[Deathpenalty] death penalty news----N.C., CALIF.

[Rick Halperin]

June 5



NORTH CAROLINA:

Imagine Being Pulled Off death row and Then Being Put Back on It----That's what 
happened after North Carolina repealed the Racial Justice Act.


In 1994, Marcus Robinson, who is black, was convicted of murder and sentenced 
to death for the 1991 killing of Erik Tornblom, a white teenager, in Cumberland 
County, North Carolina. He spent nearly 20 years on death row, but in 2012 his 
sentence was changed to life without a chance of parole. He was 1 of 4 death 
row inmates whose sentences were commuted by a judge who found that racial 
discrimination had played a role in their trials.

The reason their cases were reviewed at all was because of a 2009 North 
Carolina law known as the Racial Justice Act, which allowed judges to reduce 
death sentences to life in prison without parole when defendants were able to 
prove racial bias in their charge, jury selection, or sentence.

"The Racial Justice Act ensures that when North Carolina hands down our state's 
harshest punishment to our most heinous criminals," former Gov. Bev Perdue said 
when she signed the bill into law, "the decision is based on the facts and the 
law, not racial prejudice."

At 21, Robinson was the youngest person sentenced to death in North Carolina. 
When he was three, he was hospitalized with severe seizures after being 
physically abused by his father and was diagnosed with permanent brain 
dysfunction. However, those weren't the only troubling aspects of his case.

"We continue to believe the Racial Justice Act is an ill-conceived law that has 
very little to do with race and absolutely nothing to do with justice."

Racial discrimination in jury selection has been prohibited since it was banned 
by the Supreme Court in its 1986 Supreme Court decision Batson v. Kentucky, but 
Robinson's trial was infected with it. The prosecutor in the case, John 
Dickson, disproportionately refused eligible black potential jurors. For 
example, he struck 1 black potential juror because the man had been once 
charged with public drunkenness. However, he accepted 2 "nonblack" people with 
DWI convictions. Of the eligible members of the pool, he struck 1/2 the black 
people and only 14 % of the nonblack members. In the end, Robinson was tried by 
a 12-person jury that included only 3 people of color - 1 Native American 
individual and 2 black people.

Racial discrimination in jury selection was not uncommon in the North Carolina 
criminal justice system. A comprehensive Michigan State University study looked 
at more than 7,400 potential jurors in 173 cases from 1990 to 2010. Researchers 
found that statewide prosecutors struck 52.6 % of eligible potential black 
jurors and only 25.7 % of all other potential jurors. This bias was reflected 
on death row. Of the 147 people on North Carolina's death row, 35 inmates were 
sentenced by all-white juries; 38 by juries with just 1 black member.

Under the Racial Justice Act, death row inmates had one year from when the bill 
became law to file a motion. Nearly all the state's 145 death row inmates filed 
claims, but only Robison and three others???Quintel Augustine, Tilmon Golphin, 
and Christina Walters - obtained hearings. In 2012, Robinson's was the first. 
At the Superior Court of Cumberland County, Judge Gregory Weeks ruled that race 
had played a significant role in the trial and Robinson was resentenced to life 
without parole. North Carolina appealed the decision to the state's Supreme 
Court.

An immediate outcry followed the decision. The North Carolina Conference of 
District Attorneys issued a statement saying, "Capital cases reflect the most 
brutal and heinous offenders in our society. Whether the death penalty is an 
appropriate sentence for murderers should be addressed by our lawmakers in the 
General Assembly, not masked as claims (of) racism in our courts."

The ruling attracted lots of publicity from across the country and North 
Carolina lawmakers were outraged. "There are definitely signs in the 
legislative record that there were some [lawmakers] that really wanted to see 
executions move forward," Cassandra Stubbs, the director of the ACLU Capital 
Punishment Project who also represents Robinson, says. Legislative staffers 
circulated talking points for lawmakers with arguments that the RJA turns 
"district attorneys into racists and convicted murderers into victims," 
describing the law as "an end-run around the death penalty and an indefinite 
moratorium on capital punishment."

