The fate of one death-row inmate in North Carolina—and possibly dozens more—is
now in the hands of a judge following a 2½-week hearing that for the 1st time
tests a law that would let an inmate off death row if race is found to have
been a "significant factor" in the sentence.
The question is whether race played an improper role in jury selection at the
time of Marcus Reymond Robinson's trial.
In a crowded courtroom here, Cumberland County Judge Gregory A. Weeks heard
closing arguments Wednesday on a case involving the death sentence of Marcus
Reymond Robinson, a black man convicted in 1994 of murdering a 17-year-old
white man during a robbery.
Judge Weeks's challenge: to answer the nebulous question of whether race likely
played an improper role in jury selection on capital cases around the time of
Mr. Robinson's trial.
The decision, which should come in the next few weeks, will likely set a
precedent for what happens with the state's other death-row inmates. Nearly all
of North Carolina's 157 death-row inmates, including roughly 60 white inmates,
have challenged their death sentences on racial-bias grounds.
Criticisms of the death penalty have mounted nationwide in recent years
alongside the rise of DNA testing, which has freed some death-row inmates. New
Mexico, New Jersey and Illinois in recent years abolished their death
penalties, while others have put executions on hiatus while they reviewed
various aspects of their procedures, like whether lethal injection causes undue
But North Carolina's Racial Justice Act, passed and signed into law in 2009 by
a Democratic legislature and governor over strong Republican objection, took an
entirely different approach. It forces a judge to change a penalty of death to
life without parole if race played a key role in the death sentence. The law
came about after a number of high-profile convictions of black men, all of whom
were on death row, were overturned after errors in their cases were brought to
On its face, the law doesn't require a defendant to prove that bias took place
in his case specifically. An inmate need only prove, with statistics, that race
weighed heavily in prosecutors' and jurors' decisions concerning the death
penalty "in the county, the prosecutorial district, the judicial division, or
the State at the time the death sentence was sought or imposed."
The only other state with a similar law is Kentucky, but defense lawyers there
haven't used it much because they must show strong evidence of discrimination
in an individual case and are barred from basing claims solely on statistics.
Neither Mr. Robinson's trial nor the composition of his jury—9 whites, 2 blacks
and 1 Native American—came up often in the Fayetteville hearing, which at times
was more reminiscent of an introductory college statistics course than a John
Grisham page-turner. Mr. Robinson's lawyers, in arguing that race played a
factor in jury selection, relied on a 2010 study from 2 law professors at
Michigan State University that concluded that prosecutors struck prospective
black jurors fromjuries at more than twice the rate of white jurors in North
Carolina's 173 death-penalty cases from 1990 to 2010. On Tuesday, Jonathan
Perry, a lawyer for the state, criticized the Michigan State study's "logistic
regression approach" and referred repeatedly to errors in "sampling."
The state presented affidavits from a variety of prosecutors stating that their
dismissals of prospective black jurors could almost always be explained by
Wednesday morning, a lawyer for Mr. Robinson, Malcolm "Tye" Hunter, argued that
such firsthand evidence was irrelevant. "Overt, explicit expressions of racial
bias are rare," he said, because race remains an uncomfortable topic that many
people are loath to address squarely. Nevertheless, added Mr. Hunter: "There is
a wide body of research that race has a huge effect on how we make decisions."
An attorney for the state, Rob Thompson, was critical of that argument.
"They've brought you numbers, conjecture and speculation," he told Judge Weeks.
"But they do not have evidence of discrimination or evidence of some secret
society of prosecutors plotting to exclude black jurors."
Throughout the arguments, Judge Weeks, who is black, sat quietly and
attentively, interrupting the lawyers only to ask brief questions. The judge,
who is retiring later this year, was most recently elected in 2006. Judicial
elections in North Carolina are nonpartisan.
The judge, who has 23 years on the bench, has his work cut out for him,
according to capital-punishment experts and lawyers involved in the case. The
law doesn't define exactly how "significant" race had to have been in a
decision in order to justify overturning a sentence.
"It's hard to read the tea leaves in a case like this," said Neil Vidmar, a law
professor at Duke University. "But the case could set quite a precedent in
North Carolina—and make a lot of others around the country sit up and take
(source: Wall Street Journal)