Put To Death For Being Black: New Hope Against Judicial System Bias

North Carolina's Racial Justice Act finally acknowledges that there is a huge bias in who gets the death penalty

The wind of revolution is beginning to blow through the halls of justice. It’s a small breeze now and the impact of what many consider one of the worst Supreme Court decisions of the 20th century still weighs heavily, but in North Carolina something called the Racial Justice Act is suggesting that a change is gonna come.
(MORE: Touré: Where Was ‘Stand Your Ground’ For Marissa Alexander?)
Many studies have shown that there is significant racial bias in the administration of the death penalty. Defendants are more likely to be sentenced to death for killing whites than for killing blacks and black defendants are more likely to get the death penalty than whites, as was referenced in David Baldus’s 1998 report “Racial Discrimination and the Death Penalty”. But a study by Jennifer Eberhardt found the impact of race to be even more nuanced: judges and juries perceive defendants who have physical traits that are stereotypically associated with blackness (broad nose, big lips, dark skin) to be more “death worthy.” What a horrific term. In Eberhardt’s study, stereotypically black-looking defendants were twice as likely to be sentenced to death. Sociologists know that race matters in capital punishment, but the Supreme Court has refused to notice since a 1987 decision in McClesky v Kemp.
A Los Angeles Times survey of liberal legal scholars named McClesky one of the worst decisions since World War II. NYU law professor Anthony Anderson called it “the Dred Scott of our time,” referencing the 1857 decision that upheld slavery. Ohio State University Professor Michelle Alexander told me it was the Plessy v Ferguson of our time, referencing the 1896 decision to justify racial segregation. Justice Lewis Powell, who wrote the majority opinion on McClesky, later told his biographer that was one of two votes he regretted.
Warren McClesky was a black man who was convicted of killing a Georgia police officer in 1978. His legal team produced a study showing racial inequality in the death penalty — specifically that blacks convicted of killing whites in Georgia were four times more likely to be sentenced to death than those convicted of killing non-whites. The court accepted the statistics but rejected McClesky’s appeal and wrote, “disparities in sentencing are an inevitable part of our criminal justice system.” So racism is in the mechanism of administering death but … so be it. Bias was found to shape capital punishment and that was acceptable? In dissent, Justice William Brennan wrote, “That a decision to impose the death penalty could be influenced by race is a particularly repugnant prospect, and evidence that race may play even a modest role in levying a death sentence should be enough to characterize that sentence as ‘cruel and unusual.’ ” In another dissenting opinion in a different capital punishment case, 1994′s Callins v Collins, Justice Harry Blackmun famously wrote that it’s impossible to rid racial bias from the death penalty so “I no longer shall tinker with the machinery of death.”
(MORE: Touré: The Racial Cold War is Heating Up)
Since McClesky, judges have not allowed defense attorneys to show juries studies proving racial bias in death sentencing, making it impossible to challenge bias at any stage of the judicial process. It’s as if racism only matters when it operates as a specific stated conspiracy rather than a ghost in the machine animated by an accumulation of bias. But two challenges have arisen. From the South.
Racial Justice Acts were passed in Kentucky in 1998 and in North Carolina in 2009, stipulating that if race is found to be a significant factor in the imposition of the death penalty, then death will be commuted to life without parole. North Carolina’s act allows three areas in which to argue significant racial bias: that a death sentence is more likely because of the race of the defendant; that a death sentence is more likely because of the race of the victim; or that jury selection was racially biased.
(WATCH: Wrongful Convictions, Race, Class and the Innocence Project)
Almost as soon as North Carolina’s act was passed, nearly all death row inmates began challenging their sentences. The first challenge to reach the court was filed by 38 year-old Marcus Reymond Robinson, who was sentenced to death for the 1991 kidnapping and murder of a 17-year-old from whom he stole a car and $27. Robinson was convicted by a jury composed of nine whites, two blacks and one American Indian in a county that’s 40% black. Last month, Robinson’s sentence was commuted to life because his legal team successfully argued that race was a significant factor in the dismissal of potential jurors. A racially diverse jury is crucial to countering stereotypes and getting fairness. Imagine, white readers, being on trial for murdering a black person and watching the prosecutors remove white people from the jury pool just because they’re white, and finding yourself in a room all but filled with blacks who would judge your guilt and whether or not you would die for killing a black person. Does that sound fair? Or frightening? Linking who lives and who dies to race is unacceptable but we do it. Even if you believe in the death penalty from a moral standpoint, racial disparities and other human errors make it hard to trust humanity with the ultimate penalty.
(MORE: Touré: Inside the Racist Mind)

Touré is the author of four books, including Who's Afraid of Post-Blackness? The views expressed are solely his own.

