Judge could testify in racial bias case

ablythe@newsobserver.comNovember 10, 2011 

A death row inmate's claim of racial bias during jury selection has led to an effort by Cumberland County prosecutors to toss an African-American judge off one of the first Racial Justice Act cases to get into the courts.

Marcus Robinson, a death row inmate for two decades, was among 150 North Carolina prisoners who filed for sentencing relief 14 months ago under the 2009 law.

Robinson contends that racial bias occurred during jury selection in the Cumberland County courts where his murder case was tried. Since the new law allows him to use statistics to bolster his claims, he cites a study done by University of Michigan researchers that shows more than 40 percent of people on North Carolina's death row were sentenced to death by a jury that was either all white or included only one person of color.

The study also found that in selecting juries, prosecutors statewide struck qualified blacks from the pool at more than twice the rate of whites.

Today, instead of focusing on the crux of a case being watched by legal scholars across the country, a judge in Nash County will hear arguments about whether Cumberland County Judge Gregory Weeks should preside over Robinson's case.

Cumberland County prosecutors, in a move that death row critics describe as racially motivated, are seeking to have Weeks removed, saying they might eventually call him as a witness to testify about their character.

In his 23 years on the bench, Weeks has presided over several Cumberland County death penalty cases. In court documents associated with the Robinson bias claim, prosecutors said they might want to call Weeks to testify about their conduct in capital trials.

Weeks was assigned Robinson's case because he is the senior resident judge in Cumberland County.

Robinson, who is black, was accused of the 1991 fatal shooting of a white man during a robbery. There was testimony that he told friends he wanted to "burn him a whitey," though he has denied saying he wanted to kill anyone.

During the trial, defense attorneys argue, prosecutors removed half of all qualified black jurors with peremptory strikes, compared to 15 percent of all other jurors. Peremptory strikes can be used to excuse qualified jurors without explanation. In all, two African-Americans served on the 12-member jury.

'A bogus conflict'

James Coleman, a Duke University law professor, said Wednesday that prosecutors would not necessarily need to call Weeks as a witness to introduce evidence about their conduct in capital cases.

Voluminous written records are kept for all death penalty cases.

"The idea that they may call the judge as a character witness is absurd," Coleman said. "It seems designed to create a bogus conflict."

If Weeks, one of few black Superior Court judges in North Carolina, is called as a witness, he cannot preside over the bias claims hearings.

"It seems to be racially motivated," Coleman said.

Efforts to reach the Cumberland County district attorney Wednesday were unsuccessful.

In Forsyth County, where bias claims of two other death row inmates have been assigned to a judge, prosecutors have not asked that judge, William Z. Wood, to recuse himself even though he has presided over death penalty cases. Wood is white.

The Racial Justice Act, one of only two such laws in the country, was in jeopardy of being gutted during the last legislative session by Republicans. But the issue was pushed over to the coming year.

Blythe: 919-836-4948

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