Death penalty study author meets House members

The Associated Press

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RALEIGH — An N.C. House committee examining whether to make changes to the Racial Justice Act heard Tuesday from the co-author of a study that found race was a significant factor as prosecutors made juror decisions in death penalty cases. The report was met by skepticism and support from panel members.

Michigan State University law professor Barbara O’Brien addressed the committee as lawmakers decide what, if anything, to do about a 2009 law designed to reduce death sentences to life imprisonment when racial bias is evident.

O’Brien told the committee her review of more than 7,400 potential capital jurors couldn’t locate anything other than race to explain why potential black jurors were rejected more than twice as often by prosecutors compared to whites.

The statistical analysis of qualified jurors for the cases of all 173 death row prisoners as of July 2010 found prosecutors statewide were on average 2.26 times more likely to dismiss a potential black juror compared to any other qualified member of the jury pool. The pool doesn’t include people who wouldn’t support a death sentence under any circumstance.

The black-white strike ratio of at least 2-to-1 held even when O’Brien’s analysis controlled for other variables that could have had an effect on a prosecutor’s decision-making, such as information scrubbed from juror questionnaires and court transcripts for about 25 percent of the qualified jurors. The variables, for example, included whether the prospective juror knew a witness or the defendant; stood accused of a crime; or expressed reservations about the death penalty.

“Racial disparities that we observed in the raw strike a pattern ... they’re not explained by any race-neutral characteristics that we could find and that ever have been suggested to us,” O’Brien said, adding that there were no factors in the court records or in affidavits by prosecutors “that could explain the different ways these black potential jurors were being treated.”

Republican leaders in the House formed the committee when they couldn’t gather enough votes in January to override Democratic Gov. Bev Perdue’s veto of a bill that would have effectively repealed the 2009 law, which was passed when Democrats were in control. The committee is expected to make recommendations to the full N.C. General Assembly when it reconvenes in May.

O’Brien testified earlier this year about the study at the first hearing for a death-row prisoner using the Racial Justice Act. A judge has yet to rule in the case of Marcus Robinson of Cumberland County, whose lawyers argue race was a factor in the decisions of prosecutors to reject potential jurors who were black. The judge would sentence Robinson to life in prison if he finds race was a significant factor in Robinson’s sentence.

The study scrutinized decision-making by prosecutors in striking potential jurors from the pool, not the attorneys for the defendant. O’Brien told N.C. Rep. Sarah Stevens, R-Surry, the percentage of black jurors actually empaneled for the death penalty cases reviewed was on par with the 16 percent in the number of qualified jurors.

Jonathan Perry, an assistant district attorney in Union County who cross-examined O’Brien in the Cumberland County hearing, also pointed out the study didn’t look at cases where death-row inmates already have been executed or the capital defendant was acquitted or received a lesser sentence. That means the study doesn’t have a random sample, which is needed to make strong inferences from the data, he said.

“There are a number of folks who were involved in the exact same complex discretionary process who were not included as part of this study,” said Perry, who admonished legislators from correlating racial disparities in the data with discriminatory activity. He pointed to data showing defense attorneys struck a disproportionate number of white prospective jurors.

Stevens and other Republicans opposed to the Racial Justice Act have said there are already methods by which death-row inmates can claim prosecutors rejected jurors illegally due to race. The Act’s emphasis on evidence to calculate discrimination is troubling because every capital case is different, they say.

“You keep missing the very human element in all of this, and that human element is that a prosecutor is looking for a jury that will convict, that will clearly be on their side and do what they feel is justice,” Stevens told O’Brien.

N.C. Rep. Joe Hackney, D-Orange, was surprised that Perry and others would disagree with the data that he says falls in line with what courthouse lawyers contend happen in court.

“Have you ever met a defense attorney who didn’t believe that race frequently played a part in a prosecutor’s strike decisions?” Hackney asked Perry.

Jay Ferguson, a Durham defense attorney who participated in the Robinson hearing, praised O’Brien’s study as sound and urged committee members not to change the 2009 law as the Cumberland County case likely winds its way to the state Supreme Court.

N.C. Rep. Tim Moore, R-Cleveland, the committee’s chairman, said the panel would meet again next month to discuss proposed changes to the 2009 law. Moore said he may present his own ideas for consideration.