Reporting from Fayetteville, N.C.
For nearly three weeks, convicted murderer Marcus Reymond Robinson has listened quietly inside a county courtroom here to intricate testimony about statistics — dry statistics that could get him off death row.
Robinson, a black man convicted of killing a white teenager in 1991, is the first inmate to test North Carolina’s Racial Justice Act, the nation’s only law that allows death row prisoners to reduce their sentences to life without parole by proving racial bias in jury selection or sentencing.
The act, passed in 2009, has drawn bitter condemnation from prosecutors and Republican state legislators who call it a backdoor attempt to repeal the death penalty. It allows inmates to cite statistical patterns in statewide jury selection — rather than focusing solely on their own cases — to argue that their jury selection or sentencing was racially biased.
“It’s new territory,” Richard Dieter, director of the nonpartisan Death Penalty Information Center, said of the case’s legal and political implications.
Robinson’s case is being closely followed by legal scholars, lawyers and politicians. If he’s successful, it could prompt calls for similar laws in at least 20 other states that have conducted studies on race, jury selection and the death penalty.
White, as well as black, defendants could argue that eliminating black jurors denied them jurors more likely to oppose the death penalty and to view police with suspicion, Dieter said.
More than 150 inmates on North Carolina’s death row, many of whom are white, have petitioned for hearings under the law.
The issue of race has dominated Robinson’s hearing before a Superior Court judge here. Prosecutors have pointed out that Robinson said “he was going to get him a whitey” before he killed 17-year-old Erik Tornblom with a shotgun blast to the face and robbed him of $27. An accomplice is serving a life sentence.
In closing arguments this month, prosecutor Cal Colyer called the Racial Justice Act “an insult to the prosecutors, to the judges and, yes, even to the defense attorneys in this case.” Another prosecutor, Rob Thompson, said the only person discriminated against because of race was Tornblom.
Robinson’s lawyer, James Ferguson, told the court that the Racial Justice Act could “eliminate the harm that’s done to the system itself by limiting and excluding folks from serving on a jury as a result of race.”
**
Robinson’s case, and possibly those to follow, hinges on a voluminous study of peremptory challenges by prosecutors in 173 death penalty cases in North Carolina between 1990 and 2010.
The study, by Michigan State University researchers, found that prosecutors struck potential black jurors at twice the rate of nonblack jury candidates. In Cumberland County, where Robinson was tried, the strike rate for blacks was 2.6 times the rate for whites.
At Robinson’s 1994 trial, blacks were struck at 3.5 times the rate of potential white jurors. His jury had nine whites, one Native American and two blacks.
Of more than 150 people on death row at the time of the Michigan State study, 31 had all-white juries and 38 had juries with only one black member. In cases with at least one black potential juror, prosecutors dismissed 56% of blacks compared with 25% of potential jurors of other races, the study found.
The use of statistics from unrelated trials, permitted under the act, has enraged opponents of the law, among them Tornblom’s parents. The couple has attended the trial, quietly fuming as they listened to testimony.
“This whole study is a sham,” Tornblom’s stepmother, Patricia Tornblom, said in a courtroom interview during a break in testimony. “What does all this stuff from other cases have to do with this case?”
Her stepson, not Robinson, was the victim of racism, she said, nodding toward the defendant. Robinson, 38, a broad-faced man with short dreadlocks, sat at the defense table nearby, dressed in a sport shirt and khaki pants.
“He chose a white boy to kill — and he killed him,” Tornblom said.
Prosecutors in the case challenged the Michigan State study, saying it looked at only 173 trials over a 20-year period, when 696 capital murder trials were held in the state. They also pointed out that jurors can be struck for many reasons other than race. The study failed to take all factors into account, they said.
Prosecutor Jonathan Perry said the defense used its broad statistical analysis “to try to get people to lose sight of the trees and focus on the forest.”
The issues of race and the death penalty are playing out far beyond the Fayetteville courtroom. State Republicans passed a bill to overturn the act, but it was vetoed in December by Democratic Gov. Bev Perdue.
“It is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina,” Perdue said.
A similar act was passed by the U.S. House in 1990 and 1994 but failed in the Senate. A favorable ruling in Robinson’s case could revive national support for such a law.
A ruling on Robinson’s petition is expected in the next few weeks.
**
The law’s proponents maintain that it provides important constitutional safeguards and is a landmark in civil rights protections. The state Legislature, then controlled by Democrats, introduced the act in 2009 after a series of high-profile exonerations by DNA evidence of wrongly convicted death row inmates.
For Robinson, the act offers a path off death row. “It’s been a long time coming,” his lawyer, Ferguson, who is black, told the court. “But finally, change is coming.”
The law’s opponents say it opens up a legal quagmire.
Mandating a sentence of life without parole could be ruled unconstitutional because that sentence didn’t exist in North Carolina before 1994, says the state’s Conference of District Attorneys. Inmates convicted before 1994 could argue that it’s unconstitutional to sentence them to a punishment that did not exist when they were convicted. Two-thirds of the death row inmates who have filed under the act were convicted before 1994.
“Those who say, ‘Oh, that could never happen,’ aren’t the ones who will make the decisions,” Peg Dorer, director of the district attorneys group, said in an interview. “It’s up to the courts.”
Prosecutors contend that some death row inmates ultimately could be set free. The victim’s father, Richard Tornblom, shares that concern. The pardons recently granted to Mississippi inmates, some of them convicted murderers, by outgoing Republican Gov. Haley Barbour prove that there are no guarantees that Robinson would spend the rest of his life in prison, he said.
“That shows you that there’s really no such thing as life without parole,” Tornblom said.
The victim’s stepmother said she feared the act would allow Robinson to escape the justice mandated by a jury 18 years ago.
“For him, there should be no decision here other than death. He should die,” Tornblom said.
david.zucchino@latimes.com
