No. 411A94-6

DISTRICT TWELVE
SUPREME COURT OF NORTH CAROLINA

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STATE OF NORTH CAROLINA
v.
MARCUS REYMOND ROBINSON
Defendant-Appellant

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From Cumberland County
91 CRS 23143

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DEFENDANT-APPELLANT’S BRIEF
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 i
INDEX
TABLE OF AUTHORITIES ................................................. iv
INTRODUCTION ...................................................................1
ISSUES PRESENTED ...........................................................5
STATEMENT OF FACTS & PROCEDURAL HISTORY .....6
STANDARD OF REVIEW ................................................... 22
ARGUMENT ........................................................................ 22
I.

This Court Should Hold that Further Exposing
Marcus Robinson to the Death Penalty Violates
the North Carolina Statutory Bar Against
Imposition of More Severe Punishments and
Double Jeopardy. ............................................. 22
A. Mr. Robinson’s Life Without Parole
Sentence is Protected by N.C. Stat. § 15A1335 ............................................................. 23
B. Mr. Robinson’s Life Without Parole
Sentence is Protected by Double Jeopardy 24

II.

Application of the RJA Repeal to Mr. Robinson
Violates His State and Federal Constitutional
Rights................................................................ 30
A. The North Carolina Legislature’s Attempt to
Strip Judicial Review of Mr. Robinson’s
Pending RJA Claims Violates Equal

 ii
Protection, Due Process and the Guarantee
Against Cruel and Unusual Punishment .. 30
B. Bill of Attainder .......................................... 36
1. The RJA retroactivity repeal section
specifically targeted Mr. Robinson........ 37
2. The retroactivity provision of the RJA
repeal inflicts punishment without a trial
or adjudicative hearing .......................... 40
C. Dismissal is Unconstitutional Because Mr.
Robinson’s Defense to Execution under the
RJA Had Vested .......................................... 44
1. Mr. Robinson’s claim vested when he
obtained a final judgment granting his
RJA claim ............................................... 45
2. Mr. Robinson’s rights vested when the
violation, race discrimination, occurred
and he perfected his legal claim ............ 51
D. Ex Post Facto .............................................. 52
E. Separation of Powers .................................. 54
III.

In the alternative, and at a minimum, this
Court should remand to allow Mr. Robinson to
develop and present the full evidence in
support of his constitutional defenses to
dismissal ........................................................... 56

IV.

The Lower Court Improperly Dismissed Mr.
Robinson’s Constitutional Claims Related to

 iii
Racial Discrimination Without a Hearing or
Analysis ............................................................ 57
A. Violation of Batson v. Kentucky ................. 58
B. Race discrimination in charging and
sentencing.................................................... 67
V.

Mr. Robinson Has Been Sentenced To Life
Imprisonment Without Parole And No Review
Of That Judgment Has Ever Been Sought By
The State; Thus, The RJA Issues Raised By the
Parties are Moot............................................... 74

CONCLUSION ........................................................... 77
CERTIFICATE OF SERVICE ................................... 80

 iv
TABLE OF AUTHORITIES
Cases

Pages

ACORN v. United States, 618 F.3d 125 (2d Cir. 2010) ...... 42
Allen v. Hardy, 478 U.S. 255 (1986) ................................... 48
Batson v. Kentucky, 476 U.S. 79 (1986) ....................... passim
Baze v. Rees, 553 U.S. 35 (2008)
(Stevens, J., concurring) ................................................. 68
Bd. Of Parole v. Allen, 482 U.S. 369 (1987).................. 48, 49
Bowen v. Mabry, 154 N.C. App. 734,736 (2002) ........... 45, 49
Consolidated Edison Co. of New York, Inc. v. Pataki, 292
F.3d 338 (2d Cir. 2002) ................................................... 43
In re Bray, 158 Cal.Rptr. 745 (Cal. App. 1979) .................. 53
Buck v. Davis, 137 S.Ct. 759 (2017) .................................... 35
Bullington v. Missouri, 451 U.S. 430 (1981) ................ 25, 29
Burks v. United States, 437 U.S. 1 (1978) .......................... 29
Cofield v. State, 320 N.C. 297 (1987) ............................ 67, 72
Community Party of the United States v. Subversive
Activities Control Board, 367 U.S. 1 (1981) ................... 38
Connecticut v. Santiago, 122 A.3d 1. (Conn. 2015) ...... 33, 72
Crawford v. Washington, 541 U.S. 36 (2004) ..................... 48
Cummings v. Missouri, 71 U.S. (4 Wall) 277 (1866) .......... 43
Davis v. Ayala, 135 S. Ct. 2187 (2015)................................ 67
District Attorney v. Watson, 411 N.E.2d 1274

 v
(Mass. 1980) .................................................................... 72
Dred Scott v. Sanford, 60 U.S. 393 (1857) .......................... 72
Dunham v. Anders, 128 N.C. 207 (1901) ...................... 45, 51
Dyer v. Ellington, 126 N.C. 941 (1900) ............................... 45
Eagleman v. Diocese of Rapid City, 862 N.W.2d 839 (S.D.
2015) ................................................................................ 41
Ernst & Young v. Depositors Econ. Prot. Corp., 862 F. Supp.
709 (D.R.I. 1994), aff’d, 45 F.3d 530
(1st Cir. 1995) ............................................................ 29, 43
Evans v. Michigan, 568 U.S. 313 (2013) ............................. 26
Fagan v. Washington, 942 F.2d 1155 (7th Cir. 1991) ........ 28
Foretich v. United States, 351 F.3d 1198
(D.C. Cir. 2003) ............................................................... 41
Foster v. Chatman, 136 S. Ct. 1737 (2016) ....... 16, 60, 61, 62
Furman v. Georgia, 408 U.S. 238 (1972) (Douglas, J.,
concurring) ................................................................ 33, 68
Glossip v. Gross, 135 S. Ct. 2726 (2015) (Breyer, J.,
dissenting) ....................................................................... 68
Godfrey v. Georgia, 446 U.S. 420 (1980) ............................. 68
Graham v. Florida, 560 U.S. 48 (2010) .............................. 73
Hi-Voltage Wire Works, Inc. v. City of San Jose, 12 P.3d
1068 (Cal. 2000) .............................................................. 72
Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991) ................. 60
In re Peoples, 296 N.C. 109 (1978) ...................................... 76

 vi
Jones v. Keller, 364 N.C. 249 (2010) ................................... 53
Kandies v. Polk, 545 U.S. 1137 (2005) ................................ 64
Kansas v. Marsh, 548 U.S. 163 (2006) ................................ 26
Kelly v. State, No. 99-CP-42-1174 (S.C. Sup. Ct., Oct. 6,
2003) ................................................................................ 69
Kennedy v. Louisiana, 554 U.S. 407 (2008) ........................ 71
Linkletter v. Walker, 381 U.S. 618 (1965) ..................... 48, 49
Lockhart v. Nelson, 488 U.S. 33 (1988)............................... 28
Lowe v. Harris, 112 N.C. 472 (1893) ................................... 45
McCleskey v. Kemp, 481 U.S. 279 (1987) ..................... passim
McDaniel v. Brown, 558 U.S. 120 (2010) ............................ 27
Michael Weinman Assoc. Gen P’ship v. Town of
Huntersville, 147 N.C. App. 231 (2001) ......................... 49
Miller-El v. Drekte, 545 U.S. 231 (2005) ....................... 60, 63
Neelley v. Walker, 67 F. Supp. 3d 1319 (M.D. Ala. 2014) .. 39
Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1977) ........... 41
North Carolina State Conference of NAACP v. McCrory,
831 F.3d 204 (4th Cir. 2016)........................................... 18
O’Laughlin v. O’Brien, 568 F.3d 287 (1st Cir. 2009) ......... 28
Oliver v. Quarterman, 541 F.3d 329 (5th Cir. 2008) .............8
Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017) ............ 34
Person v. Bd. Of State Tax Comm’rs, 184 N.C. 499
(1922) ............................................................................... 55

 vii
Pierce v. Carskadon, 83 U.S. (16 Wall) 234 (1872) ............ 43
Plessy v. Ferguson, 163 U.S. 537 (1896) ............................. 72
Porsch Builders Inc. v. City of Winston-Salem, 302 N.C. 505
(1981) ............................................................................... 66
Putty v. United States, 220 F.2d 473 (9th Cir. 1955) ......... 43
Rhode Island Depositors Econ. Prot. Corp. v. Brown, 659
A.2d 95 (R.I. 1995) .......................................................... 43
Robinson v. North Carolina, 137 S. Ct. 67 (2016) .............. 20
Robinson v. Polk, 444 F.3d 225 (4th Cir. 2006), cert. denied,
549 U.S. 1003 (2006) ..........................................................8
Robinson v. Thomas, 855 F.3d 278 (4th Cir. 2017) ...... 21, 23
Rose v. Mitchell, 443 U.S. 545 (1979).................................. 67
Seariver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662
(9th Cir. 2002) ................................................................. 40
Selective Serv. Sys. v. Minnesota Pub. Interest Research
Group,
468 U.S. 841 (1984) ................................................... 40, 43
Snyder v. Louisiana, 552 U.S. 472 (2008) .......................... 63
Spaziano v. Florida, 468 U.S. 447 (1984) ........................... 26
State v. Barden, 362 N.C. 277 (2008) .................................. 64
State v. Cofield, 324 N.C 452 (1989) ............................. 72, 73
State v. Golphin, Walters, and Augustine,
368 N.C. 594 (2015) ................................................. passim
State v. Green, 348 N.C. 588 (1998) .................................... 73

 viii
State v. Green, 350 N.C. 400 (1999) ........................ 47, 49, 73
State v. Jackson, 322 N.C. 251 (1988) ................................ 63
State v. Johnson, 169 N.C. App. 301 (2005) ....................... 40
State v. Keith, 63 N.C. 140 (1869) ................................ passim
State v. Loftin, 724 A.2d 129 (N.J. 1999) ............................ 72
State v. McHone, 348 N.C. 254 (1995) ................................ 57
State v. Miller, 205 N.C. App. 724 (2010) ........................... 76
State v. Porter, 326 N.C. 489 (1990) .................................... 63
State v. Robbins, 319 N.C. 465 (1987) ................................ 67
State v. Roberts, 351 N.C. 325 (2000) ................................. 75
State v. Robinson, 342 N.C. 74 (1995), cert. denied, 517 U.S.
1197 (1996) .........................................................................7
State v. Robinson, 350 N.C. 847 (1999) .................................8
State v. Robinson, 368 N.C. 596 (2015) .............................. 19
State v. Sanders, 312 N.C. 318 (1984) ................................ 66
State v. Waring, 364 N.C. 443 (2010).................................. 65
State v. White, 131 N.C. App. 734 (1998)............................ 65
State v. Williams, 345 N.C. 137 (1996) ..................................6
Stogner v. California, 539 U.S. 607 (2003) ......................... 54
Swain v. Alabama, 80 U.S. 202 (1965) ............................... 60
Thompson v. State, 54 Miss. 740 (1877) ............................. 54
United States v. Armstrong, 517 U.S. 456 (1996) .............. 35

 ix
United States v. Brown, 381 U.S. 437 (1965) ..................... 36
United States v. Lovett, 328 U.S. 303 (1946) ...................... 36
Walker v. Georgia, 129 S. Ct. 453 (2008) ............................ 34
Walters, Augustine, Robinson, and Golphin v. State of NC
and William West, 16 CV 2916 (Wake County Superior
Court) ............................................................................... 22
Wharton v. Bockting, 549 U.S. 406 (2007) .......................... 48
Williams v. Kelley, 858 F.3d 464 (8th Cir. 2017)...................8
Woldt v. People, 64 P.3d 256 (Colo. 2003) ........................... 39
Yick Wo v. Hopkins, 118 U.S. 356 (1886)............................ 35

Statutes
N.C. Gen. Stat. § 15A-1335 .......................................... passim
N.C. Gen. Stat. § 15A-1415 ................................................. 57
N.C. Gen. Stat. § 15A-1419 ..................................... 61, 63, 65
N.C.Gen. Stat. § 15A–1422(c)(3) ......................................... 48
N.C. Gen. Stat. § 15A-1445 ................................................. 75
N.C. Gen. Stat. § 15A-2010 ............................................. 8, 29
N.C. Gen. Stat. § 15A-2010 ....................................................8
N.C. Gen. Stat. § 15A-2011 ....................................................9
N.C. Gen. Stat. § 15A-2012 ....................................................9

 x
Other Legislative Sources
Amnesty Act of 1866-67, 1866 N.C. Acts § 1 ...................... 46
S.B. 9, 2011 Gen. Assemb. (vetoed Dec. 14, 2011), at:
https://www.ncleg.net/Sessions/2011/s9Veto/govsig.pdf ..9
S.L. 2012-136............................................................ 18, 32, 39
S.L. 2013-154................................................................. passim
Ordinance of 1868, ch. 29, p. 69 .......................................... 46

Rules
N.C. R. App. P. 2 ............................................................ 50, 66
N.C. R. App. P. 21 ................................................................ 75

Federal Constitution
U.S. Const. amend. VI ......................................................... 34
U.S. Const. amend. VIII ................................................ 30, 68
U.S. Const. art. I, § 10, cl. 1 .......................................... 36, 53

North Carolina Constitution
N.C. Const., art. I, § 6 .......................................................... 54
N.C. Const. art. I, § 16 ......................................................... 53
N.C. Const. art. I, § 19 ......................................................... 45
N.C. Const. art. I, § 26 ......................................................... 72
N.C. Const. art. I, § 27 ................................................... 30, 68

 xi
N.C. Const. art. IV, § 13 ...................................................... 45

Other Authorities
Amanda S. Hitchcock, Recent Development, Deference Does
Not By Definition Preclude Relief: The Impact of MillerEl v. Dretke on Batson Review in North Carolina Capital
Appeals, 84 N.C. L. Rev. 1328 (2006)............................. 64
Baxter Oliphant, Support for death penalty lowest in more
than four decades, Pew Research Center (Sept. 29, 2016)71
Clayton Henkel, Governor Vetoes Repeal of Racial Justice
Act, PROGRESSIVE PULSE, Dec. 14, 2011 ........................ 10
Jonathan Abel, Batson’s Appellate Appeal and Trial
Tribulations, 118 Col. L. Rev. 713 (2018) ...................... 60
John Blume & Lindsey S. Vann, Forty Years of Death: the
Past, Present and Future of the Death Penalty in South
Carolina (still arbitrary), 11 DUKE J. CONST. L. & PUB.
POL’Y 183 (2016) .............................................................. 68
L. Ostler, Bills of Attainder and the Formation of the
American Takings Clause at the Founding of the
Republic, 32 CAMPBELL L. REV. 227 (2010) ................... 43
Public Policy Polling, North Carolina Survey Results (Sept.
27-30, 2012) ..................................................................... 71
Robert P. Mosteller, Responding to McCleskey and Batson:
The North Carolina Racial Justice Act Confronts Racial
Peremptory Challenges in Death Cases, 10 OHIO ST. J.
CRIM. L. 103 (2012) ......................................................... 31
Robert Smith and Justin D. Levinson, The Impact of
Implicit Racial Bias on the Exercise of Prosecutorial
Discretion, 35 Seattle U. L. Rev. 795 (2012).................. 16

 -1INTRODUCTION
In January of 2012 Marcus Robinson became the first person in North
Carolina to present a case for disqualification of the death penalty because of
systemic and individual discrimination that permeated capital jury selection
at the time of his trial. North Carolina had embraced a historic new defense
to the death penalty: anyone who could prove race was a significant factor in
capital prosecutions would be ineligible for capital punishment under the
North Carolina Racial Justice Act. App. 2-3 (N.C. Gen. Stat. §§ 15A-2010 to
2012).
The new law was enacted in the face of growing evidence that racial
bias tainted capital cases in the state. Three men had been recently
exonerated from death row before the law’s passage: all three were Black,
and all three were sentenced to death by all-white or nearly all-white juries.
In a state that is 34 percent non-white, almost half of North Carolina’s death
row prisoners were sentenced to death by juries with no meaningful minority
representation. App. 329-33. Thirty-five of the state’s nearly 150 death row
prisoners were sentenced to death by all-white juries and another 38 were
sentenced by juries with only one Black juror. Id.
Mr. Robinson introduced a host of evidence showing these disturbing
trends were no accident. He showed that prosecutors were more than twice as
likely to strike Black jurors in capital cases at the time of his trial, and in his

 -2own case, three times as likely. App. 194-261. He introduced evidence of
prosecutor trainings designed to avoid rather than comply with Batson v.
Kentucky’s prohibition on discrimination, and relied on statements from the
prosecutor in his own case, including his admission that he himself may have
engaged in unconscious discrimination in jury selection. The superior court
concluded Mr. Robinson had proved his claim of racial bias, and that he was
ineligible for the death penalty. He was resentenced to life without parole,
and then removed from death row to serve his new sentence in April of 2012.
Approximately, one year later, on April 15, 2013, this Court granted
certiorari of the lower court’s RJA findings. Shortly thereafter, in June 2013,
the Legislature repealed the RJA with a provision that purported to apply to
Marcus Robinson and the three other prisoners who had prevailed under the
RJA. In December 2015, this Court reversed the decision below, holding that
the State should have been afforded additional time to prepare its rebuttal of
the statistical evidence of bias, and remanding the case for new proceedings.
Marcus Robinson was then transferred back to death row – the first time in
North Carolina’s history where someone was returned to death row without
new sentencing proceedings. On remand, the superior court applied the
repeal of the RJA and dismissed Mr. Robinson’s RJA claims without a
hearing.

