Case Information
*1 IN THE SUPREME COURT OF NORTH CAROLINA
No. 388A10
Filed 5 June 2020
STATE OF NORTH CAROLINA
v.
ANDREW DARRIN RAMSEUR
On writ оf certiorari pursuant to N.C.G.S. § 7A-32(b) to review an order dated 3 June 2014 entered by Judge Joseph N. Crosswhite, Senior Resident Superior Court Judge, in Superior Court, Iredell County, dismissing defendant’s motions for appropriate relief. Heard in the Supreme Court on 26 August 2019.
Glenn Gerding, Appellate Defender, by Daniel K. Shatz and Andrew DeSimone, Assistant Appellate Defenders, for defendant-appellant.
Joshua H. Stein, Attorney General, by Jonathan P. Babb and Danielle Marquis Elder, Special Deputy Attorneys General, for the State-appellee.
Cassandra Stubbs for ACLU Capital Punishment Project, Burton Craige for North Carolina Advocates for Justice, and James Coleman and Irv Joyner for North Carolina Conference of the NAACP, amici curiae.
EARLS, Justice.
Defendant, Andrew Darrin Ramseur, was convicted of two counts of first- degree murder and sentenced to death in 2010. After his trial, defendant filed a motion seeking relief pursuant to the newly enacted North Carolina Racial Justice Act on the basis that race was a significant factor in the decision to seek or impose the death penalty in his case. Before the trial court ruled on defendant’s motion, the General Assembly amended the Racial Justice Act in 2012 and then, in 2013, repealed the Racial Justice Act in its entirety. The trial court determined that this repeal rendered defendant’s pending motion void and therefore dismissed defendant’s Racial Justice Act claims. Here we are asked to decide the constitutionality of the retroactive application of the repeal of the Racial Justice Act. For the reasons stated herein, we hold that applying the repeal retroactively violates the constitutional prohibition on ex post facto laws, and therefore we reverse the trial court.
Background
On 31 December 2007, defendant was indicted for two counts of first-degree murder and one count of robbery with a dangerous weapon in connection with the 16 December 2007 murders of Jennifer Lee Vincek and Jeffrey Robert Peck. On the same day, the State filed a notice of its intent to seek the death penalty in defendant’s case. Before trial, on 7 December 2009, defendant filed a “Motion for Change of Venue” based upon allegations of prejudice stemming from pre-trial publicity and racial tensions in Iredell County that were exacerbated by the fact that he was a black defendant accused of killing two white victims. In his motion, defendant alleged that the likelihood of a death sentence in Iredell County and the surrounding area was greater because of, inter alia , substantial pre-trial publicity and public comments including: the distribution to media outlets of surveillance footage of the crime, inflammatory media coverage of the case, and the prevalence of overtly racist comments and discussion on community internet blogs and websites. On a similar basis, defendant simultaneously filed a “Motion to Continue Trial to Investigate Claim Pursuant to the Racial Justice Act” to examine whether the decision to seek the death penalty was free from racial discrimination.
The North Carolina Racial Justice Act (the RJA, or the Original RJA) was ratified by the General Assembly on 6 August 2009 and provided that “[n]o 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.” North Carolina Racial Justice Act, S.L. 2009-464, § 1, 2009 N.C. Sess. Laws 1213, 1214 [hereinafter Original RJA] (codified at N.C.G.S. § 15A-2010 (2009)) (repealed 2013). The RJA implemented a hearing procedure authorizing a defendant to raise an RJA claim either at the Rule 24 pretrial conference or in postconviction proceedings. Id. , § 1, 2009 N.C. Sess. Laws at 1214–15. Upon the filing of an RJA claim, the RJA mandated that “[t]he court shall schedule a hearing on the claim and shall prescribe a time for the submission of evidence by both parties.” Id. , § 1, N.C. Sess. Laws at 1214. With respect to the evidence required to establish racial discrimination, the RJA placed the burden of proof on the defendant and provided, in pertinent part:
(a) A finding that race was the basis of the decision to seek or impose a death sentence may be established if the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.
(b) Evidence relevant to establish a finding that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed may include statistical evidence or other evidence, including, but not limited to, sworn testimony of attorneys, prosecutors, law enforcement officers, jurors, or other members of the criminal justice system or both, that, irrespective of statutory factors, one or more of the following applies: (1) Death sentences were sought or imposed significantly more frequently upon persons of one race than upon persons of another race.
(2) Death sentences were sought or imposed significantly more frequently as punishment for capital offenses against persons of one race than as punishment of capital offenses against persons of another race.
(3) Race was a significant factor in decisions to exercise peremptory challenges during jury selection.
Id. , § 1, 2009 N.C. Sess. Laws at 1214. When a defendant meets his evidentiary burden, and it is not successfully rebutted by the State, the RJA prescribes a remedy distinct to RJA claims:
If the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed, the court shall order that a death sentence not be sought, or that the death sentence imposed by the judgment shall be vacated and the defendant resentenced to life imprisonment without the possibility of parole.
Id.
, § 1,
Following hearings on 14 and 18 December 2009, the trial court denied defendant’s motion for change of venue and defendant’s motion to continue for RJA- related discovery. Defendant’s trial began during the 10 May 2010 criminal session of Superior Court, Iredell County. On 11 May 2010, defendant made an oral motion to modify the courtroom arrangement objecting to the fact that when the parties arrived for trial, the first four rows directly behind the defense table were cordoned off by yellow crime scene tape. After the trial court denied his oral motion, defendant filed a written motion the following day alleging that this quarantining of the area behind the defense table effectively segregated the courtroom by race and forced defendant’s family to sit in the back of the courtroom behind the crime scene tape while others, including white members of the victims’ families, were able to sit in the front of the courtroom behind the prosecution table. The trial court ordered that the crime scene tape be removed but required that three rows behind the defense table remain vacant.
During jury selection, defendant twice objected to the prosecutor’s use of peremptory challenges to exclude black jurors pursuant to Batson v. Kentucky , 476 U.S. 79 (1986). The trial court denied both of defendant’s Batson challenges. Defendant also renewed his motions to change venue and to continue for RJA-related discovery, noting that all twelve jurors selected to hear the case were white, and that all black potential jurors had been excused. The trial court denied these motions. On 28 May 2010, the jury returned verdicts finding defendant guilty of all charges. On 7 June 2010, following a capital sentencing proceeding pursuant to N.C.G.S. § 15A- 2000, the jury recommended defendant be sentenced to death for each murder conviction. On 8 June 2010, the trial court sentenced defendant to death for each murder charge and to 61 to 83 months imprisonment for robbery with a dangerous weapon. Defendant gave notice of appeal to this Court.
Following his trial, on 10 August 2010, defendant filed a post-conviction motion
for appropriate relief (MAR) under the RJA in both the trial court and in this Court.
On 7 September 2010, this Court entered an order dismissing without prejudice
defendant’s MAR filed in this Court and staying further proceedings in defendant’s
direct appeal “until after the trial court’s hearing and determination of defendant’s
Motion for Appropriate Relief Pursuant to the Racial Justice Act filed in Superior
Court, Iredell County.”
State v. Ramseur
,
On 21 June 2012, following a ruling in an RJA case in Cumberland County,
State v. Robinson
, No. 91 CRS 23143, Order Granting Motion for Appropriate
Relief (Superior Court, Cumberland County, Apr. 20, 2012),
vacated by
It shall be a condition for the filing and consideration of a motion under this Article that the defendant knowingly and voluntarily waives any objection to the imposition of a sentence to life imprisonment without parole based upon any common law, statutory law, or the federal or State constitutions that would otherwise require that the defendant be eligible for parole.
Amended RJA, § 3,
Moreover, the Amended RJA altered what is neсessary to establish racial
discrimination by,
inter alia
: limiting the geographic regions solely to the “county or
prosecutorial district” (eliminating “judicial division” and “State”); defining the
relevant time period as “the period from 10 years prior to the commission of the
offense to the date that is two years after the imposition of the death sentence”; and
mandating that “[s]tatistical evidence alone is insufficient to establish that race was
a significant factor under this Article.”
Id.
, § 3,
Evidence relevant to establish a finding that race was a significant factor in decisions to seek or impose the sentence of death in the county or prosecutorial district at the time the death sentence was sought or imposed may include statistical evidence derived from the county or prosecutorial district where the defendant was sentenced to death, or other evidence, that either (i) the race of the defendant was a significant factor or (ii) race was a significant factor in decisions to exercise peremptory challenges during jury selection.
Id.
, § 3, 2012 N.C. Sess. Laws at 472. The General Assembly provided that the
Amended RJA applies retroactively to any motions filed or hearings commenced
under the Original RJA and that a defendant who filed an MAR under the RJA “shall
have 60 days from the effective date of this act to amend or otherwise modify the
motion.”
Id.
, § 6,
On 31 August 2012, defendant filed an amendment to his MAR filed under the Original RJA, asserting that he was entitled to pursue claims under both the Original RJA and the Amended RJA. On 29 November 2012, the State filed a response to defendant’s RJA motions and requested judgment on the pleadings.
