Clemency Wells

Delivering a little bit of racial justice

on 04 May 2012

Almost exactly a year ago I wrote a blog about North Carolina’s Racial Justice Act. A few weeks ago capital defence attorneys working on this issue had that rare thing in the world of death penalty defence: some really good news. 

More than ten years ago in Fayetteville, Cumberland County, North Carolina Marcus Robinson was put on trial for the 1991 fatal shooting of Erik Tornblom. Marcus Robinson is African-American. Erik Tornblom was white. In a county that at the time had a 40% African –American population, a jury composed of nine whites, two African-Americans and one American Indian convicted Robinson and sentenced him to death. He has remained on death row ever since. Just a couple of weeks ago however, on Friday April 20th, Robinson’s death sentence was overturned in a landmark ruling under the state’s 2009 Racial Justice Act. 

Presiding judge Gregory Weeks spoke plainly in his strongly worded opinion: ‘Robinson…is entitled to vacatur of his death sentence…because race was a significant factor in the prosecution's use of peremptory strikes in North Carolina, the Second Judicial Division, and Cumberland County at the time of Robinson's 1994 capital trial.’ 

The capital jury selection process is an arduous, contentious ordeal. People’s prejudices form the battleground on which the rest of the trial will be fought out. In this case, Judge Weeks ruled, the prosecution made their peremptory strikes (the number of jurors that both the prosecution and the defence are able to remove from a jury) based on race. Not only is that not fair, it is now illegal in the state of North Carolina because of the Racial Justice Act. 

Many people writing about this case call the RJA a ‘controversial’ law. It should not be. Aside from the fact that anyone working in capital defence in the USA could tell you that the death penalty is and has always been racist, the opinion do and always have demonstrated this. 18 white defendants have been executed in cases where the victim was African-American compared with the execution of 254 African-Americans convicted of murdering a white victim.   

But more than that the RJA makes perfect sense because it grew from a seed planted by the Supreme Court itself. In 1987 the case of McCleskey vs Kemp placed the bar heartbreakingly high for those people appealing a death sentence based on racial bias. (There is a more detailed discussion of this in my previous blog). The decision all but slammed shut the doorway to challenging racism in capital sentencing, but it did let just a sliver of light through the cracks; a small glimmer of hope for all those people – African-American, Latino, Native American, and white – who have been sentenced to death on the basis of racial prejudice. This sliver of hope was the invitation by the Supreme Court for individual states to pass local legislation allowing statistical evidence of racial bias to be used as a basis for relief. Which is exactly what North Carolina did by creating the RJA. 

The statistical evidence used in the case of Marcus Robinson was a Michigan State University study which concluded that African-American jurors were more likely to be dismissed than white jurors. The study found that, of almost 160 people on North Carolina's death row, 31 had all-white juries, and 38 had only one non-white person. And the study also found that a defendant is 2.6 times more likely to be sentenced to death if at least one of the victims is white. 

And so, Marcus Robinson had his death sentence overturned. It is a bittersweet result: he will now spend the rest of his life in prison without the opportunity of ever being released. Opponents of the Act persistently propagate the threat that people convicted of serious crimes will be strolling around their local supermarket as soon as a death sentence is overturned under the Racial Justice Act. This is patently untrue. The most lenient sentence available under the RJA is Life without the Option of Parole or LWOP. 

This was not just a success for Robinson, his family, and his legal team but for everyone who has worked on the case over the years. This includes the many Reprieve volunteers who have worked on death penalty cases in North Carolina for years. 150 cases are still pending in the courts seeking relief under the RJA and the road ahead is sure to be one littered with legal and political wrangling. But, for now, it couldn’t be off to a better start.

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