Death penalty applied unevenly
An analysis of 177 murder cases over five years shows that prosecutors
are six times more likely in Durham, one of the most diverse counties
in the state, to seek capital punishment when a black suspect has
been accused of killing a white person compared with when the victim is black.
Jay Ferguson and Lisa Williams, two Durham lawyers, plan to use the analysis
in their defense of Keith Kidwell, a 24-year-old black man who has spent
the past four years in jail awaiting trial on charges that he murdered
Crayton Nelms, a white Kangaroo convenience store clerk found
beaten to death at work in February 2005.
Ferguson and Williams will argue in court this week that the death penalty
should be taken off the table because of the racial disparity issue.
They also say their client has been denied his right to a speedy trial
and the whole case should be dismissed.
The Durham analysis was conducted by Isaac Unah,
a political scientist at UNC-Chapel Hill.
The researcher looked at all murder cases indicted by the Durham
grand jury and followed them from start to finish.
Of the 177 murder suspects indicted by a Durham County grand jury
between 2003 and 2007, 50 could not be prosecuted as death penalty
cases because the defendants were too young.
Of the 127 other cases, only 20 were ever capital cases.
None of those went to jury as a death penalty case
because prosecutors often use the threat of capital punishment
in bargaining for pleas.
James Coleman, a Duke University law professor who worked
on the American Bar Association's Death Penalty Moratorium
Implementation Project, said that although the case sample
seemed small for a sweeping analysis, the conclusions
hold pace with centuries-old patterns.
"That goes back to the Civil War times," Coleman said.
"Prosecutors always sought the heaviest punishment
for the black defendant when the victim was white.
Those patterns have continued."
Although the 20-case sample is small, Kidwell's attorneys
say the larger picture is the more troubling trend they
plan to broach with a judge.
"These numbers are alarming," said Ferguson,
a Durham lawyer brought into the case in September 2007.
What it shows is race is the predominant factor over this
five-year period for which defendants the state seeks the death penalty on."
The researchers considered more than race. They also analyzed
the cases by the number of victims and the number of
charges the suspects faced.
"Of all the factors analyzed," Unah concluded in the affidavit
attached to his study, "the race of the victim had the greatest
effect on the decision to seek the death penalty."
Of the 107 cases where the suspect was black and
the victim was black, prosecutors sought the death penalty
nearly 10 percent of the time. Of the 20 cases where the
suspects were black and the victims white, prosecutors
sought the death penalty 35 percent of the time.
The findings come at a time when a Racial Justice Act proposal
is back before state legislators. The act would give defendants
in capital murder cases the right to challenge their prosecution
on racial bias grounds.
"This is exactly why we need it," Ferguson said.
District Attorney Tracey Cline, the prosecutor assigned
to the Kidwell case, declined to discuss the findings
but in a brief court hearing last week asked for more o
f the raw data so her experts can do their own analysis.
Other factors to consider, said Coleman, the Duke law professor,
are whether the victim and suspect were strangers, which
often brings threats of harsher punishment.
In gang-related cases, Coleman added, prosecutors
often do not seek the death penalty because the
victims might have provoked the crime.
In North Carolina and elsewhere across the country,
the number of people sentenced to death has
dropped dramatically in recent years.
In 2008, 13 juries in this state could have chosen death
for defendants. Only one in Forsyth County did.
Kidwell, according to his attorneys, has been offered
one plea deal that, had he accepted, would have put
him behind bars for the rest of his life.
"I believe they're using the death penalty to extract
plea bargains," Ferguson said.
The crux of the matter is set for hearing Thursday.
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