North Carolina Racial Justice Act

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DAs seek repeal of death penalty law

Tuesday, November 15, 2011

(Updated 2:45 pm)

By Gary D. Robertson and


Associated Press

RALEIGH (AP) -- The Legislature should act quickly to repeal a bill that allows death row prisoners to challenge their sentences on the grounds of racial bias, North Carolina's district attorneys argue in a letter to state senators.

" ... if you do not address this issue quickly, the criminal justice system will be saddled with litigation that will crush an already under-funded and overburdened system," wrote Johnston County District Attorney Susan Doyle, president of the North Carolina Conference of District Attorneys.

The letter was sent Monday and addressed to Senate leader Phil Berger. It also went to all senators, said Peg Dorer, executive director of the conference. The DAs in all 100 counties will present a resolution on the issue, Dorer said.

The Racial Justice Act allows death row inmates and defendants facing the death penalty to use statistics and other evidence to show that racial bias played a significant role in either their sentence or in the prosecutors' decision to pursue the death penalty. The law says an inmate's sentence is reduced to life in prison without the possibility of parole if the claim is successful.

A study by two law professors at Michigan State University found a defendant in North Carolina is 2.6 times more likely to be sentenced to death if at least one of the victims was white. The study also showed that of the 159 people on death row in the state at the time of the study, 31 had all-white juries and 38 had only one person of color on the jury.

The Legislature is scheduled to reconvene Nov. 27 to work up to three days on several possible items. The Legislature's adjournment motion allows lawmakers to consider bills during that period that are awaiting a concurrence vote, which means senators could vote on the repeal of the Racial Justice Act.

The repeal, known as Senate Bill 9, went to the state House as a bill to create penalties for synthetic marijuana. House Republicans stripped that language and changed the bill's language to repeal the 2-year-old Racial Justice Act. That means state senators have never discussed the proposed repeal, either in committee or on the floor.

That angers Sen. Floyd McKissick, D-Durham, one of the architects of the Racial Justice Act.

"The House is attempting a procedural maneuver to eliminate public debate," McKissick said Wednesday. "I think it's extremely unfortunate for a very significant piece of legislation."

Berger, R-Rockingham, said he doesn't know if the Senate will consider the repeal this month. Legislators previously have said the debate would continue in January, when the General Assembly begins a new session.

"It's certainly on the radar screen," Berger said, adding that a committee or the full Senate would discuss the bill before a vote. The repeal technically needs just one more Senate vote for full legislative approval. No Senate Republicans voted for the 2009 bill.

Gov. Beverly Perdue, who signed the act into law, would have to decide whether to veto the bill if it received final legislative approval.







(with video)

NC prosecutors want Racial Justice Act struck down

Updated at 01:30 PM today


RALEIGH, N.C. -- North Carolina's prosecutors are almost unanimous in calling on legislators to repeal a law that allows defendants on death row to appeal their sentences by showing evidence of racial bias.

A group of them held a news conference in Raleigh Wednesday to shine a spotlight on their request that the state Senate strike down the Racial Justice Act.

In a letter sent Monday, the prosecutors said that if the 2009 law isn't repealed, it will severely hamper the justice system's ability to handle major cases.

They say the law is too broad and only factors in race - not the circumstances of a case. There are currently 157 inmates on death row in North Carolina. The prosecutors say all but five have filed to have their cases reviewed under the Racial Justice Act. Fifty-two are cases where the defendant was white, the victim was white, and the jury was all white.

"The Racial Justice Act was a Trojan Horse," offered Wake County District Attorney Colon Willoughby at Wednesday's news conference. "It was, in reality, a permanent moratorium on the death penalty in North Carolina."

The prosecutors say they want an amendment to the law to make it more specific.

North Carolina Advocates for Justice, a group that supports the law, has sent its own letter to Senate leader Phil Berger asking him to reaffirm the Legislature's support the Racial Justice Act.

Sitting in the prosecutor's news conference Wednesday was Tye Hunter - an attorney who heads up the North Carolina Center for Death Penalty Litigation. He said what the DAs are really complaining about is the workload.

"It's just one thing after another to avoid dealing with our history in North Carolina," he said.

Hunter cited a study from Michigan State University which he said shows there is racial injustice and bias in North Carolina.

The DAs dispute that.

There are 44 elected district attorneys in North Carolina. Only two are African American. One of those - Durham District Attorney Tracey Cline - did not sign the request to the General Assembly asking the law be changed.







November 28, 2011, 12:39 PM ET

North Carolina Senate To Decide Fate of Racial Bias Law

By Sam Favate

A meeting of North Carolina lawmakers in Raleigh this week could decide the fate of the state's Racial Justice Act, which lets death row inmates argue that racial bias played a role in their case, the Raleigh News & Observer reports.

The N.C. House voted to nullify the law back in June, and now the state Senate could see a vote this week, following a Senate judiciary committee meeting this afternoon. The law, which you can read here, was enacted in 2009 and requires that judges let inmates off of death row if there is a finding that race was a "significant factor" in the death sentence, as the WSJ noted in a report last year.

Death row inmates have held up findings from Michigan State University law school -- which held a symposium on the subject -- that show defendants who killed a white person in North Carolina were 2 1/2 times more likely to receive a death sentence that when victims were black. The study also showed that juries were disproportionately white.

Republicans have talked about repealing the law since they rose to power last year in the state legislature, the News & Observer notes. Critics say that the law is a way to do away with the state's death penalty. North Carolina hasn't carried out an execution since 2006, as LB noted recently.

