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Tar Heel of the Week: Defender Ken Rose has fought death penalties for decades

Attorney Ken Rose didn’t dwell long on the joy of seeing Henry McCollum, his client for two decades, freed after 30 years in prison.

McCollum and his half-brother, Leon Brown, were declared innocent of rape and murder charges earlier this month after an investigation by the N.C. Innocence Inquiry Commission.

Yet Rose seemed less than satisfied with the release of a man who spent his adult life behind bars, battling depression, watching his cellmates go to the execution chamber, and missing his own mother’s funeral.

“I am angry that we live in a world where two disabled teenagers can have their lives stolen from them,” Rose, an attorney with the Center for Death Penalty Litigation, wrote in a Washington Post op-ed that also ran in The News & Observer.

“As I lie awake at night, mulling over the maddening details of this case, I wonder: How many more Henry McCollums are still imprisoned, waiting for help that will never come?”

The piece was “classic Ken,” says Tye Hunter, a fellow defense lawyer who has worked with Rose since the 1990s. It reflected a passion for justice that has never ebbed in the 30 years Rose has represented more than 200 death row inmates.

“Somebody else would be cracking open a bottle of champagne,” says Hunter, a former director at the Center for Death Penalty Litigation who is now in private practice. “He is a fierce advocate and is really fueled by what he sees as the injustice that is rife in our criminal justice system.”

Giving back to the people

Rose grew up in suburban New Orleans, in a Jewish family that was not immune to the racial prejudices of the time. The schools were desegregated when he attended them, and Rose developed a powerful belief in the importance of fair treatment regardless of skin color.

During his teen years, he both embraced and rebelled against the mindset of his father, a businessman and World War II veteran whom he describes as “a serious guy, and patriotic.”

“He taught us that it’s important to give back to the country and to the people,” says Rose, “but he didn’t necessarily advocate doing that for people who were different or less fortunate than us.”

Rose attended the U.S. Military Academy at West Point on a scholarship, though he suspected the military discipline would not suit him.

“I couldn’t shine shoes or march properly,” he says. “I was constantly having to march in a square for punishment.”

He stuck it out for two miserable years before heading to Washington University in St. Louis.

There, he reveled in the freedom to explore new ideas and practice political activism. He demonstrated against apartheid, even walking out on his graduation speaker with a group of students who saw him as pro-apartheid.

He went on to Boston University for law school, where he worked in a criminal defense clinic. He found the work agreed with his sense of fairness and concern for the little guy, and his professor suggested he return to the South to defend capital punishment cases.

Rose arrived in Atlanta in 1981 to work for Team Defense Project. The group’s founder was a corporate lawyer, and its mission was to give death row inmates the kind of thorough representation usually afforded only wealthy, corporate clients.

He went from there to Mississippi, where he founded and directed a similar organization for several years. He argued a case all the way to the U.S. Supreme Court, which ruled in his favor.

The case involved rather obscure sentencing rules, but had a big impact in Mississippi. Dozens of death row inmates got new trials, and executions became rare as the state worked through the cases.

But that victory, much like McCollum’s, also revealed to Rose in stark terms how unfair the death penalty can be. One of his clients, whom Rose believes was innocent, had already been executed. While others’ lives were spared, it was too late for this man.

“It made me realize how arbitrary the punishment was, and how unfair,” Rose says.

Rose moved to Durham in 1989, working in private practice and then for the death penalty center, where he was director for 10 years before stepping down to spend more time on his cases.

Poverty and ethnicity

Rose says his job has gotten easier since 2007, when the state stopped executions indefinitely due to a tangle of legal issues.

But his conviction that the punishment is unfair remains strong. Over the years, he’s dealt with bad science, false confessions, and prosecutorial misconduct, not to mention the uneven representation of poor clients.

“When I first started, I did it because I wanted to represent the underdog, to give the best possible defense to people who were the most defenseless, the most ostracized and hated people in the country,” he says. “What I learned is that some are there not because of the crimes they committed, but because of their poverty, their backgrounds, their ethnicity.”

In the case of McCollum and Brown, Rose suspects part of their problem was being from out of town. The brothers lived in New Jersey, but were in town visiting family for a few months. A schoolmate told police the boys had raped and killed 11-year-old Sabrina Buie.

Both men are intellectually disabled. They were 14 and 19 years old when they signed written confessions including detailed descriptions of the crime. Three other men they implicated had alibis, and virtually no other evidence pointed to McCollum and Brown’s guilt.

Mere weeks after Sabrina was killed, another girl was killed in a similar way. A recent DNA test found a match between the man who was convicted of that crime and a cigarette butt found at the scene of Sabrina’s murder.

That evidence was enough to persuade a judge to free McCollum and Brown, who have now asked for a pardon from the governor.

Rose battled for years to try to show that the confessions were false, to no avail. At the time the DNA match came up, he was seeking to get McCollum off death row because of his mental disability. He credits the Innocence Commission for its effort, which include years of work and hundreds of thousands of dollars.

The commission also compelled police investigators to produce a box of evidence they had long claimed was lost. Yet the lesson is stark.

“There was so little evidence, and they were going to kill him,” Rose says. “It took almost a miracle to stop it.”

Few of his cases end in exoneration. Most often, success comes in the form of retrial and a new sentence, often life without parole. He delights in the times his clients make new lives after prison.

One went on to become a paralegal helping other death row inmates; Rose is godfather to that man’s son.

“I get to know them as human beings,” Rose says. “They are all better than the worst thing they’ve ever done.”

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