North Carolina Governor Upholds Racial Justice Act, Calling Bias "Unacceptable"

North Carolina Governor Bev Perdue vetoed the bill that would have repealed the state's Racial Justice Act that was passed in 2009. The Act allows death row inmates to appeal their death sentences based on statistical studies showing racial bias. In issuing the veto, the governor, who supports the death penalty, said, “I am vetoing Senate Bill 9 for the same reason that I signed the Racial Justice Act two years ago: it is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina.”  State courts have only recently begun to hear the first appeals filed under the Racial Justice Act. The Act provides that a death row inmate who receives a reprieve through a racial-discrimination challenge will receive a sentence of life without parole.  The Governor also added, "[B]ecause the death penalty is the ultimate punishment, it is essential that it be carried out fairly and that the process not be infected with prejudice based on race." Civil rights leaders and some family members of murder victims had met with the governor and encouraged her to veto the repeal, which was passed after significant changes in the legislature in 2010.

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North Carolina Legislature Votes to Repeal Racial Justice Act; Governor May Veto

On November 28 the North Carolina Senate voted to repeal the state's Racial Justice Act, which allowed death row inmates to use statistical evidence of racial bias to challenge their sentences.  The House had earlier approved the repeal measure.  The Act was passed in 2009, and the first cases brought under the law are just now being considered in state court.  There were considerable shifts in the state's legislature in the wake of the 2010 elections, leading to the repeal bill.  Prosecutors had been unsuccessfully fighting application of the law in the courts and have pushed for legislative action.  The Act provides that a death row inmate who receives a reprieve through a racial discrimination challenge will receive a sentence of life without parole.  Darryl Hunt, a former inmate who spent 19 years in prison for a murder he did not commit, reminded the Senate Judiciary Committee that five of the seven inmates who have been exonerated from North Carolina’s death row were, like him, African-American.  Hunt said, “I was one vote away from the death penalty.  I had 11 whites and one black on my jury. If you think that race did not play a factor in my case, then you're not living here in North Carolina."  North Carolina Governor Beverly Purdue, who signed the Racial Justice Act into law in 2009--saying it would ensure death sentences were imposed "based on the facts and the law, not racial prejudice"--must now consider whether to veto the repeal.

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RACE: Supporters Re-Affirm Importance of North Carolina's Racial Justice Act in Face of Prosecutors' Challenges

Leaders from North Carolina's civil rights groups, such as the NAACP, and from the defense bar have re-affirmed the need for the state's Racial Justice Act, which was passed in 2009.  The Act allows death row inmates to challenge their death sentences using data from statistical studies of racial bias within the state.  The North Carolina Conference of District Attorneys is attempting to have the law repealed because they say it threatens the entire death penalty system.  Tye Hunter from the Center for Death Penalty Litigation said that some of the academic studies being used under the Act show clear patterns of racial bias in the state’s capital punishment system, including exclusion of qualified jurors on the basis of race.  Moreover, he noted,  "We hadn't had an execution for three years before the Racial Justice Act was even passed. So the moratorium on the death penalty, I think, has to do with other issues.”  Two Racial Justice Act cases are currently underway in state courts, though one is currently on hold.  In the active case, prosecutors have repeatedly sought continuances and have unsuccessfully tried to have the assigned Superior Court judge, Greg Weeks, an African-American, removed from the case. 

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U.S. Supreme Court Allows Racially Biased Testimony to Stand in Texas Case; Restores Capital Conviction in Ohio

On November 7, the U.S. Supreme Court declined to grant review to Texas inmate Duane Buck.  Buck sought a new sentencing trial because of testimony suggesting he posed a greater danger to society because he is black.  During his trial, psychologist Dr. Walter Quijano told the court that Buck’s race increased the likelihood of his future dangerousness.  Three of the Justices on the Court (Alito, Scalia and Breyer), which had granted Buck a stay just before his scheduled execution on September 15, said his case was different from other similar cases where relief was granted because it was Buck’s defense attorney who was responsible for eliciting the offensive testimony.   Justices Sotomayor and Kagan dissented, stating, “Today the court denies review of a death sentence marred by racial overtones. . . . Buck did not argue that his race made him less dangerous, and the prosecutor had no need to revisit the issue. But she did, in a question specifically designed to persuade the jury that Buck’s race made him more dangerous and that, in part on this basis, he should be sentenced to death.”  (See more on this case below.)

On the same day, the Supreme Court reinstated the death sentence of Archie Dixon in Ohio.  Last year, the U.S. Court of Appeals for the Sixth Circuit overturned Dixon’s conviction after finding that his confession to a murder was invalid due to police coercion.  The Court granted certiorari and reversed this decision, noting that federal courts must give great deference to state court findings, and writing in an unsigned opinion that "there is no evidence that any of Dixon's statements was the product of actual coercion." (Bobby v. Dixon, No.10-1540).

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RACE: Historic Civil Rights Suit Filed in Alabama Over Exclusion of Blacks from Jury Service

On October 19, five African Americans filed a federal civil rights lawsuit charging that Alabama has illegally excluded blacks from serving on death penalty juries in Houston and Henry Counties.  The plaintiffs in this class action suit were all previously barred from serving on juries in capital or other serious felony cases.  In each case, state courts found blacks were illegally excluded from jury service because of their race.  Bryan Stevenson, lead attorney for the plaintiffs and executive director of the Equal Justice Initiative in Alabama, pointed particularly to the actions of District Attorney Douglas Valeska: "Mr. Valeska has repeatedly been found to have illegally excluded black people from jury service with peremptory strikes in capital cases but he continues the practice because most people don't know about it." He continued, "The underrepresentation and exclusion of people of color from juries has seriously damaged the credibility and reliability of the criminal justice system.  Individual case reversals haven't stopped this illegal practice, so there must be greater accountability."  The lawsuit alleges that, from 2006 to 2010, state prosecutors in Dothan used peremptory strikes to exclude 82% of qualified black jurors in death penalty cases.  As a result, the jury in every death penalty case in Houston County over this period has been either all white or had only a single black juror, despite the fact that the circuit is nearly 25% African American.  Houston County has the highest per capita death sentencing rate in Alabama.

