Two men from Forsyth County will have to wait until at least 2014 for their chance to prove that racial bias helped put them on death row.
The first evidentiary hearing under North Carolina's Racial Justice Act, signed into law in 2009, began last week in Cumberland County and is continuing this week. Marcus Robinson, who is on death row after being convicted of killing 17-year-old Erik Tornblom in 1991, is alleging that race played a role in jury selection, resulting in a nearly all-white jury. Robinson is black, and his victim was white.
In Forsyth County, Carl Stephen Moseley and Errol Duke Moses have filed motions under the Racial Justice Act. The law allows death-row inmates and defendants facing the death penalty to use statistics and other evidence to prove race played a significant role in either seeking or imposing the death penalty.
The law provides only one remedy if the motions are successful — a death sentence is converted to life in prison without the possibility of parole.
Last year, Forsyth County held the first hearing ever under the law in the cases of Moseley and Moses when prosecutors challenged the Racial Justice Act's constitutionality. Judge William Z. Wood of Forsyth Superior Court ruled the law constitutional.
But Robinson's case has gotten to an evidentiary hearing a lot faster because the statistics are not as complex, said Gretchen Engel, a staff attorney with the Center for Death Penalty Litigation. The hearing in Cumberland County involves alleged racial bias only in jury selection, she said.
That case does not look at prosecutors' decision to seek the death penalty or the jury's decision to impose it, Engel said. Assistant District Attorney David Hall said Wood, who is presiding over the two Forsyth County cases, has decided to tackle those issues first. Hall and Assistant District Attorney Mike Silver are handling the Racial Justice Act motions in the two Forsyth cases.
The statistics in the cases involving Moseley and Moses are more complex, and Hall and Silver are challenging the methodology used to get those statistics. The data used in the motions come from a study by two Michigan State University law professors.
Wood signed an order in December that spells out the schedule for discovery and depositions in the two cases. An evidentiary hearing would not be set until late 2014, at the earliest, according to the order.
Moseley, who is white, is on death row for killing two white women — Deborah Jane Henley in Forsyth County and Dorothy Woods Johnson in Stokes County. Their bodies were found in 1991.
Moses, who is black, got the death penalty after being convicted of killing two black men — Ricky Griffin in 1995 and Jacinto Dunkley in 1996.
Engel said the extensive schedule is not that unusual. She likened it to the schedule for a medical malpractice lawsuit. "This is a serious matter, and (this is) no less worthy of full court process than a civil matter."
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