Racial Bias in Death Penalty Cases: A North Carolina Test

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A judge gives life to an extraordinary new law designed to remedy the state's long history of prejudice in capital trials.

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The execution chamber at Central prison in Raleigh, N.C / AP

If we still want to have a sound and sober national conversation about race and justice, if we still are eager to use a single case as a totem for what we perceive to be wrong or unjust about the criminal justice system, perhaps we all would be better served by paying attention to what's happening in North Carolina to a man named Marcus Robinson than we are by paying attention to what's happening in Florida to a man named George Zimmerman.

State "Stand Your Ground" self-defense laws, like the one about to save Zimmerman, may be today's fashionable example of a way in which the law is manipulated to achieve a particular result (by design, these ALEC-infused "affirmative defenses" allow more people to kill more people without being punished for it). But compared with the country's long history of racial bias in jury selection, compared with all the death penalty cases that have been rigged in this fashion over the years, the new "justifiable homicide" laws have only begun to do their work.

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Marcus Robinson / North Carolina Department of Correction

On Friday morning, at his bail hearing, Zimmerman solemnly apologized, live on national television, to the family of Trayvon Martin, the unarmed young man he shot to death on February 26 in Sanford, Florida. Around the same time, 700 or so miles up the road, a state court judge in Fayetteville, North Carolina, was publishing an apology of sorts of his own: a 168-page order, an instant must-read for anyone who cares about crime and punishment, that vacated Robinson's death sentence and re-sentenced the convicted murder to life in prison.

Actually, Cumberland County Senior Resident Presiding Judge Gregory A. Weeks' order was more of an indictment than an apology. In meticulous detail, he explained why Robinson, who is black, deserved relief under the state's Racial Justice Act, a laudable legislative effort designed to vindicate the rights of capital defendants whose trials are marked by racial bias. Weeks was convinced by the evidence that prosecutors had used peremptory challenges at Robinson's 1994 murder trial to systematically remove blacks from his jury pool.

An apology. An indictment. And also a warning. Judge Weeks wrote: "In the first case to advance to an evidentiary hearing under the RJA, Robinson introduced a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina. The evidence, largely unrebutted by the State, requires relief in his case and should serve as a clear signal of the need for reform in capital jury selection proceedings in the future."

THE HISTORY

A peremptory challenge occurs before a criminal trial when the prosecutor or defense attorney unilaterally dismisses a potential juror from the pool without having to provide any factual or legal justification for doing so. Rule 24 of the Federal Rules of Criminal Procedure, for example, states that each side in federal capital case gets 20 peremptory challenges. It's a lower number for non-capital cases. In North Carolina today, as well as when Robinson was tried, each side gets 14 peremptory challenges in a capital case.

For nearly a century of American history, there was no significant racial component to peremptory challenges because there were virtually no black or other minority jurors. Scholars believe that blacks began serving on juries only in 1860. By the end of the bloodiest decade in American history, a Reconstructionist Congress in 1869 gave blacks the right -- in the District of Columbia anyway -- to hold public office and serve on juries. (For an excellent look at this issue read this Yale Law Journal article by James Forman, Jr.)

What some prosecutors decided to do, almost as soon as blacks began to serve on juries, was to disqualify them from specific cases by using peremptory challenges. Black jurors were peremptorily precluded from sitting in judgment on black defendants and black jurors were peremptorily precluded from sitting in judgment on white defendants, especially those charged with killing or injuring black victims. More or less, and in some venues more often than others, it was this way in America for decade upon decade.

Let's now jump ahead to Batson v. Kentucky, a 1986 United States Supreme Court decision which made it easier -- but still not easy -- for black defendants to successfully challenge their convictions based upon race-based peremptory challenges. Convicted defendants still had to produce evidence of bad intent on the part of prosecutors in a case-specific context. Justice Thurgood Marshall, in a concurrence, wrote that "the inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the court to ban them entirely..." But the Batson Court ruled:

The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race.

Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. The prosecutor may not rebut a prima facie showing by stating that he challenged the jurors on the assumption that they would be partial to the defendant because of their shared race or by affirming his good faith in individual selections.

Nearly 20 years later, the Supreme Court upheld the essence of Batson in a contentious case out of Texas styled Miller-El v. Dretke. You can't understand the significance of Judge Weeks' ruling without reading Miller-El. The 6-3 majority opinion is a testament to the scurrilousness of prosecutors and to the lumbering judicial response to systemic racial bias. Even in 2005, Miller-El reminds us, the United States Supreme Court was publicly arguing with a lower federal court about whether a rigged capital trial warranted meaningful judicial relief.

NORTH CAROLINA AND THE LAW

In North Carolina, meanwhile, in 2009, state lawmakers passed the Racial Justice Act. The text of the law allows convicted murderers to challenge their death sentences -- but not their underlying convictions -- by proving patterns of racial "discrimination by county, district, division or state." For example, if race was a "significant factor in decisions to exercise peremptory challenges during jury selection," a convicted defendant has a right under the new law to come to court to present his case. Moreover, he has a right to present "statistical" evidence of such bias.

Because it eliminated the need for defendants to prove "discriminatory intent" in their case, the state law gave capital defendants more constitutional protections than the Supreme Court had identified as constitutional baselines in Batson and Miller-El. So did prosecutors champion this notable development in the ugly history of North Carolina's racial history? Did they earnestly acknowledge the need to fix discriminatory results? Nope. They were instead furious about the statute's acceptance of broader statistical evidence to show discrimination.