 -3North Carolina’s path with respect to the Racial Justice Act is an
unchartered violation of the guarantees of equal protection, due process and
freedom from cruel and unusual punishment. Never before has any
legislature enacted a statute designed to remedy suspected systemic racial
bias in capital sentencing only to repeal such a statute when the racial bias
was found, while denying judicial review to the individuals who had
uncovered and alleged the racial bias.
A multitude of constitutional problems arise from the lower court’s
application of the Legislature’s 2013 repeal of the RJA to Mr. Robinson. The
first of these is the threshold question whether Mr. Robinson can be exposed
again to the threat of the death penalty consistent with North Carolina law
and the federal constitution. Because the constitutional protections against
double jeopardy and the North Carolina statutory protections of N.C. Gen.
Stat. § 15A-1335 prohibit such exposure, this Court should rule that Mr.
Robinson cannot be subject to a death sentence after the superior court found
in 2012 that he was ineligible for execution under the RJA.
If the Court does not grant relief under § 15A-1335 or the Double
Jeopardy Clause, this Court must next confront whether the federal and
state constitutions permit application of the RJA repeal to sweep proven
evidence of racial bias under the rug and to foreclose all avenues of judicial
review. Mr. Robinson convincingly established a prima facie case of racial

 -4bias in jury selection, both in his case as well as across the county and state
at the time of his trial. Application of the RJA repeal to Mr. Robinson, and
denying him his day in court after he had already established a prima facie
case that racial discrimination tainted his capital trial, would violate several
of his constitutional rights.
First, a state may not, consistent with the Eighth Amendment, operate
a capital punishment system infected by proven racial bias. The constitution
similarly prohibits states from creating a statutory mechanism for
uncovering impermissible racial bias in capital sentencing and then, after the
evidence of bias is found, foreclosing all avenues for judicial review of that
evidence. Further, as shown below, the dismissal of Mr. Robinson’s RJA
claims violated his vested rights, his right against being subject to bills of
attainder and ex post facto laws, as well as the separation of powers
requirement of the North Carolina Constitution. On remand, the lower court
failed even to consider most of these constitutional defenses to application of
the RJA repeal, and misapplied or misunderstood the law as to the others.
This Court should reverse.

 -5ISSUES PRESENTED
1.

Whether Mr. Robinson may be subjected again to the threat of the
death penalty, consistent with the Double Jeopardy Clause and N.C.
Gen. Stat. § 15A-1335, after a fact finder found that he was ineligible
for execution under North Carolina’s statutory scheme and resentenced
him to life without parole?

2.

Whether the retroactivity clause of the repeal of the Racial Justice Act
can be applied to Mr. Robinson’s case and result in the dismissal of his
claims of racial bias, consistent with the federal and state
constitutions?

3.

Whether the Remand Court erroneously dismissed Mr. Robinson’s
independent constitutional claims of racial bias without a hearing?

4.

Whether, as a threshold matter, by failing to challenge the RJA Court’s
2012 judgment imposing a life sentence without the possibility of
parole, the State waived its right to now dispute its validity, resulting
in Mr. Robinson’s life sentence being in full force and effect and the
present RJA issues being moot?

 -6STATEMENT OF FACTS & PROCEDURAL HISTORY
Mr. Robinson was convicted and sentenced to death in 1994 for the
robbery and murder of Erik Tornblom. Mr. Robinson had a co-defendant,
Roderick Williams, who was tried separately and sentenced to life
imprisonment. State v. Williams, 345 N.C. 137, 138 (1996). Mr. Robinson and
Mr. Williams, both Black teenagers, ages 18 and 17, carjacked Mr. Tornblom,
a white teenager aged 17, at a gas station near their apartments. Mr.
Tornblom was shot at a construction site nearby.
At Mr. Robinson’s trial, the State argued that he, not Mr. Williams,
was the person who shot Erik Tornblom. But Mr. Robinson had told police it
was Mr. Williams who pulled the trigger, and the issue was hotly contested
at trial.1
The State argued that the killing of Mr. Tornblom was premeditated by
Mr. Robinson and relied on a racially charged theory of prosecution. They
presented testimony that Mr. Robinson had said he wanted to “burn a
whitey” or “do a white boy.” App. 511, 517, 522, 524.
Mr. Robinson was prosecuted at trial by a single prosecutor, John
Dickson. Mr. Dickson asked demeaning questions during voir dire of one of
the Black prospective jurors, like whether he had graduated from high school,
Only after his direct appeal and post-conviction proceedings were over
did prosecutors, in a case summary provided to legislators, describe Mr.
Williams as the shooter. App. 403.
1

 -7whether he had trouble reading, and whether he repeated any grades in
school. He did not ask those questions of any other juror. Mr. Dickson struck
50.0% of the black venire members (5 strikes out of 10 eligible black venire
members) and only 14.4% of the other eligible venire members (4 strikes of
all of the non-Black 28 eligible venire members). App. 161, 244. Mr. Dickson’s
disparate strikes created an empaneled jury with fewer Black jurors than
would have been expected with race-neutral strikes. App. 633-35.
Nonetheless, Mr. Robinson’s trial counsel did not raise a Batson challenge to
the State’s pattern of racially disparate strikes at trial.2
The backgrounds of the trial participants are relevant with respect to
the failure to object to the prosecution’s disparate strikes at trial,. Both the
prosecutor and the defenses lawyers were white, as was the judge. Lead
defense counsel, the prosecutor, and the trial judge also shared a common
legal training: all had begun their legal careers working under or with
Edward W. Grannis, Jr., a Cumberland County prosecutor who served as the
elected district attorney from 1975 through 2010, including during Mr.
Robinson’s trial. App. 110-13, 170-73, 529-30.
On direct appeal, this court affirmed Mr. Robinson’s convictions and
death sentence. State v. Robinson, 342 N.C. 74 (1995), cert. denied, 517 U.S.

Nor was such an objection raised on direct appeal or during pre-RJA
post-conviction proceedings.
2

 -81197 (1996). Mr. Robinson then sought post-conviction relief, which the state
and federal courts denied. State v. Robinson, 350 N.C. 847 (1999); Robinson v.
Polk, 444 F.3d 225 (4th Cir. 2006),3 cert. denied, 549 U.S. 1003 (2006). Mr.
Robinson’s execution, initially scheduled for January 2007, was stayed due to
his challenges to the State’s method of execution.
In 2009, the Legislature enacted the RJA. N.C. Gen. Stat. §§ 15A-2010
to 2012 (provided at App. 2-4). The law provided limited redress for the
influence of racial bias in capital cases, mandating that “No person shall be
subject to or given a sentence of death or shall be executed pursuant to any
judgment that was sought or obtained on the basis of race.” N.C. Gen. Stat. §
15A-2010. If a defendant’s RJA claim was successful, the mandatory (yet
limited) relief was that the person’s death sentence be vacated, and that the

Mr. Robinson may well have obtained relief from his death sentence
had his case only occurred in a different federal circuit. Mr. Robinson’s
petition for certiorari review raised the legal claim that his jury had
consulted the Bible, provided by the bailiff, in deciding his death sentence. A
divided Fourth Circuit panel denied the claim, holding that it was not clearly
established under U.S. Supreme Court precedent that a Bible is an improper
external influence. Robinson, 438 F.3d at 363. But, as the Fifth Circuit has
recognized, the Fourth Circuit is the only circuit to hold that the Bible is not
an external influence. Oliver v. Quarterman, 541 F.3d 329, 338 (5th Cir.
2008) (holding Robinson was wrongly decided in respect to the Bible, and in
doing so, relying on decisions from the Eleventh, First, and Sixth Circuits);
see also Williams v. Kelley, 858 F.3d 464, 477 (8th Cir. 2017) (Kelly, J.,
concurring in part, dissenting in part) (concurring in holding that claim was
procedurally defaulted, but describing “[t]he jury’s group reliance on the
Bible” as “extraneous information”).
3

 -9court impose a sentence of life imprisonment without any possibility of
parole. N.C. Gen. Stat. § 15A-2012(a)(3).
The RJA explicitly permitted defendants to use statistical evidence to
make their case. N.C. Gen. Stat. § 15A-2011.4 It specified three bases for
proving race was a factor: discrimination based on the defendant’s race, the
victim’s race, or the race of potential jurors excluded from service. The RJA
extended its ameliorative effect retroactively to all North Carolina death row
prisoners, and gave them one year from its enactment to file claims. N.C.
Gen. Stat. § 15A-2012(a).
In response to the law’s passage, researchers from Michigan State
University (MSU) College of Law undertook statewide studies of capital
charging, sentencing and jury selection in North Carolina. Relying on these
studies, Mr. Robinson filed a motion for appropriate relief alleging statutory
RJA claims and separate constitutional claims under the Sixth, Eighth, and
Fourteenth Amendments and the North Carolina Constitution.5 Mr.

Compare McCleskey v. Kemp, 481 U.S. 279, 319 (1987) (holding
statewide statistical patterns of racial bias in capital cases, standing alone,
do not violate the Constitution, but explaining that such “arguments are best
presented to the [state] legislative bodies”).
5 Subsequent to this filing, in 2011, the Legislature made its first
attempt to repeal the RJA. Governor Beverly Perdue vetoed that repeal and
the Legislature failed to override. See S.B. 9, 2011 Gen. Assemb. (vetoed Dec.
14, 2011), available at:
https://www.ncleg.net/Sessions/2011/s9Veto/govsig.pdf. Governor Perdue
explained that she supported the death penalty but felt it was “simply
4

 - 10 Robinson alleged racial bias in prosecutorial decisions to seek the death
penalty, in the exercise of peremptory strikes, and in the jury decisions to
impose the death penalty. He moved simultaneously for discovery and
received new documents, never previously produced, from his case and others
in Cumberland County.
The RJA Court6 initially scheduled a hearing for September 6, 2011 on
Mr. Robinson’s RJA claims of discrimination in jury selection only.
Mr. Robinson’s evidence consisted of two parts: (1) statistical evidence
from the state, county and his prosecutor; and (2) lay testimony and
documents drawn from his individual case and others in Cumberland County.
The MSU Study examined jury selection in 173 capital cases, involving
7,421 strike decisions by prosecutors. App. 269. The raw data showed large
disparities in striking patterns against Black jurors and all other jurors in
the county, state, and cases tried by the individual prosecutor from Mr.
Robinson’s case. App. 272-73. The State’s statistical expert, Joseph Katz,

unacceptable for racial prejudice to play a role in the imposition of the death
penalty in North Carolina.” Clayton Henkel, Governor Vetoes Repeal of Racial
Justice Act, PROGRESSIVE PULSE, Dec. 14, 2011.
6 Two different superior courts have ruled on Mr. Robinson’s RJA
claims. The court that granted Mr. Robinson relief in 2012 will be referred to
in this brief as the RJA Court. The superior court that, after remand by this
Court dismissed Mr. Robinson’s claim under the repeal, will be referred to as
the Remand Court.

 - 11 agreed that strike patterns revealed statistically significant disparities and
constituted a prima facie case of discrimination. App. 141, 144-48, 150-52.
At the 2012 hearing, in addition to the statistical evidence, the RJA
Court heard and relied on additional evidence Mr. Robinson had presented of
discrimination in jury selection in his case and others in his county and
North Carolina at the time of his trial. This included the testimony of his
trial prosecutor, Mr. Dickson, sharing why he had struck individual Black
jurors. The record however, belied the reasons he offered. Mr. Dickson
claimed he struck Black venire member Elliot Troy because Mr. Troy was
charged with public drunkenness. App. 122-24. Mr. Dickson, however,
accepted two non-Black venire members with DWI convictions. App. 179,
181-83, 186-87.
Mr. Dickson testified he struck Black venire member Nelson Johnson
because he “said that he would require an eye witness and the defendant
being caught on the scene in order for conviction.” App. 124. But Mr. Johnson
had repeatedly said he thought the death penalty was the appropriate
punishment for all first degree murder. App. 189-93. In response to the
prosecution’s several questions about whether it would be appropriate for “a
cold killing,” murder with “no question of self-defense,” Mr. Johnson offered
that he thought it was appropriate if there was proof “beyond a reasonable
doubt,” and then when asked to restate this response, he suggested that it

 - 12 would be appropriate if the defendant were caught at the scene and someone
had seen him commit the murder. Id. When Mr. Johnson made this
statement, Mr. Dickson immediately cut-off questioning without asking any
follow-up or clarifying questions. Mr. Dickson then struck him from the jury.
App. 193.7 Mr. Dickson’s approach to white venire member Cherie Combs was
very different. When she noted her mixed feelings about the death penalty,
Mr. Dickson asked multiple follow-up questions to permit Ms. Combs to
clarify her answer. App. 189-93. Mr. Dickson then passed Ms. Combs. App.
185.
Mr. Dickson’s reliance on race at Mr. Robinson’s trial was part of a
larger pattern. As shown at Mr. Robinson’s RJA hearing, Mr. Dickson
participated in two other capital trials that were part of the MSU Study. Mr.
Dickson’s race-based conduct was consistent. In each of the three capital
cases, Mr. Dickson struck Black venire members at significantly higher ratios
than all other venire members (2.2, 3.5, and 4.4). App. 243.
Mr. Dickson’s improper use of race in capital jury selection is starkly
illustrated by the difference in his handling of the 1997 capital trials of
defendants James Burmeister and Malcolm Wright and his other capital

The trial judge implicitly rejected the argument that Mr. Johnson
would require a witness and arrest on the scene. Mr. Dickson moved to strike
Mr. Johnson for cause and the judge denied the challenge. App. 193.
7

