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April 23, 2012

Should NC prosecutors stall appeal of first Racial Justice Act ruling and focus on a "better" test case?

Though I have not yet been able to read fully the 168-page order in the first big case decided under the North Carolina Racial Justice Act (basics here), I have been able to think about whether North Carolina prosecutors to invest heavily in fighting this ruling via appeals.  Specifically, I wonder if, due to the optics of this first case and how it has garnered such attention, even a reversal on appeal could be a Pyhrric victory for those in North Carolina interested in preserving a functional capital justice system in the state.  Let me explain with a little background.

The first big ruling in the first test of the NC Racial Justice Act involved Marcus Robinson, a black defendant convicted in the shot-gun murder of a white teenager more than 20 years ago.  The state trial judge, Superior Court Judge Greg Weeks, concluded that "race was, in fact, a significant factor in the prosecution's use of peremptory strikes" and thus vacated Robinson's death sentence and imposed a sentence of life imprisonment without possibility of parole.  Among Judge Weeks' notable comments, he found that the defense team had "presented a wealth of evidence showing the persistent, persuasive and distorting role of race in jury selection in North Carolina." 

Whatever the intricacies of the legal debate over the NC Racial Justice Act, the optics and timing of this case made it a strong test case for the defense.  The defendant was black, the victim white, and the jury selection 20 years earlier produced a jury that convicted Robinson which had nine whites, two blacks and one American Indian.  In various ways, this case "looked" on the surface to be just the kind of case that the Racial Justice Act was enacted to examine most closely.  (Perhaps further aiding Robinson, though arguably not pertinent to the RJA legal issues, his co-defendant in the killing got a life sentence and there have been questions about which defendant was the shooter.)

Meanwhile, in a number of other 150+ pending cases awaiting an evidentiary hearing on NC Racial Justice Act claims, the defendant is white and his victim is white, the case was tried much more recently, and the sentencing jury was more racially mixed.  Those kind of cases do not look on the surface to be the kinds of cases that would prompt a legislature to pass a Racial Justice Act, and there is every reason to still be unsure if and when any white defendants will be able to use the RJA to block their death sentences.

I assume NC prosecutors might have a chance to convince a North Carolina appeals court to interpret the RJA narrowly and ultimately conclude that race was not a "significant factor" in the Robinson case.  But such a "victory" by prosecutors on appeal could (and likely would) play into a broader national anti-death-penalty narrative about southern capital punishment systems continuing to reflect racial biases and animus.  That reality alone might prompt the NC appellate courts to be especially wary to reverse this first pro-defendant RJA ruling.  Moreover, based solely on the trial court's findings and ruling, Robinson surely would be able to make a strong pitch for executive clemency (or might try to bring a new round of federal appeals) in a continued effort to stall or block his execution even if his first-round RJA victory were reversed on appeal.

Consequently, I wonder if strategic NC prosecutors (and their amicus supporters) might now, rather than heavily gear up for the appeal in the Robinson case, focus their time, energy and arguments on a "better" RJA test case in order to explore in a less "unattractive" setting whether litigation under the NC Racial Justice Act is always going to favor defendants in all settings or just in some.  I am not sure whether and how NC prosecutors might ensure a "better" test case concerning the RJA comes up for a decision next.  But, whatever might be involved, I cannot help but thus prosecutors would be wise at this moment to focus on another front in this RJA litigation battle.

Related post on first NC Racial Justice Act ruling:

April 23, 2012 at 12:56 PM | Permalink

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Prof. Berman:: "But such a "victory" by prosecutors on appeal could (and likely would) play into a broader national anti-death-penalty narrative about southern capital punishment systems continuing to reflect racial biases and animus."

A|| The "narrative" is peddled by liberals and reverse-racists. "The racial part was on (Robinson's) side," she said….a witness testified at the trial that Robinson said he was going to

"kill a whitey."

NY Times:: "a wealth of evidence showing the…distorting role of race in jury selection"
"and thus vacated Robinson's death sentence and imposed a sentence of life imprisonment without possibility of parole."

