N.C. death-row appeals law may be killed

RALEIGH, N.C. -- All but three of North Carolina’s 157 death row inmates are waiting for their day in court to argue that racial bias played a role in their case. But the law that gives them hope is on shaky ground.

State lawmakers are scheduled to congregate in Raleigh tonight for the start of a three-day session that could result in the gutting of the historic Racial Justice Act.

Prosecutors made a push several weeks ago for a major tweaking of the two-year-old law before any inmate awaiting execution has an opportunity to be heard in court.

Public defenders responded with pleas of their own: Give the law a chance, they said. Let one case go all the way through the court system before giving up on a process being watched by legal scholars across the country.

The public back-and-forth between prosecutors and defense attorneys has resulted in a flurry of letters to influential legislators and accusations that some district attorneys are using misleading fear-mongering tactics to make their case.

A Senate judiciary committee is set to take up the topic in the Legislative Office Building on Monday afternoon. That could lead to a full vote in the Senate this week. The House has already voted to pull the teeth from the law.

For years, death row inmates and other prisoners have been able to challenge their sentences on grounds that racial bias played a role in their cases.

But it was not until North Carolina lawmakers adopted the Racial Justice Act in 2009 that judges in this state have been able to weigh statistics while hearing such complaints.

The death row inmates have included findings in their complaints from Michigan State University law school researchers that show that defendants who killed a white person in North Carolina were 2 1/2 times more likely to be sentenced to death than those whose victims were black. The findings also show that juries were disproportionately white.

Prosecutors complain that using statistics without the facts of each case can skew the picture.

But defense attorneys who fought for the law say the statistics tell an alarming story: In North Carolina, African-American jury pool members who were not rejected for cause – such as opposition to the death penalty – were rejected by prosecutors at about two times the rate as similarly situated whites.

District attorneys held a news conference several weeks ago to complain, in part, that the way the Racial Justice Act is written, inmates could use statistics from other counties and judicial districts to challenge their sentences.

Senate Minority Leader Martin Nesbitt, an Asheville lawyer, said recently that one idea being circulated through the Senate that has some appeal among supporters of the law is a tweak that would confine the statistics that judges could consider to the judicial district where the inmate was tried.

But House Republicans are pushing for an overhaul.

The law, one of only two of its kind in this country, passed narrowly along party lines, and over major opposition from prosecutors across the state.

Critics of the law argue it is a thinly veiled attempt to do away with the death penalty in North Carolina. Though people are still being sentenced to death in this state, no execution has been carried about since 2007, when a series of lawsuits sparked a de facto moratorium.

This summer, the House revamped the original bill, striking through provisions allowing for the use of statistics and approving language that requires the inmate to prove racial bias. It requires the courts to find that prosecutors acted “with discriminatory purpose” in seeking the death penalty or selecting the jury if an inmate is going to be successful with a racial-bias challenge. It also requires the courts to find that jurors acted “with discriminatory purpose” while determining guilt or innocence in a case.

Sen. Phil Berger, a Republican from Rockingham County, a lawyer and president pro tempore of the Senate, said earlier this week that it very likely could come up for a vote during this three-day session.

Supporters of the law say a repeal could result in many lawsuits and lots of time in the courts spent arguing whether inmates who have filed for review of their cases could continue with their challenges.

They also say any repeal would spark future attempts in the legislature to reinstate the law.

“I will not stand by as a member of the Bar and a minority leader and not allow this issue to be taken up by the court system,” Nesbitt said. “I really hope all these cases are dismissed, and we find that racial bias did not occur. … Nobody’s trying to let any of these folks out of prison. We want to know, so we can sleep at night, that no one was put to death in North Carolina because of racial bias.”