 - 13 cases.8 Mr. Burmeister and Mr. Wright were white supremacists accused of
murdering two Black victims for racially-motivated reasons. In these cases,
where Mr. Dickson had a strategic reason to seat jurors he perceived as more
sensitive to racially-motivated white-on-Black crime, he reversed his usual
practice of striking Black citizens. Mr. Dickson instead disproportionately
struck white jurors.
In the Burmeister case, Mr. Dickson used 9 of 10 strikes to remove
white jurors, and passed 8 of 9 Black jurors. App. 348. In the Wright case,
Mr. Dickson used all ten strikes against white jurors, and did not strike a
single Black juror. App. 337, 376. In both cases, even though the State was
seeking the death penalty, Mr. Dickson repeatedly accepted Black jurors with
strong reservations about imposing the death penalty. App. 348, 337, 376;
App. 356 (State passes juror who said it would be “hard” and “difficult” for
her to vote for the death penalty); App. 366 (State passes juror who said
because of her religious views “I don’t believe in the death penalty”); App. 378
(State passes juror who said “I really wouldn’t like someone to be killed”).
Mr. Dickson’s race-based practices were longstanding. As early as 1978
– years before Batson was in force - he had tracked the race of prospective
jurors in his jury selection notes. App. 367. His approach to jury selection was
The evidence about Burmeister and Wright was first presented during
the Golphin, Walters, and Augustine case, and later proffered by Mr.
Robinson to the Remand Court. App. 326 (Defendant’s Filed Proffer Notice).
8

 - 14 consistent with his stated views on race and criminal justice. He openly
admitted at Mr. Robinson’s RJA hearing that there was racial discrimination
in the criminal justice system. App. 138-39. Mr. Dickson admitted that, like
others, he himself harbors unconscious bias, and he could not say that race
was not a part of his jury selection practice. App. 133-38.
Mr. Dickson’s jury selection practice was like his fellow Cumberland
County prosecutors. In all capital cases examined by the MSU Study over a
twenty-year period, Cumberland County prosecutors struck Black venire
members at 2.6 times the rate they struck non-Black venire members. App.
155, 234. Even the State’s expert, Dr. Joseph Katz, agreed that the MSU
Study demonstrated large, statistically significant disparities in jury
selection, unlikely to be due to chance. App. 141, 144-48, 150. After applying
a statistical regression analysis to account for possible race-neutral
explanations for strikes, the MSU Study found a strong relationship between
race and Cumberland County prosecutor strike decisions. App. 156-58, 16466, 168-69, 282-83, 290.9
This race discrimination in jury selection was reinforced by race-based
These findings about Cumberland County were consistent with the
statewide trend the MSU Study identified. The Study found that, of the 7,421
peremptory strike-eligible jurors in North Carolina capital cases between
1990 and 2010, prosecutors statewide struck 52.6% of eligible Black venire
members, but only 25.7% of all other eligible venire members. The study
found that the probability of this disparity occurring in a race-neutral jury
selection process is extremely small. App. 154, 279.
9

 - 15 training.10 Two Cumberland County prosecutors attended a training program
where they were taught how to defeat Batson challenges using a cheat sheet
of generic race-neutral “justifications” that could be used to respond to Batson
objections, such as inappropriate dress, physical appearance, age, attitude, or
body language. App. 175-77, 298, 300. One of those prosecutors was found by
a trial judge to have violated Batson during a jury selection where she read
from the cheat sheet. App. 372-75.
Another longtime Cumberland County prosecutor made a series of
racially-charged notes about prospective jurors in the Augustine capital
prosecution. The Augustine prosecutor described one Black potential juror as
“ok” and a member of a “respectable black family.” App. 346. While a Black
juror with a criminal history was a “thug,” a white juror who had trafficked
in drugs was “a fine guy.” App. 343, 347. He said a Black juror was a “blk
wino,” while a white juror with a DUI conviction was a “country boy – ok.”
App. 343, 338.
In a 1992 capital prosecution, just two years before the prosecution of
Mr. Robinson, a Cumberland County prosecutor described a Black
prospective juror as “B/M, early 20s, broad shoulders, strong as a bull” in his

The evidence about prosecutors’ training and notes, that follows this
footnote, is from the Golphin, Walters, and Augustine hearing, proffered by
Mr. Robinson in the trial court below. App. 326.
10

 - 16 hand-written jury selection notes. App. 369.11
John Dickson’s racial motivation in Mr. Robinson’s case aligned with
the race-consciousness of Cumberland County prosecutors’ capital charging
practices.12 Of the 14 people Cumberland prosecutors sent to death row
between 1990 and 2010, 12 were racial minorities, ten of whom were Black.13
Cumberland County prosecutors also discriminated based on the race
of the victim. Sixty-three percent of Cumberland homicide victims were
Black, yet in cases seeking the death penalty, 64% of the victims were white.

C.f., Robert Smith and Justin D. Levinson, The Impact of Implicit
Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev.
795 (2012) (“The use of animal imagery in reference to the accused can both
depend on and perpetuate the negative effects of implicit racial bias.”).
Cumberland prosecutors’ use of racially-charged note-taking was consistent
with a broader trend among prosecutors. State v. Jimmy and Richard Smith,
is one troubling example. Near the time of Mr. Robinson’s trial, Martin
county prosecutors capitally-tried two Black defendants for killing a white
victim. In doing so, they sought to rehabilitate a white juror who stated in
voir dire questioning he would “bring his rope,” App. 330, wrote that another
prospective white juror was “good” because she would “bring her own rope,”
App. 331, and decided that a third white juror was a “No,” after noting that
she had a child by a “BM,” or Black male. App. 333. See also Foster v.
Chatman, 136 S. Ct. 1737 (2016) (finding Batson violation based in part on
prosecutor’s notes reflecting race consciousness; for example, “No Black
Church.”).
12 This aspect of the MSU Study was presented in Mr. Robinson’s
written RJA motion, but was not the subject of the evidentiary hearing.
13 Cumberland County prosecutors pursued death sentences against
minorities so aggressively that they obtained those sentences even where the
minority defendants fell into categories of offenders rarely sentenced to
death. For example, one of three female death row prisoners in North
Carolina is from Cumberland County. Two of four juveniles sentenced to
death in North Carolina were from Cumberland County.
11

 - 17 The MSU Study found that in Cumberland County cases between 1990 and
2010, 8.0% of cases with a white victim resulted in a death sentence, while
only 2.3% of cases without a white victim resulted in a death sentence. The
MSU Study thus found that Cumberland County cases with a white victim
were 3.4 times more likely to result in a death sentence than those without.
App. 79-80. Mr. Robinson’s case had a white victim.
Finally, the culture of discrimination that informed John Dickson’s
prosecution of Mr. Robinson, and other prosecutors from Cumberland County
and beyond, continued on through the RJA litigation. The Cumberland
County RJA prosecutors sought to recuse Senior Resident Superior Court
Judge Gregory A. Weeks, who presided over the 2012 RJA proceedings, on
the ground that he had presided over capital trials. The State’s internal
emails revealed that the prosecutors worried about a rumor that Judge
Weeks would respond to the recusal motion by sending the case to another
Black judge, such as Judge Quentin Sumner or Judge Orlando Hudson. In an
email conversation with the Cumberland County prosecutors, a district
attorney from another county wrote of Judge Sumner, “If I had to pick an
African American to hear an RJA motion, he would be the one.” App. 388.
In April, 2012, the RJA Court found that race was a significant factor
in the State’s peremptory strike decisions at the time of Mr. Robinson’s trial
under the RJA statute, and in his case. It based this factual conclusion on

 - 18 370 individual findings of fact, including detailed findings related to the
statistically-significant racial disparities in prosecutors’ use of strikes set out
in the MSU study, in Mr. Robinson’s trial, as well as the capital justice
system in Cumberland County and in North Carolina, over a twenty-year
period. App. 532-698. The RJA Court further based its conclusion on other
non-statistical evidence confirming that race was a motivating factor behind
the prosecutors’ use of peremptory strikes. Having found under the RJA that
Mr. Robinson’s trial was tainted by racial discrimination, the RJA Court then
resentenced him to life imprisonment without possibility of parole, the only
relief available under the RJA. The RJA Court reserved ruling on Mr.
Robinson’s claims under the RJA of discriminatory charging and sentencing,
and reserved ruling on his constitutional claims.
In July 2012, the State petitioned this Court for certiorari review of the
RJA Court’s order. Also that July, the General Assembly enacted a limited
amendment to the RJA modifying its evidentiary and procedural provisions.
The Legislature enacted this amendment by overriding Governor Perdue’s
veto. App. 5-7 (S.L. 2012-136).
During its consideration of the amended RJA, the Legislature targeted
Mr. Robinson’s case with “surgical precision,”14 repeatedly discussing the

North Carolina State Conference of NAACP v. McCrory, 831 F.3d 204,
214 (4th Cir. 2016). The same General Assembly that repealed the RJA also
14

 - 19 evidence and findings in his case and expressing concern that he could be
given a sentence less than death. One provision in the RJA amendment,
Section 8, governing retroactivity, on its face, could only have referred to Mr.
Robinson. App. 7.
Again with Mr. Robinson as a target, in June 2013, the Legislature
acted, this time repealing the RJA. App. 8 (S.L. 2013-154). Again, the debates
centered around Mr. Robinson and the three other prisoners who had
prevailed under the Act: Tilmon Golphin, Christina Walters, and Quintel
Augustine.
In December 2015, the Court issued orders vacating the RJA Court’s
orders and remanding for further proceedings. State v. Robinson, 368 N.C.
596 (2015); State v. Golphin, Walters, and Augustine, 368 N.C. 594 (2015).
The remand in Mr. Robinson’s case was based on the RJA Court’s error in
denying the State a third continuance to prepare its own study and respond
to the MSU Study.15 In Golphin, Walters, and Augustine, the error was
consolidating the three cases, as well as prejudice to the State from the

enacted laws restricting voting and voter registration, targeting “African
Americans with surgical precision.” Id. The evidence in this fact section is
only an overview of the legislative record showing that the RJA repeal
targeted Mr. Robinson. The full record is set forth below in the bill of
attainder discussion.
15 Though eight months passed between Mr. Robinson’s hearing and
the hearing in Golphin, Walters, and Augustine, the State presented no new
statistical evidence.

 - 20 continuance denial. In neither order did the Court address the effect of the
repeal or address the prisoners’ Double Jeopardy claims.16
The State produced no new evidence on remand. It instead filed a
motion to dismiss Mr. Robinson’s statutory RJA claims asserting that they
were voided by the RJA repeal. The State sought dismissal of the separate
constitutional claims on the ground that they were procedurally barred.
The Honorable W. Erwin Spainhour heard Mr. Robinson’s case on
remand.17 In August 2016, the Remand Court, on its own motion, ordered the
parties to file briefs limited to the following question:
Did the enactment into law of Senate Bill 306,
Session Law 2013-14, on June 19, 2013, specifically
Sections 5. (a), (b) and (d) therein, render void the
Motions for Appropriate Relief filed by the
defendants pursuant to the provisions of Article 101
of Chapter 15A of the General Statutes of North
Carolina?
In November 2016, the Remand Court held a consolidated oral argument in
Mr. Robinson’s case and the Golphin, Walters, and Augustine cases.18 Mr.

Mr. Robinson sought certiorari review of this Court’s order in the U.S.
Supreme Court, limited to the question of whether there was a violation of
the Double Jeopardy Clause. The U.S. Supreme Court denied review.
Robinson v. North Carolina, 137 S. Ct. 67 (2016).
17 The Court’s remand order originally assigned the Senior Resident
Superior Court Judge of Cumberland County, James Floyd Ammons. Mr.
Robinson filed a motion to recuse. Judge Ammons denied the motion but
voluntarily declined to preside.
18 Mr. Robinson objected to the cases being heard together. But in its
order, the Remand Court stated that it understood this Court’s order in
16

 - 21 Robinson requested discovery relevant to the resolution of this question, and
sought to present evidence in support of his constitutional defenses to the
application of the RJA repeal to dismiss his claims. The Remand Court did
not rule on Mr. Robinson’s motion for discovery, and it denied his request for
an evidentiary hearing. At the oral argument, Mr. Robinson submitted an
offer of proof in support of his defenses to the RJA repeal. See State v. Marcus
Robinson, 91 CRS 23143 (Nov. 29, 2016), Exhibits 1 to 64 (proffered).19
In January 2017, the Remand Court dismissed Mr. Robinson’s motion
for appropriate relief, finding the repeal barred his RJA claims as a matter of
law. App. 14-23. The Remand Court discussed only two of Mr. Robinson’s
defenses to the repeal: that it violated his vested rights and that it is an ex
post facto law. Id. The Remand Court neither considered nor discussed Mr.
Robinson’s several other defenses, constitutional and otherwise.20 Nor did the
Remand Court consider or discuss Mr. Robinson’s constitutional claims of
race discrimination, which were independent of the RJA.21

Golphin, Walters, and Augustine to mean that consolidation was permissible
so long as only common legal issues were heard and the proceeding was not
evidentiary. App. 15-16.
19 These 64 proffered exhibits were in addition to previous offer of proof
submitted on February 17, 2017.
20 “The court has not found it necessary to reach the questions of
constitutional law raised by the defendants except as discussed in [State v.
Keith, 63 N.C. 140 (1869)], supra.” App. 22.
21 In addition to proceedings before Judge Spainhour, on remand, Mr.
Robinson sought review in two additional forums. See Robinson v. Thomas,

 - 22 STANDARD OF REVIEW
The Remand Court ruled on the legal question whether the
retroactivity repeal provision of the RJA warranted dismissal of Mr.
Robinson’s petition. The Remand Court did not accept evidence or make
factual findings. App. 14-23. Conclusions of law are subject to de novo review.
State v. Williams, 362 N.C. 628, 632 (2008) State v. Lewis, 188 N.C. App. 308,
310 (1982).
ARGUMENT
I. This Court Should Hold that Further Exposing Marcus Robinson
to the Death Penalty Violates the North Carolina Statutory Bar
Against Imposition of More Severe Punishments and Double
Jeopardy.
This Court must first decide whether the fact that Mr. Robinson was
found ineligible for the death penalty under state law and sentenced to life
without parole means that he cannot be exposed again to the death penalty
consistent with N.C. Gen. Stat. § 15A-1335 and the Double Jeopardy
Clause.22

855 F.3d 278 (4th Cir. 2017) (affirming dismissal, without prejudice, of
federal habeas petition raising double jeopardy issue and holding federal
abstention appropriate in deference to state court proceedings); Walters,
Augustine, Robinson, and Golphin v. State of NC and William West, 16 CV
2916 (Wake County Superior Court) (challenging facial constitutionality of
RJA repeal and seeking review by three-judge panel; the suit was later
voluntarily dismissed by plaintiffs).
22 Mr. Robinson raised this issue with the Court during the prior
certiorari review proceedings, but the Court did not decide it. The issue is

 - 23 A. Mr. Robinson’s Life Without Parole Sentence is Protected by
N.C. Gen. Stat. § 15A-1335.
Mr. Robinson’s life verdict is protected by N.C. Gen. Stat. § 15A-1335,
which prohibits imposition of a more severe sentence after a lesser one has
been imposed:
When a conviction or sentence imposed in superior court has been
set aside on direct review or collateral attack, the court may not
impose a new sentence for the same offense, or for a different
offense based on the same conduct, which is more severe than the
prior sentence less the portion of the prior sentence previously
served.
This law is a blanket prohibition on the imposition of a more severe
sentence following an initial sentencing. Consequently, it prohibits the
imposition of the death penalty if, at any point, the defendant has been
sentenced to a lesser sentence for the same crime. See, e.g., State v. Oliver,
155 N.C. App. 209, 212 (2002) (holding that, for purposes of applying § 15A1335, consecutive life sentences can never be considered more severe than a
death sentence). Thus even though this Court previously reversed the
now before the Court as a threshold question. In separate proceedings in the
United States Court of Appeals for the Fourth Circuit, the State conceded
that, at this stage in state court, the double jeopardy issue would be ripe for
review by this Court and not subject to procedural bar merely because Mr.
Robinson raised it earlier. See Robinson v. Thomas, 855 F.3d 278, 289, n.6
(4th Cir. 2017) (“The State has conceded [Robinson is] entitled to raise [his]
double jeopardy argument in state court, and we accept the State’s
representation at oral argument that it would not assert as a defense a
procedural bar to [Robinson] making a double jeopardy argument during the
state proceedings by some reading of the North Carolina Supreme Court’s
order.”).

