Bias claims are new diversion for N.C. executions

The 77-year-old white woman is among dozens of capital convicts in North Carolina this week to allege racial bias in sentencing.

Seventy-six of those 135 inmates are black, while 48 are white. Seven are Native American, and four others don't fall into any of those racial categories. They all allege discrimination either in how jurors were seated or because of their race or the race of their victim.

"Nobody knew what the number might be, but we knew there were substantial numbers of African-Americans and other minorities on death row," said state Sen. Floyd McKissick, D-Durham, who sponsored the Racial Justice Act.

North Carolina and Kentucky are the only states that allow defendants to present statistical evidence to argue that racial bias affected their sentencing.

"What the statute allows is for you to argue if there are disparities you can't explain," said Gretchen Engel, a staff attorney at the Center for Death Penalty Litigation, a Durham-based nonprofit that represents inmates on death row.

Nine of Engel's clients have filed bias claims. She said that, even in cases with white defendants, prosecutors had a higher percentage of blacks stricken from the jury.

House Minority Leader Paul Stam called the Racial Justice Act a bad bill, saying it was poorly written and is too broad.

"Unfortunately, too many of our members in the House and Senate just saw the title of the bill and said, 'I better vote for that. Sounds good,'" said Stam, R-Wake.

Senate Minority Leader Phil Berger said he believes the law was designed to extend the state’s unofficial moratorium on the death penalty.

“As a practical matter, the death penalty does not exist in North Carolina at this time,” said Berger, R-Rockingham.

North Carolina's system of capital punishment already faces a series of other lingering questions, including the use of lethal injection, the role of medical personnel and a century-old law on who crafts the execution protocol.

North Carolina hasn’t executed a convict since 2006. It’s not clear when, or if, another will happen as officials try to untangle what former Gov. Mike Easley once described as a “Gordian knot.”

“You can try to untie it, but it’s seemingly impossible,” said Stephen Dear, executive director of People of Faith Against the Death Penalty. “You can never make (the death penalty) perfect.”

Opponents of the death penalty have successfully worked for years to stall executions. A debate over the state’s lethal injection procedure – specifically what role a doctor should have – first brought capital punishment to a halt in 2007 when the North Carolina Medical Board threatened to discipline any doctor who “engages in any verbal or physical activity … that facilitates the execution.”

To overcome that threat, state officials tried to amend the execution protocol to say that a nurse and a medical technician – not a doctor – would monitor the inmate’s vital signs. But a judge later determined that the Council of State must approve those changes.

Officials have since approved changes, and the Supreme Court ruled that the medical board overstepped its authority.

Ken Rose, a staff attorney at the Center for Death Penalty Litigation, believes two issues are still blocking executions.

Lawyers have argued before the courts that officials did not allow proper public input before changing the state’s execution protocol. They are also raising questions about the constitutionality of lethal injection – an argument raised in other states as experts question whether convicts can be executed without suffering pain.

Chrissy Pearson, a spokeswoman for Gov. Beverly Perdue, said the governor still supports the death penalty but wants to make sure it is not applied unfairly or with bias.

“She understands that this is an important enough issue that it needs to work its way through the court system,” Pearson said.

About half the prisoners on death row are black, even though black people make up less than a quarter of the state’s population. Researchers recently concluded that a convicted killer is three times more likely to get a death sentence in North Carolina if the victim is white rather than black.

Many of the Racial Justice Act claims, however, aren’t based on the race of the convict or victim but rather the diversity of the jury. Along with Moore, who was also suspected in other poisonings, the claimants include inmates convicted in some notorious cases:

Tye Hunter, executive director of the Center for Death Penalty Litigation, said he believes each of the center's 40 clients has a legitimate claim under the law.

"It's a brand new statute, so we don't know exactly how this statute is going to be interpreted," Hunter said.

Prosecutors have said challenges under the new law will be time-consuming, expensive and will overwhelm the courts, but Hunter said the state can free up the courts and save millions of dollars by consolidating the cases under one judge.

Tom Bennett, executive director of the North Carolina Victim Assistance Network, said he was concerned from the start that the new law passed last year was not going to be used as a safeguard for racial justice but used to make the death penalty unenforceable.

“The fact that so many death row inmates, including white offenders, are seeking to exploit the law shows that our fears were justified,” he said.

McKissick said he expects the law to be interpreted fairly, even for white death row inmates.

"I'm not going to comment on the validity (of claims by white inmates), but I think they have a much higher hurdle to overcome," he said.