This summer, the House altered the language of the original bill to require that courts find prosecutors acted "with discriminatory purpose" in seeking the death penalty or selecting the jury, as well as requiring that jurors acted "with discriminatory purpose" in deciding a case, as the News & Observer reports. Bill Massengale, a defense lawyer in Chapel Hill told the paper: "Intent is one of the most difficult things to prove in court. It would be very difficult to prove a prosecutor's intent or a jury's intent."

Earlier this month, a letter that was signed by 43 of the state's 44 elected district attorneys called on Senate Republicans to repeal the law, according to AP.

Defense attorneys who supported the law maintain that the statistics present a different perspective: In North Carolina, African-American jury pool members who weren't rejected for cause were rejected by prosecutors at about twice the rate as white potential jurors, with the disparity even greater in Cumberland and Wake counties, News & Observer reports.







Prosecutors support Racial Justice repeal

December 01, 2011 1:08 AM


Local prosecutors said Tuesday that they applaud the state Senate's vote earlier this week to repeal a controversial law that allowed death row inmates to appeal their sentences using statistical evidence to show racial bias in their cases.

The Republican-controlled N.C. Senate voted 27-17 on Monday night to repeal the 2009 landmark Racial Justice Act. Since the House passed the repeal legislation earlier this year, the measure is now on the desk of Gov. Bev Perdue, a Democrat who signed the bill into law two years ago. A Perdue spokesman said the governor will review the bill before making a decision.

The law was too broadly written and allows any death row inmate, regardless of race, to file a claim, said Ernie Lee, the district attorney for the Fourth Prosecutorial District which includes Onslow County.

All six death row inmates sent there from Lee's district have joined the 154 out of 157 statewide inmates awaiting execution in filing claims under the RJA.

Lee, a Democrat, said the RJA as it stands now would use statistics alone to overrule a death sentence without regard to the facts of the case, the defendant's actions in reference to the murder or the jury's decision and verdict. The statistics could come from anywhere in the state involving other unrelated murder cases.

"My position is that a death penalty case is an individual case and should be considered individually based upon the facts and circumstances of that case," Lee said. "That is what juries are required to do. A death case tried in Duplin, Jones, Onslow or Sampson counties should not be decided upon some generalized unreliable statewide statistics but should be case specific-based upon the facts and law of that particular case."

Lawmakers who support the Racial Justice Act also said the law simply provides another avenue of appeal among others currently available to convicted criminals.

"What is there to be afraid of? If they're frivolous claims, if they're meritless claims, they can be denied. That's what judges do in courtrooms every day," said Sen. Floyd McKissick, D-Durham.

Lee has tried eight capital murder cases, including the four defendants currently on death row from Onslow County.

"The one thing that I have noticed in all eight cases is that no matter the race, gender or socio-economic background of the victim's family, all the tears they shed over their lost loved ones are the same," he said. "Defendants are entitled to justice; and as a prosecutor, I have a sworn duty to ensure the defendants receive justice. I also believe that victims and their families are entitled to justice and the Racial Justice Act as amended will help provide that justice."

Lee, who attended the General Assembly RJA hearings, joins other prosecutors and members of the General Assembly in being vocal critics of the law.

Former Onslow County District Attorney Dewey Hudson said the RJA was nothing more than an uncleverly disguised attempt to abolish the death penalty that would jam the court system while attorneys rake in the dough for filing appeals for murderers whose guilt is not in doubt.

The law meant well, but got twisted along the way and needs to be changed, State Senate Majority Leader Harry Brown, R-Onslow, told The Daily News on Tuesday.

"I voted for the bill two years ago, but then it went to the House where it got completely changed," Brown said, adding the bill lost support in the Senate after that with several senators on both sides of the aisle speaking out against the House changes.

Brown said the bill began as a legitimate concern that blacks weren't being treated fairly in the court system, but became twisted to the point that white inmates have filed for an appeal under the law.

"Something had to be done," Brown said, referencing this week's repeal which will remove many of the broad strokes in the law and narrow its focus from state to local level statistics.

Lee points to the case of Marcus Douglas Jones as an example of where the RJA went awry.

Jones was sentenced to death twice for the murder of his wife and stepson a decade ago in Richlands. All those involved were white.

Della Futrell, the mother of Jones' wife, told The Daily News that the murders had nothing to do with race.

"He did what he did and he made his choice, and I think he should pay his penalty," she said.

Those sentiments were echoed at news conferences earlier this week where family members of murder victims spoke out in favor of the repeal, saying they wanted to see the sentences imposed by juries carried out.

"There's no racial discrimination here, or whatever you want to call it," said Robert Jackson, whose 11-year-old daughter was sexually assaulted and murdered 15 years ago in Caswell County by Archie Billings, who is currently on death row. Both Jackson and Billings are white.

Supporters of the current law argue that racial bias is not a thing of the past, but a factor that still plays a role in capital punishment cases, and that the RJA is a necessary tool to ensure fairness in how the death penalty is administered.

"If you think race didn't play a factor in my case, in my being arrested charged, and convicted, then you're not living here in North Carolina," said Darryl Hunt, who was exonerated in 2004 after serving 18 years in prison for the 1984 murder of Deborah Sykes. Hunt was cleared by DNA evidence, and another man subsequently pleaded guilty to the murder.

There is a sense of urgency among prosecutors to see the law repealed since the first RJA case is scheduled to be heard in January. Prosecutors have insisted that anywhere from two dozen to nearly 120 death-row inmates could be eligible for parole under the RJA, though it specifies that the only option available for an inmate who has had a death sentence commuted is life in prison without parole.