On 13 June 2013, still prior to any ruling by the trial court on defendant’s pending RJA and Amended RJA motions, the General Assembly repealed the RJA in its entirety (the RJA Repeal). Act of June 13, 2013, S.L. 2013-154, § 5.(a), 2013 N.C. Sess. Laws 368, 372 [hereinafter RJA Repeal]. The General Assembly provided that the RJA Repeal “is retroactive and applies to any” MAR filed pursuant to the RJA “prior to the effective date of this act,” and that all such motions “are void.” Id. , 5.(d), 2013 N.C. Sess. Laws at 372. In light of the RJA Repeal, the State filed a second response on 23 August 2013 requesting that defendant’s RJA claims be dismissed on the basis of the repeal. Defendant filed a response asserting that retroactive application of the RJA Repeal would be unconstitutional and that ruling on the State’s motion would be premature.
In an order entered on 3 June 2014, the trial court dismissed defendant’s RJA and Amended RJA claims. Citing only the statute and with no further explanation, the trial court stated that the only exception to the retroactive application of the RJA Repeal is in cases in which a final order has been entered. Because the trial court had not entered any final order in defendant’s case, the trial court ruled that the RJA Repeal rendered all of his RJA and Amended RJA claims void. In addition, the trial court made an alternative ruling summarily stating, without further elaboration or examination of the evidence or the parties’ legal arguments, that “[i]n the alternative, this Court can determine that defendant’s RJA and Amended RJA claims are without merit. An evidentiary hearing is not necessary to decide the issues raised in these claims, and these claims are all denied on the pleadings.” The trial court also denied defendant’s request for additional discovery.
On 9 April 2015, defendant filed a petition for writ of certiorari seeking review of the trial court’s order and a “Motion to Maintain Stay of Direct Appeal.” This Court allowed defendant’s petition for writ of certiorari and his motion to maintain the stay of his direct appeal.
Standard of Review
At issue here is the constitutionality of the retroactive application of the RJA
Repeal. “We review constitutional issues de novo.”
State v. Whittington
, 367 N.C.
186, 190,
Ex Post Facto Analysis of the RJA Repeal Defendant argues that the retroactive application of the RJA Repeal violates the prohibition against ex post facto laws under the United States and North Carolina Constitutions. [1] Following relevant precedents of this Court indistinguishable from the facts of this case, we hold that the RJA Repeal is an unconstitutional ex post facto law when applied retroactively.
As an initial matter, it is well established that “a statute is presumed to have
prospective effect only and should not be construed to have a retroactive application
unless such an intent is clearly expressed or arises by necessary implication from the
terms of the legislation.”
State v. Green
,
the RJA Repeal to have a retroactive application. Thus, the sole question is whether the retroactive application of the RJA Repeal violates the prohibition against ex post facto laws.
Both our state and federal constitutions prohibit the enactment of
ex post facto
laws. U.S. Const. art. I, § 10 (“No State shall . . . pass any Bill of Attainder, ex post
facto Law, or Law impairing the obligation of contracts . . . .”); N.C. Const. art. I, § 16
(“Retrospective laws, punishing acts committed before the existence of such laws and
by them only declared criminal, are oppressive, unjust, and incompatible with liberty,
and therefore no ex post facto law shall be enacted.”);
see also State v. Wiley
, 355 N.C.
592, 625, 565 S.E.2d 22, 45 (2002) (stating that “both the federal and state
constitutional
ex post facto
provisions are evaluated under the same definition”). The
purpose of this prohibition against
ex post facto
laws is to “restrict[ ] governmental
power by restraining arbitrary and potentially vindictive legislation” and to “assure
that legislative Acts give fair warning of their effect and permit individuals to rely on
their meaning until explicitly changed.”
Weaver v. Graham
,
The United States Supreme Court has explained that there are four categories, first enumerated in 1798 by Justice Chase in Calder v. Bull , to which the prohibition against ex post facto laws applies:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
Collins v. Youngblood
,
At issue here is the third category of
ex post facto
laws, which includes not only
those laws that increase the maximum sentence attached to a crime, but also any law
that makes the range or measure of punishments more severe.
[2]
See, e.g.
,
Peugh v.
United States
,
Here the State first contends that defendant cannot establish any change in
the measure of punishment attached to his criminal offenses because the Original
RJA was enacted
after
defendant’s crimes, and therefore the RJA Repeal had no effect
on the punishment “applicable at the time of the crimes committed.” The General
Assembly, however, by giving the RJA retroactive effect, has declared that the RJA
was the applicable law at the time the crimes were committed. The State does not
challenge the constitutionality of the retroactive application of the RJA here, and we
note that the
Ex Post Facto
Clause does not prohibit the retroactive application of
laws that—like the RJA—are ameliorative in nature.
See Dobbert v. Florida
, 432
U.S. 282, 294 (1977) (“It is axiomatic that for a law to be ex post facto it must be more
onerous than the prior law.”). This unusual situation is illustrated by this Court’s
decision in
State v. Keith
,
There the defendant, who had been indicted for murder stemming from events
that occurred when he was serving as a Confederate officer in the Civil War, sought
to avail himself of an “Amnesty Act” passed by the General Assembly following the
conclusion of the war.
Id.
at 141–42. This Act provided a “full and complete amnesty,
pardon and discharge” for all “homicides, felonies or misdemeanors” committed by
officers and soldiers of both the United States and the Confederacy, provided that
such acts were “done in the discharge of any duties imposed on him, purporting to be
by a law . . . . or by virtue of any order emanating from any officer, commissioned or
non-commissioned.” Act of Dec. 22, 1866, ch. 3, § 1, 1866-67 N.C. Sess. Laws 6, 6–7.
By the time the defendant was brought to trial, however, the Constitutional
Convention of 1868 had enacted “An Ordinance in Relation to the Pardon of Officers
and Soldiers of the Late Confederate Service” repealing the Amnesty Act. Act of
March 13, 1868, ch. 29, § 1, 1868 N.C. Ordinances and Resolutions of the
Constitutional Convention 69, 69;
see also Keith
, 63 N.C. at 144 (stating that the
“Convention of 1868 . . . was assembled under the Reconstruction Acts of Congress to
form a new Constitution for the State, and as representing the people of North
Carolina, it had general legislative powers”). The trial court “refus[ed] to discharge
the prisoner entirely upon the effect of the ordinance of 1868,” and the defendant
appealed.
Keith
,
On appeal, the Court considered whether the ordinance of 1868 violated the prohibition against ex post facto laws. Id. at 143–45. The Court noted that the “effects of a pardon are well settled in law: as far as the State is concerned, they destroy and entirely efface the previous offence; it is as if it had never been committed.” Id. at 143; see also id. at 144 (“Bishop says it is ‘a remission of guilt,’ not only of the punishment of guilt.” (citing 1 Bishop Cr. L. § 749)). Accordingly, the Court concluded that the ordinance of 1868, which had the intended effect of “reviv[ing] the previous offences of the prisoner,” “was substantially an ex post facto law” because “it made criminal what, before the ratification of the ordinance was not so.” [3] Id. at 144–45.
Here, as in
Keith
, the legislature passed a law aiming to repeal a prior,
amеliorative law that had retroactively changed the law applicable to crimes already
committed. While the repeal in
Keith
involved the first
Calder
category,
see Calder
,
Nonetheless, the State contends that Keith is inapposite due to the unique nature and greater breadth of the Amnesty Act in comparison to the RJA. Specifically, the State asserts that the conditional, “potential” nature of the relief provided by the RJA renders it distinguishable from the “firmly established” immunity afforded by the Amnesty Act, which the State describes as a “blanket pardon” or “blanket amnesty.” The State notes that the Court in Keith compared the Amnesty Act to “a general pardon by parliament,” which need not be formally pleaded and cannot be waived. Id. at 142. According to the State, “the Amnesty Act did not grant conditional relief, it gave a full immunity to all Confederate and Union soldiers for acts done during the Civil War,” whereas the RJA is merely a procedure that does “not provide ‘amnesty’ from the death penalty.”
Yet, this characterization of the Amnesty Act is inaccurate as the Amnesty Act
limited its potential relief to acts committed in the “discharge of duties imposed” and
required an indicted defendant to “show that he was an officer or private in either”
the United States or the Confederacy, at which point “it shall be presumed that he
acted under orders, until the contrary shall be made to appear.” Act of Dec. 22, 1866,
ch. 3, §§ 1-2, 1866-67 N.C. Sess. Laws 6, 6-7;
see also Keith
,
The defendant craves the benefit of that act. But it cannot be allowed him; because it does not appear that his offence had any connection with his war duties. . . . It was not the intention of the act to exempt persons from punishment merely because they were soldiers; but only for acts which they committed as soldiers.
State v. Cook
,
More importantly, however, in stressing the nature of the Amnesty Act as a
“blanket pardon” or “general pardon by parliament,” the State does not identify
anything about this characterization, apart from placing the Amnesty Act’s repeal in
a different
Calder
category, that changes the retroactivity analysis for the purposes
of the
Ex Post Facto
Clause. Indeed, in explaining why a parliamentary pardon need
not be formally pleaded, as opposed to a traditional executive pardon, the Court in
Keith
stated that “[t]he reason why a Court must,
ex officio
, take notice of a pardon
by act of parliament, is that it is considered as a public law; having the same effect
on the case as if the general law punishing the offence had been repealed or
amended.”
