For Immediate Release: February 11, 2022
For More Information Contact: Elizabeth Hambourger, CDPL Senior Attorney, 919-412-2542

Raleigh, NC — On Friday, the North Carolina Supreme Court made history by invalidating a criminal conviction because the Wake County prosecutor illegally excluded a qualified Black citizen from the jury. It marks the first time that North Carolina’s appellate courts have ever overturned a case because of discrimination against a juror of color.

Until today, North Carolina was the only southern state whose appellate courts had never enforced the law on behalf of a Black citizen who was denied the right to serve on a jury.

“Discrimination against Black jurors has been rampant in North Carolina, but until now, our courts have refused to deal with the problem,” said Elizabeth Hambourger, a senior attorney at the Center for Death Penalty Litigation, who argued the case in the lower court and assisted with the appeal. “We are so relieved to see our state’s highest court finally acknowledge this important violation of civil rights.”

The court overturned the case of Christopher Clegg, who was convicted of armed robbery in Wake County in 2016, but the facts of the crime played no role in the ruling. Instead, the case hinged on the prosecutor’s decision to illegally remove a Black woman from the jury because of her race.

During the trial, when the prosecutor was questioned about his reasons for striking the woman, he told the judge that he did not like the juror’s “body language” and that she said she “supposed” she could be fair, indicating that she was unsure. The trial judge accepted the prosecutor’s reasons and allowed the prosecutor to dismiss the woman from the jury.

However, neither of the prosecutor’s reasons held up to scrutiny. There was no support for the vague claim about the juror’s body language or failure to make eye contact, which is a frequent excuse that prosecutors make for their removal of Black jurors. And he was simply incorrect about the juror being unsure about her own fairness. In truth, she said she “supposed” she could set aside her other responsibilities and serve on the jury. Meanwhile, a white juror who was questioned at the same time as the Black juror said that he would be distracted by his busy job, yet the prosecutor accepted him.

“Until today, it seems North Carolina’s courts have been waiting for a prosecutor to openly say: ‘I don’t want Black people on this jury,’ before enforcing the law,” said James Williams, a member of the National Consortium On Racial And Ethnic Fairness In The Courts and the retired public defender for Orange and Chatham Counties. “But that’s not how racism operates anymore. It’s rarely spoken aloud, yet it has devastating effects. It’s absolutely shameful how many Black people in North Carolina have been convicted by all-white juries.”

The opinion was authored by Justice Robin Hudson, who was joined by the Court’s three other Democratic justices. Justice Anita Earls wrote a concurring opinion, arguing the prosecutor discriminated against not just one, but two Black women jurors. Justice Phillip Berger, Jr., dissented, joined by the two other Republicans on the court. 

Mr.Clegg has already served his time and been released.  

Jury service is, along with voting, one of the few ways that citizens participate directly in democracy. It gives ordinary people a voice in the criminal punishment system and is an established civil right. Studies show that diverse juries deliberate more thoroughly and are less likely to convict innocent people.

Yet, courts across the country have been trying and failing to stamp out jury discrimination since 1965, when the Civil Rights Movement made it possible for Black people to finally begin serving on juries in the South. Even a 1987 U.S. Supreme Court ruling that explicitly outlawed the race-based exclusion of jurors has had little effect.

“North Carolina has a particularly atrocious record of enforcement, but discrimination against Black jurors is a problem nationwide, including in the most serious death penalty cases,” Hambourger said. “If we are ever to have a fair system, our courts must continue to say, over and over, that they will not allow convictions in cases where jurors of color have been excluded. I hope today’s decision is just the beginning for North Carolina.”

For Immediate Release: October 4, 2021
For More Information Contact: Gretchen Engel, CDPL Executive Director, 919-682-3983

Raleigh, NC — North Carolina is the only southern state whose appellate courts have never once enforced the law prohibiting race discrimination against jurors of color. But that could be about to change. On Oct. 6, the N.C. Supreme Court will hear arguments in State v. Clegg, a case that offers the opportunity to address the unfair exclusion of Black citizens from jury service.