The day Judge Weeks resentenced Robinson, the Senate president pro tempore for 
the state Legislature, Phillip Berger, expressed concern that Robinson could be 
eligible for parole. He suggested Robinson - who had just turned 18 when he 
committed the crime and would not have been considered a juvenile - would be 
ineligible for life in prison without a chance of parole, citing a US Supreme 
Court ruling that prohibited juveniles from receiving life sentences without 
parole. "We cannot allow cold-blooded killers to be released into our 
community, and I expect the state to appeal this decision," he said. 
"Regardless of the outcome, we continue to believe the Racial Justice Act is an 
ill-conceived law that has very little to do with race and absolutely nothing 
to do with justice."

The state Legislature took on the challenge and voted to repeal the Racial 
Justice Act in 2013. This made it impossible for those on death row to even 
attempt to have their sentences reviewed for racial bias, but it left the fates 
of the four who had been moved to life imprisonment unclear. "The state's 
district attorneys are nearly unanimous in their bipartisan conclusion that the 
Racial Justice Act created a judicial loophole to avoid the death penalty and 
not a path to justice," Gov. Pat McCrory said in a statement at the time.

Even though the law was still in effect when the 4 inmates' sentences were 
reduced, they weren't safe from death row just yet. Robinson's sentenced had 
been legally reduced, but the legal battle was just beginning.

In 2015, after nearly 2 years from the initial hearing, the North Carolina 
Supreme Court ordered the Superior Court to reconsider the reduced sentences 
for Robinson, Augustine, Golphin, and Walters, saying the judge failed to give 
the state enough time to prepare for the "complex" proceedings.

This past January, Superior Court Judge Erwin Spainhour ruled that because the 
RJA had been repealed, the four defendants could no longer use the law to 
reduce their sentences. "North Carolina vowed to undertake an unprecedented 
look at the role of racial bias in capital sentencing," says Stubbs. But now, 
"the state Legislature explicitly turned from its commitment and repealed the 
law."

Robinson is back on death row at Central Prison in the state's capital of 
Raleigh. In the petition to the state Supreme Court, Robinson's lawyers point 
out that the Double Jeopardy Clause - the law that prevents someone from being 
tried twice for the same crime - bars North Carolina from trying to reimpose 
the death penalty because the 2012 RJA hearing acquitted him of capital 
punishment.

"He's never been resentenced to death," Stubbs says. "They have no basis to 
hold him on death row."

(source: motherjones.com)






CALIFORNIA:

State high court ruling on death penalty could restart executions


The California Supreme Court hears many high-stakes cases on issues such as 
individual rights, taxes, and the lawmaking powers of the state and its voters. 
But it has seldom confronted a case with such potentially dramatic consequences 
as Tuesday's hearing on the Proposition 66 death-penalty initiative.

If the court - traditionally deferential to the will of the voters - upholds 
the central provisions of Prop. 66, it will open the door to the resumption of 
executions in a state that last put a prisoner to death in January 2006. Nearly 
750 condemned inmates inhabit the nation???s largest death row, and about 20 
have run out of appeals to their conviction and sentence.

Prop. 66 also seeks to speed up future executions, in part by requiring the 
state's high court to decide all death-penalty appeals within 5 years of 
sentencing - more than twice its current pace. If the court upholds that 
requirement, one of the most hotly contested in the case, it may have to 
reconfigure itself as a tribunal that gives priority to capital cases over all 
other types of criminal and civil law disputes in the nation's most populous 
state.

The justices could reject the deadlines while upholding other Prop. 66 
provisions aimed at shortening the death-penalty process, such as limiting 
prisoners' appeals and requiring more lawyers to accept capital cases. But 
opponents say the proposed timetables for court action are the heart of an 
initiative that seeks to hamstring judicial authority over state law.

Neither lawmakers nor voters can "force the courts to prioritize a certain type 
of case at the expense of all other types of cases," said Christina Von der Ahe 
Rayburn, a lawyer in the suit to overturn Prop. 66. The requirement to move 
death cases to the front of the line, she said, would "impair the court's 
inherent function of giving fair and equal treatment to (all) litigants."

Not so, said Kent Scheidegger, legal director of the Criminal Justice Legal 
Foundation and an author of Prop. 66. He said the measure would actually 
relieve the state Supreme Court of some of its current death-penalty workload 
by transferring some hearings to trial courts. It sets a 5-year deadline that 
he says the court could meet if it eliminated needless delays.

"If our side wins, we can get back to having a death penalty that actually 
works and really see some executions being carried out," probably before the 
end of this year, said Scheidegger, who will argue in defense of the measure 
along with Attorney General Xavier Becerra???s office at the hearing in Los 
Angeles.

