Racial Justice Act rulings could provide road map for other cases

Posted April 11, 2014
Updated April 14, 2014

— The fate of dozens of death row inmates hoping to have their sentences commuted to life in prison could be decided by a pair of cases scheduled to be heard by the state Supreme Court on Monday morning.

At issue is if and when capital defendants can make use of the Racial Justice Act and which version of the now-repealed law applies to their cases. The act allowed defendants to use statistics, among other evidence, to show that race-based decisions played a role in the choices made by prosecutors or other court officials.  

Despite its 2013 repeal by the General Assembly, the Racial Justice Act remains part of a thicket of legal questions that continue to impose what amounts to a de facto moratorium on the death penalty in North Carolina. More than 150 defendants have filed motions for relief under the act, and the two cases on Monday's docket give the seven Supreme Court justices their first chance to pick through a number of issues related to the act. 

"Even if all four of these defendants win, it doesn't mean everyone else is going to win," said Ken Rose, senior staff attorney with Durham-based Center for Death Penalty Litigation.

Cases involving Racial Justice Act claims are complicated by the fact that, after a legislature controlled by Democrats passed the original measure in 2009, a Republican-lead General Assembly revised the measure in 2012 before eliminating it entirely last year. 

Opponents of the act in both of its forms focus their ire on its use of statistical evidence. But Rose said those statistical findings have helped defense lawyers find specific instances of race-based decision-making by prosecutors that would have otherwise remained hidden. 

"Almost all the judges handling these cases have looked at it and said that the state Supreme Court is going to have to give us guidance on this," Rose said. 

Lawyers and advocates on both sides of the larger death penalty debate agree that decisions in the cases scheduled for oral arguments Monday could answer questions with which Superior Court judges hearing Racial Justice Act claims are struggling. Death Row, Death Penalty, Execution WRAL.com archive: NC death penalty dispute

"It is my understanding that these two cases, if they are upheld, will certainly provide a road map for future RJA hearings," said Peg Dorer, the executive director of the North Carolina Conference of District Attorneys. "If they are overturned, then I think that could end the RJA entirely." 

However, those familiar with the cases to be heard Monday say there are enough issues at play that the court could ignore the broader questions surrounding the Racial Justice Act and craft rulings that fit only the four murder convictions at hand. No matter the outcome, experts on both sides of the issue say there are still plenty of thorny issues the courts have to sort through before carrying out another death sentence. 

Death penalty still on hold

North Carolina has not executed a prisoner on its death row since Aug. 18, 2006, when Samuel R. Flippen was put to death by lethal injection for the beating death of his 2-year-old stepdaughter.

Since then, an evolving tangle of state and federal court cases have blocked the state from proceeding with any new executions. Currently, there are 153 inmates on North Carolina's death row, including two women. 

Death row, death penalty generic Inside NC's death row

Aside from the Racial Justice Act cases, the state cases providing the biggest roadblock to executions involve challenges brought in 2007 by prisoners contesting the methods and procedures governing how condemned prisoners are put to death. Those individual challenges were consolidated into a single case.

The prisoners claimed the state had not gone through the proper process to write its death penalty rules and that the actual lethal-injection procedure violated state and federal constitutional prohibitions against cruel and unusual punishment. In particular, the defendants claimed that the combination of drugs used could render them immobile but still able to feel pain as the lethal drugs were administered. 

That case reached the state Court of Appeals, but before appellate judges could make a decision, the General Assembly passed Senate Bill 306 in last summer. The same measure that wiped the Racial Justice Act off the books also set down new death penalty procedures and gave the state Secretary of Public Safety the ability to issue new execution protocols.

Secretary Frank Perry signed a new one-drug protocol in October.

Writing for the appeals court, Judge Robert C. Hunter said the case had to go back to the trial court because the facts had changed.

Among the issues the prisoners will press at that new trial will be whether Perry can actually issue new rules on his own or whether the state should go through the formal rule-making process that governs everything from environmental regulations to historical designations.

