Racial Justice Act rulings could provide road map for other cases

At issue is if and when capital defendants can make use of the Racial Justice Act and which version of the now-repealed law applies to their cases.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.

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. 

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.

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. 

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. 

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.