B|| Call me a non-J.D./esq. simpleton, but does one remedy the distorting influence of race in jury selection,
by vacating the death sentence in favour of imprisonment?


Posted by: Adamakis | Apr 23, 2012 2:19:14 PM

"I wonder if strategic NC prosecutors (and their amicus supporters) might now, rather than heavily gear up for the appeal in the Robinson case, focus their time, energy and arguments on a "better" RJA test case in order to explore in a less "unattractive" setting..."

They can and should do both.

Posted by: Bill Otis | Apr 23, 2012 4:30:51 PM

Um, how do you explain it to the victim's mother?

What I don't get, and I wish someone would explain to me, how does the conviction itself survive a racist jury selection process?

Posted by: federalist | Apr 23, 2012 5:08:44 PM

I don't know why you should wonder whether a white defendant could get RJA relief. If a white defendant made the identical showing as Robinson with respect to racial disparity in jury selection, why wouldn't that defendant get relief?

(I am a defense attorney)

Posted by: pubdef | Apr 23, 2012 5:31:25 PM

Hey Fed, "you explain it to the victim's mother" the same way you explain it to the victim's mother when any one of the 1000s of convicted murders get LWOP each year. You say, "I'm sorry for your loss."

And by the way, your question assumes that the death penalty is what the victim's mother wanted, when in fact it may not be. See e.g.:

http://www.huffingtonpost.com/amnesty-international/connecticut-death-penalty-repeal_b_1440988.html

Posted by: dm | Apr 23, 2012 5:51:10 PM

Fed, regarding your second question: The RJA, like the Constitution itself, prohibits racial discrimination. The question is what type of proof does a defendant have to have in order to "prove" that discrimination tainted his case.

In McKleskey v. Kemp, the U.S. Supreme Court set a very high burden for a capital defendant to show that racism was present. A very complex and rigorous statistical analysis showing a pattern of behavior across cases was not sufficient. Nothing was sufficient except evidence of discriminatory intent in the defendant's own case. In other words, absent a prosecutor saying something like "I'm prosecuting this defendant because he's black and he killed a white," a defendant just can't win that type of claim.

The RJA says, if a defendant can submit a rigorous analysis showing a pattern of discrimination in this particular time and place, then the burden should shift to the prosecutors to explain that. And if they can't explain it, then the maximum punishment the defendant should get is life imprisonment. That's the remedy, by the way, not a new trial, just LWOP instead of death.

Posted by: dm | Apr 23, 2012 5:59:09 PM

Personally, I have no issue with someone being lethally injected for committing acts of violent and premeditated murder, none at all, but those poor, innocent families that are left behind. As if they haven't suffered enough already by having a convicted killer in the family, we can only surmise at the unimaginable pain they experience when their family member is put to death. Focus solely on the crimes of these vicious and callous murderers and for many of us it is really quite easy to support the death penalty. If we stop for a moment, though, and consider the families of these killers in a way that they themselves never did when they committed their murderous acts, we might just be satisfied with life in prison without parole, at least, that's my view.

Posted by: Sir Danny Boy | Apr 23, 2012 7:07:15 PM

dm --

"Nothing was sufficient except evidence of discriminatory intent in the defendant's own case."

Why should a litigant in ANY case either gain an advantage or suffer a disadvantage because of what happened in someone else's case?

Punishment should turn on individual culpability. Did Robinson's individual culpability retrospectively change by virtue of the passage of the RJA?

Posted by: Bill Otis | Apr 23, 2012 7:16:23 PM

Bill, the question is not whether a defendant can benefit from something that happened in another case rather than his case. The question is what does it take to prove that something that happened in his case.

For example. Imagine a town that is 50% black and 50% white. Prosecutors decide to start prosecuting people for jaywalking and it just so happens that of the first 100 people they prosecute, ALL happen to be black. Question: in order to establish a violation of his rights, is it enough for a black defendant to come forward with evidence that shows that white people in that town jaywalk as much or more than black people? Or is that an irrelevant fact?

