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May 8, 2012

Reviewing the uncertain state of capital justice in the state of North Carolina

North Carolina has been an especially interesting any dynamic death penalty state of late, and this new lengthy local article provides a kind of "state of the capital state" review of many of the reasons why.  The piece is headlined "Complex challenges put NC death penalty on life support," and here are excerpts:

North Carolina, which has 156 prisoners on death row, has not executed an inmate since Aug. 18, 2006, when Samuel R. Flippen was put to death by lethal injection for the beating death of his two-year-old step daughter.  Since then, a complex and evolving set of legal challenges have imposed a de facto moratorium on the death penalty in North Carolina.

The controversial Racial Justice Act, a 2009 law that allows death row prisoners to use statistical evidence of discrimination to appeal their sentence, has played a part in this stalemate.  But so have other prisoner appeals that question whether the state's execution method is cruel and unusual or their crimes were investigated fairly.

Even those who say the death penalty is needed have doubts when it might ultimately be enforced here. "The easy answer is nobody really knows," said Peg Dorer, executive director of the N.C. Conference of District Attorneys. "If it ever does resume, I'd say it will be 20 years."...

Of the 156 North Carolina inmates awaiting execution, 106 were sentenced before 2000. Even before the current morass of legal cases and appeals, prosecutors were seeking and winning death sentences less often.

There are several reasons for the decline in death penalty prosecutions, including a 2001 change to state law.  In the 1990s, district attorneys were required to pursue the death penalty in all first degree-murder cases with aggravating circumstances.  But in 2001, the General Assembly gave prosecutors the discretion whether or not to seek the death penalty for such cases. "Once that happened, there was a dramatic drop off in the number of capital trials," said Wake County District Attorney Colon Willoughby, Jr.  District attorneys became more selective about when they would ask for death sentences....

The specter of putting an innocent person to death looms over those who would seek the sentence. Anti-death penalty groups point to the 140 people nationwide who, after having been sentenced to death, have been exonerated of those same crimes. Among those 140 was former North Carolina death row inmate Alan Gell, who was convicted of a 1995 murder but later found not guilty....

"I think there will be a case of someone who is now on (North Carolina's) death row who it will turn out to be innocent," said Tye Hunter, executive director of the Center for Death Penalty Litigation. "I expect that case to come before the summer is over."  Each such case, he said, chips away at the willingness of those involved in capital trials -- prosecutors and juries especially -- to impose the death penalty. So, too, has the time and cost involved in death penalty litigation....

[A legal challenge to NC's execution methods] heard in state courts has just begun to make its way through the appeals process.  It takes aim at whether the state's lethal injection method could lead to cruel and unusual punishment. "We have a three-drug execution protocol. If the execution team messes up and makes a mistake on the first drug, the second two are going to cause torture," said David Weiss, a lawyer who argued this case on behalf of four death row inmates....

Judge Donald Stephens ruled on March 9 that the procedure was constitutional.... That case has now been appealed. It it likely to go straight to North Carolina's Supreme Court without stopping at the Court of Appeals.... [I]n addition to the state case, several North Carolina death row inmates also have appealed their sentences to the federal courts. "Those federal cases have been on hold since 2006," Weiss said....

But for many current death row inmates, there appears to be a more promising route of appeal.  Passed in 2009, the Racial Justice Act allows death row inmates to challenge their sentences based on statistical evidence that racial discrimination could have affected their trial, such as when jurors were chosen.  If such a claim is successful, the inmate's sentence is commuted from death to life in prison.

Marcus Robinson, who was convicted in1994 of first-degree murder in Cumberland County, was the first defendant to have his RJA claim heard. In April, Superior Court Judge Gregory Weeks found that Robinson's lawyers had shown that race was a factor in the selection of his jury.

With Robinson's success, there are only 156 inmates left on death row. Of those, 154 have brought Racial Justice Act claims, even though in many were of the same race as their victims. Rep. Paul "Skip" Stam, R-Wake, an opponent of the Racial Justice Act, says the outcome of the case is counter-intuitive. "Why would (Robinson) get life in prison if his jury was tainted," he asked. "If you really thought there was a problem with the jury, why would it affect the sentence and not the verdict?"

Stam helped lead an effort last fall and winter to repeal the Racial Justice Act. Gov. Bev Perdue, a Democrat, vetoed that measure and lawmakers fell one vote short of the number needed to override her veto.  Even if lawmakers do repeal the act, there is some question among lawyers whether or not the claims already filed would proceed....

As Racial Justice Act claims play themselves out, it's possible for other issues to arise. Hunter, with the Center for Death Penalty Litigation, said his staff was still looking at problems with evidence analysis in the state crime lab.  The recent case of Greg Taylor, who spent 6,149 days in prison for a murder he didn't commit, was freed after being able to show the SBI crime lab used scientifically unsound blood analysis techniques. Hunter said that questions remain about other work the crime lab did in the case of other defendants.

May 8, 2012 at 11:12 AM | Permalink

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With Robinson's success, there are only 156 inmates left on death row. Of those, 154 have brought Racial Justice Act claims, even though in many were of the same race as their victims.

Rep. Paul "Skip" Stam, R-Wake, an opponent of the Racial Justice Act, says the outcome of the case is counter-intuitive. "Why would (Robinson) get life in prison if his jury was tainted," he asked. "If you really thought there was a problem with the jury, why would it affect the sentence and not the verdict?"

Makes too much sense...no hope and change.

Posted by: Adamakis | May 8, 2012 10:02:40 PM

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