RALEIGH, N.C. (AP) — Prosecutors in the first case being heard under a North Carolina law that allows death row prisoners to challenge their sentences on the grounds of racial bias have filed a motion asking that a black judge be removed from presiding over the case.
Cumberland County prosecutors said in a motion filed Tuesday that they want Superior Court Judge Greg Weeks removed because he may be called as a witness in the case of Marcus Robinson, who’s challenging his death sentence under the state’s Racial Justice Act.
Their motion doesn’t mention the judge’s ethnicity, but has angered some legal experts who believe race is the behind the move.
“It looks like they’re trying to get rid of an African-American judge and have the case heard by someone who likely would not be African-American,” said Duke University law professor James Coleman. “They’re accused of manipulating the jury on the basis of race. It’s ironic that they would do something that looks like they’re trying to … manipulate the judge who would hear the case. It’s tone deaf. It’s unbelievable to me.”
The judge who hears the motion should require the prosecutors to say that they will call Weeks as a witness, not that they might, and identify the testimony they seek from him, Coleman said. Otherwise, attorneys can remove judges simply by saying they might be called as a witness, he said.
Weeks’ attorney, Fred Webb of Sanford, agreed with Coleman about the dangers of being able to call judges as witnesses. He said, however, that he doesn’t believe race is at the heart of the motion.
“I think they’re just trying to have a judge removed by the issuance of a subpoena, which is very important to the state of North Carolina, not just to one particular group of people,” Webb said.
A subpoena was issued Nov. 2 for Weeks, who moved to quash the subpoena five days later. A hearing is scheduled Thursday in Nash County Superior Court on Weeks’ motion to quash, and Webb said that hearing will take place despite the motion to remove Weeks.
In their motion to remove the judge, prosecutors said they might call him as a witness because he handled two Cumberland County capital cases that were part of a study by two law professors at Michigan State University. The study found a defendant in North Carolina is 2.6 times more likely to be sentenced to death if at least one of the victims was white. The study also showed that of the 159 people on death row in the state at the time of the study, 31 had all-white juries and 38 had only one person of color on the jury.
Assistant District Attorneys Calvin Colyer and Robert Thompson said in their motion that they advised Weeks during a hearing in September that they didn’t object to his handling of preliminary matters but that could change as the case progressed.
While prosecutors say other judges have been removed from cases because of their previous involvement, attorneys for Robinson say those judges were involved as prosecutors before they were named to the bench.
” … the state’s arguments, taken to its logical conclusion, would render adjudication of RJA claims practically impossible,” the attorneys said in a letter to Weeks.
Prosecutors also have subpoenaed Superior Court Judge Thomas Lock; retired Cumberland County District Attorney Ed Grannis; District Court Judge John Dickson, a former Cumberland County prosecutor; and retired Superior Court judges Jack Thompson, E. Lynn Johnson, Knox V. Jenkins, Coy Brewer and William Gore.
The Associated Press left a message for Colyer and Thompson.
Robinson’s attorneys say prosecutors discriminated against qualified black jurors at his 1994 trial for killing a white teenager. If he wins his claim, he would be sentenced to life in prison without parole. His attorneys say prosecutors blocked half of all qualified black jurors from serving on the jury while blocking just 14.8 percent of all other jurors.
Robinson’s hearing is scheduled to begin Tuesday, but prosecutors are seeking a delay.
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