 - 24 substantive ruling below, no trial court can impose a death sentence
subsequent to the RJA Court imposing a life sentence. Application of this
statute, and the necessary ruling that a death sentence is barred under §
15A-1335, moots Mr. Robinson’s claims to relief under the Racial Justice Act
as there is no remaining controversy.
B. Mr. Robinson’s Life Without Parole Sentence is Protected by
the Double Jeopardy Clause.
The constitutional prohibition against double jeopardy also bars
subjecting Mr. Robinson to further exposure to the death penalty. While the
RJA statute is unique, the legal principles that govern whether the Double
Jeopardy Clause protects the life verdict in his case are clear and wellestablished, including that: (1) penalty-phase acquittals of the death penalty
in capital cases are entitled to double jeopardy protection, Bullington v.
Missouri, 451 U.S. 430 (1981); (2) double jeopardy applies to judicial
acquittals, Arizona v. Rumsey, 467 U.S. 203, 211 (1984); and (3) death
penalty acquittals in appellate and post-conviction proceedings fall within the
scope of Double Jeopardy Clause, Burks v. United States, 437 U.S. 1, 11
(1978); Young v. Kemp, 760 F.2d 1097, 1099 (11th Cir. 1985). Under this clear
and binding precedent, the Double Jeopardy Clause prohibits exposing Mr.
Robinson to the death penalty after the RJA Court acquitted Mr. Robinson of
that penalty and imposed a sentence of life without parole.

 - 25 For more than 35 years, the United States Supreme Court has
recognized the application of double jeopardy to the jury’s rejection of the
death penalty in the sentencing phase of the trial because the “jury has
already acquitted the defendant of whatever was necessary to impose the
death sentence.” Bullington, 451 U.S. at 445. Here, at Mr. Robinson’s initial
RJA hearing, the RJA Court acquitted him of “whatever was necessary to
impose the death sentence” when it found he proved his RJA defense to the
death penalty.
The Supreme Court has been equally clear that death penalty
acquittals, when imposed by trial courts rather than juries, are entitled to
double jeopardy protections. Rumsey, 467 U.S. at 211. This protection applies
when trial courts make factual findings, guided by statutory standards, that
are “sufficient to establish legal entitlement to the life sentence, [which]
amounts to an acquittal on the merits and, as such, bars any retrial of the
appropriateness of the death penalty.” Id. See also Sattazahn v.
Pennsylvania, 373 U.S. 101, 109-10 (2003) (no double jeopardy protection
when trial court’s sentence was not based on any fact findings). The RJA
Court in this case made hundreds of detailed factual findings on a lengthy
evidentiary record, which collectively established Mr. Robinson’s legal
entitlement to the life sentence, acquitting him of the death penalty. This
acquittal, even if based on an erroneous legal principle, is protected by

 - 26 Double Jeopardy. Rumsey, 467 U.S. at 211 (“an error of law, however, does
not change the double jeopardy effects of a judgment that amounts to an
acquittal on the merits”); Evans v. Michigan, 568 U.S. 313, 320-21 (2013)
(acquittal by trial court, even if based on mistake of law, is protected by
double jeopardy).
In this case, Mr. Robinson’s original hearing of racial bias under the
RJA was conducted in post-conviction as part of a new, system-wide
procedure devised by the North Carolina Legislature to narrow eligibility for
the death penalty to those cases free of racial bias. States are both
empowered to design their own mechanisms for determining capital
eligibility, Spaziano v. Florida, 468 U.S. 447, 464 (1984), and required to
ensure that such schemes are sufficiently narrow. Kansas v. Marsh, 548 U.S.
163, 173-74 (2006). Under the scheme created by the North Carolina
Legislature, the trial court was required to make fact findings that would
establish whether life without parole or the death penalty would apply. N.C.
Gen. Stat. § 15A-2012(a).
Nor does the fact that this acquittal arose in the context of a postconviction hearing change the Double Jeopardy analysis. To be sure, postconviction courts routinely decide fact-bound questions to determine whether
a prior court committed a legal error such that a new trial is required. In that
context, however, the post-conviction court does not make any findings

 - 27 entitling the defendant to a particular sentence; it merely decides whether to
vacate a prior conviction or sentence, and so there is no jeopardy bar to
retrial.
Here, instead, the RJA Court fulfilled its role, in a statutory scheme
designed to root out racial bias from capital sentencing and narrow the
availability of the death penalty, as a fact finder in the first instance. The law
set identical procedures for evaluating RJA claims for trial cases and persons
previously sentenced to death who filed these unique post-conviction claims
within a limited time window. N.C. Gen. Stat. §15A-2012(a). There can be no
doubt that the trial level findings would be entitled to double jeopardy
protection: the post-conviction findings based on the same fact finding should
receive the same constitutional protection. Burks, 437 U.S. at 11 (“it should
make no difference that the reviewing court, rather than the trial court,”
made the fact findings necessary to acquittal).
The body of case law considering sufficiency of the evidence claims and
judgments of acquittal confirms the application of the Double Jeopardy
Clause in this case. The Supreme Court has long recognized that a judgment
of acquittal on direct appeal is protected by double jeopardy to the same
extent as one at trial. Burks, 437 U.S. at 11.
In McDaniel v. Brown, 558 U.S. 120, 131 (2010), the Supreme Court
went further, and strongly indicated that a finding of insufficient evidence,

 - 28 even in a post-conviction context, is protected by the Double Jeopardy Clause.
In McDaniel, the Court rejected the habeas petitioner’s claim of insufficient
evidence but recognized that had it ruled otherwise, “reversal for
insufficiency of the evidence is equivalent to a judgment of acquittal, [and]
such a reversal bars retrial.” The Court had assumed in an earlier case,
without deciding, that retrial is prohibited when a federal habeas court
reviews a state court conviction and finds the evidence to be insufficient.
Lockhart v. Nelson, 488 U.S. 33, 37, n.6 (1988).
Federal circuit courts have routinely applied double jeopardy to habeas
insufficiency findings, including to sentencing phase acquittals for
insufficiency. Young v. Kemp, 760 F.2d 1097, 1099 (11th Cir. 1985) (finding
the evidence insufficient to support an aggravating factor and thus the death
sentencing, and holding that the state was barred under the Double Jeopardy
Clause from seeking the death penalty on retrial); O’Laughlin v. O’Brien, 568
F.3d 287, 309 (1st Cir. 2009) (barring prosecution and ordering release after
finding evidence of guilt insufficient in habeas review); Fagan v. Washington,
942 F.2d 1155, 1157 (7th Cir. 1991) (where federal habeas court holds
evidence of guilt of murder is constitutionally insufficient, “the double
jeopardy clause bars [retrial]”).
The Eleventh Circuit’s decision in Young is particularly illustrative.
After finding in federal habeas that the evidence was insufficient to support

 - 29 an aggravating factor, the federal habeas court concluded that its acquittal of
the death sentence barred a capital retrial. The circuit court reasoned that
the holding of Bullington – that an acquittal of the death penalty bars retrial
– should apply regardless of whether the collaterally reviewing court or the
jury acquits the defendant of the death penalty. Young, 760 F.2d at 1106. A
ruling otherwise would create the kind of purely arbitrary procedural
distinction that the Supreme Court had rejected in Burks, 437 U.S. at 11.
Young, 760 F.2d at 1105-06.
In this case, the RJA Court’s order granting relief, and imposing a life
imprisonment sentence and judgment, constituted a finding that there was
insufficient evidence to impose a death sentence under state law in effect at
that time. The RJA stated that “no person shall be subject to or given a
sentence of death or shall be executed pursuant to any judgment that was
sought or obtained on the basis of race.” N.C. Gen. Stat. § 15A-2010. By
concluding that Mr. Robinson’s judgment was sought or obtained on the basis
of race, the trial court determined there was insufficient evidence to support
a death sentence under prevailing state law. The Double Jeopardy Clause
protects that acquittal, just as it would protect a defendant’s acquittal at trial
from an appeal by the State. See Burks, 437 U.S. at 16-18.
The RJA created an affirmative defense to death sentences, a defense
on which Mr. Robinson prevailed after the RJA Court made determinative

 - 30 findings of fact. Once the RJA Court found Mr. Robinson ineligible for the
death penalty, the Double Jeopardy Clause prohibited the future imposition
of that penalty.
***
The relief required under Mr. Robinson’s double jeopardy and § 15A1335 arguments is vacatur of the Remand Court’s order, and a holding that
the RJA Court’s 2012 order and imposition of a judgment of life
imprisonment was final and may not be disturbed.
II. Application of the RJA Repeal to Mr. Robinson Violates His State
and Federal Constitutional Rights.
A.

The North Carolina Legislature’s Attempt to Strip
Judicial Review of Mr. Robinson’s Pending RJA Claims
Violates Equal Protection, Due Process and the Guarantee
Against Cruel and Unusual Punishment.

North Carolina statutorily created a new mechanism to prove and
remedy systemic racial bias in capital sentencing. When that process
demonstrated far reaching racial discrimination, the Legislature responded
by denying judicial review to the individuals who had uncovered and alleged
the racial bias. The Legislature’s repeal and attempt to foreclose any judicial
review of Mr. Robinson’s claims of racial bias violates the prohibition on
discriminatory application of the death penalty and equal protection. U.S.
Const. amends. VIII, XIV; N.C. Const. art. I, § 27; Furman v. Georgia, 408
U.S. 238, 242 (1972); United States v. Armstrong, 517 U.S. 456 (1996).

 - 31 The Legislature’s enactment of the RJA was unquestionably motivated
by its concerns that the existing legal avenues had been insufficient to
remove racial bias from capital sentencing. See e.g., App. 2 (preliminary
statement of SB 461 that the Act is to prohibit “seeking or imposing the death
penalty on the basis of race” by establishing a new “process by which relevant
evidence,” including statistical evidence, “may be used to establish that race
was a significant factor”); Robert P. Mosteller, Responding to McCleskey and
Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory
Challenges in Death Cases, 10 OHIO ST. J. CRIM. L. 103, 116 (2012)
(describing Legislature’s intent to redress racial discrimination that is
difficult to prove under the McCleskey standard); SB 461, Senate Floor
Debate at 7 (May 14, 2009) (Senator Floyd McKissick pointing to recent
exonerations where race had been a factor in sentencing and the existing law
had proven inadequate); House Debate (July 14, 2009) (Representative Alma
Adams referencing exoneration of three African American men in two years
and arguing that the North Carolina Legislature must address the racial
disparities in its system).
After the law passed, Mr. Robinson and other death row prisoners were
afforded new discovery and access to new evidence concerning the role of race
in this state’s capital punishment system. Researchers from MSU
conclusively documented how racial discrimination pervades North Carolina’s

 - 32 capital justice system, both in jury selection and in the charging and
sentencing practices. See App. 62-104; 194-283. The State provided Mr.
Robinson with previously unavailable explanations by the prosecutor in his
own case of why he struck so many Black jurors. App. 114-32, 323-24. Some
of these explanations were belied by the record and found by the RJA Court
to be pretextual. App. 680, 683.
The RJA Court ruled in April 2012 that Mr. Robinson had proved both
that purposeful racial bias infected his own case, that race had been a
significant factor in Mr. Robinson’s case, and that systemic racial bias
infected the entire state at the time of his capital trial in 1994. App. 696.
The North Carolina Legislature enacted a narrowed version of the RJA
on July 2, 2012. Three death row prisoners prevailed under that narrowed
version on December 13, 2012. The Legislature debated the act once more,
with significant discussion of the crimes committed by the four who had
prevailed under the law, including Mr. Robinson. See, e.g., App. 474-85
(Senate Judiciary Debate). It repealed the RJA in its entirety on June 19,
2013. Both the narrowed RJA statute and the repeal statute contained a
clause that purports to strip judicial review of pending claims under the RJA,
as well as pending claims where relief had already been awarded in the
superior court and the State appealed. S.L. 2012-136, § 8 (2012 Amended
RJA); S.L. 2013-154, § 5(d).

 - 33 The Legislature thus purposefully stripped judicial review of
significant, pending claims of racial bias, with the knowledge that such
claims had previously been proven with evidence that both systemic and
individual racial bias infected capital trials and sentencing in North
Carolina. The resulting scheme of capital punishment, if permitted to stand,
would violate the guarantees of equal protection and freedom from cruel and
unusual punishment.
It “would seem to be incontestable that the death penalty inflicted on
one defendant is ‘unusual’ if it is imposed upon him by reason of his race . . .
or if it is imposed under a procedure that gives room for the play of such
prejudices.” Furman, 408 U.S. at 242 (Douglas, J., concurring); see also,
Connecticut v. Santiago, 122 A.3d 1, 85 (Conn. 2015) (finding state death
penalty scheme constitutes cruel and unusual punishment in part because of
“racial, ethnic, and social-economic biases”); District Attorney for Suffolk Dist.
v. Watson, 381 Mass. 648, 665 (1980) (holding state death penalty scheme
unconstitutional under the state constitution based in part on the persistence
of racial discrimination and the related conclusion that it “is inevitable that
the death penalty will be applied arbitrarily”).
Reviewing courts have an obligation to examine states’ distinct capital
punishment systems for their ability to protect against arbitrary and
discriminatory sentencing. Gregg v. Georgia, 428 U.S. 153, 195 (1976). After

 - 34 Furman, the approval of new capital punishment statutes like North
Carolina’s was “founded on an understanding that the new procedures would
protect against the imposition of death sentences influenced by impermissible
factors such as race.” Walker v. Georgia, 129 S. Ct. 453, 454 (2008) (Stevens,
J., statement respecting the denial of certiorari).
Through the RJA, the North Carolina Legislature directed courts to
undertake an investigation of whether its procedures were sufficient to guard
against the improper influence of racial bias and provided a remedy for such
bias. When the courts found racial bias, the Legislature could not then strip
the remedy and foreclose judicial review of such bias consistent with Eighth
Amendment and North Carolina’s prohibition against cruel or unusual
punishment. “Discrimination on the basis of race, odious in all respects, is
especially pernicious in the administration of justice.” Rose v. Mitchell, 443
U.S. 545, 555 (1979).
Only last year, the Supreme Court made clear, even in the face of a
longstanding rule barring impeachment of a verdict, that the Constitution
requires some mechanism to redress racial discrimination. “A constitutional
rule that racial bias in the justice system must be addressed – including, in
some instances, after the verdict has been entered – is necessary to prevent a
systemic loss of confidence in jury verdicts, a confidence that is a central
premise of the Sixth Amendment trial right.” Pena-Rodriguez v. Colorado,

 - 35 137 S. Ct. 855, 869 (2017). See also Batson v. Kentucky, 476 U.S. 79, 99 (1986)
(“By requiring trial courts to be sensitive to the racially discriminatory use of
peremptory challenges, our decision enforces the mandate of equal protection
and furthers the ends of justice.”); Buck v. Davis, 137 S. Ct. 759, 778 (2017)
(finding the defendant’s claim of racial bias “extraordinary” in light of
evidence that he “may have been sentenced to death in part because of his
race”).
The Legislature’s decision to remove the safeguard it had previously
deemed necessary to protect against racial discrimination, after confronted
with evidence of powerful racial discrimination, is evidence of its intent to
administer capital punishment in an unequal manner, in denial of equal
protection. Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (a law “fair on its
face, and impartial in appearance” is an unconstitutional denial of equal
protection “if it is applied and administered by public authority with an evil
eye and an unequal hand”). The resulting scheme is thus the product of the
Legislature’s discriminatory purpose, and has discriminatory effect. United
States v. Armstrong, 517 U.S. 456, 465 (1996).
The relief required in view of this constitutional violation is that this
Court should vacate the Remand Court’s order, and remand with instructions
to the superior court to conduct a hearing on the merits of Mr. Robinson’s
statutory and constitutional claims of racial bias.

