THE BLOG
09/23/2014 12:30 pm ET Updated Nov 23, 2014

Police in Death Penalty States Must Be Required to Record Interrogations

The recent exonerations of Leon Brown and Henry Lee McCollum in North Carolina again underscore the need to require police to record interrogations of suspects. McCollum and Brown, both intellectually disabled teenagers, confessed to raping and murdering an 11-year-old girl after interrogations that went unrecorded. Although both were sentenced to death, Brown's conviction was later reversed. At his retrial, Brown was convicted only of rape, a result which spared his life but ensured that he would spend the rest of it in prison.

Despite their innocence, McCollum and Brown had little chance at avoiding a death sentence through the courts. Their fate was essentially sealed before the ink could dry on the police-written confessions that they signed in the wee hours of the morning at the Red Springs, N.C. police station more than thirty years ago.

Without a recording, the police narrative became the definitive account of what had happened during the interrogation. Under oath before trial and at trial, investigators claimed that McCollum had no problems understanding his Miranda rights, and that they told him repeatedly that he could leave whenever he wanted. According to the officers, McCollum was "very cooperative" as he recounted in great detail -- with no threats or promises or pressure of any kind -- how he, Brown, and two other men raped and then murdered the girl.

The confession was filled with details that "only the true perpetrator" could have known, including the description of the victim's clothing, the brand of the beer cans and cigarettes found at the scene, the fact that she had been laid on top of a wooden board, and that her underwear had been stuffed down her throat with a stick. The confession also contained snippets of dialogue that made the boys sound like depraved sexual deviants before and during the sex act, and heartless predators afterwards when they discussed killing the girl to silence her. To top it off, the lead agent told the judge that McCollum had helped draw a map of the crime scene.

Testifying at their trials, McCollum and Brown described a much different scenario. McCollum claimed that officers accused him of committing the murder, calling him a "black n-gger" and screaming and shouting obscenities at him as they waved their fingers in his face. After several hours, they presented him with some papers and promised he could go home if he signed and initialed them. McCollum complied, not knowing that he was signing a murder confession. Brown's story was similar, with one notable exception. He testified that one of the agents threatened that if he didn't sign the papers, he would "get the gas chamber." The judge credited the officers' accounts of the interrogation events and admitted the confessions we now know to have been false. Jurors must have believed them as well, because the confessions were the only evidence against the two men.

Two facts, however, emerged during the hearing that should have alerted everyone that something was amiss with the confessions and with McCollum's competency. First, McCollum named two other teens as the main instigators of this horrific crime. Those boys had rock solid alibis. Police quickly cleared them, and they were never charged. Even more telling, the lead agent provided some corroboration of McCollum's account. He admitted that McCollum, after signing his confession to the gruesome rape-murder, had tried to walk out the door, saying that another officer had told him he could "leave any time [he] wanted." The lead agent "told him things had changed and that he was now under arrest."

The confession narrative that police scripted in the earliest days of the investigation corrupted for more than three decades the ability of judges and jurors to find the truth in the cases of Leon Brown and Henry Lee McCollum. The details included in the confessions led jurors to impose death sentences on the men, and ultimately influenced higher courts to affirm those judgments. The fact that "an 11-year-old girl [was] raped by four men and then killed by stuffing her panties down her throat" was even accepted as gospel by United States Supreme Court Justice Antonin Scalia when he pointed to the McCollum case as exemplifying the need for the death penalty. We now know that the confession narrative with all of its gory detail was nothing more than a piece of pulp fiction.

Had the McCollum and Brown interrogations been recorded in their entirety, judges and juries would not have had to pick sides in a swearing contest between police officers and suspects over what occurred before the suspect confessed. A recording would have also reliably resolved crucial questions about whether the suspect volunteered the inside information about the crime or whether police officers fed him those facts. Over time, recording may also curb abusive behavior like threatening suspects with the death penalty or intimidating them by using racial slurs.

Since advocates have been agitating for this much-needed reform, the list of states that require or strongly encourage police to record interrogations has grown from two in 1994 to nearly twenty today. But the states that arguably need recording the most - the states that use the death penalty - are, for the most part, absent from this list. Of the 32 states which still have the death penalty on the books, only seven -- Indiana, Missouri, Montana, Nebraska, North Carolina, Ohio, and Oregon -- require police to record interrogations. North Carolina is the only state on this list that is a traditional Southern "death-belt" state. None of the five states with the biggest death rows - California, Florida, Texas, Alabama, and Pennsylvania require recordation.

If our justice system really cared about the truth, we would insist that police electronically record all interrogations of suspects. In fact, we would require recording of interviews of witnesses, line-up procedures, and all other investigatory procedures where the truth can be tainted by police coercion or suggestion or obscured by biased or failing memories. The equipment needed to make such recordings is universally available and costs -- compared to the expense of imprisoning or compensating exonerated suspects -- next to nothing. The fact that so many law enforcement officers in death penalty states remain resistant to recording is evidence that they "can't handle the truth" or worse yet, don't care about the truth. Until they do, neither they nor the criminal justice system should be entrusted with carrying out the death penalty.