Read other related stories about this:

• Bias Law Used to Move a Man Off Of Death Row The New York TImes

http://ideas.time.com/2012/05/03/put-to-death-for-being-black-new-hope-against-judicial-system-bias/?xid=gonewsedit

Scores in N.C. are legally 'innocent,' yet still imprisoned

http://www.usatoday.com/news/nation/story/2012-06-13/innocent-incarcerated-prisoners/55585176/1

Terrell McCullum did not commit a federal crime by carrying a shotgun and a rifle out of his ex-girlfriend's house.

But he is serving a federal prison sentence for it. And the fact that everyone — including the U.S.Justice Department— agrees that he is legally innocent might not be enough to set him free.

• INTERACTIVE: The case of Terrell McCullum

A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.

Many of them don't even know they're innocent.

The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun. The problem is that none of them had criminal records serious enough to make them felons under federal law.

Still, the Justice Department has not attempted to identify the men, has made no effort to notify them, and, in a few cases in which the men have come forward on their own, has argued in court that they should not be released.

Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.

"We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte. "We've got to make sure we follow the law, and people should want us to do that." She said her office is "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."

These cases are largely unknown outside the courthouses here, but they have raised difficult questions about what, if anything, the government owes to innocent people locked in prisons.

"It's been tough," said Ripley Rand, the U.S. attorney in Greensboro, N.C. "We've spent a lot of time talking about issues of fundamental fairness, and what is justice."

It's also unusual. Wrongful conviction cases are seldom open-and-shut — usually they depend on DNA or other new evidence that undermines the government's case, but does not always prove someone is innocent. Yet in the North Carolina gun cases, it turns out, there simply were no federal crimes.

Using state and federal court records, USA TODAY identified 23 other men who had been sent to federal prison for having a firearm despite criminal records too minor to make that a federal crime. Nine of them remain in prison, serving sentences of up to 10 years; others are still serving federal probation. The newspaper's review was limited to only a small fraction of cases from one of the three federal court districts in North Carolina.

Federal public defenders have so far identified at least 39 others in additional court districts, and are certain to find more. And prosecutors have already agreed to drop dozens of cases in which prisoners' convictions were not yet final.

Some of the prisoners USA TODAY contacted — and their lawyers — were stunned to find out that they were imprisoned for something that turned out not to be a federal crime. And their lawyers said they were troubled by the idea that innocence alone might not get them out.

"If someone is innocent, I would think that would change the government's reaction, and it's sad that it hasn't," said Debra Graves, an assistant federal public defender in Raleigh. "I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point."

WHO CAN HAVE A GUN?

Terrell McCullum conceded in interviews that he has made plenty of bad decisions — including having the two guns that sent him to federal prison. But there is little dispute that his criminal record wouldn't now be serious enough to make having the guns a federal crime.

Even so, government lawyers have said in court filings that he should remain in the Farmville, Va., jail where he is serving the end of his federal sentence.

"At most," the Justice Department said in an April court filing , McCullum "has become legally innocent of the charge against him." In other words, the law may have changed, but the facts of his case didn't — he did possess the gun, and he had a criminal record — so he isn't entitled to be released.

His request to be released is still pending. "I don't know what's going to happen," McCullum said during a recent phone call. "I'm just praying on it."

The key to McCullum's innocence lies at the complicated intersection of state and federal criminal laws.

Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.

To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.

Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.

For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.

Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.

The 4th Circuit's decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law.

No one yet knows precisely how many people were incorrectly convicted for having a gun, but the number could be significant. Rand, the U.S. attorney in Greensboro, estimated that more than a third of the gun cases his office prosecuted might be in question, either because the defendants didn't commit a federal crime at all by possessing a gun or because their sentences were calculated incorrectly.

