A Note on Narrative and Context: Life and Death Edition

 Henry Lee McCollum wiped tears at a hearing Tuesday in Lumberton, N.C., where a judge declared him and his half brother Leon Brown innocent and ordered them both released from prison. Credit Chuck Liddy/The News & Observer

“I feel very, very sorry for them and I’m glad to know they’re out. At least the process worked, it just took too long.”

―State Rep. Thom Tillis (R-NC98)

Context … is … everything.

At first blush, North Carolina State Speaker of the House Thom Tillis seems to have the right answer, politically speaking, to the inherent question of just what happened the now-infamous case of Henry Lee McCollum and Leon Brown. Mr. McCollum spent thirty years on death row, and his half-brother Leon Brown the same period under a life sentence; as the fact of their innocence echoes from sea to shining sea, the tragic tale is also boosted into the realm of the political circus, courtesy the one and only Justice Scalia:

The exoneration ends decades of legal and political battles over a case that became notorious in North Carolina and received nationwide discussion, vividly reflecting the country’s fractured views of the death penalty.

The two young defendants were prosecuted by Joe Freeman Britt, the 6-foot-6, Bible-quoting district attorney who was later profiled by “60 Minutes” as the country’s “deadliest D.A.” because he sought the death penalty so often.

For death penalty supporters, the horrifying facts of the girl’s rape and murder only emphasized the justice of applying the ultimate penalty. As recently as 2010, the North Carolina Republican Party put Mr. McCollum’s booking photograph on campaign fliers that accused a Democratic candidate of being soft on crime, according to The News & Observer of Raleigh, N.C.

In 1994, when the United States Supreme Court turned down a request to review the case, Justice Antonin Scalia described Mr. McCollum’s crime as so heinous that it would be hard to argue against lethal injection. But Justice Harry A. Blackmun, in a dissent, noted that Mr. McCollum had the mental age of a 9-year-old and that “this factor alone persuades me that the death penalty in this case is unconstitutional.”

It was a spectacular line Scalia uttered; far beneath the dignity of any court in this fair land. Jonathan M. Katz and Erik Eckholm were kind enough to omit it from their New York Times article describing this week’s acquittal of McCollum and Brown, but still manage to make the point, anyway. This was just one of those cases, and in his own, inimitable way, Justice Scalia may well, by the fact of these acquittals, see what was merely crass and inflammatory rhetoric transformed into an icon of his shameful tenure on the Nation’s Highest Court.

But, yes, at first glance, it might seem Tillis has said exactly the right thing. The Devil, of course, is in the details:

Now middle aged, the two brothers have been in prison — one of them on death row — since they were teenagers, wrongfully accused of raping and murdering a child. When ThinkProgress asked Tillis if anything needs to change in light of this case, he said that because they were eventually exonerated, “It’s an example of how we have protections in our judicial system in North Carolina.”

“I feel very, very sorry for them and I’m glad to know they’re out,” he said. “At least the process worked, it just took too long.”

(Ollstein)

It’s called WYWA. The point is to answer the question you Wish You Were Asked. This is, of course, standard fare, and as much as it might annoy us, it is also true that voters respond affirmatively; if you cannot answer WYWA, you do not stand a chance.

But in this case, Tillis’ answer would seem to leave a certain issue unresolved. If the question is if anything needs to be changed, and the answer is that at least the system worked and an example of how we have protections, then what about how it just took too long?

Perhaps it’s that word, just. How do we read it in this case? What does it mean? The early critique takes umbrage, reading a minimizing context into the word. And compared to the question, that might be a fair challenge. After all, it is one thing to say the system worked; it’s another to consider that it finally, after all this time and extraordinary effort, the system had no other alternative to doing the right thing.

NC Speaker of the House Thom Tillis (R-98)Mr. Tillis would have done better to lead with that critique: “It took too long. I mean, yes, we have protections built into our system, and they did finally work, but before I could tell you what needs to be changed, we need to understand structurally how this happened, and then we can figure out what potential changes we should be looking at.”

The problem could simply be one of being too political and guarded, and thus committing something of a gaffe. Then again, what if that turns out to be a Kinsley gaffe?

Still, though, it would behoove Speaker Tillis to clarify; it might be the reason some critics are ignoring the point about how it “just took too long” entirely while making the point that taking too long does, in fact, constitute some manner of system failure. As Alice Ollstein noted for ThinkProgress:

Civil and legal rights advocates, including Vernetta Alston at the Center for Death Penalty Litigation, have long argued the “process” has not worked at all for Henry Lee McCollum and Leon Brown.

“At every juncture, the system failed Henry and Leon,” Alston told ThinkProgress. “They were coerced into giving false confessions. These two boys could hardly read. They were very intellectually disabled. They were manipulated and threatened, and only signed the statements because law enforcement told them they could go home. It’s unacceptable.”

The brothers were interrogated for hours with no attorney present in order to obtain the confessions, which they both later recanted. There was never any physical evidence against them. McCollum’s defense team demanded DNA testing 10 years ago, when it became available in the state. Some results came back in 2005 showing the cigarette butt found at the scene of the crime did not match McCollum, but the DNA was not tied to convicted murderer Roscoe Artis until this year.

“Law enforcement was in a rush to get a conviction, and during the investigation they missed the real killer, who was right under their nose,” Alston said. “And because of their haphazard and negligent investigation, he went on to kill again.”

The system did not “just”—merely—take too long. The system failed. This is a travesty.

Given the amount the Speaker and North Carolina Republicans have spent using McCollum as a scarecrow to attack Democrats and frighten voters, Mr. Tillis really should consider giving this one another—better—try.

____________________

Named for Michael Kinsley. A Kinsley gaffe is described as an inadvertent admission of a vulnerable truth. Generally speaking, Kinsley gaffes are the result of political overcalculation or simple Freudian slip. That is to say, if in this case the word “just” accurately describes an opinion that this was a mere hiccough in the annals of American justice, then perhaps Speaker Tillis probably didn’t want to admit that. And while one might be tempted to think of imploding 2012 campaigns, namely Todd Akin and Richard Mourdock, as such gaffes, that was another phenomenon entirely insofar as there are some things you just don’t say; that Ron Paul got away with the “honest rape” line in February, 2012 says nothing inasmuch as he never really stood a chance of capturing the nomination, whereas Akin and Mourdock sounded off in the heat of battle. And the thing is that such rhetoric has been driving the anti-abortion movement at least since the 1980s, and it has a nasty habit of popping up about once a decade, but usually not like this. To wit, there was an octagenarian periodontist who also served in the state legislature, arguing on his medical expertise that you can’t impregnate a woman by rape because “the juices ain’t flowin'”. That was the nineties; it emerged in the early aughts, but came and went quickly. For some reason, though, the Tea Party generation of Republican politicians seems hell-bent on carrying that banner in the van. Still, though, the real Kinsley gaffes largely went under the radar, such as Republican congresional candidate Josh Koster (R-WA01) answering an abortion question by referring to “the rape thing”, and then trying the bit about how pregnancy termination is simply a further violent violation of a woman’s body. You learn a lot about people if you pay attention to how they say it. And no, it doesn’t matter if they say it with a smile.

Ollstein, Alice. “2 Men Were Wrongly Convicted And Jailed For 30 Years. This Senate Hopeful Says ‘The Process Worked'”. ThinkProgress. 4 September 2014.

Katz, Jonathan M. and Erik Eckholm. “DNA Evidence Clears Two Men in 1983 Murder”. The New York Times. 2 September 2014.

Benen, Steve. “Tillis believes ‘the process worked’ in McCollum case”. msnbc. 5 September 2014.

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