Racial Justice Act faces test

Prosecutors will argue today that the law is too vague to serve its intended purpose.

staff writerFebruary 7, 2011 

Prosecutors will test the reach of the state's fledgling Racial Justice Act today as they try to persuade a Forsyth County judge that the law is too sweeping and vague to comply with the North Carolina Constitution.

Judge William Z. Wood is to hear arguments in the cases of two of the 154 death row inmates using the 18-month-old law to challenge their sentences with claims of racial bias.

The proceedings in Forsyth County Superior Court will be monitored by defense lawyers, politicians, prosecutors and others interested in how the law might or might not work in this state.

Errol Duke Moses and Carl Stephen Moseley, death row inmates since the 1990s, are using statistics and findings from a Michigan State University study to claim racial imbalance and bias played a role in their trials and sentencing.

Under the Racial Justice Act, one of only two such laws in the country, they could have their sentences converted to life terms without possibility of parole.

Their cases are the first seeking relief to make their way into a courtroom. Their outcomes could set the tone for how legal issues associated with the filings play out across the state.

The hearing is held against a backdrop of uncertainty for the law, which passed narrowly along party lines in the final days of the 2009 legislative session.

Republicans who assumed power of both the state House and Senate last month have threatened to repeal or severely narrow its reach.

Prosecutors in the two Forsyth County cases argue that the statute is so broad and vague that the courts' attempts to interpret and litigate it will "result in a vast consumption of precious state resources."

The statute, prosecutors complain, is being used not only by minorities on death row, but by white inmates convicted of killing white victims.

"It is doubtless true that the General Assembly intended the Act provide another tool to combat the possibility of the death penalty being disproportionately sought or applied upon those of a protected class, such as African-Americans," Forsyth County District Attorney James R. O'Neill and Assistant District Attorney David L. Hall, said in their motion seeking dismissal of the Moses claim.

More than 50 percent of the Racial Justice Act claims brought by death row inmates in Forsyth County are white inmates convicted of killing white victims, the prosecutors said.

"This interpretation is a clear waste of precious judicial resources," the prosecutors said.

Defense lawyers contend that a defendant, no matter his race, benefits from having racial diversity on a jury, thus creating an opportunity where a broad range of opinions and cultural experiences could be brought into deliberations of guilt or innocence.

Moses, who maintains his innocence and is seeking to have his conviction overturned in separate proceedings, is black, as was his victim.

Mosley is a white inmate convicted of killing a white victim.

In his claims of racial bias, Mosley's lawyers cited findings from the Michigan State study showing that prosecutors have systematically struck qualified black jurors from juries in North Carolina capital cases.

Among the findings of the Michigan law school researchers were that qualified black jurors have been excluded from capital trials at more than twice the rate of white jurors. Of the inmates currently on death row, 33 had all-white juries and 40 had juries with a single person of color.

The researchers also found that defendants of any race whose victims were white were nearly three times as likely to get a death sentence as those who killed victims of other races.

The Michigan State research, paid for by nonprofit agencies and foundations that have been critical of the death penalty, is the backbone of most of the racial bias claims.

Though the research has continued since the initial findings were released in July 2010, prosecutors complain that they have not yet received the raw data that led to the conclusions.

Defense lawyers, who have promised to turn over the evidence, respond that prosecutors have not turned over information they are seeking connected to the cases.

Defense lawyers have asked prosecutors to provide them with information about why they chose to seek capital punishment in the cases that will test the Racial Justice Act.

Wood could address those lingering concerns during today's hearing.

The bulk of the hearing, lawyers say, will focus on the constitutionality of the Racial Justice Act.

Prosecutors further contend that the law is so broad it can punish prosecutors in one jurisdiction for the actions of prosecutors in another.

Defense attorneys argue that prosecutors are "turning constitutional law on its head."

They say the bulk of questions raised by prosecutors are best posed in the legislature, not the courts.

anne.blythe@newsobserver.com or 919 836-4948

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