All but three of North Carolina's 157 death row inmates are waiting for their day in court to argue that racial bias played a role in their case. But the law that gives them hope is on shaky ground.
State lawmakers are scheduled to congregate in Raleigh tonight for the start of a three-day session that could result in the gutting of the historic Racial Justice Act.
Prosecutors made a push several weeks ago for a major tweaking of the 2-year-old law before any inmate awaiting execution has an opportunity to be heard in court. Public defenders responded with pleas of their own: Give the law a chance, they said. Let one case go all the way through the court system before giving up on a process being watched by legal scholars across the country.
The public back-and-forth between prosecutors and defense attorneys has resulted in a flurry of letters to influential legislators and accusations that some district attorneys are using misleading fear-mongering tactics to make their case.
A Senate judiciary committee is set to take up the topic in the Legislative Office Building on Monday afternoon. That could lead to a full vote in the Senate this week. The House has already voted to pull the teeth from the law.
For years, death row inmates and other prisoners have been able to challenge their sentences on grounds that racial bias played a role in their cases.
But it was not until North Carolina lawmakers adopted the Racial Justice Act in 2009 that judges in this state have been able to weigh statistics while hearing such complaints.
The death row inmates have included findings in their complaints from Michigan State University law school researchers that show that defendants who killed a white person in North Carolina were 2-1/2 times more likely to be sentenced to death than those whose victims were black. They also show that juries were disproportionately white.
Prosecutors complain that using statistics without the facts of each case can skew the picture. But defense attorneys who fought for the law say the statistics tell an alarming story: In North Carolina, African-American jury pool members who were not rejected for cause - such as opposition to the death penalty - were rejected by prosecutors at about two times the rate as similarly situated whites. The disparity was even greater in Cumberland and Wake counties. In Wake County, qualified potential African-American jurors were rejected at 2.5 times the rate of all other jurors; their Cumberland County counterparts were rejected at 2.6 times the rate, according to the Michigan research.
An inmate's case scheduled to be heard in Cumberland County in January highlights the disparities. Defense attorneys say prosecutors pushing for the repeal of the Racial Justice Act this month are making a Hail Mary maneuver because the case could expose problems. "They're doing that instead of trying to defend their actions in court," said JayFerguson, a lawyer in Durham who is shepherding another inmate's case in Wake County Superior Court.
District attorneys held a news conference several weeks ago to complain, in part, that the way the Racial Justice Act is written, inmates could use statistics from other counties and judicial districts to challenge their sentences.
Wake County District Attorney Colon Willoughby complained about that aspect of the law but did not mention statistics from his district. Senate Minority Leader Martin Nesbitt, an Asheville lawyer, said recently that one idea being circulated through the Senate that has some appeal among supporters of the law is a tweak that would confine the statistics that judges could consider to the judicial district where the inmate was tried.
But House Republicans are pushing for an overhaul.
The law, one of only two of its kind in this country, passed narrowly along party lines and over major opposition from prosecutors across the state.
Republicans have been talking about repealing the law since their rise to power in both the House and the Senate in 2010. Critics argue that the law is a thinly veiled attempt to do away with the death penalty. Though people are still being sentenced to death in this state, no execution has been carried out since 2007, when a series of lawsuits sparked a de facto moratorium.
This summer, the House revamped the original bill, striking through provisions allowing for the use of statistics and approving language that requires the inmate to prove racial bias. It requires the courts to find that prosecutors acted "with discriminatory purpose" in seeking the death penalty or selecting the jury if an inmate is going to be successful with a racial-bias challenge. It also requires the courts to find that jurors acted "with discriminatory purpose" while determining guilt or innocence in a case.
"Intent is one of the most difficult things to prove in court," said Bill Massengale, a defense lawyer in Chapel Hill, who also has worked as a prosecutor. "It would be very difficult to prove a prosecutor's intent or a jury's intent."
The Senate did not take up the House proposal during the summer session, and legislators did not explain why.
Sen. Phil Berger, a Republican from Rockingham County, a lawyer and president pro tempore of the Senate, said last week that it very likely could come up for a vote during this three-day session.
The existing law specifies that remedies for any inmates who prove racial bias would be a sentence of life without possibility of parole. No one could get out of jail, but some prosecutors are posing a different scenario.
Susan Doyle, the Johnston County district attorney and president of the N.C. Conference of District Attorneys, wrote in a letter to Berger that at least 25 death row prisoners, sentenced when North Carolina did not have a sentence of life without possibility of parole, could eventually be freed if their challenges are successful. That set off a litany of harsh responses from defense attorneys and other trial lawyers, who claim no such thing would happen and cite case law to underscore their points. "The district attorneys are just fear-mongering," said Ken Rose, an attorney at the Center for Death Penalty Litigation in Durham. Peg Dorer, executive director for the N.C. Conference of District Attorneys, disputed that description.
Prosecutors also complained that processing Racial Justice Act complaints could cost their offices thousands of dollars in copying paper and time.
But defense attorneys contest those allegations, saying they have brought scanners to offices in Forsyth County, where those estimates were generated, and copied paperwork themselves.
And a resolution presented to the Senate by Doyle has drawn criticism from the district attorney in Rocky Mount. Doyle said the resolution had the support of all the state's district attorneys except Tracey Cline, an African-American prosecutor in Durham. But Robert Evans, Rocky Mount's district attorney, said he did not, and does not, recommend repeal of the Racial Justice Act.
"Any statement or assumption to that effect would not be true," Evans said. "As a member of the North Carolina Conference of District Attorneys, I have participated in discussions among my colleagues, with a view to determining how or whether the law could be amended to assist in the more efficient administration of justice. As a result, I gave verbal consent to a resolution calling for the Act to be amended, not repealed."
Now the state NAACP is requesting information from the district attorneys conference asking for any public records related to the letter that Doyle wrote to Berger, whose son is a district attorney. "The letter blatantly misrepresents both the language and intent of the Racial Justice Act," the Rev. William Barber, head of the state NAACP chapter said. "We believe several DAs were never consulted about the racist, untrue aspects of the letter. And that, had they been, they would have disassociated themselves from it."
Supporters of the law say a repeal could result in many lawsuits and lots of time in the courts spent arguing whether inmates who have filed for review of their cases could continue with their challenges. They also say any repeal would spark future attempts in the legislature to reinstate the law.
"I will not stand by as a member of the Bar and a minority leader and not allow this issue to be taken up by the court system," Nesbitt said. "I really hope all these cases are dismissed, and we find that racial bias did not occur. ...We want to know, so we can sleep at night, that no one was put to death in North Carolina because of racial bias."