The case involves Christopher Clegg, who was convicted of armed robbery in 2016, but it’s not the facts of the crime that are at issue. Clegg has already finished serving his sentence. Instead, the case hinges on whether the prosecutor illegally removed a Black woman from the jury because of her race.

“This case is a key test for our Supreme Court,” said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation, which works to end jury discrimination. “It’s a constitutional right to serve on a jury and to have a voice in the criminal justice system. Yet, people of color are still being systematically excluded from juries. Given what we know today about the corrosive effects of racism on the criminal justice system, we should be welcoming rather than excluding the voices of jurors of color.”

The U.S. Supreme Court ruled in 1987, in Batson v. Kentucky, that it is illegal to exclude qualified citizens from juries based on race. Yet, studies show that in North Carolina, prosecutors continue to strike qualified Black jurors at more than twice the rate of whites. And the state’s high court has yet to enforce the simple rule laid out in Batson.

“Courts across the South, in states like Mississippi and Alabama, have found discrimination against jurors of color on multiple occasions,” said Jin Hee Lee, the senior deputy director of litigation at the NAACP Legal Defense & Educational Fund, Inc., and a member of CDPL’s board of directors. “There is simply no excuse for North Carolina to remain an outlier in its complete failure to protect jurors of color against discriminatory strikes. It is imperative for the North Carolina Supreme Court to take this opportunity to turn the tide and send a strong message that discrimination will no longer be tolerated.”

In Clegg, the prosecutor moved to strike a qualified Black juror. When the defense objected, saying there was no reason for the strike other than the juror’s race, the prosecutor had a chance to give “race-neutral” reasons for his strike. The prosecutor said he did not like the juror’s “body language” and that she said she “supposed” she could be fair, indicating that she was unsure.

The trial judge accepted the prosecutor’s reasons and allowed the prosecutor to dismiss the woman  from the jury. However, neither of the prosecutor’s reasons held up to scrutiny. There was no support for the vague claim about the juror’s body language or failure to make eye contact, which is a frequent excuse that prosecutors make for their strikes of Black jurors.

The prosecutor was simply incorrect about the juror being unsure about her own fairness. In truth, she said she “supposed” she could set aside her other responsibilities and serve on the jury. Meanwhile, a white juror who was questioned at the same time as the Black juror said that he would be distracted by his busy job, yet the prosecutor accepted him.

“Often, it seems like our courts are waiting for prosecutors to make openly racist statements in court before enforcing the law,” Engel said. “But this kind of discrimination operates much more subtly. If the courts accept flimsy excuses for excluding Black jurors, they’re allowing discrimination. In this case, the prosecutor didn’t provide a single valid reason for his strike. That’s unacceptable.”

Oral arguments will be held in the N.C. Supreme Court at 10:45 a.m. on Wednesday, October 6. Watch here.

For Immediate Release: May 19, 2021
For More Information Contact: Gretchen Engel, Executive Director, 919-682-3983

Raleigh, NC — On Thursday, May 20, North Carolina will hold the first hearing under the Racial Justice Act since the state Supreme Court decided in June that people on North Carolina’s death row are entitled to present evidence of racism in their trials despite the legislature’s repeal of the RJA.

Hassan Bacote, one of 137 death row prisoners in North Carolina, will have a hearing in Wake County Superior Court at 10 a.m. Thursday. His case is from Johnston County. The hearing will center around his requests for the state’s jury selection notes, training records and other documents. The state has also requested information about the statistical analyses Bacote relied on.

In other cases, these records have shown that prosecutors wrote disparaging notes about jurors of color like “blk wino” or “blk, high drug” and that they attended training sessions designed to help them evade laws prohibiting race discrimination in jury selection. At these sessions, prosecutors were taught to give vague excuses for their exclusion of Black jurors, including body language or failure to make eye contact.

Bacote has already submitted evidence that Johnston County prosecutors at his 2010 trial excluded qualified Black jurors at more than three times the rate of white jurors. Statewide, a study found that Black jurors are struck at twice the rate of whites, meaning the discrimination in Bacote’s case was even more pronounced than the state average.