The RJA says that kind of fact is relevant – not to guilt or innocence mind you –  but to whether that defendant can get the death penalty.

Posted by: dm | Apr 23, 2012 7:57:54 PM

dm

A jury is racist or it isn't. What you have outlined might be an accurate representation of the state of the law but it's not logically coherent. What you would have me believe is smoke and mirrors. The the jury was unprejudiced enough to fairly convict a man and yet prejudiced enough to want to see him hang. Rubbish, just rubbish. Forget the law. I don't believe that humanly possible as a matter of fact.

I've criticized before what I see as the abuse of "dual sovereignty" when prosecutors do it and I won't smile upon it when defendants try to game the system the same way. I really don't care what the standard is but it should be consistent. The idea that he's guilty enough to die for federal purposes but not guilty enough to die for state purposes is frankly ridiculous.

Posted by: Daniel | Apr 23, 2012 9:08:31 PM

:: "how does the conviction itself survive a racist jury selection process?"~~federalist

:: "the jury was unprejudiced enough to fairly convict a man and yet prejudiced enough to want to see him hang. Rubbish, just rubbish."~~Daniel

Word.

Posted by: Adamakis | Apr 23, 2012 10:43:48 PM

dm --

"Bill, the question is not whether a defendant can benefit from something that happened in another case rather than his case. The question is what does it take to prove that something that happened in his case."

And the only sensible answer is through evidence about the decisions that were made IN HIS CASE.

If the last 100 defendants tried for jaywalking were found guilty, does that mean that the current one is too? Does it mean that the current one's sentence should be different from what it otherwise would have been without knowing about the dispositions in previous, unrelated cases?

The answer is no and no. If you want to know what the relevant facts are in this case, investigate the facts in this case.

The actual point of the RJA isn't that hard to figure out:

1. America stinks in part because it has been and is racist.

2. Because America stinks, it lacks the moral authority to execute anyone, regardless of how cruel and depraved their crime.

3. Also because it lacks such authority, executions of anyone, including the next Timothy McVeigh, will henceforth be made a practical impossibility, since we all know that there was racism in North Carolina. Therefore North Carolina Stinks even worse than America Stinks and can't execute anyone.

The RJA is a classic abolitionist dodge: If you can't get the public on board to abolish the DP, you can do it for practical purposes anyway by (1) playing the White Guilt Card and (2) shifting attention to anything but the defendant's behavior -- better to talk about Jefferson Davis's behavior.

Posted by: Bill Otis | Apr 23, 2012 11:08:59 PM

dm, i am aware of that--my question is more--now that there is a judgment (obviously assuming away the appeal) that the jury was seated in a racially-biased manner, how do you let the conviction stand?

Posted by: federalist | Apr 24, 2012 2:45:00 AM

federalist, I think you are missing the difference between a right protected by the federal constitution and a state statutory right

Posted by: bruce cunningham | Apr 24, 2012 11:19:12 AM

"The the jury was unprejudiced enough to fairly convict a man and yet prejudiced enough to want to see him hang."

Why is this so complicated? Back in the day, whites were still punished for rape, but blacks were disproportionately (with prejudice) give an additional punishment, including in various cases the death penalty, for it. This is often the nature of prejudice -- it isn't total. You just don't look the other way. But, you treat certain people or groups tougher unfairly. It is quite "human."

Also, why exactly is it a problem for states to have tougher standards in various cases than the feds so that in some cases it would meet federal standards, but not state? This seems perfectly non-controversial? States have always had the power to set different rules in various ways. Again, I don't know where the bother comes from. It seems pretty standard stuff, putting aside the merits of a specific policy or situation.

Posted by: Joe | Apr 24, 2012 11:59:31 AM

Hey fed, there are different standards and burdens at play. According to the NC RJA statute, the defendant met his burden of showing that racial discrimination tainted his case. Relief from that sentence – not from the underlying conviction – is the only remedy that the state statute provides. Perhaps the statute should provide relief from his conviction as well, but it doesn't. Sometimes legislatures pass statutes which address part of a problem but not the entire problem.

