RALEIGH -- Every North Carolinian who cares about equal justice in capital cases should contact Gov. Beverly Perdue and urge her to veto SB 9, the legislation recently passed to reform the Racial Justice Act.
Notwithstanding the claims of its sponsors, the legislation eviscerates the RJA and would leave capital-case defendants without an adequate vehicle for attacking blatant racial discrimination in the state's use of peremptory strikes to exclude qualified African-Americans from serving on a capital jury, or the jury's decision to impose the death penalty.
Although many prosecutors and legislators don't want to admit it, racial discrimination clearly exists in capital cases throughout the state. In July 2010, two law professors at the Michigan State University College of Law released the results of the most extensive study on race and the death penalty ever conducted in North Carolina.
The study showed two disturbing trends:
Prosecutors were more than twice as likely to strike qualified African-Americans from the jury pool than whites.
Juries were more than 2 1/2 times as likely to sentence a defendant to death if at least one of the victims was white.
In a system that is supposed to be colorblind, such results are not only unacceptable - they are unconstitutional.
The legislature passed the RJA in 2009 to provide a mechanism for capital-case defendants to prove that race was a significant factor in decisions to seek or impose the sentence of death in their cases. Opponents of the RJA have attacked it because its procedures allow capital defendants to prove racial discrimination based on statistics. They want to return to the standard set forth in McCleskey v. Kemp, a 1987 case in which the U.S. Supreme Court held that, in order to prove racial discrimination in a capital case, a defendant had to prove that one of the decisionmakers in his case, e.g., the prosecutor or a juror, acted with discriminatory intent.
Not surprisingly, the standard set forth in McCleskey has proved to be totally ineffectual in eliminating racial bias.
The people who think that sufficient safeguards exist in capital cases to provide a remedy when evidence of racial bias is discovered should look at the North Carolina case of State v. Kenneth Bernard Rouse. In 1992, Rouse, who is African-American, was convicted in Randolph County of first-degree murder, robbery with a dangerous weapon and attempted first-degree rape in connection with the death of Hazel Colleen Broadway, a white female, who was brutally stabbed to death while working at a convenience store in Asheboro. Rouse was sentenced to death by the all-white jury.
After his appeal was denied, he filed a motion for appropriate relief, alleging that one of the jurors who had served on his jury had lied during jury selection about his views on race.
When the juror was asked whether the fact that the defendant was African-American and the victim was white would affect his decision, he said no. When the juror was interviewed by the defendant's investigator after the trial, however, he did not attempt to conceal his bias toward African-Americans. During the interview, the juror frequently referred to African-Americans as "n-----s" and told the investigator that "blacks do not care about living as much as whites do." He also raised the age-old shibboleth about black men wanting to rape white women and opined that this was probably Rouse's motivation for assaulting Broadway.
As if this weren't enough to raise serious concerns about the veracity of the juror's responses during jury selection, he admitted in his affidavit that "bigotry" was a factor that might have influenced his verdict in this case.
Notwithstanding the fact that Rouse's compelling claim of racial bias was supported by affidavits from the racist juror and the defendant's investigator, the district attorney for Randolph County and the assistant attorney general representing the state asked the presiding judge to dismiss Rouse's motion without holding a hearing, and the judge did so.
If we are to have the death penalty, we must root out the scourge of racism. The only way to ensure that racism is not a factor in the state's decision to seek the death penalty, or the jury's decision to sentence a defendant to death, is to preserve the Racial Justice Act.
Robert M. Hurley is an attorney with the state Office of the Capital Defender.