“Hassan Bacote is a Black man who was sentenced to death for a crime he committed as a teenager in a county known for Ku Klux Klan activity,” said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation. “We already know that the state made a great effort to keep Black people off his jury. We look forward to digging even deeper into the evidence to see how racism affected this case.”

Bacote’s case could set a precedent for how Racial Justice Act cases are handled going forward. The 2009 law allowed death-sentenced people to present evidence of race discrimination and, if they proved that race affected their sentences, be resentenced to life without parole. However, the RJA was repealed in 2013 after the first four death row prisoners won their cases. In the years since, all claims were on hold while the courts determined whether they were still valid after the repeal.

In June, the N.C. Supreme Court forcefully affirmed that all existing Racial Justice Act claims should be heard in court. Justice Anita Earls wrote that racial discrimination in criminal cases “undermines the integrity of our judicial system and extends to society as a whole.”

“We are thrilled that this litigation is beginning to move forward,” Engel said. “It’s critical that our courts examine the striking evidence of discrimination in death penalty trials, and that no one is executed based on a judgment tainted by racism.”

The hearing will be held at 10:00 am at the Wake County Courthouse, Courtroom 704, the Honorable Wayland J. Sermons Jr. presiding.

For Immediate Release: December 15, 2020
For More Information Contact: Gretchen Engel, CDPL – gretchen@cdpl.org 919-682-3983

Durham — As 2020 ends, the North Carolina death penalty occupies a precarious position in a state coming to terms with systemic racism and sweeping injustice in its criminal punishment system.

There were no new death sentences in 2020, which marks three of the past four years with no death verdicts. Even as federal executions resumed at a stunning pace, North Carolina passed its fourteenth year without an execution. Meanwhile, dozens of the state’s 138 death row prisoners are poised to bring forward claims of racism in their trials and sentences under the Racial Justice Act.

Also, on Monday, Governor Cooper’s Task Force for Racial Equity in Criminal Justice released a report acknowledging that the death penalty has a close “relationship to white supremacy” and lynching. The task force recommended a Truth and Reconciliation Commission that would, among other things, study racial disparities in death sentencing, review commutations of death sentences imposed before 2001, and consider replacing the death penalty with a maximum sentence of life without parole. The task force also recommended that the death penalty be prohibited for people with serious mental illness and those under 21, and said juvenile offenses should no longer be used as aggravating factors in death penalty trials.

“Any honest attempt at truth and reconciliation must begin with the acknowledgment that the modern death penalty is rooted in racism,” said CDPL Executive Director Gretchen M. Engel. “North Carolina’s death penalty was used first as a tool for enforcing slavery and then to police segregation. It’s no wonder that today we have a death penalty riddled with inequity. From the disproportionate numbers of people of color on death row to the death sentencing of innocent Black men, from the exclusion of African-American jurors to the favoring of white victims. If we want to move forward as a society, we must reckon with that.”

In October, CDPL released Racist Roots: Origins of North Carolina’s Death Penalty, a sweeping project that puts the modern death penalty in the context of its history. Dozens of scholars, artists, advocates, and people directly affected by the death penalty contributed to the project, which reveals how racism has shaped and perpetuated the modern death penalty.

Also this year, the N.C. Supreme Court recognized in a series of rulings that race discrimination is a serious and ongoing problem in death row cases.

The court ruled in June that all death-sentenced people who had filed claims under the N.C. Racial Justice Act are entitled to hearings where they can present evidence that prosecutors excluded African-American citizens from their juries and that racism tainted their trials. In two subsequent decisions, the court ruled that four people who had already proven discrimination under the Racial Justice Act had to be removed from death row and resentenced to life without parole, ensuring that death sentences infected by racism will never be carried out. One of those decisions noted North Carolina’s “egregious legacy of the racially discriminatory application” of the death penalty.

“This year, our state’s highest court said very clearly that it’s time to stop ignoring racism in the death penalty,” Engel said. “It’s time to confront the clear and undeniable evidence that race still determines who is sentenced to death.”

