Prosecutors seek to remove black judge from Racial Justice Act case
Posted November 8, 2011
Durham, N.C. — Cumberland County prosecutors have subpoenaed a Superior Court judge as a witness in a pending case, which would force him to withdraw as the judge hearing the case.
Defense attorneys and legal experts questioned the move Tuesday, noting that the judge is black and the case involves an appeal under the Racial Justice Act, which allows death row inmates to challenge their sentence on the grounds of racial bias.
"It appears the state is saying that, for the first case under the landmark Racial Justice Act, an experienced African-American judge is not fit to serve as the judge who makes the decision," said Ken Rose, a staff attorney for the Durham-based Center for Death Penalty Litigation.
Superior Court Judge Greg Weeks was assigned the appeal by Marcus Robinson because he is the senior resident judge in Cumberland County.
Robinson, who is black, was convicted of shooting and killing Erik Tornblom, a white man, during a 1991 robbery. He has alleged that prosecutors excluded a disproportionate number of blacks from his trial jury.
Weeks has 23 years of experience on the bench and has presided over several death penalty trials during that time. Prosecutors have indicated that they might call him to testify about their conduct in those cases.
"I've been doing this 30 years. I've never seen a judge recused for that reason," Rose said.
The Center for Death Penalty Litigation is representing Robinson in his appeal, but Rose isn't handling the case.
Fred Webb, an attorney representing Weeks in the case, said he doesn't believe a judge who is not a material witness should be called to testify.
Cumberland County prosecutors couldn't be reached Tuesday for comment.
Robinson's appeal is scheduled for next week, and Superior Court Judge Quentin Sumner will hear arguments in Nash County Thursday morning on whether Weeks should remain on the case.
Irving Joyner, a law professor at North Carolina Central University, who isn't connected to Robinson's case, said he believes the subpoena is unethical.
"That's just improper, and I think it's a violation of the rules of professional responsibility for any lawyer to engage in a scheme like that," Joyner said.
Almost all of the 157 inmates on North Carolina's death row have filed appeals under the 2-year-old Racial Justice Act. Winning an appeal under the law commutes a death sentence to one of life in prison without the possibility of parole.
Rose said bias played a role in many of the death sentences handed down in North Carolina.
"In so many of these cases, prosecutors disproportionately struck African-American jurors," he said.