 - 36 B.

Bill of Attainder

The Remand Court’s dismissal of Mr. Robinson’s RJA claims also
violated his constitutional rights because the retroactivity provision of the
RJA repeal is a bill of attainder. It precisely and deliberately targeted Mr.
Robinson for additional punishment by stripping his RJA defense to the
death penalty. Bills of attainder are “legislative acts, no matter what their
form, that apply either to named individuals or to easily ascertainable
members of a group in such a way as to inflict punishment on them without a
judicial trial ….” United States v. Lovett, 328 U.S. 303, 315 (1946). These acts
are unconstitutional. Article I, § 10, Clause 1 of the U.S. Constitution
commands: “No State shall . . . pass any bill of attainder.” The prohibition
against bills of attainder “reflected the Framers’ belief that the Legislative
Branch is not so well suited as politically independent judges and juries to
the task of ruling upon the blameworthiness of, and levying appropriate
punishment upon, specific persons.” United States v. Brown, 381 U.S. 437,
445 (1965).
Establishing that legislation constitutes a bill of attainder requires Mr.
Robinson to show that it: (1) specifically targeted him individually (or he was
a member of an identifiable targeted group); and (2) inflicted punishment on
him without a judicial trial. Selective Serv. Sys. v. Minnesota Pub. Interest
Research Grp., 468 U.S. 841, 847 (1984). In the proceedings below, the State

 - 37 contended that the retroactivity repeal section was not a bill of attainder only
because it “did not determine guilt and inflict punishment.” See State v.
Robinson, No. 94-CRS-23143, State’s Brief in Support of Motion to Dismiss
Pursuant to Repeal of the Racial Justice Act Rendering All RJA Claims Void,
(Nov. 14, 2016) at 9-10.23
As shown below, whether a statute “determines guilt” is not the
standard. Mr. Robinson demonstrated that the statutory section targets him
and subjects him to punishment without a judicial trial, and thus he is
entitled to relief on this ground. In the alternative, the Court should remand
for an evidentiary hearing on this defense to the RJA repeal.
(1) The RJA retroactivity repeal section specifically targeted
Mr. Robinson.
Shortly after this Court granted the State’s petition for certiorari in
April of 2013, the General Assembly enacted the RJA repeal with this
retroactivity provision:
This section is applicable in any case where a court
resentenced a petitioner to life imprisonment without
parole pursuant to the provisions of [the RJA] prior
to effective date of this act and the Order is vacated
upon appellate review by a court of competent
jurisdiction.
S.L. 2013-154, § 5.(d) (provided at App. 11).

The Remand Court did not address Mr. Robinson’s claim of bill of
attainder at all.
23

 - 38 This provision unquestionably targeted Mr. Robinson. Only Mr.
Robinson had received RJA relief and been resentenced under the initial RJA
and only three others subsequently received relief and were resentenced
before the repeal was enacted. Other than those four people, not one other life
could have been affected by this provision because no one other than those
four people could have had their already existing relief vacated by this Court.
The exclusive purpose of that provision was to extend the repeal of the RJA
to a known class of individuals, satisfying the requirement that the statute
designate a person or group. Community Party of the United States v.
Subversive Activities Control Board, 367 U.S. 1, 86 (1981) (“The singling out
of an individual for legislatively prescribed conduct constitutes an attainder
whether the individual is called by name or described in terms of conduct
which, because it is past conduct, operates only as a designation of particular
persons.”).
The fact that the Legislature targeted Mr. Robinson and the other
Cumberland County prisoners is also apparent from its heavy and frequent
discussion of the four cases during debates on the bill. See, e.g. App. 410
(House Committee member “requested the audio recording from the
arguments being made in [Mr. Robinson’s case] in Cumberland County”);
App. 452-54 (House member describing impact of SB 416 on Mr. Robinson’s
case); App. 429-48 (House Committee members discussing details of the four

 - 39 Cumberland County cases and allegations of racial bias); see also, App. 40506, 456, 474-85.
In the prior 2012 amendment to the RJA, there was a retroactivity
provision that applied exclusively to Mr. Robinson. S.L. 2012-136, § 8. The
legislators explicitly acknowledged on the floor that this retroactivity
provision would apply only to Marcus Robinson. App. 453 House Floor
Debate, SB 416 - Amend Death Penalty Procedures, Second & Third Reading
(June 12-13, 2012), at 27 (“if you look at section 8 of the bill . . . [t]hat’s the
Robinson case”); App. 462 (Judiciary B Committee Meeting: Amending the
Racial Justice Act (June 11, 2012), at 6, where House Member explains that
the provision is “essentially” referencing Robinson).
Neelley v. Walker, 67 F. Supp. 3d 1319 (M.D. Ala. 2014), presents a
closely analogous situation. In Neelley, the court, applying the Bill of
Attainder Clause, considered a parole statute with a retroactivity provision
that applied to one prisoner alone, Judith Neelley. The court based its
decision on a retroactivity provision designed to apply the legislation to
Neelley’s case and language in floor debates expressing the intent of the
legislation to deny her the opportunity of parole. Id. at 1329-30. See also
Woldt v. People, 64 P.3d 256, 271 (Colo. 2003) (in context of Ex Post Facto
Clause, three capital defendants were “identifiable targets of the legislation”
where the section applied only to three persons who had received the death

 - 40 penalty from a three-judge panel). As in these cases, Mr. Robinson has
proven that the retroactivity repeal section targeted him.
(2) The retroactivity provision of the RJA repeal inflicts
punishment without a trial or adjudicative hearing.
The RJA repeal provision operates to strip Mr. Robinson of a defense to
the death penalty and reimpose a previous sentence of death without new
judicial proceedings. This unquestionably constitutes punishment without a
trial. The fact that Mr. Robinson was found guilty by a jury is irrelevant: both
the original RJA defense and its repeal dealt exclusively with the question of
punishment. Neelley, 67 F. Supp. 3d at 1330 (plaintiff stated a claim for bill of
attainder violation where she alleged the legislature interfered with her
punishment by denying her access to a mechanism to reduce her punishment,
and rejecting the State’s claim that a guilty verdict inoculated sentencing
bills of attainder from review).
In determining whether a statute imposes punishment, this Court
should consider whether (1) legislative record shows an intent to punish; (2)
the statute can reasonably be viewed as furthering a nonpunitive legislative
purpose; and (3) the statute falls within the historical meaning of legislative
punishment. Selective Serv. Sys., 468 U.S. at 852; State v. Johnson, 169 N.C.
App. 301, 310 (2005) (applying elements from Selective Serv. Sys. v.
Minnesota Pub. Interest Research Grp.); see also Seariver Mar. Fin. Holdings,

 - 41 Inc. v. Mineta, 309 F.3d 662, 673 (9th Cir. 2002) (“A statute need not satisfy
all of these factors to constitute a bill of attainder). The U.S. Supreme Court
has applied each of the three punishment criteria as an
“independent…indicator of punitiveness.” Foretich v. United States, 351 F.3d
1198, 1225 (D.C. Cir. 2003) (summarizing Supreme Court precedent).
Mr. Robinson has demonstrated that the retroactivity provision
constitutes punishment. First, the legislative record shows an intent to
punish Mr. Robinson and the other three prisoners. The classic sources for
considering whether the record shows an intent to punish include “legislative
history, the context or timing of the legislation, or specific aspects of the text
or structure of the disputed legislation.” Eagleman v. Diocese of Rapid City,
862 N.W.2d 839, 845 (S.D. 2015) (quoting Foretich, 351 F.3d at 1225); see also
Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 478 (1977)).24
Here, the legislators’ emails and documents demonstrate that the
purpose for the retroactivity repeal provision was their interest in depriving
Mr. Robinson and the other three defendants of a life sentence and subjecting
them to greater punishment. See, e.g., App. 449-50 (Senate President Pro
Tempore expressing a deep concern that Mr. Robinson could become eligible
Although the Remand Court did not rule on Mr. Robinson’s discovery
requests before dismissing his RJA claims, effectively denying those requests,
information from publicly-available legislative records and news reports
amply prove the General Assembly’s desire to impose a death sentence on Mr.
Robinson without judicial process.
24

 - 42 for parole in news article); App. 501-02 (Thom Goolsby, Death Penalty ReduxPast Time to restart Executions, stating “This new legislation will start the
dead men walking once again.”); App. 489 (House Representative dismissing
ex post facto problems and saying that returning the four who had prevailed
in Cumberland County under the RJA to the execution “queue” would be
more consistent with the constitutional requirement of Equal Protection);
App. 456 (Representative acknowledging that most of the effort to alter the
RJA was in response to Mr. Robinson’s case, and arguing against changes to
the RJA on the ground that a life sentence is sufficient punishment for
Robinson because he “will never leave prison alive”).
Second, the retroactivity provision of the RJA repeal does not have a
nonpunitive legislative purpose. The only reason to extend the repeal of the
RJA to Mr. Robinson and the other three prisoners was to subject them again
to the death penalty. The State did not argue otherwise below. See State v.
Robinson, No. 94-CRS-23143, State’s Brief in Support of Motion to Dismiss
Pursuant to Repeal of the Racial Justice Act Rendering All RJA Claims Void,
(Nov. 14, 2016) at 9-10.
Finally, the RJA repeal falls within the historical meaning of legislative
punishment. The punishment in question is the ultimate one – a death
sentence. The death penalty is the paradigmatic historic legislative
punishment. “The classic example [of attainder] is death.” ACORN v. United

 - 43 States, 618 F.3d 125, 136 (2d Cir. 2010) (quoting Consolidated Edison Co. of
New York, Inc. v. Pataki, 292 F.3d 338, 351 (2d Cir. 2002). See also Selective
Serv. Sys., 468 U.S. at 852 (similar); L. Ostler, Bills of Attainder and the
Formation of the American Takings Clause at the Founding of the Republic,
32 CAMPBELL L. REV. 227, 250 (2010) (“If the person’s life was called for (by a
legislative bill), then it was a true bill of attainder.”).
Courts have repeatedly recognized that legislatively stripping away a
defined group’s right to assert a defense constitutes a bill of attainder. See
Putty v. United States, 220 F.2d 473, 478 (9th Cir. 1955) (legislature’s
attempt to deny the defendants retroactively the grounds to attack the
judgment was a bill of attainder); Pierce v. Carskadon, 83 U.S. (16 Wall) 234,
238-39 (1872) (finding a bill of attainder violation where the trial court
attempted to apply new legislation that dramatically changed the defense).
The “denial of access to the courts, or prohibiting a party from bringing an
action” which was previously authorized by law, constitutes punishment by a
bill of attainder. Rhode Island Depositors Econ. Prot. Corp. v. Brown, 659
A.2d 95, 104 (R.I. 1995) (citing Pierce v. Carskadon, 83 U.S. (16 Wall) 234,
238-239 (1872), and Cummings v. Missouri, 71 U.S. (4 Wall) 277, 320-321
(1866)); see also Ernst & Young v. Depositors Econ. Prot. Corp., 862 F. Supp.
709, 716 (D.R.I. 1994), aff’d, 45 F.3d 530 (1st Cir. 1995) (same).

 - 44 According to the Remand Court, the effect of the RJA repeal legislation
was to render all RJA motions filed before the effective date of the repeal
void. The repeal has had the desired effect of nullifying a pending RJA claim
previously found to be meritorious, and subjecting Mr. Robinson to the threat
of a sentence of death without a defense. Thus, the General Assembly’s
retroactive repeal of the RJA is an unconstitutional bill of attainder. This
Court should so conclude based on the repeal’s language alone, or by taking
judicial notice of the legislative record. And the Court should remand for a
hearing on the merits of the underlying RJA claims. Alternatively, the Court
should remand for an evidentiary hearing on this bill of attainder defense.
C.

Dismissal is Unconstitutional Because Mr. Robinson’s
Defense to Execution under the RJA Had Vested.

Mr. Robinson presents two independent bases under North Carolina
and federal constitutional law for concluding that his substantive right to
RJA relief had vested and therefore could not be legislatively destroyed: (1)
his RJA right vested when he obtained a final judgment granting his RJA
claim, and when he was sentenced to life without parole; and (2) his RJA
right vested at the time of pleading because he had suffered a capital trial in
which race was a significant factor. Under either theory, the Court should
hold that application of the RJA repeal to Mr. Robinson violates his vested
rights, and remand for an evidentiary hearing on the merits of the RJA

 - 45 claims.
(1) Mr. Robinson’s claim vested when he obtained a final
judgment granting his RJA claim.
Article I, Section 19 and Article IV, Section 13 of the North Carolina
Constitution, and the Fourteenth Amendment’s Due Process Clause, bar the
General Assembly from doing what it did here: depriving litigants of their
vested, substantive rights under duly enacted legislation. Fogleman v. D&G
Equip. Rentals, Inc., 111 N.C. App. 228, 230-33 (1993); Booker v. Medical
Center, 297 N.C. 458, 467 (1979); Lowe v. Harris, 112 N.C. 472 (1893). As this
Court and the Court of Appeals have explained, litigants’ rights, if not
already vested, vest when they obtain a lawful final judgment in their favor.25
Once Mr. Robinson had a substantive, vested right to his relief after the RJA
Court entered its order and sentenced him to life, the Legislature could not
constitutionally rescind that relief.
This case is controlled by State v. Keith, 63 N.C. 140 (1869), where the
Court found that the General Assembly’s repeal of amnesty it had previously

Bowen v. Mabry, 154 N.C. App. 734, 736 (2002) (explaining “a
lawfully entered judgment is a vested right”); Dunham v. Anders, 128 N.C.
207, 207 (1901) (“We are therefore of opinion that when the plaintiff obtained
judgment for the penalty before the justice of the peace he acquired a vested
right of property that could be divested only by judicial, and not by
legislative, proceedings.”); Dyer v. Ellington, 126 N.C. 941, 941 (1900)
(concluding Legislature could repeal previously available cause of action, and
deny plaintiff penalty he would have been owed because “the penalty had
[not] been reduced to judgment” and therefore had not vested).
25

