NC Supreme Court fractures over repealed racial bias law

A deeply divided state Supreme Court ruled Friday that an inmate who used a racial bias law to get his death sentence overturned cannot be sent back to death row simply because the General Assembly later repealed that law.

Marcus Robinson was the first inmate to use the Racial Justice Act, which lawmakers passed in 2009 to allow death row inmates and capital murder defendants to challenge their sentences or prosecutors' decisions with statistics and other evidence showing racial bias. He had his death sentence commuted to life in prison without parole in 2012 after a judge found bias in jury selection at Robinson's 1994 murder trial in Fayetteville.

In 2013, after Republicans had gained control of the legislature, the law was repealed and applied retroactively, meaning that all cases already heard under the law were voided and all pending cases were dismissed.

In a 4-3 ruling, the Supreme Court said reimposing a death sentence for Robinson after it had been commuted to life in prison would violate the double jeopardy protections of the state and federal constitutions.

"[T]he [Racial Justice] Act allowed Robinson to be acquitted of the death penalty by presenting evidence that racial discrimination infected his trial and capital sentencing proceedings," Chief Justice Cheri Beasley wrote for the majority. "Once the trial court found that Robinson had proven all of the essential elements under the RJA to bar the imposition of the death penalty, he was acquitted of that capital sentence, jeopardy terminated, and any attempt by the State to reimpose the death penalty would be a violation of our state’s constitution."

But Beasley's opinion was joined only by Justice Anita Earls and Justice Mike Morgan. All three are Black.

Justice Robin Hudson joined the majority in stating that applying the law's repeal retroactively in Robinson's case amounted to double jeopardy, but she said in a brief concurring opinion that was only in the narrow context that the state never appealed a separate court order entered in 2012 sentencing Robinson to life in prison without parole.

Justice Sam Ervin IV and Mark Davis disagreed that Robinson's life sentence should stand without further review. They cited a recent ruling by the court that sent to other Racial Justice Act cases to a trial court for new hearings.

"I feel compelled to conclude that the Court’s double jeopardy analysis, which relies upon general statements of double jeopardy jurisprudence that were made in a procedural context that is completely different from the one that is present here, is fundamentally flawed," Ervin wrote in the dissent. "[I]t seems clear to me that a trial court order granting relief pursuant to the Racial Justice Act and the entry of a related judgment of life imprisonment is not an unreviewable decision entitled to double jeopardy protection, with there being no support in the relevant decisions of this Court or the [U.S.] Supreme Court or in the statutory provisions governing our review of lower court decisions in criminal cases."

A more blistering dissent came from Justice Paul Newby, the lone Republican on the court, who compared the majority opinion to that of a French monarch.

"Apparently, in their view, the law is whatever they say it is," Newby wrote. "The votes of the four justices prevent defendant’s execution for murder. It appears, however, that three justices may have a larger purpose: to establish that our criminal justice system is seriously – and perhaps irredeemably – infected by racial discrimination."

The majority disregarded the appellate review process and distorted legal precedents by relying on a previously vacated court order for the foundation of their opinion, he said.

"Based on the trial court order which is actually before us, ... we should be returning this case to the trial court for a full hearing on the merits of defendant’s RJA claim at a proceeding where the State has a fair chance to respond. Instead of doing the legally correct thing, the majority opinion picks its preferred destination and reshapes the law to get there," he wrote.

Newby is running against Beasley in the November election for chief justice.