Death Penalty Goes on Trial in North Carolina

By NATHAN KOPPEL

Kenneth Bernard Rouse was sentenced to death after a jury found him guilty in 1992 of fatally stabbing 63-year-old Hazel Colleen Broadway. Police found her body in a North Carolina convenience store, the knife still in her neck.

Nearly two decades later, Mr. Rouse, now 47, sits on North Carolina’s death row, after filing unsuccessful appeals.

But a new, controversial state law might change that. Last year, North Carolina enacted what’s known as the Racial Justice Act, requiring judges to let any inmate off death row if the judge finds that race was a “significant factor” in the death sentence.

About 95% of the state’s death-row population, or 152 inmates including Mr. Rouse, filed bias claims by the August deadline, according to the North Carolina attorney general’s office. The law also allows future capital-murder defendants to claim racial bias. Convicts whose petitions were successful would instead face life sentences, with no chance of parole.

North Carolina’s new law is among the most hotly debated responses to recent criticism of the death penalty. Many states have rethought the sentence amid new genetic evidence that has freed some inmates.

Maryland has suspended its use of the death penalty while it reviews whether lethal injection causes undue pain; Texas last year passed a law to improve legal representation in death-penalty appeals. New Jersey and New Mexico in recent years abolished the death penalty.

But North Carolina has undertaken the most far-reaching effort to date to examine the amorphous question of whether race played an improper role in decisions to seek or impose death sentences.

It likely will be several months before any of the claims are considered by the courts, attorneys said.

“There are so many variables that can legitimately affect a prosecutor’s decision to seek the death penalty, including the seriousness of an offense,” said Christopher Slobogin, a death-penalty expert at Vanderbilt University Law School. “This will be a messy enterprise.”

Other states could follow North Carolina’s lead. Legislation is pending in Pennsylvania to allow death sentences to be challenged on the grounds of racial bias. A similar bill was introduced this year in California, though it was defeated because of concerns it would cost too much to administer, said a spokeswoman for Democratic California state senator Gilbert Cedillo, who introduced it.

Death-penalty critics and civil-rights advocates in North Caroline had pushed for several years to pass legislation aimed at examining the role of race in death-penalty cases. The Rouse case involves unusually specific evidence of alleged bias, and it was cited by advocates of the Racial Justice Act as an example of how discrimination can affect jurors’ decision making, according to lawyers involved in the debate over the law.

In his petition, Mr. Rouse highlighted that he is black, his victim white and he was convicted by an all-white jury. Mr. Rouse also presented what he claimed was more specific evidence of alleged bias. After the verdict in his case, a member of his legal team interviewed a juror, who allegedly used a racial epithet in describing blacks and said, ” ‘Black men rape white women so that they can brag to their friends about having done so,’ ” Mr. Rouse’s bias petition claimed.

“If the Racial Justice Act covers anything, it covers Kenneth Rouse,” said his attorney, Gordon Widenhouse.

Andrew Gregson, a lawyer in the district attorney’s office that prosecuted Mr. Rouse, declined to comment on the case.

No particular case served as catalyst for the final legislation, according to people involved in the process. “We had quite a few people in the state who were concerned about the large number of people on death row who are African-American,” said state Democratic senator Floyd McKissick Jr., who sponsored the legislation.

The legislation drew heated debate, narrowly passing the Democratic-controlled legislature. No Republican voted for it. “We are just giving murderers an additional tool to delay justice,” Justin Burr, a Republican state legislator said.

Final Punishment

See states’ death penalty laws, methods and executions since the Gregg v. Georgia ruling by the U.S. Supreme Court reinstated state death-penalty laws in 1976.

Some Republicans in the fall election season have continued to criticize their Democratic opponents for voting in favor of the legislation, although now the debate over bias legislation has been subsumed by a bigger controversy, attorneys said. The North Carolina attorney general’s office last month released a report that the state’s crime lab had routinely failed to disclose evidence possibly favorable to defendants, including in death-penalty cases.

Prosecutors also resisted the law, saying that it calls for a costly and unnecessary wholesale review of cases. “I feel very confident that race has not played a role in imposing the death penalty,” said Peg Dorer, director of the North Carolina Conference of District Attorneys.

Of particular concern to prosecutors and other opponents is that the new law allows murder defendants to try to prove bias through broad statistical evidence, such as data showing that North Carolina prosecutors, on a county-wide or state-wide basis, have sought the death penalty more frequently against black defendants or in cases involving a white victim. “You shouldn’t try a case on statistics,” said Sarah Stevens, a North Carolina Republican legislator. “Statistics can be manipulated.”

Mr. Rouse’s bias petition cited two recent studies from the Michigan State University College of Law. One study found that in more than 1,500 cases between 1990 and 2009, North Carolina defendants of all races were more than twice as likely to be sentenced to death if at least one of their alleged victims was white.

Another study concluded that in the cases of the 159 people currently on death row in the state, prosecutors removed blacks from juries at more than twice the rate that they struck prospective nonblack jurors.

Most inmates filing bias claims have cited the Michigan State study, according to Gerda Stein, a spokeswoman for the Center for Death Penalty Litigation, which represents about 40 inmates who have filed claims.

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