July 15, 2012
By Paul Woolverton
State lawmakers this month revised the N.C. Racial Justice Act to make it harder for condemned prisoners to get off death row.
But three convicted murderers who will try to win claims in Cumberland County this fall want to base their arguments on the original 2009 version of the law. More than 150 other death-row inmates may try to do the same.
The passage of the new Racial Justice Act has further complicated the legal questions over what had been the second such law in the nation to give condemned prisoners an opportunity to argue that racism contributed to their sentences.
Should judges use the 2009 law or the 2012 revisions when considering claims filed before this summer? Resolving this question could end up extending the state's unofficial moratorium on executions instead of ending it as legislative leaders had hoped.
The three defendants in the Cumberland County cases, convicted of notorious murders, argue in court papers that the 2009 law shouldn't be taken away from them.
Prosecutors Rob Thompson of Fayetteville and Mike Silver of Winston-Salem, who are trying to keep the trio on death row, are expected to fight to solely use the 2012 law. They don't publicly discuss the cases outside of court.
The decision likely will pivot on whether the 2009 law gave the defendants a substantive, constitutionally protected right that they would lose if they can't use it anymore, said retired Forsyth County District Attorney Tom Keith.
Keith's staff worked on several pending Racial Justice Act claims while he was in office, and he has authored a paper analyzing the Racial Justice Act to be published in the North Carolina State Bar Journal.
Keith thinks the revised law should apply, but he doesn't expect the issue to be resolved until it is heard by the state Supreme Court.
The three defendants are Christina S. "Queen" Walters, an American Indian convicted in gang-related murders of two women; Tilmon Golphin, a black man who killed a sheriff's deputy and a state trooper; and Quintel Augustine, a black man convicted of murdering a Fayetteville police officer.
Their crimes took place in the 1990s and early 2000s.
The 2012 law limits one of the most powerful tools that more than 150 death row inmates hope to use to win claims: statistics.
The 2009 Racial Justice Act allowed condemned inmates to use statistical data to prove racism in the criminal justice system. The statistics could show that:
The race of potential jurors was a factor in decisions to exclude some of them from serving on death penalty trials.
The defendant's race was a factor in whether he or she was sentenced to death.
The race of murder victims was a factor in the issuance of death sentences.
Statistics alone - from the defendant's trial or from other trials across the state - were enough to win a Racial Justice Act claim.
The use of statistics and the wide breadth that was allowed has upset prosecutors.
"What we bristle at is the notion that someone will be allowed to raise stuff outside their case for why their punishment should be set aside," said New Hanover County District Attorney Ben David, who is president of the N.C. Conference of District Attorneys.
The 2009 law also allowed other evidence, for example testimony from anyone involved in the trial who observed or admits that racism affected the case.
In April, Marcus Reymond Robinson of Fayetteville became the first defendant to win a Racial Justice Act claim. He used 21 years of statistics and other evidence suggesting racism in prosecutors' decisions in jury selection in his trials and other trials.
Golphin, Walters and Augustine want to use the same statistical data that Robinson used, according to court filings.
The 2012 Racial Justice Act allows statistics but says numbers alone aren't sufficient. The revision limits the statistics to the county or prosecutorial district that conducted the trial, not any larger region or the whole state.
It also sets a time limit for the data to 10 years prior to the crime and two years after the sentencing.
Defense lawyers Ken Rose and Malcolm "Tye" Hunter of the N.C. Center for Death Penalty Litigation say the 2009 law should apply to Walters, Golphin and Augustine, or anyone else who committed capital murder before the 2012 law took effect.
The 2012 law does not explicitly repeal the 2009 law for Walters, Golphin and Augustine and anyone else whose cases date from before the 2009 law was enacted, Rose said.
Further, Rose said, it's unconstitutional to take the older law away from defendants who already have started using it.
The 2009 law gave the defendants the right to try to get off death row, and they have relied on it, he and Hunter said. "You can change the law, but you can't ... pull the rug out from under people who are in the middle of litigating under that law," Hunter said.
"It wouldn't be fair to tell someone that, 'We won't execute you if you can show race discrimination at the time of your trial was going on, all across the state.' " Rose said. And then, "You show it, you prove it, a judge finds it, and then all of the sudden: 'Nope, we're taking that back. Now we can execute you even though you've shown race discrimination all across the state at the time of your trial.' "
The equal protection provisions of the state and national constitutions further protect the older cases, Rose said, because these clauses say it's wrong to let some people use a law while denying it to others.
Constitutional provisions against cruel and unusual punishment apply, Rose said, because the law change was arbitrary.
Arbitrary punishment is unconstitutional, he said.
Rose and Hunter said the 2012 law applies to people who commit murder from now on.
Keith, the retired Forsyth County district attorney, said the 2012 law should apply to all defendants with pending claims, no matter when their crimes took place.
If he were in court, Keith said, he would argue that the 2012 version of the Racial Justice Act changed the law's procedures but doesn't deny substantive rights for people who have made little or no progress in their cases.
In Fayetteville, Golphin, Augustine and Walters filed Racial Justice Act claims in 2010. Their lawyers have sought evidence and done other preparatory work. They had a preliminary hearing this month and their evidentiary hearing is scheduled for October.
"I just do not understand their point of view," Keith said, "that says that anybody who hasn't done anything but sit there in jail - he's filed his RJA motion, and hasn't done anything, hasn't proceeded - why he should get a benefit. I think the 2012 law should apply to that."
A few pending claims that have made progress in courts elsewhere in North Carolina might be able to persuade the judges that the 2009 law applies, Keith said. Depending on their progress, "at some point, they leave from being procedural to being substantive. Great rights are being changed," Keith said.
Ultimately, he said, "I think that's for the Supreme Court of North Carolina, maybe the Supreme Court of the United States, to argue."
Staff writer Paul Woolverton can be reached at