Keith
,
Finally, in that latter respect, the State asserts that the Original RJA did not
substantively change the rules of law governing the death penalty, and therefore the
RJA Repeal did not impermissibly increase the measure of punishment. The State
points out that a retroactive law is not rendered impermissibly
ex post facto
if it
results in a mere disadvantage to a defendant, and that “changes in the procedures
by which a criminal case is adjudicated, as oppоsed to the changes in the substantive
law of crimes,” do not constitute
ex post facto
laws.
Collins
,
With the enactment of the RJA, the General Assembly declared that “[n]o
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.” Original RJA, §
1, 2009 N.C. Sess. Laws at 1214. In order to effectuate this mandate the General
Assembly expansively defined what is necessary to establish “that race was the basis
of the decision to seek or impose a death sentence.”
Id.
, § 1, 2009 N.C. Sess. Laws at
1214. Specifically, such “[a] finding . . . may be established if the court finds that race
was a significant factor in decisions to seek or impose the sentence of death in the
county, the prosecutorial district, the judicial division, or the State at the time the
death sentence was sought or imposed.”
[5]
Id.
, § 1, 2009 N.C. Sess. Laws at 1214.
Moreover, in setting forth the type of evidence sufficient to support such a finding,
the General Assembly provided that a defendant could rely on,
inter alia
, “statistical
evidence” tending to show that either “[d]eath sentences were sought or imposed
significantly more frequently upon persons of one race than upon persons of another
race,” “[d]eath sentences were sought or imposed significantly more frequently as
punishment for capital offenses against persons of one race than as punishment of
capital offenses against persons of another race,” or “[r]ace was a significant factor in
decisions to exercise peremptory challenges during jury selection.”
Id.
, § 1, 2009 N.C.
Sess. Laws at 1214.
[6]
This allowance of the use of statistical evidence must be seen
as deliberate, as it comes after the Supreme Court’s decision in
McCleskey v. Kemp
.
There the Court rejected the petitioner’s reliance solely on statistical evidence
of racial disparities in capital sentencing in the context of claims brought under the
Fourteenth and Eighth Amendments and indicated that the role of such evidence in
litigating racial discrimination should be prescribed by state legislatures.
McCleskey
v. Kemp
,
United States Supreme Court, are best able to judge how statistical studies should
be used in regulating the death penalty.” (footnotes omitted)).
[7]
The General
Assembly’s decision to afford capital defendants this new, substantive basis for
challenging the validity of a death sentence reflects ongoing concerns with the
difficulty of proving covert racial discrimination,
[8]
particularly in capital sentencing
decisions,
see Turner v. Murray
, 476 U.S. 28, 35 (1986) (“Because of the range of
discretion entrusted to a jury in a capital sentencing hearing, thеre is a unique
opportunity for racial prejudice to operate but remain undetected.”), as well as the
fact that the harm from racial discrimination in criminal cases is not limited to an
individual defendant, but rather it undermines the integrity of our judicial system
and extends to society as a whole,
Batson
,
As this Court, in addressing Article I, Section 26 of our State Constitution (“No person shall be excluded from jury service on account of sex, race, color, religion, or national origin.”), stated:
Article I, section 26 does more than protect individuals from unequal treatment. The people of North Carolina have declared in this provision that they will not tolerate the corruption of their juries by racism, sexism and similar forms of irrational prejudice. They have recognized that the judicial system of a democratic society must operate evenhandedly if it is to command the respect and support of those subject to its jurisdiction. It must also be perceived to operate evenhandedly. Racial discrimination in the sеlection of grand and petit jurors deprives both an aggrieved defendant and other members of his race of the perception that he has received equal treatment at the bar of justice. Such discrimination thereby undermines the judicial process.
Exclusion of a racial group from jury service, moreover, entangles the courts in a web of prejudice and stigmatization. To single out blacks and deny them the opportunity to participate as jurors in the administration of justice—even though they are fully qualified—is to put the courts’ imprimatur on attitudes that historically have prevented blacks from enjoying equal protection of the law.
State v. Cofield
, 320 N.C. 297, 302–03, 357 S.E.2d 622, 625–26 (1987) (footnote
omitted) (citation omitted);
see also Flowers v. Mississippi
, 139 S. Ct. 2228, 2242
(2019) (“By taking steps to eradicate racial discrimination from the jury selection
process,
Batson
sought to protect the rights of defendants and jurors, and to enhance
public confidence in the fairness of the criminal justice system.”);
Davis v. Ayala
, 135
S. Ct. 2187, 2208 (2015) (“Discrimination in the jury selection process undermines
our criminal justice system and poisons public confidence in the evenhanded
administration of justice.);
Miller-El v. Dretke
, 545 U.S. 231, 237–38 (2005) (“Defendants are harmed, of course, when racial discrimination in jury selection
compromises the right of trial by impartial jury, but racial minorities are harmed
more generally, for prosecutors drawing racial lines in picking juries establish state-
sponsored group stereotypes rooted in, and reflective of, historical prejudice[.] Nor is
the harm confined to minorities. When the government’s choice of jurors is tainted
with racial bias, that ‘overt wrong casts doubt over the obligation of the parties, the
jury, and indeed the court to adhere to the law throughout the trial. That is, the very
integrity of the courts is jeopardized when a prosecutor’s discrimination invites
cynicism respecting the jury’s neutrality, and undermines public confidence in
adjudication[.]” (cleaned up));
Ballard v. United States
,
As part of its decision to make this new type of claim available to capital defendants, the General Assembly specified that the RJA would provide a unique and limited remedy:
If the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed, the court shall order that a death sentence not be sought, or that the death sentence imposed by the judgment shall be vacated and the defendant resentenced to life imprisonment without the possibility of parole.
Original RJA, § 1,
Accordingly, the RJA Repeal is not a mere procedural alteration that may
“produce[ ] some ambiguous sort of ‘disadvantage.’ ”
Morales
, 514 U.S. at 506 n.3.
Rather, by retroactively eliminating the RJA’s substantive claim and its
accompanying relief, the RJA Repeal increases the severity of the standard of
punishment attached to the crime of first-degree murder and deprives defendant of a
defense to the “nature or amount of the punishment imposed for its commission.”
Collins
,
It is within the purview of the General Assembly to pass such ameliorative
laws granting potential relief from crimes and punishment to defendants for crimes
already committed, and, having done so, it cannot then withdraw that relief
consistent with the
Ex Post Facto
Clause, which “restricts governmental power by
restraining arbitrary and potentially vindictive legislation,”
Weaver
,
The dissent gives no weight to this fundamental fairness interest, which is
apart from the concept of notice that is embodied in the constitutional prohibition on
ex post facto
laws. Instead, the dissent is premised on the narrow proposition that
the only interest served by the
Ex Post Facto
Clause is to deter crime by providing
“actual or constructive notice to the criminal before commission of the offense of the
penalty for the transgression.” (quoting
Garner v. Jones
,
The dissent reads the ex post facto prohibition too narrowly when concluding that it does not apply to the repeal of the RJA.
Our decision is further premised on the North Carolina Constitution, which this Court previously found to prohibit laws that seek to retroactively impose a greater penalty. Referring to the North Carolina Constitution, we explained:
These great principles are inseparable from American government and follow the American flag. No political assemblage under American law, however it may be summoned, or by whatever name it may be called, can rightfully violate them, nor can any Court sitting on American soil sanction their violation. . . . The ordinance in question was substantially an ex post facto law; it made criminal what, before the ratification of the ordinance was not so; and it took away from the prisoner his vested right to immunity.
State v. Keith
,
We note that our analysis under the Ex Post Facto Clauses of the U.S. and North Carolina Constitutions addresses a question purely of law and applies equally to anyone in the same circumstances as defendant—specifically, any capital defendant who filed a motion for appropriate relief under the Original RJA. With respect to this class of individuals, the RJA Repeal cannot, consistent with constitutional guarantees, retroactively apply to void their pending RJA claims. We express no opinion on the ultimate merits of defendant’s RJA claims, nor those of any other capital defendant, and leave those issues to the trial courts to adjudicate in the first instance.
Ex Post Facto Analysis of the Amended RJA Our holding that the RJA Repeal cannot constitutionally apply retroactively to pending RJA motions necessitates examining whether the trial court erred in its alternative ruling that defendant’s RJA and Amended RJA claims were without merit and its denial of his claims without a hearing. In order to address that issue, however, we must first determine whether the retroactive application of the Amended RJA violates the prohibition against ex post facto laws under the United States and North Carolina Constitutions. Specifically, defendant argues that “[t]o the extent that the amended RJA took away categories of claims that were available under the original RJA or impaired Mr. Ramseur’s ability to assert any of his RJA claims, the retroactive application of the amended RJA was unconstitutional for all the same reasons the retroactive application of the repeal bill was unconstitutional.”
Like the RJA Repeal, the Amended RJA contains a provision explicitly stating that it should apply retroactively:
Unless otherwise excepted, this act, including the hearing procedure, evidentiary burden, and the description of evidence that is relevant to a finding that race was a significant factor in seeking or imposing a death sentence, also applies to any postconviction motions for appropriate relief that were filed pursuant to S.L. 2009-464. This act also applies to any hearing that commenced prior to the effective date of this act.
