Professor Mark Rabil weighs in on 2009 Racial Justice Act

Defense lawyer Mark Rabil thinks the N.C. Racial Justice Act of 2009 is bringing long-overdue justice to the state’s courts, while prosecutor Jim O’Neill says it is pushing justice further away.

In the more than two years since the act became law, Rabil said he’s seen prosecutors use more care to ensure there is no racism in their selection of jurors. O’Neill says he’s doing nothing different when he prosecutes a case, but now he tells the families of murder victims that the Racial Justice Act will add decades to the years they will wait to see a death sentence carried out. And even then, O’Neill said, the murderer might be able to use statistics to avoid execution.

The two Winston-Salem lawyers – Rabil, an assistant capital defender, and O’Neill, the elected Forsyth County district attorney – encapsulate the controversy that has surrounded the act since Democratic Gov. Bev Perdue signed it into law in summer 2009 and the new Republican majority in the General Assembly tried unsuccessfully to repeal it in 2011.

The law is designed to end any institutional racism remaining in the prosecution of death penalty cases and provide previously convicted defendants with a means to pursue claims that racism was a factor in their trials.

Anyone who wins a Racial Justice Act claim will have his death sentence changed to life without parole. The first such claim to get an evidentiary hearing, that of Marcus Reymond Robinson of Fayetteville, has been under way for two weeks in Cumberland County Superior Court and continues this week.

Robinson’s hearing has focused on jury selection. He has a statistical analysis that contends prosecutors have dismissed black jurors at significantly higher rates than white jurors.

In pursuing this claim, Robinson’s lawyers are protecting not only his right to a fair trial, Rabil said, but the rights of all citizens.

“This is going to increase around the state the rights of minorities to actually be allowed to serve on juries,” Rabil said.

He said that in spring 2010, he defended a black man in Iredell County who had an all-white jury. The man was sentenced to death. He thinks the prosecution dismissed black potential jurors based on their race, although the prosecutors stated other reasons for the dismissals.

A few months later, after a slew of Racial Justice Act claims were filed, Rabil said, he consulted for the defense at a trial in Forsyth County in which O’Neill appeared to be careful to select a jury without consideration of race. In that case, the defendant was white and was sentenced to death by a racially mixed jury.

O’Neill said he appreciates Rabil’s compliment on his fairness, but said he made no changes to his jury selection process based on the Racial Justice Act.

“I think I do what I do in every case. I try to find 12 people regardless of race that know nothing about the case, with little or no connection to the criminal justice system, than can sit as fair jurors,” O’Neill said.

Since 1986, when the U.S. Supreme Court issued its Batson vs. Kentucky ruling that prosecutors may not dismiss jurors solely because of their race, a prosecutor always has to focus on a nonracial reason for dismissing a juror, O’Neill said.

O’Neill, a lawyer for 15 years and the district attorney since 2009, said he hasn’t observed racism in the conduct of Forsyth County prosecutions.

And if racism did taint a trial, O’Neill said, the defendant has other legal remedies available than the Racial Justice Act and should get a whole new trial instead of a change in his sentence.

Rabil, who has practiced law for more than 30 years, says he has observed racism in the courts throughout his career. He acknowledged that defense lawyers, himself included, early in his career tried to seat black jurors when they had black clients on the assumption that they would be better for their clients.

Rabil has since learned otherwise. “Race alone does not determine how a person is going to rule in a case or how they see evidence,” he said. “For me now, and in my more experienced years, what I see that is more significant is: What is the person’s background, and what do they say their views are?

“… I’ve had cases where African-Americans would be the ones leading the charge for death in a case, even with a black defendant.”

O’Neill’s office faces two pending Racial Justice Act claims in Forsyth County. He estimated it will be a year before a judge will hear evidence on their merits.