Rayburn said an unrelated federal court case would probably delay any 
executions in California by at least six months, even if Prop. 66 were upheld. 
If the court overturns most or all of the initiative, executions will remain on 
hold for a year or longer as challenges to proposed new lethal-injection 
procedures work their way through state and federal courts.

A ruling is due within 3 months.

Prop. 66 passed with 51 % of the vote on the same November ballot in which a 
rival measure to repeal the death penalty in California was rejected by about 7 
% points, nearly twice the margin of defeat for a similar measure in 2012. 
While the votes were close, the message seemed clear: Californians want the 
death-penalty law enforced.

But the far-reaching provisions of Prop. 66, which received little attention 
during the campaign, have evidently raised concerns among the justices, who put 
the measure on hold while they consider a lawsuit seeking to overturn it. The 
suit was filed by the late John Van de Kamp, a former state attorney general, 
and Ron Briggs, a former El Dorado County supervisor whose father, the former 
Southern California state Sen. John Briggs, sponsored a 1978 initiative that 
established the current death-penalty law.

Even before a federal judge halted California executions in 2006 by citing 
flaws in injection procedures, equipment and staff training, death-penalty 
appeals in the state were taking 20 years or more.

About 1/2 that time is typically spent in the federal courts, which consider 
constitutional objections to state death verdicts and are beyond the reach of 
state initiatives. But some of the delay is due to heavy state court workloads 
and a shortage of qualified lawyers who are willing to take the cases.

In addition to imposing a deadline on the time the state Supreme Court takes to 
review a death row inmate's appeal, Prop. 66 would apply the same 5-year limit 
to state courts' review of the 2nd-stage appeals known as habeas corpus. Those 
usually involve such post-trial claims as incompetent legal representation and 
misconduct by the prosecutor or jurors, and have often been the basis for 
federal court rulings overturning California death sentences.

The initiative doesn't say what would happen if the courts missed their 
deadlines.

Habeas corpus challenges are now filed directly with the state Supreme Court, 
but Prop. 66 would redirect them to the Superior Court judge who conducted the 
trial, and would shorten the filing deadline from 3 years to 1 year.

Scheidegger said the change would free the state's high court to concentrate on 
appeals and handle them more quickly. But Rayburn said Prop. 66, while 
providing no additional court funding, would simply shift more work to already 
overburdened Superior Courts in the handful of counties - Los Angeles, Orange, 
San Bernardino and Riverside - that issue most of the state's death sentences.

She also argued - though Scheidegger disagreed - that the state Constitution 
requires all death-penalty appeals, including habeas corpus cases, to be filed 
directly with the state Supreme Court.

Another provision of the measure seeks to expand the pool of defense lawyers by 
requiring attorneys to take capital cases if they already accept court 
appointments to represent defendants in other criminal cases.

Supporters say the change would ease the shortage of available lawyers, 1 of 
the chief reasons appeals take so long. Opponents say it would put condemned 
inmates' fates in the hands of unqualified lawyers and prompt many lawyers to 
refuse future assignments.

Prop. 66 would also speed up the state's switch from 3-drug executions, in use 
from 1996 to 2006, to lethal injections of a single barbiturate.

Gov. Jerry Brown's administration proposed procedures for 1-drug executions 
last year in settlement of a lawsuit by relatives of murder victims. Prison 
officials are still reviewing those procedures under a long-standing law that 
requires them to consider public comments. The commenters have included 
organizations that say the proposed drugs are untested in executions and the 
procedures are unreliable.

Prop. 66 would allow the state to enact the 1-drug procedures without 
considering public comment, though opponents could still object in court.

2 of the court's 7 justices, Chief Justice Tani Cantil-Sakauye and Justice Ming 
Chin, have removed themselves from the case because they are members of the 
state's Judicial Council, a defendant in the lawsuit by Van de Kamp and Briggs. 
Their replacements are 2 randomly selected appeals court justices, Andrea Hoch 
of the Sacramento court, an appointee of Gov. Arnold Schwarzenegger, and 
Raymond Ikola, appointed to the court in Santa Ana by Gov. Gray Davis.

The case is Briggs vs. Brown, S238309.

(source: San Francisco Chronicle)