"Much more mundane, pedestrian things in state government get much more consideration and process," said David Weiss, an attorney who has been in private practice but will be returning to work for the Center for Death Penalty Litigation this month. "This is so serious and so complicated, it seems like, at a minimum, there ought to be some sort of public process."

Weiss would not guess how long it would take to re-hear the case in the lower courts. However, given that it took years for the original cases to reach the Court of Appeals, it is unlikely a final decision will be forthcoming quickly. 

Once issues related to the method of execution are settled, there are sure to be other legal challenges. Rose pointed to a number of death penalty cases in which evidence analyzed by the crime lab could be called into question after high-profile problems identified with the lab. Also, there are at least three federal cases that are on hold waiting for the outcome of state cases.

Perhaps most telling about the length of time it would take to clear the remaining legal hurdles: The Department of Public Safety has not yet obtained pentobarbital, the drug called for in the new execution protocol. 

Two cases, four inmates, many questions 

The first of the two cases the Supreme Court will consider Monday involves Marcus Robinson, who was convicted for the 1991 shooting death of a 17-year-old, Erik Tornblom. Robinson was the first inmate whose sentence was commuted to life without parole under the Racial Justice Act. 

Although the exact number has changed, prosecutors who appealed the Robinson decision said no fewer than 152 motions under the act were filed prior to 2013. 

Cumberland County District Attorney Billy West and lawyers with the Attorney General's Office declined to speak about pending litigation. But in their briefs to the state Supreme Court, they argued that Superior Court Judge Greg Weeks had made critical mistakes in applying the RJA to Robinson's case. 

State prosecutors argued that, under Weeks' ruling, "A defendant convicted of first-degree murder and sentenced to death can obtain relief in post-conviction review under the RJA even if the capital defendant has never experienced any racial discrimination in his own case at any stage of the criminal process. This is an absurd result and cannot be a correct interpretation of the RJA."

In their briefs, lawyers for Robinson said the RJA didn't require them to show specific instances of racism in Robinson's case, but they were able to cite "over a hundred evidentiary examples" from cases throughout North Carolina. 

His lawyers also argued that the RJA process allowed them to find specific examples of discrimination in Robinson's case. 

"Prosecutors intentionally used the race of (potential jurors) as a significant factor in decisions to exercise peremptory strikes in capital cases in North Carolina," Weeks wrote in his ruling. 

The second case has three defendants – Quintel Augustine, Tilmon Golphin, and Christina Walters – but will involve many of the same issues. However, the timing of that case complicates it.

Justices will have to decide whether the original Racial Justice Act applies to the inmates or whether a redrafted RJA passed in 2012 that limited the use of statistical evidence should apply.

In the 2012 version of the law, the General Assembly limited the use of statistics in RJA cases. The original bill allowed the courts to rely on statewide data. The revised bill required that there be statistical findings with regard to the specific county or prosecutorial district in which a case was heard. 

The three defendants in the Golphin case argue they should win because both state and county statistics bear out their claims and because they were able to use the RJA hearing to find evidence of specific race-based decisions by prosecutors in their own cases. 

"The court found that the prosecutor recorded negative comments about black potential jurors, repeatedly explicitly referred to the race of jurors and disparaged black potential jurors on the basis of group characteristics," lawyers for the trio wrote. 

Given those specific instances, it is possible that the Supreme Court could rule about the specific circumstances in the two cases and leave broader RJA questions aside. Perhaps the most pressing is which version of the RJA, if any, applies to a case – even for defendants who have yet to be charged or tried.

"If their crime occurred before the repeal, that can't be taken away," Rose said. He and other lawyers say the state can't retroactively change laws about crime and punishment. 

But Phil Berger Jr., Rockingham County's district attorney and president of the state Conference of District Attorneys, said prosecutors disagreed. 

"It was a statutorily created right," Berger said of the RJA. The legislature, he said, should be able to take it away.

Like many prosecutors and victims' families, Berger describes the RJA as an attempt to derail the death penalty entirely.

"Justice was done by the prosecution, by the judge and by the jury, and these defendants were appropriately sentenced for their heinous crimes," he said.

