On Monday, Darryl Hunt will walk into Courtroom 5A, the same courtroom where in June 1985 he was convicted of raping and killing Deborah Sykes in Winston-Salem.

It was in this same courtroom in 2004 that he was exonerated, the result of new DNA evidence that led police and prosecutors to a new suspect, who confessed to the crime.

And it will be in Courtroom 5A on Monday that a law partly inspired by his case will have its first test.

"I don't like to go in there because I was tried and convicted in there," he said last week. "I remember each day I sit in that courtroom how people lied and I was convicted and almost sentenced to death in that courtroom."

Judge William Z. Wood of Forsyth Superior Court will be the first in the state to start grappling with the issues arising from the Racial Justice Act that became law in August 2009.

The law was proposed as a way to deal with the racial disparities that some, like Hunt, see in the application of the death penalty. The law allows death-row inmates and defendants facing the death penalty to use statistics and other evidence to prove that racial bias played a role in their sentence or in prosecutors' decision to pursue the death penalty.

Of the 158 people on death row, 149 have filed motions seeking relief under the Racial Justice Act. The only remedy available under the law is for an inmate's sentence to be reduced to life in prison without the possibility of parole.

Prosecutors say the law unfairly paints them as racists and is simply designed to end use of the death penalty. State legislators in the Republican-controlled General Assembly are eyeing ways to either repeal the law or propose substantial changes to it.

Wood will be dealing with the cases of two men who got death sentences in Forsyth County — Carl Stephen Moseley and Errol Duke Moses. Wood will decide whether the Racial Justice Act is constitutional under state law.

If he rules that the law is unconstitutional, his decision will be appealed to the N.C. Supreme Court, where a ruling would have statewide implications, experts said.

If Wood rules that the Racial Justice Act is constitutional, the two cases will go forward, though Forsyth County prosecutors may choose to appeal to the Supreme Court.

Tom Keith, a former Forsyth County district attorney who retired in 2009, compared the Racial Justice Act to the 2010 health-care bill. Two federal judges have upheld the health-care law, and two have ruled against it.

"It has to go to a higher court," he said of the Racial Justice Act. "Either way, it's going to be appealed. It has to be settled by the Supreme Court of North Carolina."

Ken Rose, who is representing Moses and Moseley at Monday's hearing, said that if Wood rules against the Racial Justice Act, judges throughout the state will watch what the Supreme Court does before they act on any pending motions filed under the law.

The crux of Monday's hearing will be whether the Racial Justice Act is constitutional.

Forsyth County District Attorney Jim O'Neill has said the law clearly is not.

In motions, O'Neill and Assistant District Attorney David Hall argue that the law is too vague and broad to withstand constitutional muster. It punishes Forsyth County prosecutors by limiting their pursuit of the death penalty based on the actions of another district attorney's office in another county, and that is unfair, they say in the motions.

"Indeed, as presently written, the Act betrays its own purpose, as it is presently being used by white defendants who killed white victims within this Judicial District," Hall and O'Neill argue in one of the motions. "More than 50 percent of the RJA Motions brought within this district are by such defendants."

In the cases being heard Monday, Moses, who is black, is accused of killing two black men, and Moseley, who is white, is accused of killing two white women.

Moseley's motion differs from others filed under the law by arguing that efforts to stamp out previous bias against blacks have produced reverse discrimination against white defendants. His attorneys point out that the 12 people executed in North Carolina from 1984 to 1999 were white.

Supporters of the law have said that it is the victim's race, not the defendant's, that determines who gets the death penalty and who doesn't. Motions filed under the Racial Justice Act cite a Michigan State University study that showed that a defendant was 2.6 times more likely to get the death penalty if at least one of the victims was white.

The motions also cite statistics from the Michigan study showing that of the 159 on death row in North Carolina at the time of the study, 31 had all-white juries and 38 had only one person of color on their jury.

Hall and O'Neill also argue that inmates filing under the Racial Justice Act should not be allowed to rely on statewide statistics. They say the law doesn't allow for instances where race should be taken into account, such as the case of a white supremacist who specifically targets blacks or Hispanics.

Forsyth County prosecutors said they have had to spend 360 hours to comply with the new law, taking away time from other criminal cases.

Rose, who is an attorney for the Center for Death Penalty Litigation based in Durham, argues in motions that prosecutors are not being punished by the Racial Justice Act, since there is no fine or imprisonment for them under the law.

Mark Rabil, a capital defense attorney who represented Darryl Hunt, said the use of statewide statistics is appropriate because there is one death penalty law for the entire state.

"If Forsyth County had its own death penalty statute, it wouldn't make any sense for the DA here to defend what happened in Cumberland County," Rabil said. "Under the new RJA, you have to look at how it's applied across the state."

Fighting the law on constitutional grounds ignores the history of racial disparities in the capital punishment system, he said.

"It shouldn't be a state where in one place you can go and kill someone and not get the death penalty and there's another place where you kill someone and get the death penalty," Rabil said.

For Ramona Stafford, the families of murder victims get lost in the debate. She has been an outspoken advocate for victims' rights since her husband, Stephen, was shot and killed Sept. 25, 1993, during an attempted robbery in Winston-Salem.

Robbie Lyons, one of the men responsible for his death, was convicted in 1994 and eventually executed by injection.

Stafford said the Racial Justice Act is just another layer of appeals for death row inmates. She said the families of victims wait years to see punishment of offenders.

"They are not seeing any justice for their loved ones who are murdered," she said. "We have to bring back justice to our system."

mhewlett@wsjournal.com

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http://www2.journalnow.com/news/2011/feb/06/WSMAIN01-racial-justice-act-gets-first-test-monday-ar-759107/