 - 46 granted improperly “took away from the prisoner his vested right to
immunity.” Id. at 145. The case involved a directly parallel situation to the
events here: the RJA’s enactment, its retroactive application to existing death
sentences, and its subsequent repeal after Mr. Robinson won relief.
The defendant in Keith fought in the Civil War as a confederate officer
and during that service in 1863 allegedly killed another man. 63 N.C. at 14041. Three years after the killing, in 1866, the General Assembly issued a “full
and unequivocal pardon for all ‘homicides and felonies’ committed by officers
or soldiers” who were acting, for either side, under proper orders, or
otherwise in fulfillment of their military duties. Id. at 142 (quoting Amnesty
Act of 1866-67, 1866 N.C. Acts § 1). Beyond that, it provided that a soldier
upon proof of being an officer or private for either side “shall be presumed [to
have] acted under orders, until the contrary shall be made to appear.’” Id.
(quoting 1866 N.C. Acts § 2). Two years after enacting the amnesty, the
Legislature repealed it. Id. at 142 (citing Ordinance of 1868, ch. 29, p. 69).
Mr. Keith was indicted for the 1863 killing after the 1868 repeal. He
claimed the protection of the Amnesty Act, but the State argued the repeal
barred that. This Court rejected the State’s argument because the repeal
“took away from the prisoner his vested right to immunity.” Id. at 145.26

As discussed further in (D) supra, this Court also found the repeal to
be an impermissible ex post facto law. Id.
26

 - 47 Mr. Robinson’s claim of vested rights is stronger than Mr. Keith’s: he
filed his amnesty claim during the pendency of the statute, unlike Mr. Keith
who did not seek to use the act until after it was repealed. Just as this Court
protected Mr. Keith’s vested rights from repeal, it must protect Mr.
Robinson’s.
In the proceedings below, the Remand Court denied Mr. Robinson’s
vested rights claim by concluding that the order granting Mr. Robinson RJA
relief was not a “final judgment.” App. 21. It distinguished Keith only by
finding that – unlike the Amnesty Act which had provided a pardon or “in
effect [a] final judgment” – the judgment in Mr. Robinson’s case was not final.
The Remand Court’s conclusion is directly contrary to this Court’s
authority. Mr. Robinson had proceeded on a motion for appropriate relief and
won a judgment from the MAR Court. This Court has made clear that a
judgment on such an MAR is final, where there is no right to appeal,
regardless of whether it is subject to discretionary appeal. See State v. Green,
350 N.C. 400, 408 (1999).
In Green, this Court was deciding whether a prisoner could benefit
from legislation providing new discovery rights which had become effective
only after the prisoner’s previously-filed motion for appropriate relief had
been denied. The Court answered no. It explained:
[D]efendant’s motion for appropriate relief was

 - 48 denied by the trial court on 1 May 1996. This was a
final judgment. Any appellate review of that
judgment was subject to this Court’s discretionary
grant of certiorari. N.C.G.S. § 15A–1422(c)(3) (1997).
Green, 350 N.C. at 408 (emphasis added).
The Remand Court was persuaded by the State’s suggestion that a
judgment is “not final until it has undergone appellate review or the time for
discretionary review has expired[.]” App. at 21 (citing Allen v. Hardy, 478
U.S. 255, 258 n.1 (1986); Linkletter v. Walker, 381 U.S. 618, 622, n.5 (1965)).
But the cases relied upon by the Remand Court and State are inapposite.
Linkletter and Allen say nothing of “final judgments.” Rather, they
address when a criminal trial conviction becomes final for application of new
constitutional rules. See, e.g., Allen, 478 U.S. at 257-58 (addressing
“convictions that became final before our opinion [in Batson v. Kentucky] was
announced”) (emphasis added) (quoting Linkletter, 381 U.S. at 622, n.5 (same
discussion of final convictions)). This context-specific definition comes into
play when courts determine retroactivity for new constitutional rules of
criminal procedure, because such rules are generally not available to
prisoners whose convictions are final. See, e.g., Wharton v. Bockting, 549 U.S.
406, 409 (2007) (holding that the rule of Crawford v. Washington, 541 U.S. 36
(2004), “is [not] retroactive to cases already final on direct review”). Criminal
trial convictions become final after a right to direct appeal has been

 - 49 exercised. Here, we deal with a motion for appropriate relief (the only vehicle
for RJA claims raised by death row prisoners). And here, the judgment of the
RJA Court was final when entered.
Green is the correct authority here, not Linkletter and Allen because, as
in Green, and as the State recognized by filing for certiorari review of the RJA
Court’s order instead of filing a notice of appeal, further review of Mr.
Robinson’s relief could only be by a discretionary grant of certiorari from this
Court.
The finality of Mr. Robinson’s judgment aligns his case with the cases
discussed above establishing that “a lawfully entered judgment is a vested
right.” Bowen, 154 N.C. App. at 736-37; see also n.25, supra (collecting cases).
Finally, if there were any doubt, then the equities of Mr. Robinson’s
situation come into play. See, e.g., Michael Weinman Assoc. Gen. P’ship v.
Town of Huntersville, 147 N.C. App. 231, 234 (2001) (recognizing that vested
rights protect interests in certainty, stability, and fairness). The equities, on
which the Remand Court below refused a hearing and refused to consider
evidence, are the unfairness of the following succession of State actions: (1)
passing a law to provide new investigation of suspected infection of racial
bias in capital sentencing; (2) providing a mechanism for adjudicating claims
of discrimination; (3) granting Mr. Robinson relief based on the proof of racial
discrimination he uncovered; (4) sentencing Mr. Robinson to life without

 - 50 parole, and transferring him off death row; and (5) then, reversing the
statutory course, and seeking once again to execute Mr. Robinson without
first allowing merits review of his evidence of racial bias.27
Mr. Robinson’s vested right to a life sentence is further protected by
state and federal due process. The passage of the RJA created a life, liberty,
and property interest in the life sentence the statute mandated. State and
federal due process therefore forbid applying the RJA repeal to retroactively
abrogate that interest without an “opportunity to present his case and have
its merits fairly judged.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 433
(1982); see also Jones v. Keller, 364 N.C. 249, 256 (2010) (state statutes may
create liberty interest protected by Due Process); Sandin v. Conner, 515 U.S.
472, 483-84 (1995); DA’s Office v. Osborne, 557 U.S. 52, 68 (2009) (state
statute created a liberty interest by providing for review of “newly discovered
evidence” to show innocence); Bd. Of Pardons v. Allen, 482 U.S. 369, 377-78
(1987); Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (liberty interest in law

North Carolina Appellate Rule 2 permits this Court to suspend its
rules and order proceedings as necessary to “prevent manifest injustice to a
party.” The equities here are so concerning as to warrant this Court’s
consideration of reinstating the original order of the RJA Court finding
impermissible racial discrimination. This is especially so given that this
Court’s prior decision vacating the RJA Court’s order was premised on the
RJA Court denying the State a third continuance to address the statistical
evidence. But when the State had nine months of additional time to prepare
between Mr. Robinson’s hearing and the hearing in the Golphin, Walters,
Augustine hearing, it presented no new statistical evidence.
27

 - 51 that provided for jury sentencing); Wolff v. McDonnell, 418 U.S. 539, 557
(1974) (state statute providing for good time prison credits create a liberty
interest entitled to protection by due process).
Were the State successful, Mr. Robinson would go to the execution
chamber holding solid proof obtained under a state statute that racial
discrimination tainted his death sentence, never having had a single
courthouse door open for him to vindicate his rights. As this Court explained
more than a century ago, “when the plaintiff obtained judgment . . . he
acquired a vested right of property that could be divested only by judicial,
and not by legislative, proceedings.” Dunham, 128 N.C. at 207. A remand for
a hearing on the merits of the RJA claims is required.
(2) Mr. Robinson’s rights vested when the violation, race
discrimination, occurred and he perfected his legal claim.
The Court should also remand for a merits RJA hearing because, where
the law allows a cause of action which provides redress for past injuries, this
Court has repeatedly held that the parties’ rights as to that cause of action
vest at the time the cause of action accrues. See, e.g., Bolick v. American
Barmag Corp., 306 N.C. 364 (1982) (legislation could not apply retroactively
to protect companies from liability because plaintiff’s claims, based on
injuries from a defective product, had vested at the time of injury, before the
effective date of new statute); Smith v. Mercer, 276 N.C. 329, 337 (1970) (a

 - 52 statute violates a vested right if it “invalidate[s] a defense which was good
when the statute was passed”). The cause of action accrues when the injury
has occurred and the party asserting the claim becomes entitled to file the
action seeking redress for that injury. See, e.g., Booker v. Duke Med. Ctr., 297
N.C. 458, 467 (1979) (“The proper question for consideration is whether the
act as applied will interfere with rights which had vested or liabilities which
had accrued at the time it took effect.”); Robins v. Hillsborough, 361 N.C. 193,
194-96 (2007); cf. Dickson, et al v Rucho, et al, No. 201PA12-5, Legislative
Def. Br. 11-12 (arguing a vested right to review in this Court, after such
review repealed by Legislature, because underlying litigation began in 2011,
remained ongoing and included two prior decisions of this Court, and that the
legislators are entitled to continue the litigation “pursuant to the statute that
was in effect when the case was commenced and when this Court issued its
first two decisions”). Once the right to redress becomes vested, it may not be
defeated or modified by a subsequent statute. Mizell v. Atlantic Coast Line R.
Co., 181 N.C. 36 (1921). Under this precedent, Mr. Robinson’s right to
proceed under the RJA vested once he filed his MAR alleging previous
discrimination and the Legislature is thus prohibited from interfering with
this right.
D.

Ex Post Facto

The Remand Court also erred in its decision that the repeal was not an

 - 53 impermissible ex post facto punishment. Remand for an RJA merits hearing
is warranted on this basis. Both the U.S. and North Carolina Constitutions
bar ex post facto laws. U.S. Const. art. I, § 10, cl. 1; N.C. Const. art. I, § 16.
Keith, supra, found the Legislature’s removal of amnesty both the improper
destruction of a vested right and an ex post facto law. Keith, 63 N.C. at 145.
The Remand Court discussed Keith at length in its discussion of vested
rights, App. 21-22, before it reached the question of whether the RJA repeal
was an ex post facto law. Yet it denied Mr. Robinson’s ex post facto claim
without considering Keith’s application, saying simply that the ex post facto
prohibition applies to “‘[e]very law that changes the punishment, and inflicts
a greater punishment, than the law annexed to the crime, when committed.’”
App. 22 (quoting Jones v. Keller, 364 N.C. 249, 259 (2010) (emphasis in
Jones)).
Jones’ general statement in no way distinguished or silently overruled
Keith. Instead, Keith continues to control here where legislative action after
the crime provides relief against the prior available punishment, and
thereafter the Legislature attempts to make that relief unavailable. Relief
originally provided – even though after the time of the crime – may not be
rescinded without violating the ex post facto punishment prohibition.28 And,

See also In re Bray, 158 Cal. Rptr. 745, 749 (Cal. Ct. App. 1979)
(citing Keith, and holding that retroactive and ameliorative sentencing
28

 - 54 as shown above, the Remand Court’s attempt to distinguish Keith because it
purportedly involved relief akin to “final judgment” was incorrect.
E.

Separation of Powers

Mr. Robinson’s final constitutional defense to the RJA repeal, and
ground for seeking remand for an RJA merits hearing, is that the General
Assembly’s RJA repeal violates the Separation of Powers Clause of our
State’s constitution. See N.C. Const., art. I, § 6. It does so on its face and as
applied to Mr. Robinson. The violation is direct – the repeal’s language takes
from the judicial branch its exclusive right to pronounce sentence on a
defendant, in this case a death sentence on Marcus Robinson. If the mandate
of that section of the repeal is followed, Mr. Robinson having last been
sentenced to life without parole after his RJA hearing, could be executed
under the repeal’s authority without ever appearing before a judge again to
be sentenced to death.
While our constitution gives the legislative branch the exclusive right
to enact laws, nothing in it permits legislators to pronounce sentence. See
reform of legislature placed “prisoners such as petitioner in a position as if
the [reform] were the law at the time they committed their offenses[,]” and
therefore could not be subsequently rescinded); cf. Stogner v. California, 539
U.S. 607, 617 (2003) (citing Keith and finding California law allowing
prosecution of previously-time barred sex crimes an impermissible ex post
facto law); Thompson v. State, 54 Miss. 740, 743 (1877) (“a subsequent repeal
of . . . statute [setting forth statute of limitations], more than two years after
the commission of the crime, could not take away the complete defense,
which, by the act, would have become vested, if that act was applicable”).

 - 55 generally Jernigan v. State, 279 N.C. 556, 563-64 (1971) (“[t]he functions of
the court with regard to the punishment of crimes are to determine the guilt
or innocence of the accused, and, if that determination be one of guilt, then to
pronounce the punishment or penalty prescribed by law”).
The facial violation occurs in RJA repeal provision § 5.(d), where the
General Assembly decreed that Mr. Robinson’s RJA motion was “void,” thus
legislatively adjudicating the outcome of a legal claim. But it is a judicial
branch function – not a legislative branch function, “to put an end to
litigation.” Person v. Bd. Of State Tax Comm’rs, 184 N.C. 499, 505 (1922).
The as-applied violation is that the legislation has the effect of
sentencing Mr. Robinson to death without the intervention of a sentencing
judge. Mr. Robinson’s original sentence of death was imposed by a Superior
Court judge. That remained his sentence until he was sentenced to life
without parole after winning relief under the RJA. Again, it was a Superior
Court judge who sentenced him. That life without parole sentence was Mr.
Robinson’s last sentence imposed by any judge.
On certiorari, this Court vacated the judgment below and remanded
the matter for further consideration. The Remand Court simply applied the
language of the repeal that said if Mr. Robinson’s relief was ever vacated, the
repeal took effect and ended his RJA claim. If that court’s decision stands, the
General Assembly’s enactment will subject Mr. Robinson to execution by

 - 56 operation of law – and without the judicial branch ever again imposing on
him a sentence of death. The Separation of Powers Clause cannot permit the
General Assembly itself to visit law’s most extreme punishment on a citizen
without a sentencing by the judicial branch. As such, that portion of the RJA
repeal on its face and as-applied to Mr. Robinson is unconstitutional.
III.

In the alternative, and at a minimum, this Court should
remand to allow Mr. Robinson to develop and present the
full evidence in support of his constitutional defenses to
dismissal.

In Point I, Mr. Robinson shows why this Court should find Mr.
Robinson’s life without parole sentence binding under § 15A-1335 and the
Double Jeopardy Clause, and dismiss any further proceedings. In Point II,
Mr. Robinson shows meritorious constitutional defenses against application
of the RJA repeal to his case (Cruel and Unusual Punishment and Equal
Protection, Bill of Attainder, Ex Post Facto laws, the equities of Vested
Rights, and Separation of Powers). If this Court does not rule on the existing
record for Mr. Robinson on either of these bases, it should remand for the
purpose of ordering discovery and providing an opportunity for Mr. Robinson
to have a full hearing on his constitutional defenses.
Mr. Robinson repeatedly sought to conduct discovery and to present
evidence to fully elucidate his constitutional defenses to the application of the
RJA to his case. App. 705-09; App. 382-85; see also, Defendant’s Motion for

 - 57 Discovery of Information In Support of Defenses Set Forth In Defendant’s
Brief, Robinson v. North Carolina, 91 CRS 23143 (Nov. 16, 2016).
The Remand Court ignored his discovery motion, denied his request to
present evidence, and indeed impermissibly narrowed the scope of issues to
disregard wholesale some of his constitutional defenses. The Remand Court’s
erroneous understanding of the scope of the issues led to this unjustifiable de
facto denial of Mr. Robinson’s right to discovery and explicit denial of his
right to present evidence. This was error. Compare, State v. McHone, 348
N.C. 254, 258 (1995) (evidentiary hearing is required if the defendant
presents assertions of fact which will entitle him to relief if proven); N.C.
Gen. Stat. § 15A-1415(f) (stating categories of mandatory discovery in postconviction cases). While Mr. Robinson believes that he proffered sufficient
evidence and raised legal defenses that should entitle him to prevail on the
existing record, if this Court is not persuaded, it should at a minimum
remand for Mr. Robinson to develop and present the additional evidence in
support of his allegations of constitutional defenses to the RJA repeal.
IV. The Lower Court Improperly Dismissed Mr. Robinson’s
Constitutional Claims Related to Racial Discrimination
Without a Hearing or Analysis.
In the proceedings below, Mr. Robinson raised both Batson and
McCleskey constitutional claims, based on the new and powerful evidence of
racial discrimination in his case. Batson and McCleskey Amendments (Feb.

