MARCH 27, 2015 7:14 PM

NC lawyers face bar complaints for Racial Justice Act work

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Two defense attorneys face accusations of professional misconduct for a piece of their work on the first successful challenge under the Racial Justice Act.

Gretchen Engel, director of the Durham-based Center for Death Penalty Litigation, and Cassandra Stubbs, a lawyer with the American Civil Liberties Union Capital Punishment Project, were among a team of attorneys who used the short-lived law to convert a North Carolina death row inmate’s sentence in 2012 to life without possibility for parole.

Now the attorneys face possible punishment from the N.C. State Bar.

Some legal analysts have characterized the allegations of wrongdoing as so minor and “questionable” that they think politics could be at play.

It is unclear who filed the complaints against the attorneys. That’s not part of the public record.

At issue is whether Engel and Stubbs violated professional codes of conduct in relaying information to the courts after interviewing two African-American men excluded from serving on the 1994 jury that decided the fate of Marcus Reymond Robinson.

Robinson, an African-American male, was sentenced to death almost two decades ago for the 1991 killing of Erik Tornblum, a white teenager.

In April 2012, Judge Gregory Weeks issued a landmark ruling in Cumberland County Superior Court saying prosecutors across the state had engaged in deliberate and systematic racial discrimination when striking black potential jurors in death penalty cases.

Under the Racial Justice Act, Weeks was able to reduce the death sentence for Robinson to life in prison with no possibility for parole.

Prosecutors, according to a Michigan State University Law School study that was part of the record in the Robinson case, used peremptory challenges to remove blacks from juries more than twice as often throughout North Carolina as they used them for whites. In Cumberland County, it was almost three times as often.

Prosecutors have disputed those statistics and immediately banded together not only to appeal the Weeks ruling but to orchestrate the overturning of the unique North Carolina law that allowed inmates to use statistics to bolster claims of racial bias.

Engel and Stubbs recently found out that someone filed complaints against them with the State Bar, the organization that oversees North Carolina lawyers.

The bar allegations focus on sworn statements the attorneys introduced from the men who had been part of the 1994 jury pool but not selected for the panel.

The bar complaint contends the lawyers included inaccurate information for the court to consider that ranged from a wrong address to a recollection from one of the potential jurors that did not jibe with the official trial transcript.

When Engel and Stubbs received notice of the allegations against them, according to their attorneys Amos Tyndall of Chapel Hill, and Brad Bannon and Alan Schneider of Raleigh, they brought them to the attention of Judge Weeks.

“He noted that the affidavits were not introduced for substantive purposes, and the purpose for which they were introduced was not even in dispute,” Bannon and Schneider, the attorneys for Stubbs, said in a joint statement. “He gave them no weight, and he did not rely on them in 378 pages of orders explaining his rulings.”

The Racial Justice Act proceedings for Robinson extended over 20 days of testimony. Eighteen witnesses testified, and more than 298 exhibits were included in the record.

“Weeks also made another important finding,” Bannon and Schneider said in a statement echoed by Tyndall, the attorney for Engel. “[I]f there were any inaccuracies in the two affidavits, they were not the product of intentional misconduct, willfulness or bad faith.”

Engel and Stubbs plan to ask for hearings before the State Bar to fight the complaints.

Legal scholars and analysts with no ties to the cases of Racial Justice Act proceedings questioned whether the high-profile nature of the Robinson case might be playing a part in the misconduct allegations.

“The State Bar does not explain publicly why it chooses to proceed on some complaints from the public and not on others, so we have to guess,” said Bernie Burk, a UNC-Chapel Hill law professor with expertise in ethics and professional responsibility. “The Racial Justice Act case at issue is very high-profile and extremely controversial, with many people holding strong views on both sides. And the complaints suggest that the people who accused the defense lawyers believe that the discrepancies they’ve identified were, in the words of the ethical rules, ‘prejudicial to the administration of justice.’

“Given the high profile and intensity of the controversy and the gravity of what the accusers claim, the Bar may have felt that the best course is to hold a formal proceeding that will result in an evidentiary record and a reasoned decision, so that everyone will understand the reasons for the result.”

Michael Frisch, a Georgetown University law professor who worked for 18 years as a bar prosecutor for the District of Columbia, wrote about the two cases on a blog he started to offer insight into such proceedings.

“I look at this prosecution, and I see the charges looking very questionable to me,” Frisch said in a telephone interview Friday. “I wouldn’t see them prosecuting this if it was Joe Schmo on the street or a prosecutor. And as a result, this is leading me to believe this is a politically motivated prosecution.”

Blythe: 919-836-4948; Twitter: @AnneBlythe1