The federal constitutional standard for showing that racial discrimination tainted one's case is much, much harder to meet, and likely the defendant won't be able to meet it, so he likely won't get relief from his conviction.

I agree with what Joe says, this is pretty standard stuff. DIfferent types of claims have different burdens for making a prima facie case and different burdens of proof. Standards at one stage of litigation are different than at another stage of litigation. We may not like that, but it's a standard feature of our legal system. I just don't see why this is even controversial.

Posted by: dm | Apr 24, 2012 12:46:28 PM

I don't think I am missing the difference. I just think there's a lot less daylight than you think. The judge has found that there was intentional discrimination in the seating of the jury--last I checked, that would violate Batson. Now I can see an argument that the review is foreclosed by limits on court review of criminal judgments, etc. But, there's a determination, binding on the state, that the seating of Robertson's jury was tainted by racial prejudice--how that simply is cabined to the penalty decision is by no means clear.

And i think you're confusing the evidentiary standards with the the judgment. Now, obviously, sometimes things like quantum of proof etc. would limit a judgment's res judicata effect--but, the reality is that there is a judgment that's out there holding that there was intentional racial discrimination in the jury selection. I don't see that staying behind the RJA firewall.

Posted by: federalist | Apr 24, 2012 1:09:29 PM

I dont know NC's rules on separation of powers either--but the idea that the legislature could retroactively provide mechanisms to rip open a criminal judgment seems a little odd as well.

Posted by: federalist | Apr 24, 2012 1:11:06 PM

@Joe

The fundamental fact is this: if a person is racially prejudiced they shouldn't be on a jury at all, in the first place. Look at it from the perspective of voire dire. If a juror volunteered before the case even began that "they could be unprejudiced for the sake of conviction but were prejudiced in regards to sentencing" no judge in his or her sane mind is going to enpanal that juror. There would be a shit storm if a judge allowed a juror to serve with even a tincture of self-admitted prejudice. So if it's not an acceptable course of action pre-facto there is no justification for it post-facto. I don't doubt for a moment that some jurors (as opposed to a jury) can make the psychological distinction you draw. Yet justice is supposed to be blind, not winking.

Racial prejudice might not be total psychologically but legally it must be totally absent. Saying that juror can be tainted for some legal purposes but not for other legal purposes in the exact same criminal case is not a standard to which a wise or honorable person can repair. It's a recipe for abuse and it can only undermine confidence in the legal system over the long run. Once a jury has been found tainted in any significant respect everything the jury has done has to be thrown out. The history of racial prejudice in North Carolina doesn't counsel against a zero tolerance approach; it militates in favor of it.

Posted by: Daniel | Apr 24, 2012 3:28:12 PM

@dm "Sometimes legislatures pass statutes which address part of a problem but not the entire problem."

This of course is true but I'd argue there is a 14A problem now. If "equal protection of the laws" doesn't require a jury totally free from racial prejudice I don't know what the word protection means. I simply cannot comprehend how it's possible to legally cabin racial prejudice in the way some people here insist on doing. Maybe the state can do it but I think our federal constitution doesn't allow for it.

The point of Brown vs Board of Education was to dismiss the concept of separate but equal in education and yet people keep insisting that this same separate but equal concept applies to dual sovereignty. No, I don't believe it at any rate. Having a federal judge say a jury is unprejudiced while a state judge says the exact same jury in the exact same case is prejudiced turns the 14A into the unequal protection clause. Whatever else equal protection might mean it must begin with applying a consistent standard. The thought process of some commentators stun me because the pedigree of the 14A was precisely to eliminate racial prejudice in the states and now we are tacitly condoning (by refusing to look at the underlying conviction) racial prejudice in the states and saying that complies with the 14A. Bullshit. The state simply doesn't get to tackle racial prejudice on its own, on its own terms. It's a complete denial of our political history to insist that states can act unilaterally and without any oversight on this topic.

Posted by: Daniel | Apr 24, 2012 4:04:18 PM

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