If there were instances of discrimination, Berger said, the defendants "ought to be able to go through the normal appeals process."

However, Berger did agree with others familiar with the RJA that the court's decisions in Monday's cases will affect other RJA cases in his district and across the state.

"These are essentially test cases to see how the act will be applied going forward," he said.


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  • JustOneGodLessThanU Apr 21, 2014

    DISGUSTED2010 asked, “How can it be equal [justice] when people play the race card at every turn[?] To those people, equal means giving them what they want.”

    These people *want* equal justice...and *you* don’t want to give it to them?...because it’s what they *want*? Your argument is circular and not based on the facts of these cases. They merely want us to look into the possibility that race was involved in the sentencing. (You do understand that race plays a part in some people’s minds, right?)

    IMO, asking for someone to investigate if *equal* rights were dispensed, is valid and us investigating this claim is the American thing to do. YMMV


  • veryfrustrated1 Apr 15, 2014

    What would be wrong with treating everyone the exact same, based only on their own words and deeds, regardless of ethnicity, skin color, or heritage? Until that happens, we are always going to have some form of racism, as treating anyone better or worse, because of race is racism!

  • 678devilish Apr 14, 2014

    Everything is not racial. I believe its just an excuse. They do the crime so they should absolutely do the time. Life not death.

  • disgusted2010 Apr 14, 2014

    View quoted thread

    Pot, meet kettle. You are the one that, based on your prolific anti-constitutional posts, would deny others those rights that you don't believe in. And you should read the federalist papers, written by the framers of the constitution to determine exactly what they intended by the second amendment.

  • Grand Union Apr 14, 2014

    "At the point in time when someone commits a murder (homicide by self defense is totally different) is the same point in time I believe you give up any rights as a human and the same point in time I stop caring about your rights, PERIOD."

    Luckily we have a Constitution that protects us all from people like you.
    Its always funny how many on the right seem to think the only part of the Constitution that matters is the 2nd amendment and even they can't even get that one right......

  • Jeff Burns Apr 14, 2014
    user avatar

    "Rose said those statistical findings have helped defense lawyers find specific instances of race-based decision-making by prosecutors that would have otherwise remained hidden."

    That was only possible because of the RJA? I hope it is not, and he is just going a little over the top. But, if he really is right, that represents a pretty sad state of affairs in our criminal justice system. Of course, NC needs to gets its other ducks in a row before it even really matters.

  • shatzkiko Apr 14, 2014

    At the point in time when someone commits a murder (homicide by self defense is totally different) is the same point in time I believe you give up any rights as a human and the same point in time I stop caring about your rights, PERIOD.

  • Lightfoot3 Apr 14, 2014

    "Robinson got his sentence reduced to life w/o the possibility of parole under the RJA while Erik Tornblom lost his life at the hands of Robinson. Where is the justice in that? Robinson deserves to die for his actions." - shatzkiko

    Exactly! It doesn't matter if race played a role or not, a person like this needs to be executed.

  • jurydoc Apr 14, 2014

    View quoted thread

    Actually, that is not the "sole" premise for the legislation. If it were, a simple Batson challenge could suffice. There are prosecutors who show bias in charging defendants capitally based on either the defendant's race, or the victim's race (or even some combination thereof). So, the legislation goes well beyond issues of jury selection which is why general statistical data are allowed.

  • Joseph Shepard Apr 14, 2014
    user avatar

    Two points: First, statistics can be made to tell absolutely any story you want to tell--period. Secondly--the creation and implementation of the RJA is a continuation of the sad attitude of far too many minorities that since their people were subjected to slavery over 200 years ago, they should somehow today be held to a different legal standard. According to that attitude, the individual (minorities only) are not responsible for their actions--whatever crime they commit is the fault of society--there is no such thing as individual guilt. What is also missing here is little to no consideration being given to the victims of their crimes--the fear, pain, torture, their deaths. Why should a social condition from over 200 years ago be an acceptable excuse for the terrible crimes being committed today? Until this sad attitude is removed from society and our legal system, racism will continue to exist as long as they are allowed to use it as a defense.