Amended RJA, § 6,
The changes implemented by the Amended RJA, as summarized above, are both procedural and substantive. Moreover, the law also contained a severability clause which states: “If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.” Id. , § 9, 2012 N.C. Sess. Laws at 473. Therefore, it is necessary to evaluate each of the changes worked by the Amended RJA to determine whether they fall into any of the categories of an ex post facto law when applied retroactively.
The Amended RJA made several significant changes to the Racial Justice Act.
First, the Amended RJA altered the hearing procedure by providing that the trial
court was no longer automatically required to hold an evidentiary hearing upon the
filing of an RJA claim. Rather, under the Amended RJA, the trial court need only
schedule a hearing if it “finds that the defendant’s motion states a sufficient claim.”
Id.
, § 3,
Second, the Amended RJA substantially altered the evidentiary requirements for an RJA claim. Specifically, as previously discussed, the Amended RJA altered what is necessary to establish racial discrimination by, inter alia : limiting the geographic regions solely to the “county or prosecutorial district” (eliminating “judicial division” and “State”); defining the relevant time period as “the period from 10 years prior to the commission of the offense to the date that is two years after the imposition of the death sentence”; and mandating that “[s]tatistical evidence alone is insufficient to establish that race was a significant factor under this Article.” Id. , § 3, 2012 N.C. Sess. Laws at 472–73 (amending N.C.G.S. § 15A-2011(c) (2009) and enacting N.C.G.S. § 15A-2011(d)–(g) (Supp. 2012)); see also id. , § 4, 2012 N.C. Sess. Laws at 473 (repealing N.C.G.S. § 15A-2012 (2009)). The Amended RJA also repealed N.C.G.S. § 15A-2011(b) (2009) [11] and provided instead, in relevant part: Evidence relevant to establish a finding that race was a significant factor in decisions to seek or impose the sentence of death in the county or prosecutorial district at the time the death sentence was sought or imposed may include statistical evidence derived from the county or prosecutorial district where the defendant was sentenced to death, or other evidence, that either (i) the race of the defendant was a significant factor or (ii) race was a significant factor in decisions to exercise peremptory challenges during jury selection.
Id.
, § 3,
Third, the Amended RJA added a waiver provision providing that in order to
assert an RJA claim, a defendant must knowingly and voluntarily waive any
objection to the imposition of a sentence to life imprisonment without parole.
Id.
, §
3,
We conclude that the first alteration, amending the hearing procedure, is
merely a procedural change which, while possibly working some disadvantage to a
defendant, does not implicate the prohibition against
ex post facto
laws.
See Morales
,
(2) Death sentences were sought or imposed significantly more frequently as punishment for capital offenses against persons of one race than as punishment of capital offenses against persons of another race.
(3) Race was a significant factor in decisions to exercise peremptory challenges during jury selection.
Original RJA, § 1,
however, do constitute changes in the criminal law that cannot be applied
retroactively. These revisions fall within the fourth
Calder
category by altering the
“legal rules of evidence” and require a different, more stringent, standard of proof in
showing the racially discriminatory imposition of the death penalty.
See Collins
, 497
U.S. at 41 (quoting
Calder
,
The third alteration, adding the waiver provision, may only be an ex post facto law as applied to certain defendants. It creates a condition precedent to asserting an RJA defense which, like the RJA Repeal, changes the punishment for any defendant who, prior to the amendment, could assert an RJA defense and further object to a sentence of life imprisonment without parole. It is difficult to determine whether any defendant actually could fall into such a category. In any event, any potential issue with the retroactive application of this waiver provision is unrelated to the trial court’s alternative ruling in this case that defendant’s RJA claims were without merit. Accordingly, because we need not decide this issue in order to determine whether the trial court erred in its alternative ruling, we decline to address here whether the retroactive application of the Amended RJA’s waiver provision violates the prohibition against ex post facto laws.
In summary, the evidentiary changes effected by the Amended RJA are an ex post facto law that cannot constitutionally be applied to defendants who had RJA MARs pending at the time of the Amended RJA. For those defendants, the original RJA evidentiary rules apply. However, the portion of the Amended RJA which grants a trial judge discretion over whether to hold a hearing is a procedural change which can be applied retroactively to pending RJA MARs.
Defendant’s RJA Claims
Next, defendant argues that the trial court erred in its alternative rulings that defendant’s RJA and Amended RJA MARs were without merit and could be denied without conducting an evidentiary hearing and that defendant was not entitled to discovery with respect to his RJA claims. The evidentiary forecast produced by defendant with his motions requires reversal of the trial courts’ alternative rulings.
Defendant’s extensive RJA and Amended RJA MARs “state with particularity
how the evidence supports a claim that race was a significant factor in decisions to
seek or impose the sentence of death in the county, the prosecutorial district, the
judicial division, or the State at the time the death sentence was sought or imposed.”
Original RJA, § 1,
Defendant also alleged how in his case: he was brought to trial against a backdrop of prejudicial pre-trial publicity and racial tensions in the community; the four rows in the courtroom directly behind the defense table were cordoned off with yellow crime scene tape at the start of the trial, suggesting that defendant was a dangerous criminal and forcing his black family members to sit in the back of the courtroom; six individuals who were later selected to serve as jurors were in the courtroom and observed the police tape before it was taken down two days later; all twelve jurors selected to hear the case were white and the trial court allowed the prosecution to exercise peremptory challenges to excuse all potential black jurors not removed for cause; the trial court denied defendant’s request for a change of venue; and the trial court did not allow defense counsel to question potential jurors about issues of racial bias nor question the jury about whether they heard media accounts of the case or racially biased comments in the community. Both defendant’s RJA MAR and Amended RJA MAR plainly “state[ ] a sufficient claim” under the RJA, as required by the Amended RJA in order to trigger an evidentiary hearing. Thus, the trial court at a minimum erred as a threshold matter in not conducting an evidentiary hearing on defendant’s claims. Additionally, defendant’s MARs established that he was entitled to discovery under N.C.G.S. § 15A-1415(f) (2019), which provides for complete discovery of state files in cаpital post-conviction cases. Accordingly, the trial court erred in denying defendant’s MARs on the pleadings.
Conclusion
In sum, we conclude that the RJA Repeal and the provisions of the Amended RJA altering the evidentiary requirements for an RJA claim constitute impermissible ex post facto laws and cannot be constitutionally applied retroactively to defendant’s pending RJA claims. Further, we conclude that the trial court erred in ruling that defendant’s claims lacked merit and denying his RJA claims without a hearing. We remand for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
Justice NEWBY dissenting. The narrow issue presented by this case is whether, as applied to defendant, legislation repealing the Racial Justice Act of 2009 (the RJA) constitutes an ex post facto law. The majority incorrectly answers this question in the affirmative. The repeal plainly does not qualify as an ex post facto law because it left defendant in precisely the same legal situation as the one he occupied on 16 December 2007, when, according to a jury, he murdered Jennifer Lee Vincek and Jeffrey Robert Peck. The repeal did not subject defendant to more serious or additional charges for past conduct, nor did it increase the punishment in effect on 16 December 2007. When properly viewed, the General Assembly intended the RJA to provide a procedural mechanism by which a defendant could collaterally attack a capital sentence. The General Assembly did not intend to make a substantive change to the death penalty sentencing law. As such, the General Assembly had the constitutional authority subsequently to amend it and repeal it.
Viewed more broadly, though, this case is about who should determine the future of the death penalty in North Carolina. Under our system of government, the obvious answer to this question is that ultimate authority over death penalty policy resides with the people of this State. It is for them to determine whether North Carolina will have a death penalty and to establish, within constitutional bounds, the circumstances in which that penalty may be imposed. Ordinarily, the people exercise this power indirectly through their elected representatives in the General Assembly. The majority’s interpretation of the RJA cedes significant portions of the people’s authority over death penalty policy to the courts. In the majority’s view, the law empowers a judge to vacate a defendant’s death sentence based on statistical evidence that race had been a significant factor in other death penalty proceedings in the county, prosecutorial district, judicial division, or the State as a whole , regardless of the role of race in defendant’s own capital proceeding. This interpretation could be viewed as granting policymaking power to the judiciary to effectively eliminate the death penalty in North Carolina. By invalidating the RJA repeal, the majority does more than merely misapply the constitutional prohibition on ex post facto laws. It also intrudes upon the right of the people, in the form of their elected representatives, to decide death penalty policy for this State. I respectfully dissent.
Defendant was indicted on 31 December 2007 for the 16 December 2007 murders of Jennifer Lee Vincek and Jeffrey Robert Peck during the commission of an armed robbery of the Broad Street Shell Station in Iredell County for approximately $90 to $100. At the time of the armed robbery, Ms. Vincek worked at the station as a cashier on third shift, and Mr. Peck was a customer. At trial the jury watched a security video from the store capturing the robbery and murders as they occurred. The video showed the first shot striking Ms. Vincek while she lay on the ground behind the counter in a fetal position. When Ms. Vincek attempted to crawl away on her hands and knees, she was shot again. The video showed that her hair “popped off her back.” The medical examiner testified that Ms. Vincek suffered from three gunshot wounds with the first two being fairly superficial, but the third and fatal gunshot striking her in the back. Mr. Peck died from a single gunshot wound to the chest.