Wednesday, December 7,2011

Ministers of justice: Rewriting the Racial Justice Act

By Keith Barber

Darryl Hunt approached the podium inside the chambers of the Legislative Building of the NC General Assembly complex on Nov. 28. As Hunt read his prepared remarks, his hands shook visibly and his voice quavered.

"I spent 19 years of my life in prison for a crime I didn't commit and I was one vote away from the death penalty -- one," Hunt said, emotion rising in his voice. "I had 11 whites and one black on my jury and if you think that race did not play a factor in my case, in me being arrested, charged and convicted, then you're not living here in North Carolina."

Hunt spoke during a public hearing of the Senate Judiciary I Committee as the 12 Republicans and six Democrats on the committee considered Senate Bill 9, also known as the No Discriminatory Purpose in Death Penalty Act.

Supporters of Senate Bill 9 call it a rewriting of the Racial Justice Act. Passed by the NC General Assembly in 2009, the Racial Justice Act sought to ensure that "no person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race."

Rep. Larry Womble (D-Forsyth), one of the sponsors of the Racial Justice Act, also spoke during the public hearing. He said Senate Bill 9 amounts to a "gutting" of the Racial Justice Act.

Senate Bill 9 strikes a considerable amount of language from the Racial Justice Act, known for short as RJA, including a portion that grants a death-row inmate the ability to appeal their sentence if they can produce evidence to show race was a significant factor in decisions to seek or impose the death sentence in the county, the prosecutorial district or the state at the time their sentence was imposed. Under the Racial Justice Act, defendants appealing their death sentences have to show that race was a factor in their sentencing in one of three ways: Death sentences were sought or imposed more frequently against people of one race than people of another race; death sentences were sought or imposed significantly more frequently as punishment for capital offenses against people than people of another race; or race was a significant factor in prosecutors' decisions to remove qualified non-white jurors during the jury selection process. The Racial Justice Act states that defendants may use "statistical evidence or other evidence, including, but not limited to, sworn testimony of attorneys, prosecutors, law enforcement officers, jurors, or other members of the criminal justice system," to make their case for relief.

Senate Bill 9 also deletes all the language in the Racial Justice Act regarding hearing procedures for defendants seeking relief under the law. The RJA states that if the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, prosecutorial district, or state at the time the death sentence was sought or imposed, the court shall order that a death sentence not be sought and the defendant shall be re-sentenced to life imprisonment without the possibility of parole.

Rep. Paul Stam (R-Wake) opened the hearing by offering his interpretation of how Senate Bill 9 revises the Racial Justice Act.

"Justice properly conceived should be about what should happen to John Doe as a result of John Doe's action," Stam said. "The Racial Justice Act, which was passed two years ago, did something completely different. It said that what should happen to John Doe is not going to depend on what the prosecutors in John Doe's case tried to do or what the jurors in John Doe's case tried to do, or what the judge did or did not do. Instead, it's going to be determined what other prosecutors, other judges, other defendants, other victims did or did not do in that same county, prosecutorial district or state as a whole."

Stam characterized the Racial Justice Act as a "fishing expedition" and said the arguments of its proponents are "crazy." Stam also said the act amounts to a 6 to 8-year moratorium on the death penalty.

The Rev. William Barber II, president of the North Carolina NAACP, took exception to Stam's comments, stating that any attempt to repeal or amend the Racial Justice Act is nothing more than "an attempt at legislative racism and engaging in racebaiting politics."

Barber went on to say the efforts of district attorneys across the state to have the Racial Justice Act declared unconstitutional in court "are rooted in lies, distortion and political trickery."

One of the claims of North Carolina district attorneys arguing against the Racial Justice Act is that it could have unintended consequences, such as death-row inmates being released from prison. Susan Doyle heads the NC Conference of District Attorneys. During the Nov. 28 hearing, Doyle stated that 119 current death row inmates could be immediately eligible for parole if a death sentence is vacated under the Racial Justice Act.

"We fear that the Racial Justice Act as it currently stands would vacate some if not all of our death sentences imposed that have been by North Carolina juries and reviewed upon appeal," Doyle said. "Despite the fact that the creators of the Racial Justice Act inserted the language that the remedy for any defendant under this act would automatically get life without parole, that is actually not something the legislature can mandate. That is going to be left up to the courts, and we are fearful that based on the case law...these death row inmates will ultimately be potentially released."

Barber flatly rejected the notion that the Racial Justice Act could lead to the release of death row inmates during his remarks to the committee.

"We know the Racial Justice Act does not allow anyone guilty out of jail, and anyone who says that is telling a lie," Barber said. "We know that all the Racial Justice Act says is if you can prove that race was used in the application of the death penalty, then that is what is seen as wrong and should be dealt with. We know our application of the death penalty in this state, in this country is flawed by race and by class. The research and the evidence is clear."

A number of district attorneys spoke during the Nov. 28 hearing including Forsyth County Assistant District Attorney Mike Silver, who stated he is litigating two of the 13 pending Racial Justice Act claims filed against the Forsyth County DA's office. Silver, who is black, said discovery hearings in RJA proceedings could last until 2014, and defending past prosecutions is a time-consuming and expensive process for the state's district attorneys.

"The real issue with the Racial Justice Act that you haven't heard is how the state cannot comply with the statute," Silver said. "A defendant can walk into court and they can say, 'I'm not alleging racism in my case, I'm not alleging that the prosecutor was racist, I'm not alleging that the judge was racist, I'm not alleging any racism in my case, instead, I'm alleging a broad racism just abound somewhere in North Carolina.'" Forsyth County District Attorney Jim O'Neill was the first DA to challenge the Racial Justice Act on constitutional grounds. In February, Errol Duke Moses, a Forsyth County man on death row, filed an RJA claim. In response, O'Neill petitioned the court to dismiss Moses' claim. On Feb. 24, Superior Court Judge William Z. Wood denied the state's motion to dismiss Moses' appeal on the grounds that the Racial Justice Act is unconstitutional.

