Future, past of NC death penalty in focus at state Supreme Court

Death row inmates ask justices for life in prison after racial bias infected their trials

Six North Carolina death row inmates are fighting to to spend the rest of their lives in prison without any possibility of parole and to escape an early death at the hands of an execution team.

Four of them were previously freed from death row after they showed that racial bias played a significant factor in the original imposition of the death penalty in their cases. That reprieve, however, only lasted about three years before Republican lawmakers put them “back in the queue” for execution by retroactively repealing the law that had made their claims possible – the Racial Justice Act (RJA).

“Never before has a state done what North Carolina has attempted to do here,” said Cassandra Stubbs, director of the ACLU Capital Punishment Project and co-counsel for inmate Marcus Robinson. “Now that the RJA is repealed, the state’s position is to forget all the evidence of racial bias.”

Robinson, a Black man, was 18 years old when he shot and killed 17-year-old Erik Tornblom, who was white. He was convicted by an all-white jury and set to be executed by the state in 2007. Shortly before he was to die, the state granted him a stay, and two years later it created a process for a reprieve.

Three years after that, Robinson argued to be sentenced to life in prison without parole under the RJA – a law that allowed death row inmates to challenge their sentence if they could show racial bias “was a significant factor in seeking or imposing the death penalty within the county, the prosecutorial district, the judicial division, or the state.”

Robinson showed how the prosecutor in his case discriminated against Black potential jurors and found that it was part of a larger statewide pattern.

His prosecutor struck Black prospective jurors three times more often than other eligible jurors. Prosecutors across the state used so-called “peremptory” challenges to strike more than half of Black potential jurors, according to a study of 173 North Carolina capital cases that occurred between 1990 and 2010.

Robinson’s prosecutor asked different and demeaning questions of potential Black jurors, like whether a high school graduate could read and kept notes of the race of jurors in his capital cases. It turned out other prosecutors across the state had done the same, one referring to a Black potential juror as a “blk wino” and a white juror who drank as “drinks – country boy – OK.” That same prosecutor struck another Black juror, referring to him as a “thug” in his notes and wrote another Black juror was okay because of her “respectable Black family.”

Robinson’s case was the first to crack wide open just how deep racial bias in North Carolina prosecutions ran. Cumberland County Judge Gregory Weeks ultimately re-sentenced Robinson to life in prison. The RJA and Weeks’ ruling in Robinson’s case and the three subsequent cases were part of a larger effort to root out racial bias in jury selection and eliminate racial discrimination altogether from capital cases.

The RJA was passed in 2009 by a Democratic-majority legislature. About 90 percent of the 150 death row inmates at the time applied for relief under the new law. Pending cases, however, were voided when the RJA was repealed in 2013 by a Republican-majority legislature and then-Governor Pat McCrory.

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Now, the Supreme Court has to decide if Robinson and the three others granted relief from the death penalty were properly resentenced to death without a hearing following the repeal. Justices also have to decide if the two other death row inmates who had RJA cases pending at the time of repeal are entitled to the same relief.  

Stubbs said Robinson’s resentencing would constitute cruel and unusual punishment. The “unchecked systematic racism” displayed in her client’s case also undermines the integrity of the judiciary, she told the high court.

“The legislature had seen all of the findings,” she said of the widespread racial discrimination in jury selections across the state. “They were aware of the record, and they turned their back on the record. The legislature cannot target and engage in this type of discrimination.”

Attorneys for the state argued that the repeal of the RJA did nothing to weaken death row inmates’ constitutional protections. In Robinson’s case, Senior Deputy Attorney General Danielle Elder pointed out that Robinson made constitutional, race-based discrimination claims that have yet to be ruled on.

In 1986, the U.S. Supreme Court ruled in Batson v. Kentucky that it is unconstitutional to exclude jurors solely based on race, and the decision was upheld last term in Flowers v. Mississippi.

There have been numerous Batson challenges across the nation like Robinson’s, but the ruling has been relatively ineffective in North Carolina. In fact, evidence in these recent death row cases show prosecutors across the state participated in a training on how to give pre-planned responses to Batson challenges and used a “cheat sheet” of race-neutral reasons to strike prospective Black jurors. 

North Carolina appellate courts also have never ruled in favor of a defendant who’s raised a Batson claim. Most other southern states have found multiple Batson violations over the years, including South Carolina, Alabama, Arkansas, Mississippi, Georgia, Virginia and West Virginia.

