Latest assault on Racial Justice Act

by Keith Barber

Last week, the Republican majority in the NC General Assembly unsuccessfully attempted to override Gov.

Beverly Perdue’s veto of SB 9, also known as the No Discriminatory Purpose in Death Penalty Act. Supporters of the bill call it a rewriting of the Racial Justice Act. The bill’s opponents call it a gutting of the bill that Perdue signed into law in 2009 that was designed 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.”

Mark Rabil, the Winston-Salem attorney who famously represented Darryl Hunt, traveled to Raleigh to witness the General Assembly take up the issue last Wednesday. Rabil said he watched the NC Senate debate from the gallery and felt the session was conducted in a reasonable manner even though he disagreed with the outcome. The Senate voted to override Perdue’s veto of SB 9 by a vote of 31-19. The parliamentary procedure in the Senate was a far cry from the political shenanigans that followed in the House, Rabil said.

It was nearly one in the morning on Thursday before the Republicans ended the special session without taking a vote on the measure and referring it back to the House Judiciary Committee.

House Republicans were four votes shy of the necessary three-fifths majority to override a veto. House Democrats had a five-vote margin to withstand attempts by the Republican majority to override Gov. Perdue’s veto until Rep. Larry Womble (D-Forsyth), one of the Racial Justice Act’s sponsors, was involved in a head-on vehicle collision last month and remains in the hospital recovering from his injuries.

Rabil said Rep. William Wainwright (D-Craven) was clearly ill and had to leave the chamber around 11 p.m. Rep. Earline Parmon (D-Forsyth) had suffered a death in her family, Rabil said, and had to be on an early morning flight Thursday. Still, Parmon sat in her chair defiantly and refused to leave the House chamber, Rabil observed.

“The Republican majority didn’t treat the Democrats or the citizens of North Carolina with respect,” Rabil said. “They were unprofessional, unethical and immoral. They will do anything to win a victory.”

On Tuesday, the Ministers Conference of Winston-Salem & Vicinity held a press conference at Grace Presbyterian Church and read aloud a letter they hand delivered to Forsyth County District Attorney Jim O’Neill on Dec. 15. The ministers are calling upon O’Neill to withdraw his name from a letter from the Conference of District Attorneys sent to state Sen. Phil Berger supporting the repeal of the Racial Justice Act.

“The inflammatory letter you signed is very disturbing, especially since your coming into office was predicated upon being a fair-minded moderate and not a flagrant extremist,” the Ministers Conference letter states.

The ministers’ letter goes on to say the Conference of District Attorneys letter “lies about the possibility of inmates being freed under the Racial Justice Act.”

“We are deeply saddened by your actions because we had hoped our leading legal officer would be bending over backwards to ensure racial bias would not factor into any cases, especially capital ones,” the ministers’ letter states. “Unfortunately, so often this appears not to be the case. Anyone who believes that racial bias does not exist, need only to review validated research relating to jury selection, the death penalty, and arbitrary sentencing.”

The letter cites the 2010 Michigan State study of the North Carolina justice system that concluded that for the past two decades, state prosecutors have struck qualified black and racial minority potential jurors at more than twice the rate of white jurors during jury selection proceedings. The Michigan State study also revealed that cases in North Carolina that involved white victims were far more likely to result in death sentences than cases that involved no white victims.

The ministers’ letter also requests that O’Neill sanction Assistant District Attorney Mike Silver for his comments during a Nov. 28 meeting of the Senate Judiciary Committee. The letter claims that Silver, who is African American, “implicitly accused State NAACP President, Rev. Dr. William J. Barber of race baiting and ‘screaming’ lynching.”

Duke law professor Jim Coleman, codirector of Wrongful Convictions Clinic, said state Republicans have seized upon the Racial Justice Act as a wedge issue to polarize the electorate.

“I honestly don’t think they care about whether race is a factor in the death penalty,” Coleman said. “I think for a lot of their constituents this is an issue that is advantageous for them if they challenge it.”

Coleman said state prosecutors like O’Neill are making the same arguments that Republican lawmakers made in 2009, specifically that some inmates would be released from prison if granted relief under the law.

“If they really believe that it would be unconstitutional, they should file a motion under the ex-post facto law, yet not a single prosecutor including Jim O’Neill has made that claim in court,” Coleman said. “If they actually believe it, let a judge decide it. Their argument is disingenuous.”

Silver disagreed with Coleman’s statement, saying a motion under the ex-post facto claim “would not be appropriate at this stage of the hearings.”

“We must first determine if the defendants are entitled to relief under the act,” Silver said. “We do not believe that race was a significant factor in our cases in Forsyth County and we believe that the death sentences will be upheld.”

Coleman still holds that statistics don’t lie. In Prosecutorial District 21, which includes Forsyth County, prosecutors used challenges to strike qualified black jurors at a rate of 54.2 percent, but struck qualified non-black jurors at an average rate of only 24.4 percent. Therefore, prosecutors were 2.2 times more likely to strike qualified black jurors than qualified non-black jurors.

“Prosecutors want to keep off [juries] people who might be sympathetic to the defendant,” Coleman said. “In order to do it, you have to keep off people that are black, and statistics show that is exactly what is happening, whether they are doing it consciously or not.”