A jury convicted defendant of two counts of first-degree murder and one count of armed robbery. In recommending the death penalty, the jury unanimously found the following statutory aggravating factors under N.C.G.S. § 15A-2000: “(1) the capital felony was committed while the defendant was in engaged in the commission of robbery with a dangerous weapon, N.C.G.S. § 15A-2000(e)(5); (2) the capital felony was committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6); (3) the capital felony was part of a course of conduct in which the defendant engaged and which included the commission of the defendant of other crimes of violence against another person or persons, N.C.G.S. § 15A-2000(e)(11).” Consistent with the jury’s recommendation, the trial court entered a death sentence for each murder and a sentence of 61 to 83 months to run consecutively for the armed robbery.
Defendant committed his crimes in 2007, before the original RJA was enacted in 2009. After the original RJA was enacted, defendant delayed his direct appeal, State v. Ramseur , 364 N.C. 433, 702 S.E.2d 62 (2010), and instead filed a post- conviction motion for appropriate relief (MAR) under the RJA. Defendant filed his first MAR seeking relief under the original RJA and later filed a MAR under the amended RJA. Before the trial court rendered judgment, the legislature repealed the statutory provisions upon which defendant’s motions relied. Act of June 13, 2013, S.L. 2013-154, § 5.(a), 2013 N.C. Sess. Laws 368, 372 [hereinafter the RJA Repeal]. In an order dated 3 June 2014, the trial court recognized that Session Law 2013-154 repealed the RJA and that the statutory language of the repeal retroactively applied to void defendant’s RJA motions.
The trial court concluded that, because no final order had been entered on
defendant’s RJA claims or his claims under the amended RJA, those claims were
controlled by the repeal of the RJA, and his RJA claims were voided as a matter of
law. The trial court concluded that the unconditional repeal of the RJA warranted
the dismissal of defendant’s RJA claims, citing
Spooners Creek Land Corp. v. Styron
,
I.
Our system of government is founded on a principle that all people are created
equal, possessing equal rights.
The Declaration of Independence
para. 2 (U.S. 1776)
(“We hold these truths to be self-evident, that all men are created equal, that they
are endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty and the pursuit of Happiness.”);
see also
N.C. Const. art. I, § 1 (“We hold
it to be self-evident that all persons are created equal; that they are endowed by their
Creator with certain inalienable rights; that among these are life, liberty, the
enjoyment of the fruits of their own labor, and the pursuit of happiness.”). It is
imperative that all are treated equally under the law in every case that comes before
the courts, particularly in criminal trials when life and liberty are at stake. Our state
and federal constitutions recognize this sacred responsibility and safeguard against
invidious discrimination.
See
,
e.g.
, N.C. Const. art. I, § 19 (protecting life, liberty, and
due process rights with the Law of the Land Clause);
id.
art. I, § 26 (prohibiting
exclusion “from jury service on account of sex, race, color, religion, or national origin”);
see also Batson v. Kentucky
, 476 U.S. 79, 106 S. Ct. 1712 (1986) (holding that the
Equal Protection Clause forbids a prosecutor from challenging potential jurors solely
on account of their race and setting the factual threshold for a defendant to establish
a prima facie case of purposeful discrimination in jury selection);
Oyler v. Boles
, 368
U.S. 448,
“[O]ne of society’s most basic tasks is that of protecting the lives of its citizens
and one of the most bаsic ways in which it achieves the task is through criminal laws
against murder.”
Gregg v. Georgia
, 428 U.S. 153, 226, 96 S. Ct. 2909, 2949 (1976)
(White, J., concurring). The imposition of the death penalty “has a long history of
acceptance both in the United States and in England.”
Id.
at 176,
Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe.
Id. at 186–87, 96 S. Ct. at 2931 (recognizing that ascertaining contemporary standards for purposes of the death penalty’s viability under the Eighth Amendment is best left to legislative judgment).
While there is “ ‘no perfect procedure,’ ” “our consistent rule has been that
constitutional guarantees are met when ‘the mode [for determining guilt or
punishment] itself has been surrounded with safeguards to make it as fair as
possible.’ ”
McCleskey
,
II.
In North Carolina, a prosecutor has discretion to pursue the death penalty
given the facts of a case,
see
N.C.G.S. § 15A-2004 (2019), but that prosecutorial
discretion is limited by the constitutional рrinciples of equal protection and due
process,
see Oyler
,
prejudicial error, and that the death sentence was proportional to the facts of the defendant’s individual case.
In addition to a direct appeal, the General Assembly by statute provides an avenue for post-conviction review and lists grounds for post-conviction relief. See N.C.G.S. § 15A-1411 through N.C.G.S. § 15A-1422. A defendant may collaterally attack his conviction and sentence through a MAR filed with the trial court, id. § 15A- 1420(b1)(1), or directly with this Court, N.C. R. App. P. 21(f) (2019). A capitally tried defendant may file a MAR on the grounds listed in N.C.G.S. § 15A-1415(b). See, e.g. , N.C.G.S. § 15A-1415(b)(7) (“There has been a significant change in law, either substantive or procedural, applied in the proceedings leading to the defendant’s conviction or sentence, and retroactive application of the changed legal standard is required.”); id. § 15A-1415(b)(8) (The sentence imposed was “unauthorized at the time imposed . . . or is otherwise invalid as a matter of law.”).
Any trial court decision on a MAR is subject to appellate review.
See State v.
Stubbs
,
The RJA was signed into lаw on 11 August 2009. North Carolina Racial Justice
Act, S.L. 2009-464, § 1, 2009 N.C. Sess. Laws 1213, 1214 [hereinafter original RJA]
(codified at N.C.G.S. § 15A-2010 (2009)) (repealed 2013). This legislation, echoing our
existing constitutional safeguards, provided that “[n]o 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.”
Id.
, § 1,
Under the RJA, a defendant who had been sentenced to death had the opportunity to file a post-conviction MAR using statistical or other evidence. It provides in part:
(a) A finding that race was the basis of the decision to seek or impose a death sentence may be established if the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.
Id. It allowed relief if a defendant proved that death sentences in the specified geographic areas were sought more frequently upon persons of one race or upon persons when victims were of another race, or when race was a “significant factor” in peremptory challenges during jury selection. Id. If the court found that the defendant had met his burden of proof then his death sentence was converted to a sentence of life without the possibility of parole. Id.
While the RJA became effective immediately and applied retroactively,
id.
, § 2,
In its original form, the RJA did not expressly address whether, in addition to producing statistical evidence that race had been a significant factor in other death penalty cases, a defendant had to show that race played a substantial role in the outcome of his own case. The majority interprets the RJA not to require such a showing. As explained in section V below, this erroneous interpretation of the RJA overlooks the RJA’s stated purpose and raises serious separation-of-powers issues.
The General Assembly amended the RJA on 2 July 2012. An Act to Amend Death Penalty Procedures, S.L. 2012-136, §§ 1–10, 2012 N.C. Sess. Laws 471, 471 [hereinafter amended RJA]. The amending legislation made it clear that a defendant had to show particularized racial bias in his case to prevail:
A finding that race was the basis of the decision to seek or
impose a death sentence may be established if the court
finds that race was a significant factor in decisions to seek
or impose the death penalty
in the defendant’s case
“at the
time the death sentence was sought or imposed.”
Id.
, § 3,
On 19 June 2013, the RJA was repealed in its entirety. RJA Repeal, §§ 5.(a), 6,
Upon repeal of Article 101 of Chapter 15A of the General Statutes, 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, that the jury that hears his or her case is impartial, and that the trial was free from prejudicial error of any kind. These rights are protected through multiple avenues of appeal, including direct appeal to the North Carolina Supreme Court, and discretionary review to the United States Supreme Court; a postconviction right to file a motion for appropriate relief at the trial court level where claims of racial discrimination may be heard; and again at the federal level through a petition of habeas corpus.
Id.
, § 5.(b),
On 18 December 2015, following the wholesale repeal of the RJA, this Court
reviewed and ultimately vacated trial court orders dated 20 April 2012 and 13
December 2012 that had granted certain defendants relief under the RJA.
State v.
Robinson
,
In our orders, vacating the trial court’s orders, we determined that the trial
court should have allowed the State’s motion to continue, citing section 15A-952(g)(2)
that “requires a trial court ruling on a motion to continue in a criminal proceeding to
consider whether a case is ‘so unusual and so complex’ that the movant needs more
time to adequately prepare.”