David Weiss, a staff attorney at the Durham-based Center for Death Penalty Litigation, also pointed out that there have been a series of U.S. Supreme Court cases over the past 15 years – in addition to the Flowers case – upholding Batson challenges.

“They’re sending us a message,” he said. “They don’t take these cases just to fix those trial court records. They’re saying ‘there’s a problem out there, you lower courts need to find ways to address it.’”

Weiss said after the five Supreme Court hearings Monday (the sixth took place on Tuesday) that attorneys for the inmates had put their best arguments front and center, including discovery showing how infected the cases were with racial bias and discrimination.

“It’s up to [justices] just to decide what to do about that,” he said.

He added that the biggest hope of he and his fellow attorneys is that the four death row inmates who were initially granted RJA relief will get to return to their life sentences and that the other two who raised racial discrimination issues will eventually get their day in court.

The other death row inmates who received life sentences but were resentenced to death are Quintel Augustine, Christina Walters (one of three women on death row) and Tilmon Charles Golphin. The two inmates whose cases were pending at the time of RJA repeal but who are still seeking relief are Andrew D. Ramseur and Rayford Burke.

James Ferguson II, an attorney for Augustine – another inmate who was promised life in prison without parole but resentenced to death – said the cases before the state Supreme Court present an opportunity for justices to lead the judiciary and highlight their responsibility to correct the racial injustice that’s been going on for so long in capital cases.

He said to truly understand the disenfranchisement of Black defendants, justices needed to “stand back and take a long view” of the history of capital punishment.

“We have to go back to the days of slavery,” he said. “Capital punishment was first [created] for slaves, and more often than not, for crimes against white people.”

Changes to the system were always met with resistance – sometimes subtle, sometimes not – but the RJA, he said, signaled great change and showed clear-cut evidence of racial discrimination in jury selections. It worked, and that’s why it was repealed, he added.

“What then is the role of the judiciary?” Ferguson asked. “It is not simply to sit and watch this change happen.”

At the outset of each of their arguments, Elder and Special Deputy Attorney General Jonathan Babb started by restating the crimes of which each death row defendant was convicted.

Augustine was convicted of fatally shooting Fayetteville police officer Roy Turner, Jr. in 2001. Elder told the court that Turner, like Robinson, still had motions for constitutional relief pending.

The question before the court is more narrow than addressing racial injustice within the entire system, she told the justices – it’s whether the enactment and repeal of the RJA impairs defendants’ constitutional rights to relief.

“It does not,” she added.

Other attorneys contended that the answer to Elder’s propounded question was not so cut and dry. Malcolm Hunter Jr. – who is co-counsel in Burke’s case – told the high court that the most important additional right the RJA granted defendants was that there were no procedural bars to overcome before presenting evidence of racial discrimination.

Procedural bars are technical requirements defendants normally must meet that aren’t related to the merits of their case. So, even if a death row inmate could, for instance, prove their innocence, it doesn’t necessarily mean they can get relief if they can’t meet the procedural bars.

“If our purpose is to root out and eliminate race-based discrimination, let’s get to a place where we can examine [claims],” Hunter told the court.

Other attorneys told the court it amounted to unconstitutional instance of double jeopardy to resentence defendants to a higher penalty after they were granted life in prison without the possibility of parole.

Several defense attorneys pointed to precedent set by the 1869 case, State v. Keith. That case revolved around an 1866 act of the General Assembly that issued a blanket amnesty to Confederate soldiers accused of crimes perceived to have been committed lawfully. The law was repealed two years later.

Lt. Col. James Keith was subsequently tried for killing 13 prisoners of war, including two teenage boys. He claimed amnesty at the time, but lost in the lower court. The state Supreme Court ultimately overturned his conviction, finding that the repeal stripped him of his due process rights under the original amnesty law.

Babb attempted to distinguish the present cases by arguing that the 1866 amnesty law offered far broader protections than the RJA. The latter did not give defendants a vested right to relief, unlike the former, he said.

Jin Hee Lee, Burke’s other co-counsel and Senior Deputy Director of Litigation at the NAACP Legal Defense and Educational Fund, disagreed. She told the high court it would have to overrule Keith in order to deny Burke his rights granted under the RJA.

“It would be a tragic irony for this court to rule in favor of a Confederate officer who was responsible for the massacre of 13 men and boys, ages 13 to 60, shot at point blank range, five at a time, and yet rule against an African American man sentenced to death by an all-white jury, called a big Black bull by the prosecution to this all-white jury and who has presented powerful evidence of jury discrimination in this case,” she said.