Defense Lawyers Argue Race was Significant Factor in Death Sentence for Non-Whites Accused of Murder in NC: White Prosecutor Struck Black Jurors

About 149 cases stand to be litigated under N.C.'s  Racial Justice Act, a law that allows statistics to be used in order to show bias, and if bias is shown, a sentence would be reduced from death to life without parole. From [HERE] and [HERE] Race was a significant factor in the death sentences given to two black men and one American Indian woman convicted of murder who are trying to have their sentences reduced under the Racial Justice Act, a defense attorney said Monday in Cumberland County court.

They are the first death-row inmates to make their cases before a judge since the General Assembly made it harder this summer to win claims under the controversial N.C. Racial Justice Act. The inmates are Christina "Queen" Walters, who killed two women in a gang initiation ritual; Tilmon Golphin, who killed two law enforcement officers in a traffic stop; and Quintel Augustine, convicted of killing a Fayetteville police officer.

Their hearing started Monday in Cumberland County Superior Court. Defense lawyers on the first day of hearing used notes that prosecutors made 10 years ago to try to prove they made racist decisions while picking a jury for the Quintel Augustine murder trial.

It's unconstitutional to convict someone or set a punishment on the basis of race. It's also unconstitutional to reject potential jurors based on their race. The Racial Justice Act of 2009, passed by a Democratic-controlled legislature, provided a legal framework for condemned inmates to advance claims that racism was an illegal factor in their convictions and sentences. It was promoted as a means to protect the criminal justice system's fairness and integrity, and redress a history of institutional racism.

This summer, the legislature -- now controlled by Republicans -- tightened and toughened the standards that inmates must meet to get their sentences overturned. The lawyers for Walters, Golphin and Augustine say the 2009 law still applies to them because they filed their claims while that version of the law was in effect. But they think they will win under either version, said Macolm "Tye" Hunter, a member of the legal team. The prosecutors say the judge must use the tougher 2012 law. The judge plans to consider these cases under both versions of the act, so the state's Court of Appeals or Supreme Court can decide which one applies.

In the Racial Justice Act claims, defense lawyers say that North Carolina prosecutors illegally used peremptory challenges to dismiss black potential jurors because of their race. Weeks ruled that statistical data presented by Robinson's lawyers during his claim hearing demonstrated to him that the prosecution at trial intentionally dismissed qualified black potential jurors because of race. During their presentation of evidence,

Cumberland County prosecutors argued that the decisions on each potential juror are unique and shouldn't be judged statistically. They said there were valid, non-racial reasons for the dismissals. They also challenged the caliber of a study of North Carolina and Cumberland County capital murder cases that generated the statistics Weeks used in his decision.

All three are making claims similar to Robinson's, and much of the same evidence will be introduced.

According to their court filings: Prosecutors at Walters' trial in 2000 dismissed qualified black potential jurors 3.5 times more often than they dismissed qualified non-black jurors. At Augustine's trial in 2002, prosecutors dismissed qualified black potential jurors four times more often. At Golphin's 1999 trial, prosecutors dismissed qualified black potential jurors twice as often as they dismissed non-black jurors.

But a prosecutor from the Quintel Augustine murder trial, retired Assistant District Attorney Cal Colyer (in photo), testified that his notes delineating that some potential jurors were black were simply recitations of information he was given about the jurors and nothing more.

Augustine is on death row for the murder of Fayetteville Police Officer Roy Turner in 2001. He, along with fellow death row inmates Christina Walters and Tilmon Golphin, have requested the hearing to try to get their death sentences converted to life without parole. They contend that black jurors were unconstitutionally excluded from their trials by prosecutors.

Colyer's notes from the trial describe background information for potential jurors, such as their criminal records, history of drug or alcohol abuse, and where they are from. Notes say some are "OK."

One, for example, indicates a potential juror was black, a "wino" and a drug user. Another says a potential juror was a black person from a community with high drug use. A woman is noted to be from a respectable black family.

Colyer said he likely got the information from people in Brunswick County.

"I don't know if they made a point of telling us that, but the reason I would have written it down would have been because somebody told me," Colyer said. He had never met or had any other knowledge of the potential jurors, he said.