"We're going to be addressing this for a while," he said.

The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.

But the next question has proved far harder to answer: What should the government do with the prisoners whose legal cases were already over?

STILL LOCKED UP

The men in McCullum's position have little hope of inspiring much public sympathy. All had racked up at least modest criminal records, frequently for selling drugs. Many only wound up in federal court because police had already arrested them for breaking state laws (including a state law, not affected by the 4th Circuit's ruling, barring them from having guns).

One man went to federal prison after a shootout; another led police officers on a high-speed chase. One shot a police dog.

McCullum hadn't done anything so serious.

His mother, Rebecca Farris, concedes he had a knack for getting in trouble, but said he's still "softhearted." McCullum, now 26, has been diagnosed as mentally disabled, and quit school in the 11th grade after he was kicked out for fighting.

On a recent afternoon, Elizabethtown Police Chief Bobby Kinlaw squinted at the computer in his small office and rattled through an inventory of McCullum's frequent encounters with his officers, including arrests for larceny, fighting, making threats and driving without insurance. "He seemed to be on the radar on a regular basis," Kinlaw said.

McCullum's most serious scrape with the law came in September 2007, when he pleaded guilty to stealing a gun and was put on probation. Under North Carolina law, he could have been sentenced to no more than 10 months in prison.

A month later, McCullum broke up with his girlfriend and came to her small house to collect his things. The two quickly got into an argument, and McCullum knocked over a cocktail table and yanked a telephone cord out of the wall, Kinlaw said. His ex-girlfriend's son called the police, and an officer waited outside to keep the peace while McCullum carried his belongings out to his truck. He carried out his clothes. Then, while the officer watched, he carried out a .22-caliber rifle and a shotgun.

Police checked the guns' serial numbers and learned the shotgun had been reported stolen, so they arrested McCullum. (They didn't realize until later that the gun had been stolen nine years earlier, by someone else, when McCullum was 12.) When they found out McCullum had a criminal record, they charged him with possession of a firearm by a felon, and turned the case over to the federal government .

McCullum says the guns weren't loaded, and he insists he didn't know he wasn't supposed to have firearms. He kept them because they had belonged to his grandfather.

In 2009, McCullum went to federal court and pleaded guilty to the charge of illegally possessing a firearm. At the time, even his lawyers thought that his prior conviction for stealing a gun made him a felon under federal law. The judge sentenced him to a year and a day in custody, and the government sent him to Big Sandy, a high-security penitentiary in the mountains of eastern Kentucky.

It was the first time McCullum had been to prison.

"I ain't no bad person. I made mistakes, but I ain't that bad," McCullum said. "I just was young back then, just made some stupid mistakes."

He got out in 2010 but quickly violated his supervised release by robbing a man. ("I saw him with a whole bunch of money and I just got him like that," McCullum said during one phone call.) The judge sent him back to prison. Now he's finishing his sentence at the local jail in Farmville, counting the days until he can go home.

SHUT OUT OF COURT?

Whether McCullum — or the dozens of others like him — can go home depends on federal laws that put strict limits on when and how people who have already been convicted of a crime can come back to court to plead their innocence.

Those laws let prisoners challenge their convictions if they uncover new evidence, or if the U.S. Supreme Court limits the sweep of a criminal law. But none of the exceptions is a clear fit, meaning that, innocent or not, they may not be able to get into court at all. Federal courts have so far split on whether they can even hear the prisoners' cases.

Habeas corpus — the main legal tool for challenging unlawful detention — is currently ill-suited to such cases, said Nancy King, a Vanderbilt Law School professor who has studied the issue. Habeas mainly safeguards people's constitutional right to a fair process, she said, and the problem is that "saying, 'I'm innocent' isn't, on its face, that type of constitutional claim."

Still, she said, "innocent people should be able to get out of prison."

Prosecutors don't disagree, though most said they are not convinced the law allows it.

Rand, the U.S. attorney in Greensboro, said he is "not aware of any procedural mechanism by which they can be afforded relief," though he said lawyers in his office "have not been pounding on the table" to keep the men in jail.

