BRUNSWICK COUNTY, NC (OPEN LETTER FROM DEFENSE ATTORNEY JAMES PAYNE ON WWAY’S ‘THE RANT’) — The recent movement to repeal the Racial Justice Act (RJA) sends the message that racial discrimination is acceptable in the North Carolina justice system.
The public posture that the RJA is an “end run” around the execution of death row inmates unfortunately masks the true object of the Act: to spare the lives of those who suffered from discrimination in the very trial that placed them on death row. The purpose of the RJA, enacted in 2009, is to take those convicted murderers on death row who arrived there as a result of discrimination in their trial and place them in prison for the rest of their natural lives (Life Without the Possibility of Parole).
North Carolina has eliminated parole; hence, when a person is sentenced to prison for life without the possibility of parole (LWOP), that person will never see the light of day outside of prison. He or she will die in prison. Rather than the popular pronouncements of “speeding up executions” and eliminating a phantom “end run” around the death penalty, it would be useful to consider, calmly the following facts:
• A recent Public Policy Polling poll found that 68% of North Carolinians- including conservatives, moderates and progressives- support replacing the death penalty with life without parole if the offender works and pays restitution to the victim’s family. http://www.publicpolicvpolling.com/pdf/2011/DeathPenaltyResults.pdf
• No jury sentenced anyone to death in North Carolina in 2012, there have been no executions in six years, and meanwhile, murder rates continue to decline.
• The NC Racial Justice Act (RJA) was passed in 2009 in response to documented evidence showing bias in death penalty cases, including jurors admitting racial bigotry in their decisions and the exonerations of three African-American death row inmates in the preceding three years. Under the RJA, no one will be released. The law requires those who prove discrimination to serve the rest of their lives in prison without the possibility of parole.
• A recent study of capital cases in North Carolina from 1990-2010 conducted by Prof. Catherine Grosso and Prof. Barbara O’Brien of the Michigan State University School of Law (MSU Study) revealed that 31 of North Carolina’s current death row inmates were sentenced to death by all white juries.
• The MSU Study found that “Across all strike-eligible venire members in the study, prosecutors struck 52.6% of eligible black venire members, compared to only 25.7% of all other venire members.”
• The MSU Study found that “In cases with black defendants, the average strike rate was 60.0% against black venire members and 23.1% against all other qualified venire members.”
• The MSU Study found that in New Hanover County, prosecutors struck 54.05% of eligible black venire members in capital cases, but struck other venire members at the rate of only 27.79%.
• In April of 2012, in the first evidentiary hearing under the RJA, the Honorable Gregory A. Weeks, Senior Resident Superior Court Judge for Cumberland County, found significant racial bias in a death penalty case, State v. Marcus Reymond Robinson, and resentenced the defendant to life imprisonment without the possibility of parole.
• At the time, the Executive Director of the NC Conference of District Attorneys, Peg Dorer, told WRAL: “After judge Weeks’ ruling, from what I’ve been told, I think everyone with an existing claim is going to have a chance to litigate,” meaning a significant amendment or repeal of the RJA would serve no purpose except to create yet another layer of litigation.
• “And yet opponents of the RJA in the General Assembly did offer a significantly amended version of the law that passed in July 2012. The amended version removed the consideration of disparities in capital prosecutions by race of victim, and limited the use of statistical evidence by requiring proof of discrimination in an individual case.”
Regarding this amended version of the RJA, Rep. Paul Stam told the Fayetteville Observer: “We’ve done what we need to do on the RJA,” Stam said. “The opponents say we totally gutted it. I say we reorganized the law so it was fair. But whatever it is, I don’t see doing anything else on RJA.”
• In December of 2012, Judge Weeks issued another ruling under the newly amended RJA in State v. Tilmon Golphin, State v. Christina Walters and State v. Quintel Augustine. Judge Weeks ruled that the evidence in these three cases showed significant intentional discrimination and the defendants were resentenced to life imprisonment without the possibility of parole. In spite of these disturbing facts, a bill was filed that aims to restart executions and fully repeal the RJA.
• In 1994 and 1995, a number of prosecutors in the State attended a seminar entitled “Top Gun” at which they were instructed on how to justify striking eligible black venire members in order to avoid a defendant’s objections that the strikes were racially discriminatory.
• Because inmates on death row rightfully and legally filed motions under a valid law, repeal of the amended RJA statute would violate the inmate’s constitutional right to due process, add millions in expense, and further delay resolution of the cases.
• Superior Court Judge Greg Weeks found intentional racial discrimination in the four cases he considered, granted relief under the RJA, and withheld ruling on the constitutional claims. Were the RJA to be fully repealed, the courts would still need to resolve the constitutional claims in those cases. This potentially would yield the surprising result that inmates would obtain greater relief than if the RJA remained in effect.
Given all of these indisputable facts, given the proven existence of racial bias in the imposition of the death sentence, given the undisputed prevalence of African-American defendants on death row as a direct result of proven racial bias in our judicial system, no one can creditably stand before the public and argue that the RJA is an “end run” around the death penalty. Repealing the RJA “short cuts” justice. When we “short cut” justice, we all lose.