The Forsyth County DA's Office argued that the Racial Justice Act violated due process on grounds of "vagueness and over-breadth." O'Neill also argued that the Racial Justice Act violates

equal protection and the Eighth Amendment because it provides for "relief from a capital sentence on the basis of statewide statistics without regard to the individual facts and circumstances of the particular case," according to Judge Wood's ruling.

The Racial Justice Act appeals of two other Forsyth County men on death row, Timothy Hartford Jr. and Jeremy Murrell, offer insight into how defendants may use statistical evidence to bolster their claims that race was a factor in their receiving the death sentence.

Hartford, who was convicted on two counts of first-degree murder last year, cited a study regarding capital charging, sentencing and jury selection in North Carolina conducted by Michigan State University professors Catherine Grosso and Barbara O'Brien in 2009 and 2010. The Michigan State study reveals that for the past two decades, state prosecutors have successfully removedqualified black and racial minority potential jurors at more than twice the rate of white jurors. The Michigan State study also revealed that cases in the state that involved white victims were far more likely to result in death sentences than cases that involved no white victims.

In Prosecutorial District 21, which includes Forsyth County, prosecutors successfully removed qualified black jurors at a rate of 54.2 percent, and removed non-black jurors at an average rate of only 24.4 percent. Therefore, prosecutors were 2.2 times more likely to remove qualified black jurors than qualified non-black jurors.

The Rev. Carlton Eversley, a member of the Ministers Conference of Winston-Salem & Vicinity, said the Racial Justice Act creates an important safeguard in the criminal justice system because it forces prosecutors to consider how they select a jury.

"Otherwise, in [Forsyth County] that's about [25 percent] African American, you have this continuing stream of all-white juries, particularly in these interracial cases," Eversley said. "You would think legal officials would want to have a jury of peers, that they would want to have a situation where people weren't wondering after a conviction, 'Was it racially biased?' Sadly, that's not the case."

Imam Khalid Griggs of the Community Mosque of Winston- Salem pointed out that more than 280 people have been released from prison nationwide in the past decade when newly discovered evidence proved they were wrongfully convicted.

"It's disingenuous for district attorneys to talk about releasing convicted killers when these district attorneys have the opportunity to get fair sentences and to actually convict guilty people," Griggs said. "If as much attention was paid at the front of this process in terms of arrests and selective prosecutions, we wouldn't have a need for this act."

Willard Bass, associate pastor of Green Street Methodist Church and director of the Institute for Dismantling Racism, said the Racial Justice Act represents a good first step to address the state's history of racism.

"The act was actually the beginning of an ongoing process that not only helps the justice system but other institutions to begin to look at how they handle discrimination," Bass said. "Now, it's being turned back and it's a travesty."

Senate Bill 9 passed the NC Senate on Nov. 28 by a vote of 27-17. The vote fell along party lines with the Republican majority supporting the measure and the Democrats opposing it. On Nov. 29, Senate Bill 9 went to Gov. Beverly Perdue for her signature. Perdue has 30 days to veto the bill or sign it into law.

Hunt expressed hope that Gov. Perdue will use her veto stamp and the Democrats in the NC House will remain united and withstand any attempts by Republicans to override Perdue's veto. Hunt agreed that the Racial Justice Act is a good first step, but the state's criminal justice needs significant reform.

"There's been all kinds of laws on the books that keep people from being falsely accused, but the laws do not work," he said. "I spent 19 years in prison and my case got all the way to the US Supreme Court under those laws."

"We're still dealing with the same mentality -- we can have all the laws in the world but it's the mentality of the people who control the system," he continued. "We still have a majority of judges who are white and the majority of people locked up are African American. We still have a problem."

Photos : Ministers in support of the Racial Justice Act: (top to bottom) Imam Khalid Griggs, the Rev. Willard Bass, the Rev. William Barber II and the Rev. Carlton Eversley. (Photos by Keith T. Barber)







N.C. victims' relatives differ on death row bill

The Associated Press

December 12, 2011

By Gary D. Robertson


Family members of people who were slain are meeting with North Carolina Gov. Beverly Perdue in hopes of persuading her to make a decision on a bill that would essentially repeal a 2009 law designed to address alleged racial bias in death penalty cases.

Several victims' relatives who want Perdue to veto the bill met with the governor this morning. But other victims' relatives support the repeal, and planned to go to the old Capitol building in the afternoon.

The Legislature last month approved the legislation that does away with key provisions of the Racial Justice Act. The 2009 law allows death row inmates to use statistics in a new type of court hearing to argue racial bias played a role in their sentences.






Granny B

Let's hope they get their act together and repeal this travesty of a bill that denies justice to the murder victims. 

What about racial bias from the murderer who may have killed them for that reason?  Don't they deserve justice?
" Closure? Closure is a misused word in the English language.  There is no such thing as closure for the family of a murder victim.  There will never be any closure for the death of our loved ones until we are dead ourselves.  The families have a lifetime sentence of anguish and sadness." 
Susan Levy


Perdue veto saves death-row appeal law

RALEIGH -- An attempt by the state's district attorneys, backed by Republican lawmakers, to derail North Carolina's two-year-old law allowing statistical evidence of racial bias to overturn death sentences appears to have failed with the governor's veto of their bill Wednesday.

It was Gov. Bev Perdue's 15th veto this year, and one that will likely be raised by opponents during her campaign for re-election next year.