"No one wants anyone to spend time in jail who should not be there," said Thomas Walker, the U.S. attorney in Raleigh. That's why he said prosecutors were quick to dismiss charges that were pending when the 4th Circuit ruled. But cases in which convictions are already final "are in a totally different posture and require us to follow the existing statutory habeas law," he said.

But there's also an even more basic question: How would the prisoners even know?

Rand said he personally reviewed all of the gun-possession cases his office had filed in recent years, often bringing home stacks of documents to examine after his kids went to bed. A former state judge, he figured he would have the easiest time identifying problems. Some of the cases he looked at, he said, would no longer qualify as federal crimes.

But he said he did not notify those defendants.

Instead, courts have asked public defenders to seek them out. Those lawyers said the Justice Department should do more to help, because it has better information and more resources, an assertion prosecutors dispute.

"We're doing it with our hands tied," said Eric Placke, a federal public defender in Greensboro. "I appreciate the compelling considerations they have to deal with. But I do think in cases of actual innocence that it would be nice, to say the least, if they would be a little more proactive."

Placke and other public defenders said the reviews have been difficult because they often have limited access to records from the men's prior convictions, which has left them to hunt through files in courthouses across the state.

USA TODAY conducted a similar, though far more limited review, examining every gun conviction in western North Carolina between 2005 and 2011. The review was limited to people who had been convicted only of gun possession, and included only those cases in which federal prosecutors had specifically identified the prior offense that made possession a crime. USA TODAY used state court records to find those cases in which the men's prior convictions were, in hindsight, not serious enough to convict them of the federal crime.

'A BETTER LIFE'

Travis Bowman said he "got cold chills" when USA TODAY told him that he's innocent of the gun charge that landed him in a federal prison in Coleman, Fla., for 10 years. He said he'd never considered the possibility that what he did wasn't a federal crime. He pleaded guilty to illegally possessing a sawed-off shotgun.

He's not scheduled to get out of prison until 2016.

Police arrested Bowman in 2007 after a 110-mph chase through Murphy, N.C. It began when North Carolina Highway Patrol Sgt. Chris Wood pulled Bowman over for speeding, planning only to write him a warning. But a routine records check showed Bowman had been affiliated with a gang known as Folk Nation, and that he was wanted in Georgia. "I got a real eerie feeling," Wood said. He drew his gun and told Bowman to put his hands on the steering wheel.

Bowman took off.

With his pregnant, 15-year-old girlfriend in the seat next to him, he raced down the highway, swerved through a McDonald's parking lot and collided with four police cars. He didn't stop until his girlfriend threw the speeding car into park.

State officials didn't prosecute Bowman for the shotgun, or for the chase, or for crashing into the police cars, or for refusing to let his girlfriend out of the car. Instead, they turned the case over to the Justice Department, which sent him to prison for a decade just for having an unloaded shotgun on the floor behind the passenger seat. (Bowman said he was taking the gun to his brother.)

But Bowman's prior convictions — for habitual misdemeanor assault and having drugs in prison — aren't serious enough to make owning the gun a federal crime. Neither could have put him in prison for more than a year.

Bowman says he plans to ask a federal judge to declare him innocent and let him out.

"Hopefully I'll get the chance to be out there soon," Bowman wrote in an e-mail."I just want a better life than this. I have to prove to a lot of people that I'm not the old me. I want to be a person my kids will look up to and be proud of."

Going home is far from a safe bet. Even if a court ultimately decides to let Bowman out, he could still face all the charges state officials dropped when his case went to federal court.

My page on CCADP

http://ccadp.org/terrancetaylor.htm

MR TERRANCE TAYLOR 0539901
  1300 Western Blvd .
  Raleigh, North Carolina 
  27606 

In My Own Words

I was unlawfully arrested, illegally prosecuted & wrongfully convicted by a corrupt court and sentenced to die for crimes “I DID NOT COMMIT”.  

 This was done to me based solely on the false testimony of a male who is a habitual felon, known drug dealer, drug user who was a bitter drug rival of the deceased men in my case.  This individual was the initial suspect in the case & was a fugitive from the law at the time he was detained as a suspect in my case.  However, despite stating that he was allegedly with me &several others (who stated I never committed these crimes) when these crimes were allegedly committed & having several outstanding warrants out for his arrest, this individual was never arrested for anything & was released after giving a false statement against me.  I was the only person charged & don’t have any co-defendants.   

