Right now, one of my kids has strep, which the doctor says is highly contagious. We’re trying to contain it so it doesn’t spread and make us all sick.
Those who value justice in our criminal justice system need to think of the Racial Justice Act hearings going on now as a particularly deadly form or strep that could strip victims of all crimes of a genuine shot at justice and create a justice system where the race of the victim, offender and those on the jury becomes more important than guilt or innocence, the crime committed or justice itself.
In Cumberland County, Attorney James Ferguson is using the Racial Justice Act to conduct the initial assault on the criminal justice system. In 1991, Marcus Robinson, who is black, killed a white teenager, Erik Tornblom, 17, in a robbery. He convinced Tornblom to give him a drive home, then, along with another assailant, robbed him of $27 and executed him in a field. No one, including Robinson, disputes that he is guilty. In 1994, he was given the death penalty for the crime.
The problem, according to the Racial Justice Act and Ferguson is that there was only one black person on the jury. They are using a professor who came up with a study showing that blacks are twice as likely to be struck from juries statewide as those of other races in peremptorily strikes, where prosecutors and defense attorneys can strike jurors without giving a reason. No one knows why black jurors were struck in Robinson’s case, or if it were for racial reasons, but that doesn’t matter.
If a murderer was convicted by a jury of his peers that doesn’t exactly reflect the racial makeup of the county they live in, or tilt toward his advantage, like an all-white jury for a white killer or a majority black jury for a black killer, the death sentence in a case can be thrown out. This will completely change the way attorneys pick juries, making it primarily about race, not justice, and forcing attorneys to take poor jury candidates rather rather than risk a race-based overturn of a conviction later.
Attorneys don’t have to prove any racism was present in Robinson’s jury selection, just that it might have been present in jury selection at some time some where in the state and his death sentence will be thrown out and commuted to life.
This will make convicting murderers more difficult in the future. And it is only a matter of time before dozens already on death row use it to get off, some of whom committed their crimes before Oct. 1, 1994 would have served their life sentences according to sentencing laws at the time that only required them to serve 25 years of a life sentence and could allow them not just to walk off death row, but out of prison entirely.
But this is only the beginning. The Racial Justice Act passed by the state legislature in 2009 only addresses the death penalty. It won’t be long before someone argues that it isn’t fair for someone to be sentenced to a life sentence for murder by a jury that isn’t perfectly racially “balanced.” Then we’ll be down to rape and armed robbery. There is no telling where this will end, or how far it will spread beyond state borders.
And there is no telling how many violent criminals, both black and white, will go free because the prosecutor had to put a clearly unqualified juror on the jury because of race.
So far, each of my predication on what the Racial Justice Act would do have been criticized as unrealistic, yet one by one they are coming true. Just wait.