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NEW VOICES: In Inter-racial Killing, Victim's Family Asks District Attorney Not to Pursue Death Penalty

Family members of James Anderson (pictured), who was killed on June 26 in Jackson, Mississippi, are asking the District Attorney not to seek the death penalty for Anderson's killer.  Deryl Dedmon, a white teenager, was charged with Anderson's murder after he and other white teens took turns beating him.  Dedmon then drove over Anderson with a truck.  Barbara Anderson Young, the victim's sister, wrote a letter to the D.A. on behalf of their mother and two brothers, saying that their opposition to the death penalty is "deeply rooted in our religious faith, a faith that was central in James' life as well." The letter continued, "We also oppose the death penalty because it historically has been used in Mississippi and the South primarily against people of color for killing whites.  Executing James' killers will not help balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment."  On September 21, Texas executed Lawrence Brewer, a white supremacist who dragged an African-American man to death in Jasper 13 years ago.  Some members of the victim's family also opposed the death penalty.

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NEW VOICES: Former Texas Assistant District Attorney Now Wants to Halt Execution

Linda Geffin (pictured) was one of the Texas prosecutors who won a conviction and death sentence for Duane Buck in 1997.  She is now the division chief of the Special Prosecutions Unit in the Office of the Harris County Attorney, and she is urging Gov. Rick Perry and other state officials to stop Buck's September 15 execution because improper race evidence was put before the jury considering his sentence.  In a letter to state officials, Geffin said that former Texas Attorney General John Cornyn had previously acknowledged the "improper injection of race in the sentencing hearing in Mr. Buck's case," and that "No individual should be executed without being afforded a fair trial, untainted by considerations of race."  On June 9, 2000, Cornyn called for new sentencing trials for the defendents who had been improperly sentenced to death because of the racially biased testimony.  Of those seven defendents, Buck is the only one who has not been granted a new sentencing.

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Only Texas Inmate Not Resentenced After Admittedly Racially Biased Testimony Faces Execution

Texas inmate Duane Buck (pictured) is one of seven death row inmates whose death sentences were tainted by improper racial testimony presented at their trials. In 2000, then-Texas Attorney General John Cornyn (now Senator) confessed the state's error to the U.S. Supreme Court, noting that seven cases had been tainted by improper prosecution testimony. "It is inappropriate to allow race to be considered as a factor in our criminal justice system," Cornyn said. "The people of Texas want and deserve a system that affords the same fairness to everyone.”  Six inmates received new sentencing trials, but Buck did not. All seven trials involved testimony by psychologist Walter Quijano, who told juries that defendants were more likely to commit future crimes if they were black or Hispanic. The potential for future dangerousness is a key factor in juries' sentencing decisions in Texas. The prosecutor at Buck's sentencing trial asked Quijano: "The race factor, black, increases the future dangerousness for various complicated reasons; is that correct?" "Yes," Quijano said. Originally, Quijano had been called by the defense and testified that he did not believe Buck would be dangerous in the future.

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STUDIES: Significant Racial Disparities Found in Military Death Penalty

A soon-to-be-published study has found significant racial disparities in the U.S. military's death penalty. The study, which will be published in the Journal of Criminal Law and Criminology, found that minorities in the military are twice as likely to be sentenced to death as whites accused of similar crimes. The study examined all 105 potential capital cases since the military death penalty was reinstated in 1984.  Of the 16 death sentences handed down in that time, 10 were of minority defendants. The authors did not attribute the disparities to intentional bias: "There is no suggestion here that any participant in the military criminal justice system consciously and knowingly discriminated on the basis of the race of the accused or the victim," the authors said. "However, there is substantial evidence that many actors in the American criminal justice system are unconsciously influenced by the race of defendants and their victims." A New York Times editorial about the study noted how rarely death sentences are handed down in the military, that there have been no military executions since 1961, and that 8 out of 10 death sentences have been overturned. Six men are currently on the U.S. military's death row. The editorial concluded, "The de facto moratorium has not made the country or the military less secure. The evidence of persistent racial bias is further evidence that it is time for the military system to abolish the death penalty."

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North Carolina Court to Hear First Challenge under State's Racial Justice Act

Marcus Robinson will be the first North Carolina death row inmate to have a sentencing challenge heard in court based on the state's 2009 Racial Justice Act.  According to the act, a death row inmate who can establish through statistical studies that his sentence was racially discriminatory can seek to have it commuted to life in prison.  Robinson's lawyers plan to argue that he received a death sentence partly because he is black and his victim was white  They plan to cite several North Carolina studies, including one that found that a defendant who killed a white victim was 2.6 times more likely to be sentenced to death than if there were no white victims in the crime.  His lawyers will also cite statistics showing that prosecutors in the state reject minorities for capital juries at twice the rate they reject whites.  In Robinson's case, the prosecutors rejected half the potential jurors who were black but only 15 percent of potential jurors who were other races.  His sentencing jury was comprised of nine whites, one American Indian and two blacks, plus two white alternates. The Racial Justice Act was challenged in the state's prior legislative session, but it was upheld.

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