NC Supreme Court hears arguments in Racial Justice Act cases

ablythe@newsobserver.comApril 14, 2014 

— North Carolina’s Supreme Court justices heard two divergent views on Monday about what stories are told by the numbers associated with four Racial Justice Act cases.

Lawyers representing four death row inmates whose sentences were converted to life without a possibility for parole argued that statistics culled for the cases offered a very black-and-white story: Racial bias infected the capital cases.

The special deputy attorney general, representing prosecutors who challenged the landmark rulings, countered that those statistics, weighed in a vacuum, only offer shades of gray in four Cumberland County cases and do not constitute clear evidence of racism.

The arguments came almost two years after a Cumberland County judge issued the first ruling associated with the short-lived Racial Justice Act, a 2009 law that was overturned last year.

The law allowed judges to consider statistics among other evidence when weighing inmate claims that race-based decisions played a role in the cases brought against them.

In 2012, Judge Gregory Weeks found that a pervasive racial bias had played a role in the cases of Marcus Robinson, Tilmon Golphin, Quintel Augustine and Christina Walters, four convicted killers who were sentenced to death.

Weeks weighed testimony and statistics from a Michigan State University College of Law study of North Carolina capital cases in all four cases and found “a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina.”

On Monday, the N.C. Supreme Court justices heard arguments in the first four cases decided under two versions of the law — the original 2009 law and an amended version adopted in 2012.

In the case of Robinson, Weeks found the Michigan State study to be “highly reliable.” It showed that potential black jurors were more than twice as likely as whites to be struck from jury pools in death-penalty cases. That pattern was found to exist in all but four of North Carolina’s 100 counties in a study of capital cases from 1990 to 2010. And statistics showed a similar tide in Cumberland County.

“It is not the number of strikes that matter,” argued Special Deputy Attorney General Danielle Elder.

Elder argued that attorneys representing Robinson had not presented “specific” evidence of racism. She also argued that the attorneys had not shown “intentional” racism.

But Donald H. Beskin, the attorney representing Robinson, pointed out that the Racial Justice Act did not require such proof.

“You can search through the act high and low and you will not find the word ‘intentional’,” Beskin told the justices. “The harm to be prevented is not just ‘intentional’ discrimination.”

The act was designed to prevent “race-based decision-making, whether it is conscious or unconscious,” Beskin said.

Jay Ferguson, the attorney arguing for Augustine, Golphin and Walters, tried to bat back arguments from Elder that each inmate had previous opportunities to show racial bias had infected their cases and that no previous court had found such problems.

Ferguson countered that lawyers preparing for the Racial Justice Act hearings had uncovered previously unavailable evidence.

Weeks found in the cases of Augustine, Golphin and Walters that a prosecutor’s cheat sheet for jury selection in at least one case included margin notes with racial references.

Elder argued that margin notes reflecting a potential juror’s race is not “inherently racist.”

Ferguson countered: “Race can affect a case in many different ways.”

Though a ruling could be weeks or months away, many speculate that any decision will result in further appeal.

The justices asked why prosecutors had not done a statistical analysis of their own to counter the one used by defense attorneys. Elder said she did not know.

The ultimate resolution of the cases could determine whether the Racial Justice Act will have life after its death.

More than 150 death row inmates sought relief from their pending capital punishment under the 2009 version of the law. Since their cases were in the court queues before the 2012 amendment or 2013 repeal, legal analysts have speculated that the inmates could argue their claims should be heard, too.

Outside the N.C. Supreme Court after the hearing, lawyers representing the inmates offered cautious optimism about what they heard.

“The state never addressed all of the very detailed evidence of racial discrimination,” Ferguson said.

Critics of the Racial Justice Act have described it as a “back-door” way to do away the the death penalty in North Carolina. The 2009 law and other lawsuits have created a de facto moratorium on executions in the state. There has not been an execution since 2006.

“If we’re going to execute our citizens, we’ve got to make sure that race did not play a role in it,” Ferguson responded.

Blythe: 919-836-4948; Twitter: @AnneBlythe1

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