Forsyth County District Attorney Tom Keith opened his death penalty manual inside the conference room on the 7 th floor of the Forsyth County Hall of Justice and used it as a visual exhibit to explain his opposition to the Racial Justice Act. The act, which was signed into law by Gov. Beverly Perdue on Aug. 11, states that no one shall be given the death penalty or executed if race was a “significant factor” in the determination of the defendant’s sentence. The text of the Racial Justice Act gives specific examples of when the law would apply, including a judge’s finding that there was racial bias in the way the death penalty was imposed or that race was a factor in the jury selection process of a capital case. Keith explained how he and nine assistant district attorneys in his office sit in that very room and debate whether or not a murder case in Forsyth County warrants the death penalty.
“We have a seven-page checklist. It boils down to no residual doubt,” Keith said. Keith’s seven-page checklist, which is proprietary, could prove to be his office’s saving grace.
The law states the court may consider evidence of “any program, implemented prior to the defendant’s trial for the purpose of eliminating racial disparities” in ruling on a Racial Justice Act claim.
Keith said his office’s seven-page checklist could qualify as such a program, and might eliminate the possibility of him from having to argue the state’s case against the 11 death row inmates he prosecuted during his 19-year career in the DA’s office.
But there’s still the possibility that Keith and his staff will have to prepare to defend those prosecutions, which would require an enormous amount of time and energy, he said. “What [they] really want me to do is give up,” Keith said. “That’s what this is all about. This is an end run around the death penalty. [Lawmakers] don’t want to go out there and be on record and vote up or down the death penalty. What they’ve done now is a collateral attack.”
Keith said he argued his case to state lawmakers but his pleas fell on deaf ears. He was so disappointed by the legislature’s action that he issued a press release before the state Senate voted on the bill. The press release outlined what Keith considers to be the unforeseen consequences of the law. “About half of the 163 murderers on [North Carolina] death row who received a capital sentence for murder committed before Oct. 1, 1994 will be eligible for release in only 20 years, not life imprisonment without the possibility of parole, if the Racial Justice Act converts all death sentences to life sentences,” Keith writes.
“The ultimate goal of the [law] is to ensure an extra measure of protection for convicted murderers. Unfortunately, its real world application would result in almost half the murderers on death row being eligible for parole after only 20 years.”
Keith’s greatest concern is that up to 77 convicted murderers on death row could be paroled in 20 years and 10 inmates could be released immediately if a judge finds that race played a role in their sentencing.
Keith acknowledged that the law is opaque and unclear about the length of a commuted sentence of a death row inmate, but “tell that to a victim’s family,” he said. NC Rep. Larry Womble, a Forsyth County Democrat, co-sponsored the Racial
Justice Act. Womble
said spending the state’s resources to help ensure that race wasn’t a
factor in a death penalty case is a small price to pay for justice.
“You cannot put a dollar figure on someone’s life,” Womble said. “If it means we have to work a little bit harder, then so be it.” Womble used the highly publicized case of Darryl Hunt as an example of why the Racial Justice Act is an important piece of legislation.
“If [Hunt] had been placed on death row, he would be dead now,” Womble said. “What we’re saying is, if we’re going to use under the Racial Justice Act. On average, the North Carolina court system handles 12 capital cases a year. Maher estimated that eight of those defendants could seek relief under the new law. “One thing that can be overlooked is this could lead to a capital trial becoming a noncapital trial or someone could get relief in pre-trial hearings,” he said. “This requires additional work because they’re doing work with statistics, but the cost of adding that to their investigation is going to be relatively modest compared to the cost of trying a death penalty case.” Keith addressed the claims of supporters of the Racial Justice Act that African-Americans are overrepresented on death row. He pointed to a 2005 study authored by the US Department of Justice, which reveals that in murder cases, offending rates for blacks were seven times higher than whites. The study also revealed that 60 percent of all felony murders were committed by blacks offenders, while 39 percent of murders were committed by white offenders. Blacks compose 21 percent of the state’s total population, according to the 2000 Census, but make up 50 percent of all death-row inmates in North Carolina’s prisons.
White-on-black murder cases represent only 3.2 percent, “so [blacks] are 265 percent more overrepresented in killing the opposite race than whites,” he said. If the General Assembly is truly concerned about the overrepresentation of blacks on death row, lawmakers should amend the 11 factors used to determine if a murder case warrants the death penalty, Keith said. For example, according to NC General Statute 15A-2000, one of the factors that can be used to seek the death penalty is when a defendant kills a corrections officer.
“Sixty-five percent of North Carolina’s this kind of death-row penalty, let’s make sure we administer the death-row penalty in a fair way.”Hunt was wrongfully imprisoned for 19 years for the rape and murder of Winston-Salem newspaper editor Deborah Sykes. He was exonerated in 2003 after DNA evidence proved his innocence.
Tom Maher, director of NC Indigent Services, believes DA’s offices like Keith’s will not be as adversely impacted as they think.
“You have to take with a grain of salt that these [laws] are going to break the bank because generally attorneys find a way to get the job done with a reasonable allocation of resources,” Maher said. “Anyone who’s on death row, there are lawyers on both sides who know the case very well. It’s not like you’re picking up a file that no one has looked at it for 10 years and going to it for the first time.” Maher pointed out that the Center for Death Penalty Litigation, a Durham-based nonprofit, is coordinating an effort to have a reliable statewide study done so that anyone working on capital cases has access to the information. Maher added that all parties involved in litigating a racial justice claim will have access to the statistics, “so each defendant doesn’t have to research their own study, and it saves the state money,” he said. He estimated that of the 163 inmates currently on death row in North Carolina, 82 will most likely seek a claim of relief prison population is black,” Keith said. “If you kill penal officers, who are the people that are going to be doing that more than likely? It’s done on the same percentage of the people in jail and  percent of them are African-Americans and they are only 20 percent of our population. Then, they’re going to be three times more likely to be on death row for killing a penal officer. I mean, it ain’t rocket science. It’s just simple mathematics.”
Another aggravating factor is if a defendant killed a police officer. “If you’re African American, you’re six, seven or eight times more likely to have a violent history,” Keith said. “I didn’t go out there and put a gun in your hand and say, ‘You commit eight crimes, and I’m a white man, I’ll commit one.’ That’s just statistics, that’s just how it is.” Regardless, Keith believes state lawmakers didn’t think about the repercussions for the families of the victims in capital cases. Keith is confident he will win all his motions if he is forced to go through 11 lengthy hearings based on claims of racial bias in sentencing.
But next year, the General Assembly will change the rules again, he said. “They have beat on us and beat on us,” Keith said. “I wish they would have the intestinal fortitude to vote ‘yes’ or ‘no’ on the death penalty, either way. What they’re doing now is just killing us and it’s not fair to the victims. If they do away with [the death penalty], fine; if they keep it, fine. But just tell us what the rules are so I can get on with my life.”
Forsyth County District Attorney Tom Keith said with the passage of the Racial Justice Act his office will have to review the 500 murder cases he’s prosecuted during his 19-year career and defend why he sought the death penalty in 25 of those cases. The new law could mean half of the inmates on North Carolina death row could be eligible for parole in 20 years, he said. (photo by Keith Barber)