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Attorneys argue before NC Supreme Court about role of racism in 4 death penalty cases

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RALEIGH, North Carolina — North Carolina's highest court will determine whether a lower-court judge erred when he ruled that racism was so pervasive in the trials of four convicted murderers that their sentences had to be changed from death to life behind bars without parole.

The state Supreme Court held two hearings Monday on the Racial Justice Act, the first involving Marcus Robinson and the 2009 version of the law. The second hearing involved three convicted murderers whose cases weren't related and whose sentences were changed based on the amended 2012 law.

Special Deputy Attorney General Danielle Elder, who represented the state in both hearings, said Superior Court Judge Gregory Weeks' decision in Robinson's case interpreted the law "in such a way that a capital defendant can obtain relief even if that defendant has never personally experienced racial discrimination in his case at any point in the criminal justice process."

Robinson, she said, pointed to statistical disparities statewide and in Cumberland County, where his case was tried, but didn't show racial discrimination in his own case. Weeks' interpretation of the law "is an absurd result that the Legislature did not intend," she said.

Robinson, 41, was sentenced to death for killing 17-year-old Erik Tornblum in 1991. He's the only prisoner whose case was heard under the original Racial Justice Act.

The 2009 law was the only one of its kind in the country, allowing death row prisoners and defendants charged with capital crimes to use statistics to prove racism. Legislators weakened the law in 2012 and repealed it entirely a year later. Before they did that, however, all but a few of the 153 death row prisoners appealed their sentences under the act. It's unclear if the Supreme Court decision will allow claims to continue if they were filed but not yet heard before the law was repealed.

As a result of the Racial Justice Act and other legal challenges, North Carolina has had a de facto moratorium on the death penalty since 2006, when Samuel Flippen was executed.

Defense attorney Don Beskind emphasized how often the prosecutor used peremptory challenges to disallow qualified black jurors as opposed to non-black jurors in Robinson's case. Black potential jurors were 3.5 times more likely to not be allowed to serve than non-black jurors, he said.

The Racial Justice Act differed from other laws and court decisions regarding discrimination because it covered only death penalty cases and it didn't require that the racism be intentional or the sole reason for the sentence, Beskind said.

"In doing this, the Legislature recognized, I suggest, that when the state executes someone, that penalty alone requires considerable more care to ensure that race did not influence its imposition," he said.

In the second hearing Monday, justices heard evidence about three combined cases: Quintel Augustine, convicted of killing Fayetteville police Officer Roy Turner Jr. in November 2001; Christina Walters, convicted of killing Susan Raye Moore and Tracy Rose Lambert as part of a Crips gang initiation in 1998; and Tilmon Golphin, convicted of killing Highway Patrol Trooper Ed Lowry and Cumberland County sheriff's Deputy David Hathcock in 1997.

Elder said Weeks had already decided racial discrimination existed in the three cases, based on what he heard in Robinson's hearing.

"If the court has confidence that the findings of fact in these cases were made not under a misapprehension of law, then you would affirm," she said. "But if this court is concerned, as we are, that findings of fact were made here under a misapprehension of law, that there were clearly erroneous findings that were made and clear errors of law, and that the lower court had already made its mind up before the first bit of evidence came in in this case, you should reverse and remand for a proper determination under the law. "

Attorney Jay Ferguson, representing the three murderers, said his evidence showed racial discrimination occurred in each case, as the revised Racial Justice Act required.

"And when we look at the evidence, we see the evidence shows a culture of pervasive and preoccupation and reliance upon race by the Cumberland County prosecutors," he said, that ranged from the training they received to the treatment of jurors. "Race was prominent in the minds and decisions of these prosecutors."

Justice Cheri Beasley, who represented Golphin at trial, did not hear the arguments in the second hearing.


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