Washington: Advocates for two African Americans on death row for murder are seeking a reprieve for both men on the grounds their trials were tainted by racial bias, taking their campaigns all the way to the US Supreme Court.
Amnesty International is waging a last-ditch effort to secure a stay for Kenneth Fults, 47, who is due to be executed by lethal injection on Tuesday in the southeastern state of Georgia for the murder of a white woman 20 years ago.
Fults was sentenced to death after pleading guilty to shooting Cathy Bounds five times in the back of the head.
But eight years later, an investigator working with his lawyers spoke to a juror in the case, Thomas Buffington, aged 79 at the time, who used a racial slur when referring to Fults.
"Once he pled guilty, I knew I would vote for the death penalty because that`s what that nigger deserved," Buffington, who has since died, told the lawyer under oath.
Georgia`s State Board for Pardons and Paroles was to rule Monday on an appeal for clemency filed by Fults` lawyers in which they highlight allegations of racial bias but also characterize him as intellectually impaired and the product of a violent, neglectful childhood.
Should that fail, his last resort would be an intervention by the Supreme Court, which rejected a previous appeal by his lawyers` last year. His lawyers have asked the court to take up the case again.
The Fults case has drawn relatively little media attention in the United States -- partly because the allegations of bias surfaced long after the trial.
But on April 22 the Supreme Court rules on whether to take up a much higher-profile case -- that of Duane Buck -- which involves similar allegations of racial bias in the trial process.
Buck was sentenced to die in Texas in 1997 for shooting dead his ex-girlfriend and a friend, in front of her children.
His attorneys do not dispute his conviction for the double murder, but they argue that racial considerations entered into his sentencing, infringing his rights under the US Constitution which guarantees the right to an impartial jury.During the 1997 hearing, psychologist Walter Quijano testified that blacks pose a greater risk of "future dangerousness" than whites.
Under Texas law, a person can be sentenced to death only if shown to pose a danger to society and the prosecutor cited this testimony in asking for capital punishment.
"This was a case that did not have an enormous amount of evidence speaking to the question of future dangerousness," said Christina Swarns, litigation director at the legal defense fund of the National Association for the Advancement of Colored People.
"Mr Buck did not have prior convictions for violence, so having this expert in the field saying that because of his race he was going to be dangerous in the future, it clearly had a very profound impact on the jury."
The Supreme Court has intervened once before in Buck`s case, granting a stay hours before his scheduled execution in September 2011.
At the time, several of the justices qualified as "bizarre and objectionable" the testimony of the psychologist, but the court stopped short of agreeing to review the case.The Court`s decision this month whether or not to take up the now-emblematic case comes as the vacancy left by the death of one of its nine justices, Antonin Scalia, has created a likelihood of split 4-4 rulings.
Both the New York Times and the Los Angeles Times have now published editorials calling for Buck to be granted a new trial.
"A man was sentenced to death at least in part because of his race -- a violation of his constitutional rights," wrote the Los Angeles Times in urging the Supreme Court to grant him a hearing.
Both papers highlighted the fact that other men sentenced to die in cases involving testimony by the same psychologist were granted fresh hearings. But Buck`s death sentence still stands because of a procedural error by his lawyers.
Advocates for Buck also cite strong evidence of prejudice in Harris County, Texas, where he was sentenced and which accounts for nine percent of all capital penalty sentences meted out in the United States.
Studies have shown Harris County prosecutors were three times more likely to seek the death penalty against African Americans than against white defendants between 1992 and 1999. Juries in the county were also more than twice as likely to impose capital punishment on African Americans.
Kate Black, a member of Burk`s defense team, invokes his good conduct during 18 years in jail as a further argument in his favor.
"If Mr Buck is given a new, fair sentencing hearing the jury will see that he has not posed any future danger and has in fact been a model prisoner," she told AFP.