A federal appeals court ruled yesterday that three black men convicted of raping a white women in North Carolina must be released or tried again because the state prosecutor argued at their trial that no white women would ever consent to having sexual relations with a black man.
A three-judge panel of the 4th U.S. Circuit Court of Appeals said the prosecutor's argument "so infected the trial with unfairness as to deny" the defendants "due process of law."
The North Caroline Supreme Court had upheld the convictions, saying the prosecutor's argument was "harmless error," and U.S. District Court Judge Woodrow W. Jones of Asheville, N.C., had refused to order release of the defendants on the same grounds.
Nothing that the defense lawyer argued at the trial that the alleged victim consented to intercourse, Appeals Court Judge Harrison L. Winter quoted the prosecutor, Donald E. Green of Catawba County as responding in his argument:
"Don't you know and I argue if" consent "was the case, she could not come in this courtroom and relate the story that she has from this stand to you good people, because I argue to you that the average white women abhors anything of this type in nature that had to do with a black man. It is imate within us . . ."
Winter also noted in a footnote that the prosecutor, quoting from the Bible, "informed the jury that the law enforcement powers of the district attorney come from God and that the resist those powers was to resist God." Although the appeals court ruling was based on the racial remarks, Winter added the admonishment that ". . . a prosecutor is only a secular officer fulfilling a secular function . . ."
Prosecutor Green yesterday attacked the appeal court ruling that his argument was prejudicial.
"They take stuff out of context and make mountains out of molehills," he said. "I never have been prejudiced. I just referred to them as black men. I though that's what they wanted to be called."
The three men originally were sentenced to death, but now are serving life terms as as result of Supreme Court death penalty decisions.