While eight of Perdue's vetoes have been overridden there appears to be little chance of that this time. House Republicans would have to lure five Democrats to muster the 72 votes necessary for the three-fifths margin.

Although five conservative Democrats broke ranks with their party on other issues this year, one of them, Rep. Bill Owens from Elizabeth City, said Wednesday he will not vote for an override. Another, Rep. Jim Crawford from Oxford, said he probably won't, and a third, Rep. Dewey Hill from Brunswick County, said he doesn't know.

"My sense of it right now is it probably will not be overridden," Crawford said. Senate Bill 9 cleared the House in June with all but three absent Republicans voting for it, and all of the Democrats opposing. Without those five votes, Republican leaders would have to look for an opportunity to spring an override vote on a day when not enough Democrats show up for a session, which House Speaker Thom Tillis has said is a possibility.

The Senate, where Republicans have enough override votes, gave final approval to the bill last month, sending it to the governor to act on by the end of this year. Opponents and supporters of the bill have orchestrated campaigns against SB9, and those efforts followed the bill to the governor's office.

In response to a public records request from The News & Observer, the governor's office on Wednesday released some of the correspondence the office has received on the issue since the beginning of November. Of the nearly 300 emails and eight letters provided, all but four urged Perdue to veto the bill.

A spokesman for the governor said additional correspondence The N&O requested is still being compiled, including contacts with individual staff members in the governor's office.

Political impact

Perdue's decision carries political ramifications as she is expected to have a fight on her hands in running for re-election next year, presumably from challenger Pat McCrory, Charlotte's former mayor. While not wanting to appear soft on crime, Perdue publicly embraced the Racial Justice Act in 2009.

In Wednesday's veto message, Perdue stressed her support for the death penalty, but said it was important to ensure prosecutions and sentences are not tainted by racial prejudice.

"I am vetoing Senate Bill 9 for the same reason that I signed the Racial Justice Act two years ago: It is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina."

Perdue also rejected the claim by prosecutors that dozens of inmates who successfully challenge their death sentences could be freed from prison. They cite a state Supreme Court ruling to support that position.

The other side, mostly death penalty opponents, cited other cases to argue why the only recourse would be to commute a death sentence to life in prison without parole.

The Racial Justice Act allows death-row inmates to attempt to convince judges that there was racial bias in their case. They can use statistics to help prove that, beginning with a Michigan study showing disparities among races in murder trials. Prosecutors can then argue against that evidence.

Nearly all of the state's death-row inmates have filed claims under the act, and prosecutors contend that will clog the court system with unnecessary arguments that have already gone through years of appeals. SB9 would erase the Racial Justice Act by repealing the section about using statistics and nullifying the hearing process. The bill cites a 1987 U.S. Supreme Court decision rejecting racial-bias claims based on statistics.

DA group disappointed

Susan Doyle, the chief prosecutor in Johnston County and president of the N.C. Conference of District Attorneys, said prosecutors are disappointed with the veto and believe that the Racial Justice Act isn't working the way it was supposed to. It has in effect placed a moratorium on the death penalty in North Carolina, she said.

Doyle's organization holds out hope for an override vote.

"We are hopeful the legislators recognize that this issue has nothing to do with race and everything to do with ending the death penalty in North Carolina," Doyle said in an email. "There is no justice in Gov. Perdue's decision for victims and their families."

Senate President Pro Tem Phil Berger, a Rockingham Republican, vowed his chamber would override the veto.

"As much as Gov. Perdue claims to support the death penalty, she knows the Racial Justice Act and her veto are back-door bans on capital punishment," he said in a statement. "This is the same double-speak ... from a politician focused more on pandering to the left wing of her party than governing responsibly."

Tillis' statement didn't address whether there would be an override vote. But he called the veto "another decision by Gov. Perdue to put politics ahead of principle."

Praise for the veto came from House Minority Leader Joe Hackney, an Orange County Democrat, the American Civil Liberties Union, N.C. Advocates for Justice, Murder Victims' Families for Reconciliation, and others.

Staff writer Lynn Bonner contributed to this report.


Perdue calls session to deal with Racial Justice Act

Published Wed, Dec 21, 2011 05:18 AM

RALEIGH -- Gov. Bev Perdue on Tuesday called the General Assembly back into session after the holidays to consider whether to override or let stand her veto of the bill gutting the Racial Justice Act.

Perdue issued a proclamation reconvening the legislature on Jan. 4 to take up Senate Bill 9, which she vetoed Dec. 14. The state Constitution requires that she reconvene the General Assembly to consider any vetoes that are issued while the body is out of session.

The Senate would have to take up the consideration first, since the bill originated in that chamber, and it intends to do so, according to Senate President Pro Tem Phil Berger's office. Republicans have enough votes there to override the veto.

But it is highly unlikely that the House has the necessary three-fifths majority to overcome the veto. House Speaker Thom Tillis said last week that he wasn't optimistic it would happen. A spokesman for Tillis said Tuesday that House leaders are polling members just to be sure.

Emotions over the issue are still running high. Late last week, one of the state's district attorneys resigned from the Governor's Crime Commission in protest of the veto.

Angry words from DA

In a blistering letter, District Attorney Richard Shaffer, the Democratic prosecutor for Cleveland and Lincoln counties, slammed Perdue for her veto
"You no longer have any moral authority to suggest that you strongly support the death penalty," Shaffer wrote. "Your action has shown that particular statement is untrue."

Perdue said in her veto message that she believes in capital punishment but wants to ensure it is administered fairly and free of racial bias. The state's district attorneys contend the Racial Justice Act was merely a backdoor way to suspend the death penalty in North Carolina.