 - 58 18, 2016); see also App. 25-104 (Aug. 5, 2010 MAR filed pursuant to the RJA
and the Sixth, Eighth and Fourteenth Amendments). He presented this
evidence in the form of testimony and evidence at the initial RJA hearing and
subsequent proffers of evidence. The Remand Court dismissed Mr. Robinson’s
MAR petition in its entirety, with no mention at all of his independent Batson
and McCleskey constitutional claims for relief.29 Mr. Robinson is entitled to
relief on these claims. This Court should grant him relief based on the
evidence presented in the record, or at a minimum, remand for an
evidentiary hearing.
A.

Violation of Batson v. Kentucky

The State conceded in the context of the 2012 RJA hearings that Mr.
Robinson had set out a prima facie case of Batson discrimination, and offered
for the first time purportedly race neutral explanations for the strikes. See
App. 143-46, 151-52 (state expert testifying that the statistically significant
racial disparities in jury selection required rebuttal under the Batson
framework and accordingly, he sought explanations from the prosecution
about the reasons for the strikes); App. 108-09 (prosecution arguing that they
At the hearing on whether the RJA repeal applied to Mr. Robinson,
counsel for the prisoners noted that the State was asking the Court to rule on
its motion to dismiss, a motion that went broader than the “sole issue” the
Court had authorized the parties to brief and argue, whether the repeal
applied to the prisoners. The Remand Court indicated that the scope of the
RJA repeal was the only issue it intended to address. State v. Augustine, et
al., No. 01 CRS 65079 (Nov. 29 2016) App. 386-87.
29

 - 59 demonstrated race-neutral reasons for the strikes in Mr. Robinson’s case); see
also State v. Golphin, 352 N.C. 364, 426 (2000) (“when the trial court does not
explicitly rule on whether the defendant made a prima facie case, and where
the State proceeds to the second prong of Batson by articulating its
explanation for the challenge, the question of whether the defendant
established a prima facie case becomes moot.”) (citations omitted).
As shown below, these new explanations were themselves evidence of
pretext. The entirety of the record, including new evidence unearthed for the
first time during the RJA proceedings, shows that the state struck four
eligible Black jurors, Nelson Johnson, Margie Chase, Elliot Troy, and Tandra
Whitaker, with purposeful discrimination.
At Mr. Robinson’s trial, the State struck 5 of the 10 Black jurors (50%),
but struck only 4 of 28 non-Black jurors (14.3%). Thus, the State struck 1 of
every 2 Black jurors, but only 1 of every 7 non-Black jurors. After the RJA’s
passage, Mr. Robinson was afforded broad discovery of jury selection in his
case and others in Cumberland County. This new information included the
prosecutor’s pretextual explanations for striking Black jurors, a history and
culture of discrimination against Black jurors by Cumberland County’s
prosecutors, disparate treatment by Mr. Robinson’s prosecutor of white and
Black potential jurors, and comparative juror evidence from a statistical
study of the capital cases tried by Mr. Robinson’s prosecutor and others in the

 - 60 county.
Combined, the evidence in the record meets the standard for proving
purposeful discrimination in Mr. Robinson’s case in violation of the Equal
Protection Clause under Batson and its progeny. See generally Miller-El v.
Dretke, 545 U.S. 231, 265 (2005) (finding Batson violation under the totality
of circumstances, including disparate treatment and questioning of Black and
white jurors, and statistical and historical evidence); Foster v. Chatman, 136
S. Ct. 1737, 1750 (2016) (applying comparative juror analysis); see generally,
Jonathan Abel, Batson’s Appellate Appeal and Trial Tribulations, 118 Col. L.
Rev. 713 (2018) (explaining that defendants are more likely to prevail posttrial and in post-conviction Batson claims because they have greater access to
relevant evidence like prosecutors notes).
In addition, the consistent pattern of purposeful discrimination against
Black jurors by Mr. Robinson’s prosecutor and the Cumberland County office,
over time, meets the different burden imposed by Swain v. Alabama, 380
U.S. 202, 227 (1965), for proving discrimination by pointing to a prosecutor’s
“systematic use of peremptory challenges against [Black jurors] over a period
of time.” See also Horton v. Zant, 941 F.2d 1449, 1453-60 (11th Cir. 1991)
(finding a prima facie case of a Swain violation based in part on a statistical
study of the prosecutor’s peremptory strikes in capital cases over nine years).
The State filed a motion to dismiss Mr. Robinson’s RJA and

 - 61 constitutional claims. In this motion, it contended that Mr. Robinson’s
constitutional claim was procedurally barred under N.C. Gen. Stat. §§ 15A1419(a)(3) and 15A-1419(a)(1) because he did not raise it on appeal or in postconviction. This argument fails for three reasons.
First, the Batson claim is not procedurally barred because Mr.
Robinson was not previously in a position to raise the claim, an express
condition of the statutory bar. See N.C. Gen. Stat. §§ 15A-1419(a)(1) and
(a)(3) (“Upon [prior appeal or MAR] defendant was in a position to adequately
raise the ground or issue underlying the present motion but did not do so”).
Only a small fraction of the proof was previously available. This new evidence
warrants review. See Foster , 136 S. Ct. at 1746 (noting that the Georgia
Supreme Court reviewed an otherwise unreviewable Batson claim in state
post-conviction because “additional evidence allegedly supporting this ground
was discovered” after the direct appeal proceedings).
The evidence previously available to Mr. Robinson consisted only of the
strike ratio in Mr. Robinson’s own case. Mr. Robinson did not have, because
the State did not disclose: (1) the prosecutor’s reasons for the strikes of Black
venire members Mr. Johnson, Ms. Chase, Mr. Troy, and Ms. Whitaker in Mr.
Robinson’s case, and the related evidence showing disparate treatment of
Black and white jurors; (2) evidence of the prosecutor’s systemic
discrimination in the form of explanations for strikes in his other cases that

 - 62 did not withstand scrutiny; (3) a statistical study comparing Black and white
jurors, which documented a pattern of discrimination in Cumberland County
prosecutors’ strikes across cases; (4) evidence of prosecutors’ trainings
intended to circumvent Batson; and (5) notes and testimony by Mr.
Robinson’s prosecutor, and others in his office, which reveal biased thinking
regarding Black jurors. See generally, supra 10-17. This new evidence lifts
the bar, and at a minimum, requires a hearing. Cf., Foster, 136 S. Ct. at 1746
(holding that the new evidence uncovered for the first time in collateral
proceedings of “the shifting explanation, the misrepresentations of the record,
and the persistent focus of race” by the prosecutor showed a constitutional
violation and required relief); see also, State v. Augustine, Golphin, and
Walters, No. No. 91 CRS 65079, 98 CRS 34832, 35044, and 97 CRS 74314-15,
(Dec. 13, 2012) (order denying judgment on the pleadings and finding that
defendants’ similar “constitutional claims are not procedurally barred
because defendants were not in a position to adequately raise those claims
prior to the original RJA’s enactment).
Second, even if the procedural bar were applied, Mr. Robinson can show
cause and prejudice pursuant to N.C. Gen. Stat. § 15A-1419(b) to (d). As
demonstrated above, Mr. Robinson relies on new factual evidence not
previously available through due diligence. N.C. Gen. Stat. § 15A-1419(c)(3).
This includes prosecutor testimony, a category of evidence previously

 - 63 unavailable as a matter of law in North Carolina,30 as well as the new
evidence of training for Cumberland prosecutors in how to defeat Batson. Cf.,
Amadeo v. Zant, 486 U.S. 214, 224 (1988) (suppressed memo regarding jury
selection was new evidence sufficient to excuse procedural bar).
Mr. Robinson can also show cause because there has been a retroactive
change in the law.31 The law in North Carolina regarding both the types and
standards of proof required to prevail in a Batson challenge has changed
dramatically since Mr. Robinson’s direct appeal in 1995 and post-conviction
petition in 1999. In 2005, the United States Supreme Court announced for
the first time in Miller-El v. Dretke, 545 U.S. 231 (2005),the need for courts to
consider comparative juror analysis as part of the Batson calculation. MillerEl, 545 U.S. at 240; see also Snyder v. Louisiana, 552 U.S. 472, 482-84 (2008)
(finding evidence of pretext and intentional discrimination based in part upon
differential treatment of white and Black jurors with respect to purported
hardship). Before Miller-El, North Carolina courts had refused to give such
comparisons the weight the Supreme court has since made clear is required.
See e.g., State v. Porter, 326 N.C. 489, 501-02 (1990) (rejecting juror
comparisons as evidence of pretext if the jurors were not similar in all
State v. Jackson, 322 N.C. 251, 258 (1988) (defendants do not have a
right to examine the prosecuting attorney in Batson challenges).
31 See N.C. Gen. Stat. § 15A-1419(c)(2) (procedural bar waived where
failure to raise the claim earlier was “[t]he result of the recognition of a new
federal or State right which is retroactively applicable”).
30

 - 64 respects); State v. Lyons, 468 S.E.2d 204, 209 (N.C.1996) (same); Amanda S.
Hitchcock, Recent Development, Deference Does Not By Definition Preclude
Relief: The Impact of Miller-El v. Dretke on Batson Review in North Carolina
Capital Appeals, 84 N.C. L. Rev. 1328, 1344-56 (2006) (explaining how the
North Carolina Supreme Court rejected the approach of the majority in
Miller-El to comparative juror analysis in “every case where a capital
defendant has attempted to use side-by-side comparison of challenged and
accepted jurors” by requiring that the struck and passed jurors be identical in
all other respects).
Subsequent state and federal North Carolina cases have remanded for
new consideration in light of the analysis required by Miller-El. State v.
Barden, 362 N.C. 277, 279 (2008) (new comparative juror framework
announced in Miller-El required remand for consideration of claim of
discrimination in jury selection); Kandies v. Polk, 545 U.S. 1137 (2005)
(remanding a North Carolina federal habeas case for a new Batson hearing
consistent with Miller-El).
The law regarding the standard of proof required in North Carolina
also changed with the express holding in Miller-El that litigants need show
only that race was a significant factor motivating the jury strike. 545 U.S. at
252; see also Snyder, 552 U.S. at 485 (finding Batson violation based on
“peremptory strike shown to have been motivated in substantial part by

 - 65 discriminatory intent”). North Carolina had previously rejected powerful
Batson claims on the ground that the defendant could not show that race was
the sole factor motivating the prosecution. See e.g., State v. White, 131 N.C.
App. 734, 740 (1998) (rejecting a claim where the prosecution conceded its
strike was in part based on race and gender because a third basis for its
strike, age, was constitutionally permissible, and observing that “our courts,
in applying the Batson decision, have required that the challenge be based
solely upon race”) (emphasis in original). After Miller-El, this Court has
clarified that the correct standard is whether race was a significant factor,
not whether it was the sole factor. State v. Waring, 364 N.C. 443, 480-81
(2010).
Moreover, Mr. Robinson can meet the prejudice prong of the procedural
bar waiver, see § 15A-1419(d), because there is a reasonable likelihood he will
prevail on his Batson claim. Indeed, the RJA Court, in its initial RJA relief
order, already found that intentional discrimination occurred at trial. App. at
695-96. Although the order was vacated because the RJA Court failed to
grant the State a third continuance, that court’s findings are at a minimum
indicative of the strength of Mr. Robinson’s evidence.
Third, Mr. Robinson’s Batson claim is alternatively entitled to merits
review because the General Assembly specifically predicated repeal on the
availability of alternative avenues of relief. The repeal explicitly

 - 66 contemplated that defendants with evidence of jury selection discrimination
would be able to assert such a claim in a post-conviction motion for
appropriate relief, as Mr. Robinson did here. See S.L. 2013-154, § 5.(b)
(stating “a capital defendant retains all of the rights which the state and
federal constitutions provide to ensure that the prosecutors who selected a
jury and who sought a capital conviction did not do so on the basis of race”
and explaining that “these rights are protected through multiple avenues . . .
[including] a postconviction right to file a motion for appropriate relief at the
trial level where claims of racial discrimination may be heard”). This
statutory language would be meaningless if the courthouse doors were closed
to defendants who, for the first time in post-conviction proceedings,
discovered evidence that their capital convictions were infected with racial
bias. See Porsch Builders Inc. v. City of Winston-Salem, 302 N.C. 505, 556
(1981) (“It is presumed that the legislature intended each portion to be given
full effect and did not intend any provision to be mere surplusage.”).
If this Court somehow concludes that the Batson claim would otherwise
be barred, it should exercise its discretion to review the claim under North
Carolina Appellate Rule 2, and its inherent authority to effectuate justice, to
prevent manifest injustice and to expedite a decision in the public interest.
State v. Sanders, 312 N.C. 318, 320 (1984) (exercising supervisory powers
under Rule 2 “[i]n view of the gravity of the offenses for which defendant was

 - 67 tried and the penalty of death which was imposed” and ordering a new
capital trial); cf. State v. Robbins, 319 N.C. 465 (1987) (reviewing Batson
claim where violation not objected to at trial in part because the defendant
“was on trial for his life”). Providing review of the newly uncovered evidence
of discrimination in Mr. Robinson’s case is required in the interests of justice.
“Discrimination in the jury selection process undermines our criminal justice
system and poisons public confidence in the evenhanded administration of
justice.” Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015); see also Cofield v. State,
320 N.C. 297, 304 (1987) (hereafter Cofield I) (“Article I, § 26 [prohibiting
racial bias in jury selection] in particular is intended to protect the integrity
of the judicial system.”); Rose v. Mitchell, 443 U.S. 545, 555 (1979)
(“Discrimination on the basis of race, odious in all aspects, is especially
pernicious in the administration of justice.”).
Mr. Robinson alleged and introduced extensive proof of a Batson
violation. This Court should enter relief or remand for an evidentiary hearing
on Mr. Robinson’s Batson claim.
B.