Here's a memorable passage from the (Durham) Independent Weekly from June 2009:

Speaking on behalf of the {NC] Conference [of District Attorneys], Wake County District Attorney Colon Willoughby appeared before the Ways and Means Committee and compared disproportionate sentencing based on race to similar sentencing based on "blood type" or "astrological signs."

Willoughby called the use of statistics, which the bill would allow, a "disingenuous and scientifically unsound method to insert some sort of causal relationship without proof."

A 2001 study conducted by two University of North Carolina professors, who analyzed cases over four years in the 1990s, found the odds of receiving a death sentence in North Carolina increased 3.5 times in cases in which the victim was white. In addition, the study found, black defendants were twice as likely to receive death sentences in instances of identical crimes.

Nearly half of the defendants North Carolina has sentenced to death since 1977 are black, although the state has had an African-American population of roughly 22 percent over the past three decades. This figure, collected by the N.C. Department of Correction, does not include defendants sentenced to death and later exonerated for wrongful convictions--the last three of whom were all African-American.

Seth Kotch and Robert P. Mosteller, in a smart 2010 law review piece about the Racial Justice Act and North Carolina's "long struggle" with race and the death penalty, offer a little more context:

From colonial times into the 1960s, the overwhelming majority of those executed were African American, and although most victims and perpetrators of crime are of the same race, the overwhelming majority of victims in cases where executions took place were white. Hundreds of African Americans have been executed for a variety of crimes against white victims, including scores of African American men executed for rape. However, just four whites have been executed for crimes against African American victims, all murders.

Not only does data indicate disproportionate racial impact, but events show that race frequently influenced capital prosecutions. In many cases in the first half of the twentieth century, juries sentenced African Americans to death in the shadow of lynch mobs. Newspaper reports of executions of African Americans included overtly racist images.

In some instances, fairness and mercy eased the pernicious effects of prejudice. However, history shows that whether dooming African Americans or saving them from death, racial prejudice played a powerful role in the death penalty in North Carolina, enduring across the state's history despite enormous social and legal change.

This is why Judge Weeks' decision is one of the most notable of the year.

CAROLINA V. ROBINSON

Even the procedural story of this case helps illustrate the reluctance of prosecutors to do right by the system. In August 2010, Robinson timely filed his request for the evidentiary hearing contemplated by the law. Judge Weeks set an evidentiary hearing for September 2011, 11 months after Robinson's initial filing. The state asked for a continuance -- and the judge granted it to November 2011. Then the state sought to have the judge recused- the attempt failed when another judge denied the request. Then the state asked again for a continuance -- and was given one. It was only when the state asked a third time that Judge Weeks said no.

Prosecutors first argued that the state law required a defendant to show that prosecutors had intentionally discriminated against a defendant -- a standard the United States Supreme Court had employed in 1987 in a case styled McCleskey v. Kemp. In that case, the Court ruled 5-4 that a convicted black defendant, despite offering up statistics of racial disparity in Georgia, had not established that the state's capital sentencing scheme violated equal protection guarantees in the Constitution.

Judge Weeks rejected this argument. State lawmakers were aware of McCleskey, he wrote, and if they wanted to require defendants to prove intentional discrimination they would have and could have written that into the Justice Act. Then he rejected the argument that defendants under the Justice Act needed to prove that they had been prejudiced by the racial bias which had been a part of the peremptory challenges. "Both defendants and society are injured by the use of peremptory strikes in a racially-biased manner," he wrote.

Then, for a fulsome 65 pages, Judge Weeks turned to the statistical bases for his conclusion. What he found from the evidence (which alone, remember, would be insufficient under Batson) was a remarkable consistency in the percentage difference between black jurors and white jurors peremptorily struck from jury pools. The ratio was almost always 2:1 -- twice as many blacks were kicked off than whites. This was no accident, Judge Weeks concluded, citing another 50 pages or so of "non-statistical" evidence to hammer home his point.

The judge ruled that Robinson had met his burden of establishing race as a "significant factor" in the jury selection of his case. Judge Weeks then also found that Robinson's trial had been marked by intentional discrimination anyway, beyond the more general statistical support. The judge noted that state prosecutors as recently as last year had been instructed on jury selection-- not to be more sensitive to inherent racial biases but to hide or justify them. That's also what the justices had found was happening with prosecutors in Texas in Miller-El.

POSTSCRIPT

It is still too early to safely predict whether Judge Weeks' ruling will withstand its inevitable appeal. Unless the state appellate courts want to read into the statute language that is not there, or want to proclaim that the trial judge evaluated the evidence incorrectly, it's hard to see how the Act wouldn't apply to Robinson. In the meantime, there has been no legislative stampede in other death penalty jurisdictions to so directly and honestly confront obvious patterns of racial bias in capital cases.

North Carolina is out in front on this, in a very significant way, but it will likely be many years before we learn whether its approach to racial justice was an early sign of things to come or just another failed effort at bringing equal protection and equal justice to black defendants, victims and potential jurors. That we still have to wait that long -- 150 years after the Civil War -- is itself a testament to how far so many prosecutors and judges have strayed from their mission of justice.


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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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