Shaffer was one of 44 members of the crime commission, which influences criminal justice grant funding in the state. It includes the heads of statewide criminal justice and human services agencies, and representatives of law enforcement, the courts, the legislature and the public.

Research for defendants

Shaffer noted in his letter that, while his district has no pending claims under the Racial Justice Act, "the impact of the law as it currently stands is tremendous and devastating." Shaffer wrote that the state Administrative Office of the Courts is helping to pay for statistical experts to help defendants with their claims, while that money should be going to help pay salaries in prosecutors' offices across the state.

There has not been an inmate serving on death row from convictions in Cleveland or Lincoln counties since 2005, when William Powell was executed for killing store clerk Mary Gladden in a robbery. He was sentenced in 1993. Before that, only two inmates from crimes committed in Shaffer's district have been sentenced to death, and both successfully appealed their sentences.

SB9 would have halted the 2-year-old Racial Justice Act, which allows death-row inmates to use statistics to argue that their sentences should be converted to life without parole if they can convince a judge there was racial bias in their prosecution or sentencing.


Granny B

Veto!  CRAP!
" Closure? Closure is a misused word in the English language.  There is no such thing as closure for the family of a murder victim.  There will never be any closure for the death of our loved ones until we are dead ourselves.  The families have a lifetime sentence of anguish and sadness." 
Susan Levy


Fears about North Carolina's Racial Justice Act debated

Published Sat, Dec 24, 2011 02:00 AM
Modified Sat, Dec 24, 2011 04:52 AM


Of all the arguments against the Racial Justice Act, the most alarming one is the claim that dozens of death-row inmates could be paroled.

Supporters of the two-year-old law, which allows prisoners to use statistics to prove prosecutors or jurors were racially biased, cite at least nine decisions, some reaching all the way to the U.S. Supreme Court, as proof that won't happen.

The other side, which includes most of the state's district attorneys and Republicans in the General Assembly, has its own legal arsenal, primarily one key North Carolina ruling, a couple of additional cases and an analysis by a legislative attorney.

Debate over the issue will intensify as the first claims under the Racial Justice Act continue through the courts. Ultimately, judges ranging from North Carolina's' superior courts to state and possibly federal appeals courts will have to untangle competing judicial rulings.

But the weight of case law and common sense suggests the chances are slim that a convicted killer facing the death penalty could end up becoming eligible for release and freed by the state parole commission. Even those who are afraid it might happen acknowledge it is only a possibility - just one they're not willing to accept.

"The issue is real," said Forsyth County Assistant District Attorney Mike Silver, who is handling Racial Justice claims in that county. "... Assuming just one defendant does win under their interpretation of the statute, you can apply that to every other case. There are approximately 119 inmates who could make the same argument."
No way, say supporters of the Racial Justice Act, legal scholars and at least two former state supreme court chief justices.

"The chances are zero," said Robert Mosteller, an associate dean at UNC-Chapel Hill, who litigated one of the precedent-setting cases cited by supporters of the act. "The argument is frivolous. It is completely political."
Former state Supreme Court Chief Justice Burley Mitchell calls the possibility remote. Another former chief justice, I. Beverly Lake, thinks the Racial Justice Act is a "farce" aimed at eliminating the death penalty but says it is probably unlikely a judge would ignore extensive case law and issue a ruling resulting in parole for someone on death row.

Still, the state's district attorneys and Republicans in the General Assembly have stuck by the claim, hoping in part to salvage Senate Bill 9, which would gut the Racial Justice Act. Cleveland County District Attorney Richard Shaffer, who resigned last week from a state advisory commission in protest of Gov. Bev Perdue's veto of the bill, called it a "real and substantial concern."

The argument will be repeated on Jan. 4, when the legislature convenes to consider a veto override. Republican leaders point to an analysis by the General Assembly's nonpartisan legal staff to support their claim that convicted killers could be freed. Senate President Pro Tem Phil Berger, whose son is the Rockingham County district attorney, cited it on the Senate floor last month.

But that staff analysis doesn't conclude the prisoners would be paroled. Staff attorney Howard Pell wrote that, while a "strong argument" could be made for parole, the appellate courts will ultimately have to sort out the conflicting rulings.

A test looms

North Carolina's prosecutors have a more pressing concern. They had hoped SB9 would be in place before the first test Racial Justice Act case got too far along in Cumberland County, concerned that the judge hearing the case would rule against prosecutors and find there was statistical evidence of bias.

That urgency was expressed in an email Peg Dorer, executive director of the N.C. Conference of District Attorneys, sent to Berger's office in late October as a hearing in the case loomed. "The district attorneys are becoming increasingly concerned that there will be a judicial finding of statistics exhibiting racial bias in the use of the death penalty statewide," Dorer wrote.

The Senate approved SB9 in November, and the governor vetoed it on Dec. 14.
Under the Racial Justice Act, if an inmate can convince a judge that there was racial bias in a prosecutor's decision to seek the death penalty or in selecting jurors, then the inmate's death sentence can be converted to life in prison without parole.

Prosecutors' concern is that inmates convicted of first-degree murder before North Carolina had life without parole, prior to 1994, could successfully argue that punishment was unconstitutional because it wasn't in effect when the crime was committed. To support their argument, prosecutors cite a state Supreme Court ruling in 1997, State v. Conner, that found it would be a violation of the "ex post facto" clause of the state and U.S. Constitutions, which prohibits unfairly applying a law retroactively.

By the logic of that ruling, such inmates would have to be eligible for parole after 20 years. (Parole eligibility was extended to 25 years between 1994 and 1998, after which time all possibility of parole was eliminated in state law.)