Race discrimination in charging and sentencing

Mr. Robinson also alleged that his death sentence violates
constitutional prohibitions on arbitrary and capricious punishment and equal
protection, both under the preexisting McCleskey v. Kemp, 481 U.S. 279
(1987), standard for purposeful discrimination, and the more appropriate

 - 68 standard required today by North Carolina’s constitution and the evolving
standards of decency, where a substantial risk of arbitrary and capricious
punishment is sufficient to demonstrate a constitutional violation. U.S.
Const. amends. VIII and XIV; N.C. Const. art. I, § 27. This claim, too, was
improperly ignored by the Remand Court when it dismissed RJA motion
without any discussion or explanation of the Batson or McCleskey claims.
The racially discriminatory application of the death penalty violates the
Eighth Amendment’s prohibition of arbitrary and capricious punishment.
McCleskey, 481 U.S. at 292-97 (exceptionally clear proof of purposeful
discrimination required to show Eighth Amendment violation).32
Under McCleskey, in order to succeed on a claim of racial
discrimination in the imposition of the death penalty, the defendant must
establish a “constitutionally significant risk of racial bias” with “exceptionally
clear proof,” including a showing that the “decisionmakers in his case acted
with discriminatory purpose.” McCleskey, 481 U.S. at 313, 297, 292; John
See also Godfrey v. Georgia, 446 U.S. 420, 427 (1980) (Furman
recognized that the death penalty “may not be imposed under sentencing
procedures that create a substantial risk that the punishment will be
inflicted in an arbitrary and capricious manner.”); Glossip v. Gross, 135 S. Ct.
2726, 2760-62 (2015) (Breyer, J., dissenting) (concluding that research on the
use of improper factors such as race in the application of the death penalty
strongly suggests such application is arbitrary); Baze v. Rees, 553 U.S. 35, 85
(2008) (Stevens, J., concurring) (concluding capital punishment violates the
Eighth Amendment, in part because of the persistent “risk of discriminatory
application of the death penalty”').
32

 - 69 Blume & Lindsey S. Vann, Forty Years of Death: the Past, Present and Future
of the Death Penalty in South Carolina (still arbitrary), 11 DUKE J. CONST. L.
& PUB. POL’Y 183, 224 n.247 (2016) (describing Kelly v. State, No. 99-CP-421174 (S.C. Sup. Ct., Oct. 6, 2003), where the defendant won a claim of racial
discrimination under McCleskey). The extensive evidence proffered in this
case meets this high burden, and the Remand Court’s failure to consider such
evidence is contrary to the constitutional guarantee to be free from arbitrary
and capricious punishment.
One of the shortcomings of the evidence that Mr. McCleskey introduced
was a failure to prove discriminatory charging decisions at the county level.
See generally McCleskey, 481 U.S. at 295-96, n.15. The Court recognized that
Mr. McCleskey’s statewide statistics were useful in the context of jury
discrimination claims, but concluded that the charging decisions were too
complex to be meaningfully analyzed statewide, across multiple prosecutorial
districts. Id. In this case, Mr. Robinson relies on the charging evidence from
his own county showing that cases, like his, with a white victim, are 3.4 times
more likely to result in a death sentence. He relies on the cases prosecuted by
his own prosecutor.
Equally important, unlike Mr. McCleskey, Marcus Robinson has
pointed to evidence specific to his own case, including the deeds and acts of
the prosecution in charging, in jury selection, and during his capital trial,

 - 70 which support an inference of racial considerations in his sentence.33
Compare McCleskey, 481 U.S. at 292-93 (“He offers no evidence specific to his
own case that would support an inference that racial considerations played a
part in his sentence. Instead, he relies solely on the Baldus study.”).34
In support of his claim of an equal protection violation, Mr. Robinson
has pointed to: (1) the prosecution’s heavy reliance on a racially-charged
theory at trial; (2) the prosecutor’s starkly different approaches to litigating
his Black-on-white capital case versus the Burmeister and Wright white-onBlack capital cases; (3) the prosecutor’s pursuit of his case as capital despite
the ambiguity of whether Mr. Robinson or Mr. Williams pulled the trigger,
and despite Mr. Robinson’s young age; (4) the evidence of racial disparities in
death cases in the county; and (5) a wealth of evidence of discrimination in
the county in jury selection, including in his own case.
Mr. Robinson further alleged that the Eighth Amendment’s prohibition
on cruel and unusual punishments and the State constitutional prohibition
Although Mr. Robinson was afforded some discovery of his claims of
racial bias in jury selection, Mr. Robinson has not been afforded discovery on
his claims of discrimination under McCleskey or the charging and sentencing
claims of the RJA. Much of the new evidence of discrimination in jury
selection came through the new discovery provided under the RJA. It is
reasonable to assume Mr. Robinson would uncover additional facts with
additional discovery on these claims.
34 There are other differences as well. Unlike in McCleskey, the State
here had an opportunity to conduct its own rebuttal to the MSU studies.
Compare McCleskey, 481 U.S. at 296 (“Here, the State has no practical
opportunity to rebut the Baldus study.”).
33

 - 71 against cruel or unusual punishments have evolved so that today’s society no
longer tolerates death sentences imposed under sentencing procedures that
“create a substantial risk that the punishment will be inflicted in an
arbitrary and capricious manner.” McCleskey, 481 U.S. at 322, (Brennan, J.,
dissenting, joined by Blackmun, J., Marshall, J., and Stevens, J.); Kennedy v.
Louisiana, 554 U.S. 407, 419 (2008) (quoting Furman, 408 U.S. at 382
(Burger, C. J., dissenting)) (the Eighth Amendment’s “applicability must
change as the basic mores of society change”).
Public support for the death penalty is at its lowest point in over 40
years; only 49% of Americans support the death penalty for those convicted of
murder. Baxter Oliphant, Support for death penalty lowest in more than four
decades, Pew Research Center (Sept. 29, 2016).35 Polling in North Carolina
about racial bias in sentencing showed a majority of support (55%) for
commuting death sentences in cases tainted by racial bias. See Public Policy
Polling, North Carolina Survey Results (Sept. 27-30, 2012); see also, Atkins v.
Virginia, 536 U.S. 304, 316 n.21 (2002) (relying on polling data as a
component of the Eighth Amendment calculus).
This Court should follow the path of other state courts that have
refused to follow McCleskey when interpreting the cruel and unusual

http://www.pewresearch.org/fact-tank/2016/09/29/support-for-deathpenalty-lowest-in-more-than-four-decades.
35

 - 72 punishment provision of their state constitution. See, e.g., State v. Loftin, 724
A.2d 129, 151 (N.J. 1999) (rejecting McCleskey under the New Jersey
constitution); see also District Attorney v. Watson, 411 N.E.2d 1274, 1283
(Mass. 1980) (holding, before McCleskey, that systemic evidence of
discriminatory application of the death penalty violates the Massachusetts
constitutional prohibition against “cruel” punishments).36
This Court may apply under the North Carolina Constitution a broader
interpretation of equal protection and cruel and unusual punishment than
the Supreme Court afforded in McCleskey. See N.C. Const. art. I, §§ 19, 26,
and 27. North Carolina courts have recognized the need to address nonpurposeful racial discrimination (or intentional discrimination that is evident
in patterns but difficult to prove), in part because of the state constitutional
commitment to ensure that the “judicial system of a democratic society
operate evenhandedly and . . . be perceived to operate evenhandedly.” See
State v. Cofield, 324 N.C. 452, 460 (1989) (Cofield II) (quoting Cofield I, 320
N.C. at 302 (emphasis in original). In Cofield II, this Court applied the State
McCleskey has been roundly condemned as the “low point” in the
quest for equality, comparable to Dred Scott v. Sanford, 60 U.S. 393 (1857),
and Plessy v. Ferguson, 163 U.S. 537 (1896). See Hi-Voltage Wire Works, Inc.
v. City of San Jose, 12 P.3d 1068, 1073 (Cal. 2000); see also Santiago, 122 A.
3d at 97 (Norcott and McDonald, JJs., concurring). In his retirement, Justice
Lewis Powell, one of the five justices to vote in the majority, told his
biographer that McCleskey stands as the sole case in which he would change
his vote. See John C. Jeffries, JUSTICE LEWIS F. POWELL, JR. 451 (1994)
(quoting Justice Powell in his biography).
36

 - 73 Constitution to find an equal protection violation and granted relief based on
racial discrimination in grand jury foreperson selection, even though there
was “not the slightest hint of racial motivation.” Id. at 459 (concluding “that
the selection process used here was not racially neutral because it excluded
from consideration as foreman all of the black grand jury members”).
Furthermore, the text of the North Carolina constitution affords
broader protection than the Eighth Amendment’s promise to be free of “cruel
and unusual punishments.” The state constitution guards against “cruel or
unusual punishments.” N.C. Const. art. I, § 27 (emphasis added). Although in
State v. Green, 348 N.C. 588, 603 (1998), the Court considered the protection
of cruel or unusual punishment as similar to that afforded by the federal
constitution, both the holding and framework of Green have been eroded by
recent precedent. Compare Green, 348 N.C. at 609-10 (holding a mandatory
life sentence acceptable for a 13 year-old defendant by looking only at gross
proportionality of the sentence); with Graham v. Florida, 560 U.S. 48, 82
(2010) (striking mandatory juvenile life sentences and requiring an analysis
under the “objective indicia” of consensus and actual sentencing practices).
Mr. Robinson has stated a valid claim of discriminatory capital
charging and sentencing, and alleged and proffered substantial evidence to
support the claim. The Court should enter relief for Mr. Robinson or remand
for a hearing on the merits.

 - 74 V.

Mr. Robinson Has Been Sentenced To Life Imprisonment
Without Parole And No Review Of That Judgment Has
Ever Been Sought By The State; Thus, The RJA Issues
Raised By the Parties are Moot.

The Court may also consider as a threshold question whether, by
failing to challenge the RJA Court’s 2012 judgment imposing a life sentence
without the possibility of parole, the State waived its right to now dispute its
validity, resulting in Mr. Robinson’s life sentence being in full force and effect
and the present issues pertaining to the RJA being moot.
When the RJA Court granted Mr. Robinson relief under the RJA, it also
entered, on April 20, 2012, a separate judgment and commitment order
resentencing him. See State v. Robinson, Judgment and Commitment,
Cumberland County No. 91 CRS 23143. On July 10, 2012, the State filed a
petition for writ of certiorari seeking review of the order issued by the RJA
Court, but not the judgment.
Pursuant to Rule 21 of the Rules of Appellate Procedure, the State, as
petitioner, was required to attach “certified copies of the judgment, order, or
opinion or parts of the record which may be essential to an understanding of
the matter set forth in the petition.” Attached to the State’s petition was a
certified copy of the RJA Court’s order. Then, on April 11, 2013, this Court
issued an order allowing the petition “for writ of certiorari to review the order
of the Superior Court, Cumberland County[.]” See State v. Robinson, No.

 - 75 411A94-5. The State’s brief, filed on June 10, 2013, made a similar request,
seeking “reversal of the ORDER GRANTING MOTION FOR APPROPRIATE
RELIEF filed on 20 April 2012.” Again, attached to the State’s brief was a
copy of the order granting relief under the RJA.
The State’s petition and brief did not mention or seek review of the RJA
Court’s judgment and commitment. No notice of appeal was filed by the State
from the judgment.37 The State did not seek certiorari review of the judgment
and commitment pursuant to N.C. R. App. P. 21. And the judgment and
commitment was not attached to either the State’s petition for writ of
certiorari or its brief. No mention of the judgment and commitment was made
in either document filed in support of its appeal. This Court’s subsequent
decision vacated the RJA Court’s order but left the judgment and
commitment undisturbed. Because the State did not seek to challenge the
judgment imposing a life sentence without the possibility of parole, it waived
its right to dispute its validity.
This Court has clearly distinguished between trial court orders
granting motions for appropriate relief and orders entering judgment and
commitment. In State v. Roberts, 351 N.C. 325 (2000), this Court noted that a
The State had no right to appeal from the Judgment and
Commitment resentencing Mr. Robinson to life imprisonment without the
possibility of parole. See N.C. Gen. Stat. § 15A-1445 (listing the limited
circumstances when the State may appeal from the superior court to the
appellate division).
37

 - 76 Court of Appeals’ decision reversing a judgment and commitment “did not
constitute a decision by the Court of Appeals on defendant’s motion for
appropriate relief because it did not review the decision by Judge Cornelius
to grant the motion for appropriate relief to defendant.” 351 N.C. at 328, 523.
Similarly, in Mr. Robinson’s case, a decision by this Court reversing a
trial court order granting defendant’s motion for appropriate relief did not
constitute a decision on defendant’s judgment and commitment, because it
did not review the judgment and commitment order entered by the superior
court judge. See also State v. Miller, 205 N.C. App. 724 (2010) (appeal
dismissed where defendant filed notice of appeal from order denying motion
to suppress but failed to appeal from the judgment).
In short, this Court did not review the entry of the judgment and
commitment by the RJA Court, because the State did not challenge it. With
no review available to the State of the judgment and commitment, it is now
final. All other issues presented herein pertaining to the RJA are rendered
moot. See In re Peoples, 296 N.C. 109, 147-48 (1978) (“If the issues before a
court or administrative body become moot at any time during the course of
the proceedings, the usual response should be to dismiss the action.”)
(emphasis added; citations omitted).

 - 77 CONCLUSION
Mr. Robinson asks that this Court first rule that N.C. Gen. Stat. § 15A1335 and the Double Jeopardy Clause of the North Carolina and United
States Constitutions prohibit the State from exposing Mr. Robinson again to
the death penalty, and accordingly, to uphold his sentence of life without
parole and dismiss the remaining questions presented here regarding his
RJA claims as moot.
Should this Court rule otherwise, it will need to consider Mr.
Robinson’s constitutional defenses to application of the RJA repeal to his
case, based on his constitutional rights to: (1) equal protection, due process
and freedom from a scheme of discriminatory punishment; (2) freedom from
punishment by bill of attainder; (3) due process protection of vested rights; (4)
freedom from ex post facto laws; and (5) separation of powers.
As shown above, Mr. Robinson has introduced sufficient evidence to
prevail on these defenses to the RJA repeal. If the Court disagrees, he
respectfully requests an order remanding the case so that he may be afforded
an opportunity to fully develop his constitutional defenses through discovery
and an evidentiary hearing.
Finally, Mr. Robinson contends that the Remand Court erred when it
declined to rule on his Batson and McCleskey constitutional claims of racial
discrimination. This Court should enter relief on these claims, or in the

 - 78 alternative, remand Mr. Robinson’s constitutional claims for an evidentiary
hearing.
The Court may also consider whether, by failing to challenge the RJA
Court’s 2012 judgment imposing a life sentence without the possibility of
parole, the State waived its right to now dispute its validity. If the Court
agrees, Mr. Robinson’s life sentence is in full force and effect and the present
issues pertaining to the RJA are moot.
Submitted on the 16th day of July 2018.
s/s Cassandra Stubbs
Cassandra Stubbs
American Civil Liberties Union
Capital Punishment Project
201 W. Main Street, Suite 402
Durham, NC 27701
(919) 682-5659
cstubbs@aclu.org
State Bar No. 37172
ATTORNEY FOR MARCUS REYMOND ROBINSON
I certify that the attorneys listed below have authorized me to list their
names on this document as if they had personally signed it:
s/s Donald Beskind
Donald H. Beskind
Duke University School of Law
Box 90360
Durham, NC 27708
(919) 613-7085
beskind@law.duke.edu
NC State Bar No. 8138
s/s David Weiss
David Weiss

 - 79 Center for Death Penalty Litigation
123 West Main Street, Suite 700
Durham, NC 27701
(919) 956-9545
dweiss@cdpl.org
State Bar No. 35647
s/s Brian Stull
Brian Stull
American Civil Liberties Union
Capital Punishment Project
201 W. Main Street, Suite 402
Durham, NC 27701
(919) 682-5659
bstull@aclu.org
State Bar No. 36002
ATTORNEYS FOR MARCUS REYMOND ROBINSON

 - 80 CERTIFICATE OF SERVICE
I HEREBY certify that the foregoing DEFENDANT’S OPENING
BRIEF has been electronically served upon counsel of record for the State,
Special Deputy Attorney Generals Danielle Marquis Elder,
dmarquis@ncdoi.gov, and Jonathan P. Babb jbabb@ncdoi.gov.
This the 16th day of July, 2018.
s/s Cassandra Stubbs
Cassandra Stubbs
Attorney for Marcus Reymond Robinson