Typically, when prosecutors are assembling a list of potential witnesses, they call upon experts, eyewitnesses, even former prosecutors, but in a new death row challenge in North Carolina, the judge himself is being called to the stand in a move many are calling procedural racism.

In the first case being tried under North Carolina’s Racial Justice Act, which allows death row prisoners to challenge their sentences on the grounds of racial bias, prosecutors have subpoenaed the presiding African-American Superior Court judge Greg Weeks because they feel his testimony will be critical to upholding the death sentence at issue. Although Weeks was scheduled to preside over the historic case that has yet to begin, he will be forced to withdraw if he is unable to defeat the request for his testimony.

Now, critics say that the move to make Weeks a witness is a racially motivated attempt to get him pushed off the case. Weeks is trying to defeat the subpoena and has filed a motion that will be decided upon in a hearing Thursday.

"It looks like they're [prosecutors] trying to get rid of an African-American judge and have the case heard by someone who likely would not be African-American," Duke University law professor James Coleman told the Associated Press. "They're accused of manipulating the jury on the basis of race. It's ironic that they would do something that looks like they're trying to ... manipulate the judge who would hear the case. It's tone deaf. It's unbelievable to me."

At the heart of the death penalty challenge is Marcus Robinson, a Black man convicted of shooting and killing Erik Tornblom, a white man, during a 1991 robbery. Robinson claims that prosecutors excluded a disproportionate number of African-Americans from his trial jury and is seeking to have his sentence commuted to life in prison under the act.

Prosecutors say that Weeks might be valuable as a witness in the trial because he handled two capital cases in the same country that became part of a study by Michigan State University law professors, which found that a defendant in North Carolina is 2.6 times more likely to be sentenced to death if at least one of the victims was white.

The study also showed that the majority of death row trials in the state at the time had all-white juries and the remainder had only one person of color on the jury.

Weeks's attorney, Fred Webb, said he believes that the subpoena is being used to get Weeks removed from the case; however, he doesn’t agree that there is racial animus behind the decision.

"I think [the prosecutors are] just trying to have a judge removed by the issuance of a subpoena, which is very important to the state of North Carolina, not just to one particular group of people," Webb told the Associated Press.

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