There was no physical evidence or a motive or anything that connected me to these crimes.  Everything was based solely on the false testimony of an individual who has been arrested approxi9mately 35 times since my trial.  He has been arrested &/or convicted for numerous crimes including: several counts of giving false information to the police, alluding arrest, assault on a pregnant female, assault with a firearm on his parents, just to name a few.  When he testified against me, he was a prison inmate & was released from prison afterward.

He is a mental health patient that was hearing evil sounds & voices that told him to do bad & violent things. He was diagnosed as being of the paranoid schizophrenic type but was still allowed to lie against me.  The false statement that he gave to the police was inconsistent wit his false trial testimony & both his false statement & false testimony were contradicted by the facts in my case.  

Based on the lies of this individual, I was abducted from society and placed in such adverse surroundings where over 40 people have been killed since I’ve been here.  I’m in a system that allow corrupt prosecutors to use lies to get innocent people like me indicted on murder charges & doesn’t require them to use such evidence during the criminal trial.  Civil & inexperienced attorneys are assigned to death penalty cases & innocent people are railroaded like I was.  I’m being held captive in a system that denies me access to the law & even to adequate medical care because of my sentence.  Innocence Projects in this state don’t investigate capital cases for claims of innocence.

Despite all that I’ve been forced to endure, I am still a man of God & I maintain hope that God will get me through this.

My current goals are to regain my freedom & prove my innocence, become a paralegal or an attorney & to become a counselor for our youth so that I can help them avoid the pitfalls of society.  I don’t want anyone to be victimized like I was. 

What happened to me can happen to you!

Innocent Man on Death Row -Video

Case Background

Terrance Bowman-Taylor is currently on death row in North Carolina for crimes he did not commit. He was a college student from New York who came to North Carolina to visit his relatives and some friends and never made it back home. He was wrongfully arrested and convicted of allegedly causing the deaths of two men . They  died from multiple gunshot wounds and were reported to have been together when they were allegedly murdered at the same time in one single incident. 

Terrance did not cause the deaths of these men. He was wrongfully arrested, unfairly tried and illegally convicted of these crimes solely on the false testimony of a man named Venice Taylor. Venice Taylor was detained and questioned as the initial suspect in this case. He is a convicted felon who has a very extensive criminal history that includes several felony convictions including repeated charges for giving false information to the police and evading, eluding and resisting arrest. When he was detained and questioned as the Initial suspect in this case, he had numerous pending and outstanding warrants out for his arrest. However, he was never arrested for any of those outstanding warrants while he was in police custody and was driven home by a police officer after he gave the police a false statement implicating Terrance in these crimes.

Venice Taylor a known drug dealer and drug user who was a bitter rival of the decedents in this case in the drug trade. Venice Taylor has been arrested and/or convicted more than 17 times since he falsely testified against Terrance and he is still allowed to roam the streets and break the law while Terrance sits wrongfully on death row. Venice Taylor suffers from memory loss and hallucinations. He lacks the ability to tell the truth and experiences hearing evil and violent sounds and voices that tell him to do violent things. He has been diagnosed as  paranoid schizophrenic and was  allowed to testify falsely against Terrance. His trial testimony was completely inconsistent with the prior false statement that he gave to the police on the day in which these crimes were allegedly committed. Both his trial testimony and his prior inconsistent statement were contradicted and unsupported by the actual facts in this case. 

Terrance should have never been arrested and convicted based solely on  false testimony and statement of this unreliable, incompetent criminal. Despite the fact that Venice Taylor stated to the police that he was allegedly with Terrance and three other men when he allegedly witnessed these crimes being committed. Terrance Bowman-Taylor does not have any co-defendants. These other three men were questioned by the police and they verified that these crimes were never committed by Terrance as did several other potential witnesses that were interviewed by the police. 

 Terrance was the only man arrested, charged and tried for these crimes.

 No one else was or has been charged in connection with this case. 

There is no physical and/or scientific evidence that connects Terrance to these crimes.