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Race And The Death Penalty: Arguments Ongoing In NC


RALEIGH — Four death row prisoners will argue to North Carolina's highest court that racial bias so infected their trials that they should be resentenced to life in prison as attorneys revive arguments about a repealed law on race and capital punishment.

The state Supreme Court will hear arguments Monday and Tuesday in the cases of four death row inmates who briefly were resentenced to life without parole when legislators approved the Racial Justice Act in 2009. The law was repealed four years later.

Justices also will hear from attorneys for two other death row prisoners whose RJA claims weren't decided before the law was repealed.

"We found the evidence (of racial bias), then the legislature repealed the law," said David Weiss, staff attorney at the Center for Death Penalty Litigation. "The question is: Can we act as if that evidence was never uncovered?"

The center describes differing types of racial bias in all the cases, including prosecutors who described a black juror with a criminal history as a "thug" while using "a fine guy" to describe a white juror who had trafficked in drugs. But it said that a statistical study showed in all the cases that prosecutors struck qualified black jurors at far higher rates than white jurors. In some cases, an all-white jury decided the fate of the defendants sentenced to death row.

Under the RJA, condemned men and women could challenge their death sentences by using statistics to show that race tainted their trials. When Republicans took control of the legislature and amended the law in 2012, they set a new limit on what statistics can be used and said those numbers alone couldn't be used to show race was a significant factor in a death row prisoner's conviction or sentence.

Legislators repealed the law in 2013, and the four who had been resentenced to life behind bars were returned to death row. They include Christina Walters, one of just three women on North Carolina's death row.

Sen. Floyd McKissick, a sponsor of the 2009 RJA, said the act didn't go far enough in making amends for the unfairness of the trials and sentences of African American defendants. "RJA is a remedy, but the remedy did not fit the egregiousness of what these defendants suffered," he said. "Rather than having sentences changed from death to life without parole, they really should have been given a new trial that was free of racial bias."

North Carolina has 142 people on death row. Fifty-two, or about 36%, are white. The other 90 prisoners, or about 63%, are black, Native American or other. The overall state population is almost 71% white.

A spokeswoman for the state attorney general's office, which is fighting the RJA claims, declined to comment on pending litigation. In legal filings, Senior Deputy Attorney General Danielle Marquis Elder writes that the issue before the justices is a narrow one about whether lower courts correctly voided the RJA claims after the act was repealed.

She also writes that the prisoners can raise claims of racial discrimination through other procedures. "The repeal of the RJA removed only one mechanism for raising a statutorily defined claim of racial discrimination; it did not impede criminal defendants from asserting constitutional claims of racial discrimination through other mechanisms," she wrote.

One of those methods would be through making what's called a Batson claim, based on a 1986 U.S. Supreme Court decision that qualified jurors can't be kicked out of jury pools because of their race or gender. But North Carolina's Supreme Court "has never once found a substantive Batson violation" in the 74 cases that it's heard, according to a 2016 report for the North Carolina Law Review.

And in 1995, the North Carolina Conference of District Attorneys offered training called Top Gun II , where prosecutors learned to overcome Batson problems.

"One of the big takeaways from the Racial Justice Act is that when we look behind the curtain" there's evidence of racial bias, Weiss said. "The legislature suspected it when they passed the law. And then when we looked even further, we found troubling, specific evidence in each of the individual cases."