Ex post facto factor

Adding to the uncertainty is the fact that the Racial Justice Act is a departure from the way re-sentencings are done in other criminal cases. If a problem is found to have occurred in a defendant's sentence, a new sentencing hearing can be ordered.

There is no provision to skip that hearing and simply impose a different sentence. That also seems to open the door for an ex post facto argument.

But supporters say a successful claim under the Racial Justice Act doesn't run afoul of the ex post facto prohibition because it provides a less severe sentence: life without parole instead of death. Much of the case law they cite establishes that any sentence other than death is, by definition, a lesser punishment.

They also note that the wording in the Racial Justice Act is clear that the only result of a successful claim is life without parole. Prosecutors say that doesn't provide any protection because a judge could still strike it down.
Supporters of the act insist prisoners give up their right to argue for parole once they pursue a claim under it. N.C. Prisoner Legal Services, for instance, pledges it will not represent any inmate seeking to set aside a life without parole sentence obtained under the act, because it would be frivolous.

"If a person comes in and says 'I don't want death because there has been racial discrimination,' he has to take what the law provides, which is life without parole," Mitchell said. "His only option is, if he thinks death is not as bad as life, he doesn't have to appeal."

The General Assembly's legal research staff memo says defense attorneys representing death-row petitioners might be required to challenge the constitutionality of the law in order to effectively represent their clients.
But Gretchen Engel, a lawyer with the Center for Death Penalty Litigation, says none of the 154 inmates who have petitioned under the act have raised that issue.

Silver, the prosecutor in Forsyth County, where 13 claims have been filed under the new law, contends defendants can't waive that constitutional right. And no one can - nor should - promise that an inmate won't some day tell their attorney to pursue that angle, he said.

Silver contends the 1997 Conner case and others that have upheld that decision will most likely carry more weight than the other side's cases because Conner specifically addresses these issues and is a North Carolina ruling that has been upheld.

"Conner is the case, in my opinion," said Silver, who has been practicing law for four years. "They might cite a bunch of cases, but I haven't seen a case that contradicts our opinion, at least in terms of North Carolina law. Yes, there are cases in other jurisdictions that hold differently. This is not a federal aspect where every state is going to have the same opinion."


N.C. House appears short on override of Racial Justice Act

Published Wed, Jan 04, 2012 02:00 AM
Modified Wed, Jan 04, 2012 06:18 AM


RALEIGH -- If everyone is doing the math correctly, today's brief session of the General Assembly should deliver the final blows to the bill that would have undermined the state's Racial Justice Act.

Dusting off debates that already have been argued over the past several months, the state Senate is expected to vote to override Gov. Bev Perdue's Dec. 14 veto of Senate Bill 9 without much difficulty. That passes the override question to the House, where Republicans appear to remain a few votes short of the three-fifths majority necessary.

Both sides spent Tuesday counting which members will show up and whether any of them intend to change their minds on what has been a strictly partisan vote.

"We believe we can sustain the governor's veto," Rep. Deborah Ross of Raleigh reported Tuesday afternoon after talking with her fellow minority whips in the House, who are responsible for lining up important votes, and with members she was assigned to call.

Even though the numbers aren't breaking their way, House Republicans plan to make a last stand against the 2-year-old Racial Justice Act, which allows death-row inmates to use the results of statistical studies to try to prove racial bias in their individual cases. There are political ramifications that will play out this year.

The state's district attorneys handed Republicans ammunition to use against Perdue's re-election campaign this year when they claimed convicted killers who successfully challenge their death sentences under the act could be eligible for parole. All of the legal scholars in the state who have weighed in on the issue say that will never happen, and they have the vast majority of case law on their side.

So, there will be a vote in the House today, said House Majority Leader Paul "Skip" Stam of Apex. But he wasn't willing to speculate publicly about the outcome, beyond offering the obvious: "I'm sure we're trying to win and they're trying to defeat it."

One sign that Republicans would fight to the end came earlier this week with the quick replacement for Rep. David Guice, a Republican representing Transylvania, Polk and Henderson counties. Guice resigned, effective Sunday, to take a job with the new state Department of Public Safety.

On Monday, a Republican executive committee selected his replacement: former state Rep. Trudi Walend, who served from 2000 through 2008. Walend told the Times-News in Hendersonville she planned to be in Raleigh for today's vote, which she called "crucial."

There have been two other Republican departures since the House voted to approve SB9 in June, but both have been replaced already: Rep. Johnathan Rhyne of Lincolnton was replaced by Jason Saine, and Rep. Jeff Barnhart was replaced by Larry Pittman in Cabarrus County.

Here's how the numbers work: A three-fifths majority of those present and voting is necessary to override a veto.

If all 120 members were present, which they won't be, House Republicans would need 72 votes. There are only 68 Republicans. Most of the five conservative Democrats who broke ranks with their party to override the governor's budget veto this summer have reportedly said they will sustain this veto.

Ross said two of them told her they would sustain the veto, and she heard a third would also. She wouldn't identify them.

Both sides will have at least one absence today. Rep. Ric Killian, a Republican from Mecklenburg County, is serving in the military in Afghanistan, and Rep. Larry Womble, a Democrat from Forsyth County and one of the original sponsors of the Racial Justice Act, remains hospitalized with injuries he suffered in a car crash in December.

Ross said she didn't think absences would change the outcome, but it remains to be seen if there are any unexpected no-shows on either side.

