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RACE RETALIATION If there was any doubt about the need for the Racial Justice Act [“Forsyth DA: Racial Justice Act inherently flawed”; Aug. 26, 2009; by Keith T. Barber], Forsyth District Attorney Tom Keith dispelled it in remarks attributed to him in an Aug. 26, 2009, article in YES! Weekly. In language reminiscent of the 19 th Century, Keith said if “you’re African American, you’re six, seven or eight times more likely to have a violent history [than if you’re white].” He suggests that “instincts” account for this level of violence; “[T] hat’s just how it is.” Keith undoubtedly has made decisions about the death penalty that were affected by his view that black people are instinctively violent; that would be an aggravating factor. Most studies about the role of race in the death penalty have found that it results in decisions by prosecutors that value the lives of white victims more than the lives of black victims. Among other reasons, that is the product of the indifference some prosecutors show toward their black constituents, whether they are victims, defendants or merely witnesses. If you think such people are likely to be violent, you also likely think their deaths have less impact on the community than the death of a white person.

The Winston-Salem Journal, in an editorial prior to passage of the Racial Justice Act, said Keith thought the legislation, aimed at making it possible to show when race has affected the death penalty, would cast prosecutors in the role of racists. Keith apparently assumes that race is a factor only when racists make the relevant decisions. The greater danger, however, is ingrained attitudes, not racism. Keith’s unguarded choice of words in the YES! Weekly interview and the indifference he has shown to possible miscarriages of justice are the reasons to examine his decisions; whether he is a racist is of concern only to him. What do you call it when a prosecutor defends the wrongful conviction of Darryl Hunt for years without taking the time to read the record, as Mr.

Keith admitted doing, and then, when he finally takes the time to review the record, is surprised by how little evidence there was against Hunt? And what do you call it when a prosecutor gets a statement from a disinterested witness that directly contradicts the testimony of two of the state’s key witnesses in the Kalvin Michael Smith case, and the prosecutor does not interview the witness and does not confront his own witnesses with the statement, as prosecutors in Keith’s office did in that case? Eric Saunders, one of those prosecutors, said under oath that the reason he did not pursue the witness’ statement was because he had the “impression,” contrary to the witness’s unambiguous statement to police, that the witness had not heard the relevant conversation. Nothing in the statement could have given him such an impression. The witness and fairness to Smith were invisible to Keith’s office. Although black people populate our criminal courts and prisons, they often are invisible when it comes to criminal justice. The committee appointed to review the police investigation of the Kalvin Michael Smith case concluded there was “no credible evidence” that Smith was present at the Silk plant Forest when Jill Marker was attacked. That is a fair objective assessment of the evidence in that case. I tried for two years to get Keith personally to review the record; he always had an excuse for not doing so. Race is the invisible man in the administration of the death penalty and the Racial Justice Act is designed to shine a little light on it. We can spend the next 10 years debating whether the act unfairly casts prosecutors as racists or we can spend the time trying to make the death penalty fair. If it makes prosecutors like Keith feel better, call it the Act to Preserve the Integrity of the Death Penalty, but let’s move forward. James E. Coleman, Jr., Durham

Coleman is Kalvin Michael Smith’s defense attorney and John S. Bradway Professor of the Practice of Law at Duke University Law School, where he is director of the Center for Criminal Justice and Professional Responsibility.

Dear Mr. Barber:

I read with interest your article about the Racial Justice Act. I work at the Center for Death Penalty Litigation, and we have followed closely the debate and passage of the bill. One factual error that Keith is stating publicly is that murderers will be paroled under the new act. The law states explicitly that if someone can prove racial bias tainted their death sentence, that the alternative is life in prison without the possibility of parole. Thank you, and please let me know if you need any more information. Gerda Stein, Durham Keith, I just wanted to write you a quick note and tell you what a great job you did in the article about Tom Keith and the Racial Justice Act. You were able to get the DA to record what folks in the African-American community have been claiming for years, but no reporter has been able to get it on record, until now. “If you’re African American, you’re six, seven or eight times more likely to have a violent history,” Keith said. “I didn’t go out there and put a gun in your hand and say, ‘You commit eight crimes, and I’m a white man, I’ll commit one. That’s just instincts, that’s just how it is.” — Tom Keith This comment implies that there is some sort of “instinctual” (genetic?) predilection in African Americans that makes them eight times more likely to commit violent crimes. For those who followed Darryl Hunt’s case closely, and now that of Kalvin Michael Smith, this explains a lot about what has gone on and is going on in the courts and, by extension, in the Winston- Salem Police Department. You will likely see some local civic leaders honing in on this issue as we lead into election season. Good reporting my friend — you are holding folks accountable! Ryan Eller, Winston-Salem

TOM KEITH RESPONDS I enjoyed reading Keith Barber’s timely in-depth story on the Racial Justice Act. I do have a few comments I would like to share with you. The disparity between the number of black and white men on death row is attributable to many factors. The General Assembly writes and passes the laws on eligibility for the death

penalty and the District Attorneys are then required to follow that law. Under the General Statute, the existence of any one of 11 aggravating circumstances makes someone charged with murder eligible for the death penalty. It is a sad but true fact that more African-Americans charged with first-degree murder have prior violent felony convictions on their record. Violent-crime conviction is one of the statutorily prescribed aggravating circumstances that would make someone charged with first-degree murder eligible for the death penalty. In North Carolina, African Americans make up 21.6 percent of the population, but represent 78 percent of those incarcerated for robbery and 59.8 percent of those charged with firstdegree murder. Another aggravating circumstance that makes a defendant charged with first-degree murder eligible for the death penalty is if the victim is a police officer slain while on duty. The Department of Justice’s report on Policing and Homicide, (1976-98 by J. Brown and P. Langdon) found that “young black males murder police officers at a rate about six times that of young white males.” While the legislature mandates those murders that are eligible for the death penalty, as the district attorney of Forsyth County, I recognize that in some instances the instinct for selfpreservation and self-defense takes over and can reduce the level of criminal culpability to some lesser degree of homicide. This is what I referred to as “instinctive” and it explains why some murders are not premeditated and deliberate, but often, just being in the wrong place at the wrong time. Tom Keith, Winston-Salem

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