouri and the gunning down of an unarmed black youth and the ad-nauseum follow-up emphasizing over-and-over the shooting officer’s fear. Now it’s the release of two half brothers in North Carolina clearly railroaded into convictions and death sentences by a notoriously remorseless, good-’ol-boy district attorney.

Once a fair-minded superior court judge actually looked at the evidence and declared the emperor had no clothes, any eighth-grader could see the criminal justice system in this nice little North Carolina community had cynically set up Henry Lee McCollum and Leon Brown, two intellectually vulnerable African American teenagers, to clear the docket of a sensational, vengeance-demanding child murder case. Until the judge’s ruling, everyone had simply assumed because they had been convicted and were in prison these men were guilty. In 1994, Supreme Court Justice Antonin Scalia even cited the barbarous natures of McCollum and Brown in defense of the death penalty.

The Ferguson case of a police homicide in broad daylight on a public street has been intentionally placed on a secret, very slow wheels-of-justice track that can only benefit Officer Darren Wilson’s expected argument in court that he felt fear, which in the realm of courtroom narrative and reasonable doubt means he walks. In common US jurisprudence, a police officer’s fear and his or her perception of threat — even if shown to be unfounded — is sacrosanct and excuses pretty much anything.

On the other hand, fear is never permitted as an excuse when an ordinary citizen responds violently to a police officer. If Michael Brown had had a gun and, with a couple non-lethal rounds in his back, had turned and got off a lethal shot at Officer Wilson, every court in the land would have sentenced him to lethal injection or life in prison. There can be no self-defense against a police officer. Any kind of violence directed at a police officer can only be additional provocation, demanding an escalation of violence from the officer. The Law looks out for its own.

In North Carolina, Superior Court Judge Douglass Sasser had the courage to declare McCollum and Brown innocent after 30 years in prison. They were convicted in 1983 of raping and murdering an 11-year-old girl. Thirty-year-old DNA evidence on a cigarette butt at the scene pointed to a known violent pederast who lived near the 11-year-old girl’s house. While the already malodorous Ferguson case awaits shoes yet to drop, the McCollum/Brown case released a particularly loathsome pent-up stench that reaches all the way to the US Supreme Court.

The interrogating police officers used what is called “fear-up” tactics to intimidate the two teenage brothers into signing bogus confessions with information the police manipulated into their frightened, vulnerable minds. McCollum tells us now that he had never been in police custody before that day and was simply overwhelmed by the behavior of the cops. He told them what they wanted so he could go home, something they had promised. He “confessed” that two other boys were involved in the raping and killing of the 11-year-old girl. Neither of those boys were ever charged with anything. Why not? Because The System had everything it needed: two confessed killers to wrap up the case. They were poor, black and not too smart, so who would give a damn? Case closed.

The district attorney at the time, Joe Freeman Britt, is 6’6” tall and was notorious over his career for sending people he had charged to death. He reportedly withheld evidence that might have altered the case. As expected, Britt still insists the two men are guilty. Like he’s going to tell the press, sure, I framed those two vulnerable boys to wrap up a highly emotional child rape-murder case. Citizens wanted vengeance for such a heinous crime, so I gave it to them. How do you think I stayed in office all those years? If there was such a thing as real justice in a case like this, Britt and the cops involved would each be sentenced to 30 years of lousy prison food and having to look over their shoulders 24/7.

But that’s not how the American criminal justice system works. You get the “justice” you’re able to pay for. The recent exoneration of McCollum and Brown is the exception, based in this instance on the tireless hard work of good-hearted people. Three cheers for the exceptions!

(Allow me to parenthetically slip in, here, that, one, while prisons are too often a bad way to solve societal problems, sometimes they are necessary. Two, the majority of inmates in prison are guilty as charged. And three, the prison system in this country is a runaway train of evil dysfunction saturated with racism and class arrogance.)

The worst smell seeping out of the McCollum/Brown case is a little like the smell of a skunk. On one level, it’s really obnoxious, but then a little of it can be pleasantly musky. I’m speaking of the image of Supreme Court Justice Antonin Scalia suddenly caught with his pants around his knees.

It involves a 1994 exchange between Scalia and fellow Justice Harry Blackmun in SCOTUS chambers. Blackmun had written that he was morally fed up with the death penalty and would not vote to approve one ever again.

“Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved,” Blackmun wrote in a February 1994 dissent in Callins v. Collins, “I feel…obligated simply to concede that the death penalty experiment has failed.”

Scalia countered Blackmun by citing the McCollum and Brown case. He was aware of the case because it was upcoming on the docket that term. (The court eventually refused to hear the case, with Blackmun dissenting.)

As Scalia responds to Blackmun, his tone gets smarmier and snottier as it goes forward. He doesn’t like the example Blackmun cites in making his case that the death penalty is too sloppily applied and, thus, unconstitutional. Scalia cites “the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared to that!” (Scalia doesn’t seem to be bothered that two of the “four men” — actually boys — he cites as guilty of this heinous crime were oddly never prosecuted.)

Earlier, Scalia had ridiculed the liberal death penalty abolitionist movement for being unable to come up with even one innocent person put to death. (Blackmun also assumed McCollum and Brown were guilty.) Scalia was driven by the need for certainty and vengeance in cases like the murder of an 11-year-old, while Blackmun had serious doubts focused on the very real human shortcomings of a justice system they both sat astride in godlike splendor.

We should not expect any kind of comment, let alone an apology, from either men. Blackmun died in 1999, and Antonin Scalia is too much the defender of government, corporate and institutional power in all its forms to say anything. In fact, innocence doesn’t seem to even matter to him. He made this clear in 2009 in a remark he made on the Troy Davis death penalty case in California.

“The Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

We have been given a glimpse into a criminal justice system that sees police murder as an unfortunate but necessary evil, and, at the very top, sees the execution of an innocent person as legal. Or in Scalia SCOTUS mumbo-jumbo, constitutionally un-cognizable.

The fetid stink rising from such an inbred institution can be overwhelming at times. But, then, if these matters were unfolding in Venezuela or Cuba or Iran, the evil would be crystal clear.

JOHN GRANT is a member of ThisCantBeHappening!, the new independent three-time Project Censored Award-winning online alternative newspaper. His work, and that of colleagues DAVE LINDORFF, GARY LINDORFF, ALFREDO LOPEZ, LORI SPENCER, LINN WASHINGTON, JR. and CHARLES M. YOUNG, can be found at www.thiscantbehappening.net

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JOHN GRANT is a member of ThisCantBeHappening!, the new independent, uncompromised, five-time Project Censored Award-winning online alternative newspaper. 

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