Point of View

District attorneys vs. the law

November 18, 2011 

— In 2009, the General Assembly passed the landmark Racial Justice Act, a law intended to address racial bias in our state's criminal justice system. The law allows capital-case offenders to rely on statistical evidence to show that race was a material factor in their death sentences.

Such use of statistical evidence is not unusual; it is common, for example, in housing and employment discrimination cases to identify unintentional and unconscious bias.

Since passage of the act, studies have found strong evidence of bias throughout the state in connection with jury selection and based on the race of victim.

Instead of embracing the opportunity to deal head-on with documented and unacceptable racial bias, district attorneys have fought the law at every single stage, from its passage to its implementation in the courts. Such obstructionism is typical; in the same way, the district attorneys fought laws to ensure that defendants had access to evidence of their innocence and that defense attorneys meet minimum performance standards.

This week, after their failed attempt to prevent a senior black Superior Court judge from hearing the Racial Justice Act claims filed by inmate Marcus Robinson, all but one of the state's district attorneys signed a letter asking the General Assembly to repeal the law, immediately. They want to avoid responding to the mountain of evidence indicating they have used peremptory challenges to deny qualified black jurors their constitutional right to serve on capital juries. Rather than defend their conduct in court, they seek to put it beyond the reach of the law.

The district attorneys opposed the Racial Justice Act in the legislature and lost. The district attorneys tried to obstruct the Racial Justice Act in the courts and lost. The district attorneys tried to recuse a judge they viewed as unfavorable and lost. At every turn, the district attorneys delayed implementation of the act.

Studies have shown that North Carolina prosecutors discriminate against black jurors. Now the district attorneys are seeking to overturn the Racial Justice Act in the legislature in order to prevent the courts from fairly examining this evidence of bias.

They complain that most capital-punishment-case inmates, including most white inmates, raised claims under the Racial Justice Act. This is true, and the reason is simple. In almost every capital case in North Carolina, prosecutors disproportionately "struck" qualified black jurors. As a result of the prosecutors' "strikes," hundreds of qualified black citizens were denied their constitutional right to serve on juries.

This is an affront not only to the defendants but also to the jurors themselves, and the Racial Justice Act provides a remedy in every case in which prosecutors disproportionately struck African-American jurors. The race of the defendants is irrelevant to the question of whether prosecutors have discriminated against black jurors.

The district attorneys complain about the cost of the Racial Justice Act. Their complaints are illusory. Since passage of the act, capital trials have continued unaffected by it. Post-conviction litigation has concentrated on just two jurisdictions - Forsyth County and Cumberland County - and only in Cumberland is there a scheduled hearing under the act. The litigation in Cumberland will provide a model for the rest of the state and resolve many of the unanswered questions about the interpretation of the Racial Justice Act.

The total cost of implementing the act from 2009 to the present has been much less than the extra cost of a single execution. As to actual expenses for "copying" and expert fees, which the district attorneys decry, the great majority of those fees and expenses have been self-inflicted. Discovery has been efficiently provided by tendering computer files. Nevertheless, prosecutors have demanded "hard copies" of files and for that they have had to pay copying expense.

The district attorneys also claim that a Michigan State University study of North Carolina cases presents "manipulated statistics," and yet they seek to avoid a hearing before a Superior Court judge who will scrutinize the evidence on both sides. The district attorneys falsely suggest that more than 25 convicted murderers could be released pursuant to the Racial Justice Act. The law itself is very clear: The remedy for a violation of the statute is a sentence of life without parole.

At some point, the district attorneys need to show the public what their evidence is. Their increasingly desperate efforts to avoid their day in court may simply foretell the lack of a credible response.

James E. Coleman Jr. is a professor at Duke Law School. He directs the Duke Law Center for Criminal Justice and Professional Responsibility, which drafted an amicus brief on behalf of the state NAACP supporting the Racial Justice Act.

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