Wednesday, March 18, 2009

Death penalty applied unevenly

- Staff Writer

DURHAM -- A couple of defense lawyers are using a local death penalty study that mirrors the racial disparities highlighted in national analyses to try and keep their client from being prosecuted capitally.

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 of 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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