Robinson
,
There is no dispute that the General Assembly intended to repeal retroactively the RJA. The question presented is whether the repeal violated the constitutional prohibition against ex post facto laws. Generally, a law is considered ex post facto if it criminalizes conduct after it occurred or increases the penalty of a crime already committed. The majority claims the RJA is “[a] public law[ ] ‘repeal[ing] or amend[ing]’ the substantive laws of crime and punishment with respect to crimes already committed.” (Third and fourth alterations in original.) However, neither the crime of first-degree murder nor its potential punishment has been altered by the RJA or its repeal. The General Assembly intended the RJA to provide a new procedure through which a capitally sentenced defendant could collaterally challenge a death sentence. Consequently, the General Assembly acted within the scope of its authority when it amended and later repealed the RJA. The General Assembly has the authority to pass legislation directed at pending litigation and has the authority to direct statutory post-conviction criminal procedures and remedies, including procedural measures that do not alter the substance of the underlying crime and its punishment.
III.
“The legislative power of the State shall be vested in the General Assembly.”
N.C. Const. art. II, § 1. As the agent of the people’s sovereign power,
State ex rel.
Ewart v. Jones
,
“The principal goal of statutory construction is to accomplish the legislative
intent.”
Lenox, Inc. v. Tolson
,
As the policymaking branch, one legislature generally cannot bind a future
legislature.
See Kornegay v. City of Goldsboro
,
Specifically, regarding criminal cases, “[r]emedies must always be under the
control of the legislature,” “and it may prescribe altogether different modes of
procedure in its discretion” that do not “dispense with any of those substantial
protections” that the law at the time provided the accused.
Thompson v. State of
Missouri
,
IV.
Since our earliest history, ex post facto laws have been prohibited. Ex post facto laws criminalize past actions or increase a punishment from what a defendant could have received at the time of the crime’s commission. Recognizing that one of the purposes of criminalizing conduct is deterrence,
[a] law made after the fact (ex post facto) could not logically have deterred the crime; to punish a person for an act not contrary to the law when committed was therefore unjust.
More than individual injustice was involved; the whole social basis of republican government was jeopardized if the people did not know exactly what was prohibited.
John V. Orth & Paul Martin Newby,
The North Carolina State Constitution
63 (2d
ed. 2013). The first constitution of North Carolina adopted in 1776 provided “[t]hat
retrospective laws, punishing facts committed before the existence оf such laws, and
by them only declared criminal, are oppressive, unjust, and incompatible with liberty;
wherefore no ex post facto law ought to be made.” N.C. Const. of 1776, Declaration of
Rights, § 24. Early in our nation’s history, the Supreme Court of the United States
discussed the idea of ex post facto laws in
Calder v. Bull
,
As recently as 2010, “[t]his Court has articulated that ‘both the federal and
state constitutional ex post facto provisions are evaluated under the same
definition.’ ”
State v. Whitaker
,
To be an ex post facto law, the legislative change must “alter[ ] the definition
of criminal conduct or increase[ ] the penalty by which a crime is punishable.”
California Dep’t of Correction v. Morales
,
Even if a legislative amendment creates a disadvantage, that circumstance “is an insufficient basis to establish an ex post facto violation unless the change in the law actually increased the quantum of punishment for the offense,” Hameen v. State of Delaware , 212 F.3d 226, 245–46 (3rd Cir. 2000), in other words, the range of punishment assigned to the offense at the time of its commission.
The central concern of the Ex Post Facto Clause is “the lack of fair notice and
governmental restraint when the legislature increases punishment beyond what was
prescribed when the crime was consummated.”
Lynce v. Mathis
,
The majority focuses its analysis of the original RJA on the third
Calder
category, which prohibits “[e]very law that
changes the punishment
, and inflicts a
greater punishment
, than the law annexed to the crime, when committed” as an ex
post facto law.
Calder
,
The majority wrongly concludes that the original RJA retroactively and substantively changed the quantum of punishment the law annexed to the crime of first-degree murder and that the RJA repeal increases its punishment. The punishment for first-degree murder before, during, and after the RJA has been the same and remains the same. The General Assembly intended the RJA to be a procedure to collaterally attack a capital sentence. By its nature, a collateral attack does not address the substance of the crime itself or its penalty.
The foundation of the majority’s approach is that, “[t]he General Assembly, . . . by giving the RJA retroactive effect, has declared that the RJA was the applicable law at the time the crimes were committed.” It makes this claim without analysis. However, it begs the question of whether the General Assembly, by using the term “retroactive,” intended simply to give all those subject to the death penalty an additional procedural tool to attack their sentences or, more expansively, to substantively change the punishment for first-degree murder. Courts should interpret statutes as the legislature intended. If the General Assembly had wanted to change the statutory punishment for first-degree murder to incorporate the provisions of the RJA, it could have done so; but, it chose not to change the statutory punishment. Likewise, the General Assembly could have specified that the provisions of the RJA are retroactive to the dates of each offense. Again, it did not do so. The General Assembly simply provided that the RJA’s provisions werе “retroactive.” Certainly, whether the provisions of the RJA apply to a particular defendant is unknown at the time of the offense. They only apply if a defendant receives a death sentence.
The best reading of this provision in context of the entire RJA is that the General Assembly intended the RJA procedure to be available to all those who had been sentenced to death already or those facing capital trials who are ultimately sentenced to death. The text of the statute supports this interpretation. As previously discussed, the RJA provides for different remedies and filing requirements, depending on each defendant’s status. The RJA is not a substantive change in the penalty for first-degree murder. This interpretation of the RJA is consistent with the position taken in a publication by the University of North Carolina School of Government, the institute tasked with educating legal practitioners and judges. See The Racial Justice Act, N.C. Capital Case Law Handbook ch. 7, at 273 (School of Gov’t, Chapel Hill, N.C., 3d ed. 2013) (“In analyzing the possible ex post facto constraints on the application of the amended RJA, it is helpful to divide capital defendants into three classes based on the date of the charged offense: Offense dates prior to August 11, 2009. These defendants allegedly committed murder prior to the enactment of the original RJA. The protections offered by the amended RJA, although less substantial than the protections offered by the original RJA, are no less than what was available to these defendants at the time of their alleged crimes. Therefore, there is no ex post facto problem for these defendants.” (emphasis omitted)). No doubt, as considered by the author of this publication, ex post facto case law does not support the majority’s analysis.
In
Dobbert v. State of Florida
,
The Supreme Court considered the statutory change to be procedural, and not
a matter of substance, even when the change occurred during the initial trial itself,
when the sentence was first imposed. “[A] procedural change is not ex post facto,”
even if it works “to the disadvantage of a defendant.”
Id.
at 293,
In
California Department of Correction v. Morales
, 514 U.S. 499, 115 S. Ct.
1597 (1995), a California statute amended post-conviction parole procedures to allow
the Board of Prison Terms to decrease the frequency of parole suitability hearings
under certain circumstances. Respondent Morales broadly argued that “the Ex Post
Facto Clause forbids any legislative change that has any conceivable risk of affecting
a prisoner’s punishment.”
Id.
at 508,
In
Hopt v. People of the Territory of Utah
,
[T]hey do not attach criminality to any act previously done, and which was innocent when done, nor aggravate any crime theretofore committed, nor provide a greater punishment therefor than was prescribed at the time of its commission, nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed. The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute.
Id.
at 589–90,
Applying ex post facto jurisprudence, it is clear that both the original RJA and its amendment were procedural in nature. The original and amended RJA statutes provided a procedural tool for seeking post-conviction relief for claims of racial discrimination. Neither altered the elements of first-degree murder, the necessary proof for conviction, or its potential penalties. There has always been and remains the possibility of amelioration of a defendant’s capital sentence on direct appeal, see N.C.G.S. § 15A-2000(d)(2), and through post-conviction relief, N.C.G.S. § 15A-1417. The repeal of the RJA left defendants in capital cases other means of raising claims of discrimination. As a procedural statute, it is not an ex post facto violаtion to amend the RJA or repeal it. [5]
The majority heavily relies on
State v. Keith
,
In the aftermath of the Civil War, the General Assembly passed the Amnesty Act of 1866, which “contain[ed] a full and unequivocal pardon for all ‘homicides and felonies’ committed by officers or soldiers of the late Confederate States, or by officers or soldiers of the United States, ‘done in the discharge of any duties imposed on him, purporting to be by a law of the State or late Confederate States Governor, or by virtue of any order emanating from any officer.’ ” Id. at 142 (quoting Act of Dec. 22, 1866, ch. 3 § 1, 1866-67 N.C. Sess. Laws 6, 6–7). The Act was later repealed by legislative action at the Constitutional Convention of 1868. Id. at 144. The central issue in Keith was whether the repeal of the Act was valid. Id.
The language of the Act expressly provided that, “if the defendant can show
that he was an officer or a private in either of the above named organizations at the
time, it shall be presumed that he acted under orders, until the contrary shall be
made to appear.”
Id.
at 142 (quoting Act of Dec. 22, 1866, ch. 3 § 2, 1866-67 N.C. Sess.
Laws 6, 6–7). If he could show he was a soldier at the time, then it was presumed he
was acting under orders for otherwise criminal acts and would be entitled to full
policy, may regulate at pleasure.”
Hopt
,
amnesty for those acts. Id. In Keith the defendant alleged, and the solicitor agreed, “that his case came within the provisions of that act.” Id. Thus, Keith properly claimed the Act’s benefit and, if the repeal of the Act did not affect the defendant’s claim, he was undisputedly entitled to it.
