By L.A. Williams, Correspondent
Christian Action League
RALEIGH — Is the Racial Justice Act that was approved by the N.C. General Assembly in 2009 necessary to ensure defendants in capital cases get fair trials? Or is it just the latest legal ploy used by death row inmates to delay their punishment and further clog an already overburdened system?
That was the issue Wednesday when the House Judiciary B Subcommittee heard testimony regarding S 9 and H 615, similar bills that would weaken the RJA and require a defendant to prove that a discriminatory purpose guided the state’s pursuit of the death penalty or led to one or more jurors’ votes in the case. Under the current law, defendants are only required to show that race was a “significant factor.”
“The Racial Justice Act, in its current form, emphasizes the use of insufficient statistical data while de-emphasizing the actions of the defendant,” Seth Edwards, district attorney for the 2nd Prosecutorial District and president of the N.C. Conference of District Attorneys, told the committee. He assured them that there were adequate safeguards in place regarding racial bias prior to the enactment of RJA, and that those would still be in place if H 615 or S 9 were passed.
To illustrate how the Racial Justice Act is being misused and can allow convicted murderers unwarranted appeals, Edwards and other district attorneys outlined case after case in which white defendants having killed white victims and, in many cases, been convicted by white juries, have now filed appeals using RJA. Jim O’Neill, Forsyth County D.A., said more than half of the 13 defendants in his county that have done so are whites who killed whites. He gave line-by-line cost estimates of two appeals in Forsyth County totaling more than a half-million dollars. The defendants in those crimes, each of which has appealed his case unsuccessfully at least five times, were yet again able to demand an appeal under RJA.
Speaking of one of the defendants and showing his list of appeals on a large chart, O’Neill said, “At every stage, if he believed that he received the death penalty because of his race, he could have alleged that at any stage. … It is already set up in the law that if you believe race was a factor that got you the death penalty, you can allege it.”
He said even arsenic killer Blanche Taylor Moore, one of the most well-known individuals on death row, has filed an RJA appeal.
But defense attorneys, capital punishment foes and legislators who led the push for the Racial Justice Act two years ago begged lawmakers not to repeal it.
“Unfortunately in this society we have not reached the point that we are colorblind. I hope and pray that we will reach that one day … but we are not there yet. And until we get there we don’t need to be considering repealing the Racial Justice Act,” Sen. Floyd McKissick (D-Durham) told fellow lawmakers.
Attorney Jay Ferguson from Durham said he has seen race permeate decisions made in trials and that to repeal the RJA would lead the state to having primarily all white juries in capital cases. Similarly, Charlotte attorney Henderson Hill said the RJA has “little to do with whether or not bad crimes get the adequate punishment” and everything to do with “whether we all participate in the process.”
He said statistics show it is over two times more likely for African Americans to be excluded from juries with all other factors being the same, and that the Racial Justice Act had simply “provided some ability for science to be looked at in the courthouse.”
But District Attorney Jeff Hunt from Prosecutorial District 29B, warned that the current Racial Justice Act goes way beyond providing scientific data.
“… In order to find racial bias, it substitutes racial statistics, racial percentages of the population, in place of an examination of what the actual facts of each case were,” he said, adding that North Carolina’s Racial Justice Act, which is different from those in other parts of the country, “expressly tells you that you can’t consider statutory factors, and that means you can’t consider the brutal facts of each of the cases that you’ve heard. ”
“You have to, instead, substitute in your mind racial statistics. And that just is not the way you should deal with criminal law,” Hunt said.
Although McKissick, Rep. Larry Womble (D-Forsyth) and others insisted that the Racial Justice Act should be defended because it is not a “get out of jail free” bill in that even successful appeals would still leave defendants in prison for life without parole, some analysis of the RJA shows that the Act’s effects are not completely clear in this regard.
District attorneys pointed out two years ago, before the RJA was approved, that it presented a problem in that roughly half of the state’s death row inmates were convicted prior to Oct. 1, 1994, when the punishment of “life without parole” was not part of state law and those sentenced to life imprisonment were eligible for parole after 20 years. If those death row inmates are resentenced to life without parole under the RJA, it could be a violation of the constitutional protection against “ex post facto,” or increasing the penalty of a crime after it was committed. So, in those cases, an opportunity for parole could be part of the mix.
“This is just one of many problems with the Racial Justice Act and another reason that we hope the Legislature can move ahead with recommended changes,” said the Rev. Mark Creech, executive director of the Christian Action League. “The RJA has not made our courts more just. On the contrary, it is one of the latest vehicles used by convicted murderers to make the wheels of justice grind to a halt. In my estimation, the Racial Justice Act seems to have been more about ending the death penalty than it was about racial discrimination in our justice system.”
No action was taken on H 615 or S 9 on Wednesday, but Majority Leader Paul Stam (Wake) said the Judiciary B subcommittee will take up the issue again soon for a vote.