Race is not a part of jury selection, Colyer said.

A peremptory challenge is a method of removing jurors from a jury pool. A juror may be removed for any reason; so long as it is a race or gender "neutral" reason.

Black jurors are often excluded by challenges that are disguised as race neutral but in fact are pretext or surrogates for race.

The following explanations for striking African Americans were found to be race neutral: style of dress and demeanor(1), participation in church activities (2) , lack of education (3) , unemployment and wearing a beard (4) , residence in a high crime neighborhood and unemployment (5) , residence in same neighborhood as defendant (6) , lack of education and business experience (7), being young or being a social worker (8) , membership in Operation PUSH (9) , membership in the NAACP (10), affiliation with Alabama State University(11) , having a relative that was a felon (12) , having a criminal record,poor body language, eye contact, having incarcerated relative (13) , being a social worker and agreeing with the O.J. Simpson verdict (14) , having low intelligence or marginal literacy(15) , being unemployed, 22 years old and wearing an earring (16), living in same the neighborhood as defendant and exhibited a lack of intellectual capacity (17) . [MORE] 

Defense lawyers Jay Ferguson and Malcolm Tye Hunter showed that Colyer's notes were missing from documents recently shared, per court order, with them. They obtained copies from a prior, unrelated hearing in Augustine's case.

The implication is that the notes, which could be damaging to the state, were held back.

Colyer said he could not explain why the notes were missing. He said he gave documents to others in the Cumberland County District Attorney Office who scanned them and sent electronic copies to the defense lawyers.

"I do not know if I overlooked them. I do not know if they were there and I missed them. ... I cannot tell you why it was not turned over," Colyer said. "But I can tell you that I did not intentionally refuse to turn it over and I did not intentionally withhold."

The hearing may run as long as two weeks. Senior Resident Superior Court Judge Greg Weeks is to decide the cases.

Walters, who is American Indian, led a gang in 1998 that killed two women in an initiation ritual. Golphin, who is black, and his brother killed N.C. Highway Patrol Trooper Ed Lowry and Cumberland County Sheriff's Deputy David Hathcock during a traffic stop in September 1997.

A crowd of about 100 spectators took up most of the seating in the courtroom. About a quarter of them were troopers, Fayetteville police officers and Cumberland County deputies in uniform.

Most spectators and lawmen had left by late afternoon, but several troopers stayed.

"We're going to be here all week," said Freddy Johnson, one of the troopers. Three law enforcement officers were killed, he said, and they and their families need support.

The Walters, Golphin and Augustine claims under the Racial Justice Act are the first to get a hearing since Marcus Reymond Robinson of Fayetteville won the state's first Racial Justice Act case in April.

Their cases also are the first to get a hearing since the General Assembly, in response to Robinson's victory and other complaints about the Racial Justice Act of 2009, tightened the standards for a defendant to win a case.

Before, statistical data that spells out patterns of racism could be used to win a Racial Justice Act claim, and Robinson used these to win his case. Now, statistics can be used, but revisions the legislature made over the summer say that statistics alone aren't enough to win.

With that change, the lawyers for Walters, Golphin and Augustine are attacking the thought processes of the prosecutors when they decided whether to reject potential jurors.

Augustine was tried in Brunswick County after a judge ruled that pre-trial publicity would prevent him from getting a fair jury here.

Statistics show that whites are sentenced to death at twice the rate as blacks, Thompson said.

"Where is the righteous indignation there?" he said.

This week's hearing marks the second test of the Racial Justice Act, which lawmakers heavily revised this session. Earlier this year, Marcus Reymond Robinson became the first prisoner removed from death row under the law.

The landmark 2009 law allowed death row prisoners to use statistics to show that racial bias influenced their sentences, but the Republican-led General Assembly overrode Gov. Beverly Perdue's veto this summer to roll back much of the law.

Statistics alone are no longer enough to have a death sentence commuted, and prisoners must also introduce evidence pertinent to their cases.

The hearing is scheduled to resume at 9:30 a.m. today in Room 4A of the Cumberland County Courthouse.

Barbara O'Brien of Michigan State University's law school, who led a study [HERE] that found racism in jury selection in North Carolina's death penalty trials and in these three cases, is expected to testify.