To determine whether the legislature could repeal its grant of legislative amnesty, the Court defined this legislative act as “destroy[ing] and entirely effac[ing] the previous offen[s]e; it is as if it had never been committed.” Id. at 143. Referencing English common law, the Court determined that, if the legislature issued a general legislative pardon, the Court was bound to take notice of it and “cannot proceed against any person whatsoever” who is entitled to the pardon “as to any of the offen[s]es pardoned” even if he neglects to raise it or waives it. Id. at 142. Simply put, the pardon remitted guilt entirely by treating the offense as if it had never occurred. Id. at 144.
Even if the soldier did nothing but belong to the historically unique class of
Civil War soldiers on duty, he was entitled to relief under it. As a legislative pardon,
the Act in effect removed a historically unique class of individuals from the reach of
criminal laws, making it as if “the offen[s]e had been repealed or amended” to exclude
that class of individuals.
Id.
(A legislative pardon “is considered as a public law;
having the sаme effect on the case as if
the general law punishing the offen[s]e
had
been repealed . . . .” (emphasis added) (quoting
United States v. Wilson
,
The majority relies on the reasoning in Keith to argue that the RJA repeal is an unconstitutional ex post facto law that affected defendant’s substantive rights. The RJA repeal, however, does not fit the definition of ex post facto as discussed in Keith .
In Keith the General Assembly granted a blanket legislative pardon to all Civil War soldiers for their crimes, making what had been criminal no longer criminal; it were as if the criminal acts never happened. The Amnesty Act applied to all soldiers, presuming they were acting under orders. The enactment created a vested right to the pardon. The Amnesty Act became part of the substantive criminal trial. Courts were required to apply the legislative pardon even if not raised by the defendant. In short, soldiers did not have to follow any procedure to be entitled to its benefits. There was no deadline or expiration.
The RJA is clearly not analogous to legislative amnesty. The RJA did not grant
amnesty or remit guilt; it is not a pardon. It is not a blanket change in the penalty
for first-degree murder. This distinction between the RJA and legislative amnesty is
underscored by the fact that the RJA provides a different procedure for defendants
already convicted than for those with capital trials pending. Original RJA, § 2, 2009
N.C. Sess. Laws at 1215. It does not provide relief to all those with capital sentences,
but rather any potential relief is conditioned on multiple factors. In order to pursue
relief, each defendant must meet a filing deadline. RJA claims are not part of a
defendant’s trial, but must be pursued through a collateral motion for relief. Each
defendant has the burden of proof and must provide sufficient evidence in support of
the claim. Under the RJA, a defendant’s relief becomes vested only upon a final order
affirmed on appeal. Even if a defendant theoretically received RJA relief, that relief
would not speak to his actual innocence or afford him the opportunity to retry his
guilt or innocence through a new trial. Thus, the provisions of the RJA cannot be
analogized to a legislative grant of immunity or “a full and unequivocal pardon.”
Keith
,
Far from resembling the defendant’s situation in Keith , defendant’s position in this case is more akin to that of the petitioner in United States ex rel. Forino v. Garfinkel , 166 F.2d 887 (3rd Cir. 1948), an Italian national who was serving a sentence for second-degree murder. At thе time of the petitioner’s offense and trial, state law “pardoned” certain offenders once they had served their sentences. Id. at 888–89. The legislature repealed the pardon law before the petitioner completed his sentence. Id. at 889. Without a pardon, the petitioner faced deportation. Id. at 888. In an effort to avoid that outcome, the petitioner argued that in effect that he ha[d] achieved the benefit of a legislative pardon, or at least should be deemed to have acquired the status of a person who has been pardoned by the Pennsylvania Legislature, since otherwise the repealing statute would be given retroactive effect and he would lose his civil right to a legislative pardon, a right which he says was acquired by him prior to the passage of the repealing statute.
Id. at 889. The petitioner further maintained that, to “treat the repealing statute as effective when he had served part of his sentence at the time it was enacted [would have been] to impose upon him the burden of [a constitutionally prohibited] ex post facto law.” Id.
The United States Court of Appeals for the Third Circuit disagreed. “The flaw in Forino’s reasoning lies in the fact that the access to legislative grace was withdrawn by an act of the Pennsylvania Legislature before he had endured his punishment.” Id. at 889–90. The court noted that “[n]o one has or can acquire a vested right to a pardon,” id. at 889, and that,
[t]o sustain Forino’s point one would have to take the position that any sentence of imprisonment imposed prior to the effective date of the repealing act carried with it a right to a legislative pardon. This would constitute judicial legislation and would change the terms of the Legislative Pardons Act making the issuance of the pardon dependent on the imposition of the sentence on the criminal and not on the criminal having endured his punishment.
Id. at 890. The court concluded that Forino, in making an ex post facto argument, “confuse[d] the nature of punishment and the nature of a pardon. He [took] the broad position that any law which alters his position to his disadvantage is necessarily ex post facto. . . . But the repeal of the Legislative Pardons Act did not change the punishment or inflict a greater punishment on Forino.” Id. (citing Calder , 3 U.S. at 390–91). By the time Forino had served his sentence, “the grace previously afforded by the Legislative Pardons Act had been withdrawn.” Id.
In other words, the Pennsylvania legislature’s repeal of the pardon statute in Forino did not amount to an ex post facto law in the petitioner’s case because the petitioner never obtained a рardon under the statute. Similarly, the RJA repeal is not an ex post facto law as applied to defendant because defendant was not granted relief under the RJA prior to the repeal. In contrast, the 1868 repealing ordinance at issue in Keith deprived the defendant of a benefit he had already obtained.
To reach its desired outcome, the majority here expands the interpretation of ex post facto laws far beyond that described in Keith and beyond the interpretation of the Ex Post Facto Clause in federal cases. The majority embeds that expansive interpretation in our state constitution. Notably, as the majority itself concedes, this Court has repeatedly held that the protection provided by our state constitution against ex post facto laws mirrors the interpretation of its federal counterpart. The majority now seems to overrule our case law and reject this notion.
The offense of first-degree murder and its punishment have not changed.
See
Dobbert
,
The majority continues its misapplication of the correct legal standard for ex post facto laws in its analysis of the amended RJA. In the amended RJA, the General Assembly clarified the original RJA by explicitly stating that a defendant must show the allegations of improper racial influence affected his own proceeding.
The majority characterizes the amendment’s changes as both procedural and
substantive and therefore subverting “fundamental fairness.” It holds the
“alterations amending the evidentiary requirements . . . constitute changes in the
criminal law that cannot be applied retroactively.” It maintains “[t]hese revisions fall
within the fourth
Calder
category by altering the ‘legal rules of evidence’ and require
a different, more stringent, standard of proof in showing the racially discriminatory
imposition of the death penalty.” The case relied upon by the majority for this
proposition,
Carmell v. Texas
,
Calder ’s fourth category addresses this concern precisely.
A law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof. In each of these instances, the government subverts the presumption of innocence by reducing the number of elements it must prove to overcome that presumption ; by threatening such severe punishment so as to induce a plea to a lesser offense or a lower sentence; or by making it easier to meet the threshold for overcoming the presumption . Reducing the quantum of evidence necessary to meet the burden of proof is simply another way of achieving the same end. All of these legislative changes, in a sense, are mirror images of one another. In each instance, the government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction. There is plainly a fundamental fairness interest, even apart from any claim of reliance or notice, in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.
Id.
at 532–33,
The quantum of proof required to convict for the offense of first-degree murder or to recommend the death penalty has not been changed. For the same reasons previously discussed, the RJA in its original form or as amended did not change the nature of the crime of first-degree murder, the elements to prove that crime, or the range of its punishment. Neither its amendment, nor its later repeal, violated the prohibition against ex post facto laws. However, the majority’s broad reading of the original RJA creates significant constitutional separation-of-powers issues, granting the judiciary the power to make capital punishment policy.
V.
If broadly interpreted and applied, as the majority does, the original RJA is
unconstitutional because, through it, the General Assembly delegated its legislative
policymaking authority to the judiciary. Since 1776 our state constitution has
provided that each branch of government has a distinct function. N.C. Const. of 1776,
Declaration of Rights, § IV;
see
N.C. Const. art. I, § 6; N.C. Const. of 1868, art. I, § 8.
Among those functions, the General Assembly is the policymaking body; the judiciary
adjudicates cases. Article I, Section 18 of the state constitution provides that the
courts are open to address wrongs done to a person. N.C. Const. art. I, § 18. Thus,
courts determine specific controversies based on the evidence relevant to the
particular case.
See McCleskey
,
Accountable to and representative of the people, N.C. Const. art. II, §§ 2–
5, “[t]he legislative branch of government is without question ‘the policy-making
agency of our government’ ” and is “a far more appropriate forum than the courts for
implementing policy-based changes to our laws,”
Rhyne v. K-Mart Corp.
, 358 N.C.
160, 169,
Applying the majority’s sweeping interpretation of the RJA, if a court finds
evidence that race was a significant factor in the imposition of a capital sentence “in
the county, the prosecutorial district, the judicial division, or the State,” Original
RJA, § 1,
There the Supreme Court considered whether a court is the proper venue to
utilize a statistical study, which purported to show a disparity in those defendants
receiving a death sentence based on the race of the victim and, to a lesser extent, the
race of the defendant. McCleskey claimed that the study proved Georgia’s capital
sentencing process was administered in a racially discriminatory manner in violation
of the Eighth and Fourteenth Amendments of the United States Constitution.