Lawmakers have reconvened four times since adjourning the long session in June. Each time they returned Republicans wielded the threat of overrides on four other bills Perdue has vetoed. But this time they are only reconvening for this specific override, in response to a proclamation from the governor, which state law required her to issue because legislators weren't in session when she vetoed the bill.

While it's conceivable legislators could take up other issues today, legislative procedure would make it unwieldy and unlikely.

Grinning Grim Reaper

N.Carolina senate votes to override veto of gutted death row law

North Carolina state senators voted on Wednesday to override the governor's veto of a measure that would repeal a law allowing death row inmates to challenge their sentences on the basis of racial discrimination.

The Senate's 31-19 vote shifted the political debate about racial disparity in the legal system to the House of Representatives, which was due to consider an override later on Wednesday.

The state's Racial Justice Act, which Governor Beverly Perdue signed into law in 2009, allows prisoners on death row to use statistical evidence to challenge their death sentences by showing that racial bias affected their sentencing.

The 2-year-old law provides that inmates sentenced to die are entitled to have their sentences changed to life in prison without parole if a judge determines that racial discrimination played a significant role in their sentencing.

Democrats controlled the North Carolina legislature when the law passed in 2009, but Republicans now hold a majority in both chambers. With the support of the state's district attorneys, Republican lawmakers in November passed legislation effectively gutting the law.

That drew a veto in December from the Democratic governor, who said the legislation amounted to an outright repeal. Perdue said it was unacceptable for prejudice to play a significant role in the application of the death penalty.

Lawmakers returned on Wednesday for a special session to debate overturning the veto.

To override a veto, the state Senate and House each must muster a 3/5 majority of members present. Republicans hold a veto-proof majority in the Senate but need the votes of some Democrats in the House to override a veto.

Republican leaders argued the original Racial Justice Act was too broad and would simply clog the courts and delay justice.

"Just about everyone on death row filed a motion that their case was infected with some racial prejudice," Senate President Pro Tempore Phil Berger, a Republican said, arguing the original law was too vague.

Supporters of the original law urged lawmakers to sustain Perdue's veto.

"My friends, we all know we are not a color-blind society," Democratic Senator Floyd B. McKissick Jr said. "We all know that racial considerations still impact the minds and hearts of many people in this state."

(source: Reuters)

Vengence is mine saith the Lord...who are we to question the instruments used to carry it out?


If you ever wanted to read the actual Act itself, it is here (Its not too bad; only 3 pages):


January 25, 2012, 08:56:28 PM Last Edit: January 25, 2012, 08:58:29 PM by JeffB
NC courts must remain blind to race

By Jeff Hunt
Published: Wednesday, January 25, 2012 at 4:30 a.m.

As elected district attorney since 1995, and as past president of the North Carolina Conference of District Attorneys, I offer the following truths into what has often been a debate full of half-truths and untruths on the part of supporters of North Carolina's 2009 Racial Justice Act (RJA).

North Carolina's RJA directly opposes the centuries-old concept that justice should be blind. North Carolina's death penalty laws consider only the facts of each case, while North Carolina's 2009 RJA considers race only and specifically prohibits examining the facts.

The RJA makes us the only state to require the courts to accept statistical racial percentages to decide who gets the death penalty rather than a life sentence. This directly violates constitutional law laid out by the U.S. Supreme Court since the 1987 case McCleskey v. Kemp. The RJA was enacted in 2009 without any Republican votes because it belies its cynical title, "The Racial Justice Act."

Many believe that instead of racial Justice, this statute is designed to discontinue the death penalty (defacto) across the state without expressly articulating this goal.

Some evidence to support this can be found in the fact that virtually all white convicted murderers on North Carolina's death row have filed RJA petitions based on these statistical racial percentages.

Senate Bill 9 amends North Carolina's RJA to bring us back into agreement with the other 49 states and the U.S. Supreme Court. The RJA wrongfully assumes: North Carolina grand jurors, North Carolina judges, North Carolina district attorneys and assistant district attorneys, North Carolina trial juries, North Carolina law officers and apparently North Carolina citizens in general are racially biased. Gov. Perdue's veto of Senate Bill 9 is in direct opposition to her constituents' solid support of the death penalty in appropriate cases regardless of race.

Senate Bill 9 would require defendants now raising the issue of race in their respective capital cases to examine the facts of their particular cases rather than general statistical racial percentages of the type required under the RJA and disallowed by the U.S. Supreme Court since 1987.

In North Carolina, any perceived statistical variances are due by law to the aggravating factors in each individual murder case (such as heinous, atrocious or cruel). Indeed, when North Carolina's death penalty murder cases are compared according to the statutory aggravating factors of each individual case, any perceived differences in racial percentages between blacks and whites disappear.

Finally, if the current RJA continues to be North Carolina law in death penalty cases in which it is invoked, there appears to be nothing that would prohibit defendants in non-capital criminal cases from attempting to prove "racial bias" in their respective cases with the same type of statistical racial percentages embraced by North Carolina's RJA and rejected by the U.S. Supreme Court since 1987 (McCleskey v. Kemp).

I urgently ask every member of the General Assembly, regardless of race or political party, to return the blindfold to North Carolina's statue of Lady Justice by voting to override the governor's veto of Senate Bill 9. Raw statistical racial percentages (some might say racial quotas) do not belong in our criminal court system, whether regarding death penalty analysis or any other criminal cases. Let's stay with the facts of each case and remain blind as to race.

Editor's note:
On Jan. 4, the state Senate voted to override Gov. Beverly Perdue's veto of the bill that would repeal the Racial Justice Act. The House is expected to take an override vote in February.

Hunt is the district attorney for Prosecutorial District 29B and is a candidate for the 11th Congressional District

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