McCleskey argued that the statistical study “compel[led] an inference that his
sentence rests on purposeful discrimination” without regard to the facts of his
particular case.
Id.
at 293, 107 S. Ct. at 1767. Like defendant’s claim here,
McCleskey’s argument could extend to all capital cases in his state and, “[i]n its
broadest form, . . . extends to every actor in the Georgia capital sentencing process,
from the prosecutor who sought the death penalty and the jury that imposed the
sentence, to the State itself that enacted the capital punishment statute and allows
it to remain in effect despite its allegedly discriminatory application.”
Id.
at 292, 107
S. Ct. at 1767. Such broad accusations cannot be effectively rebutted, not because
they are necessarily true, but because it is practically impossible to show they are
not
true.
See id.
at 296,
The Supreme Court declined “to accept the likelihood allegedly shown by the
[statistical] study as the constitutional measure of an unacceptable risk of racial
prejudice influencing capital sentencing decisions.”
Id.
at 309,
McCleskey’s arguments are best presented to the
legislative bodies. It is not the responsibility—or indeed
even the right—of this Court to determine the appropriate
punishment for particular crimes. It is the legislatures, the
elected representatives of the people, that are “constituted
to respond to the will and consequently the moral values of
the people.” Legislatures also are better qualified to weigh
and “evaluate the results of statistical studies in terms of
their own local conditions and with a flexibility of approach
that
is
not
available
to
the
courts.”
Id.
at 319,
The majority’s interpretation of the RJA ignores the plain language of McCleskey that legislatures, not courts, are equipped to evaluate statistical information and enact policies based on that information. Courts are designed to determine specific controversies, not formulate policies. The majority’s broad reading of the RJA seems to ask the question: Should North Carolina have capital punishment if there exists evidence that race may have been a significant factor in the process anywhere in the State? Answering this question is a quintessential legislative act. A judicial function is to ask whether race was a significant factor in a particular defendant’s case . Courts are not the vehicle for policy decisions. Whether there should be a death penalty in North Carolina is a decision for the people, through their elected representatives, or directly by them through a constitutional amendment. Thus, it is improper for the majority to interpret the RJA as delegating legislative responsibility to the judiciary.
Courts are required to interpret statutes in a constitutional manner whenever
possible.
See, e.g.
,
State v. Barber
,
The Racial Justice Act did not change the punishment for first-degree murder. It is a procedural, not a substantive, law. Its repeal did not violate the prohibition against ex post facto laws. The repeal should be upheld. I respectfully dissent.
Notes
[1] Defendant also challenges the constitutionality of the retroactive application of the RJA Repeal on other grounds, arguing that it: violates his rights under the Due Process and Law of the Land Clauses of the Federal and State Constitutions; violates the Constitutional
[2] Defendant also argues that the RJA Repeal implicates the fourth category of ex post facto laws identified in Calder because it changed the quantum and type of evidence sufficient to sustain his death sentences. It is not necessary to reach that additional question with regard to the RJA Repeal given our analysis below but the fourth category of ex post facto laws is relevant to the issue whether the Amended RJA can be applied retroactively.
[3] The Court also concluded that the ordinance of 1868 unconstitutionally deprived the
defendant of a vested right under the Law of the Land Clause of the North Carolina
Constitution.
Keith
,
[4] While generally “both the federal and state constitutional
ex post facto
provisions are
evaluated under the same definition,”
Wiley
,
[5] Notably, while the RJA does not define the temporal parameters of the phrase “at
the time the death sentence was sought or imposed,” even in the substantially curtailed
Amended RJA this timeframe was limited to the “period from 10 years prior to the
commission of the offense to the date that is two years after the imposition of the death
sentence.” Amended RJA, § 3,
[6] The RJA also eliminated any procedural bars that would apply to traditional motions
for appropriate relief. Original RJA, § 1,
[7] As one state senator stated during the floor debate on the day the Senate first approved the RJA bill: Without this legislation, previous efforts to raise this issue would have been to no avail because of the McCleskey decision. . . . The McCleskey decision . . . said that while statistics may show race discrimination, it doesn’t rise to the level of being a constitutional violation of the equal protection clause and specifically directed that if states wanted to provide this additional protection and making it a means by which somebody could prove race discrimination, then they could do it. And that’s what we’re doing here today. Sen. Doug Berger, Senate Floor Debate on Racial Justice Act (May 14, 2009), https://archive.org/details/NorthCarolinaSenateAudioRecordings20090514/North_Carolina_ Senate_Audio_Recordings_20090514.mp3; see also Rep. Deborah Ross, House Floor Debate on Racial Justice Act (July 14, 2009), https://www.ncleg.gov/DocumentSites/House Documents/2009-2010%20Session/Audio%20Archives/2009/07-14-2009.mp3 (“In a 5-4 decision, the U.S. Supreme Court said that you don’t have the constitutional right to present statistical evidence, though at the end of his opinion for the five judge majority, Justice Lewis Powell said ‘these arguments are best presented to legislative bodies.’ ”); Barbara O’ Brien & Catherine M. Grosso, Confronting Race: How A Confluence of Social Movements Convinced North Carolina to Go Where the McCleskey Court Wouldn’t , 2011 Mich. St. L. Rev. 463 (2011).
[8] See Sen. Doug Berger, Senate Floor Debate on Racial Justice Act (May 14, 2009), https://archive.org/details/NorthCarolinaSenateAudioRecordings20090514/North_Carolina_ Senate_Audio_Recordings_20090514.mp3 (“I want to step back and explain, very quickly, where this idea of using statistics to prove race discrimination comes from and why it’s needed. Race discrimination is very hard to prove. Rarely, particularly in today’s time, do people just outright say, ‘I am doing this because of the color of your skin.’ Imagine if our Civil Rights Act that was passed in ‘64 said that the only way that you could prove race discrimination was by that sort of evidence—an admission by the person engaging in racial discrimination. We would have had very little change in our society and culture in terms of
[9] As part of its contention that the RJA and its repeal amount merely to procedural changes in the law, the State catalogues at length the existing legal doctrines and mechanisms for addressing racial discrimination in the criminal justice system. None of these protections, however, are as robust as the substantive guarantees provided by the RJA to these defendants. Indeed, the unique and otherwise unavailable protection afforded by the RJA was the reason for its enactment and, presumably, for its subsequent repeal.
[10] Here the Ex Post Facto Clause’s interest in providing notice and fair warning is lessened, as the measure of punishment to which the RJA repeal subjected defendant was the same pre-RJA measure of punishment of which he had notice at the time he committed his crimes. But this was equally true in Keith , where the ordinance of 1868 returned the law to that which existed at the time the defendant allegedly committed his crimes, at which time he would have been deemed to have had notice not only of the potential legal consequences of participating in armed secession, but also of the consequences of homicides that
[11] N.C.G.S. § 15A-2011(b) (2009) of the Original RJA provided: Evidence relevant to establish a finding that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed may include statistical evidence or other evidence, including, but not limited to, sworn testimony of attorneys, prosecutors, law enforcement officers, jurors, or other members of the criminal justice system or both, that, irrespective of statutory factors, one or more of the following applies: (1) Death sentences were sought or imposed significantly more frequently upon persons of one race than upon persons of
[1]
See, e.g.
,
Roper v. Simmons
, 543 U.S. 551, 125 S. Ct. 1183 (2005) (precluding the
death penalty due to offender’s age);
Atkins v. Virginia
,
[2] The majority’s analysis relies, in part, on some of the substance of these vacated trial
court orders. A vacated order is treated as if the order were never entered.
See Alford v. Shaw
,
[3] The majority ignores this historic presumption of constitutionality of laws enacted by the legislature.
[4] Retroactive, substantive rule changes interfere with the jury’s fact-finding process
by altering the burden of proof for the underlying offense or the quantum of punishment.
Compare State v. Correll
, 715 P.2d 721 (1986) (retroactively applying an aggravating
circumstance that did not еxist at the time the offense was committed, makes defendant
guilty of a greater crime)
, with Hameen
,
[5] The interpretation of the Ex Post Facto Clause has included the concept of “vested rights” with the implication that an ex post facto law impairs a vested right. “The true construction and meaning of the prohibition is, that the states pass no law to deprive a citizen of any right vested in him by existing laws.” Calder , 3 U.S. at 394 (opinion of Chase, J.) (emphasis added) (discussing a just application of retroactive rules, including pardons and a taking justly compensated). “Alterations which leav[e] untouched the nature of the crime and the amount or degree of proof essential to conviction . . . relate to modes of procedure only, in which no one can be said to have a vested right , and which the state, upon grounds of public
[6] Illustratively, in
State v. Blalock
, 61 N.C. 242, 244 (1867), defendants similarly
situated to Keith had already been convicted of murder. On appeal the Court in
Blalock
took
judicial notice of the Act, “and seeing from the record that the case of the prisoners came
within it, ordered their discharge.”
Keith
,
[7]
See McCleskey
,