Engel continued, “Ending the death penalty is just one small part of what’s needed to finally begin erasing the stain of racism from our criminal punishment system, but it’s an important first step. As long as the state is still trying to execute people in our names, we cannot say we are serious about rooting out the legacy of slavery and racial terror.”

September 25, 2020

For More Information Contact:
David Weiss, CDPL Senior Staff Attorney, 919-593-7790, dcweiss@cdpl.org

Raleigh, NC — Three death row prisoners were resentenced to life without parole Friday after the N.C. Supreme Court ruled that they had been unconstitutionally returned to death row after receiving life sentences under the state’s Racial Justice Act.

Christina Walters, Quintel Augustine, and Tilmon Golphin will be removed from death row because they proved that race was a significant factor in their sentences. The decisions in their cases are based on the state constitution and cannot be appealed.

Friday’s decisions marked the final rulings in a series by the state Supreme Court, which affirmed that rights granted under the 2009 Racial Justice Act had been wrongly taken away from death-sentenced people who have brought forward evidence of racial discrimination in their trials and sentences.

“We are grateful to the court for upholding the law that says a person cannot be sentenced to death twice for the same crime,” said CDPL Senior Staff Attorney David Weiss. “Our clients proved that race was a major factor in their death sentences. Their evidence has never been disputed, and they never should have been sent back to death row.”

The North Carolina legislature passed the Racial Justice Act in 2009. It led to a statewide study showing that, in capital trials, prosecutors dismissed Black citizens at 2.5 times the rate they excluded whites. This disparity was driven entirely by race and could not be attributed to any other factor, such as death penalty views. It also found that crimes with white victims were twice as likely to be punished with death.

Walters, Augustine, and Golphin — along with Marcus Robinson, who was resentenced to life in August — were the only four death row prisoners to have Racial Justice Act hearings before the law was repealed in 2013. All four won their cases, using the study to show a pattern of race discrimination in North Carolina capital cases. The defendants also unearthed prosecutors’ notes referring to jurors with denigrating terms like “blk wino,” and training materials showing that their prosecutors had been instructed on how to invent “race-neutral” reasons to justify their strikes of Black jurors.

In 2012, Cumberland County Superior Court Judge Gregory Weeks resentenced all four to life without parole after finding a “wealth of evidence” that systemic exclusion of Black jurors had tainted their death sentences. However, after the repeal of the Racial Justice Act, the N.C. Supreme Court overturned Weeks’ ruling on procedural grounds, saying the hearings should have been held separately rather than jointly and that prosecutors should have had more time to prepare their case, even though the trial court had already given the state two continuances. The court ordered new RJA hearings for the four defendants, and in a legally questionable move, the N.C. Department of Public Safety quickly returned them to death row.

Now, the Supreme Court has ruled that the reinstatement of their death sentences was unconstitutional and has restored life sentences for all four.

In a separate ruling in June, the court also said that all North Carolina death row prisoners who filed RJA claims before the law’s 2013 repeal are entitled to hearings where they can present evidence that prosecutors purposefully excluded African American citizens from their juries and that racism tainted their trials. The courts have not yet decided how those cases will proceed.

“The court has again affirmed what we already knew,” Weiss said. “The Racial Justice Act was a necessary law that revealed an epidemic of racism in death penalty cases. We cannot sweep that evidence under the rug. And we certainly cannot execute people who’ve proven that racism played a part in their sentences.”

August 14, 2020

For More Information Contact:
Gretchen Engel, CDPL Executive Director – gretchen@cdpl.org 919-682-3983
Henderson Hill, ACLU Capital Punishment Project Attorney – HHill@aclu.org 704-502-1145

Raleigh, NC — On Friday, the North Carolina Supreme Court issued a historic call for the state to address and rise above its history of excluding Black citizens from jury service and allowing racial bias to seep into the prosecution of capital cases. In the majority opinion, Chief Justice Cheri Beasley wrote, “equal protection to all must be given—not merely promised” and pointed to an “egregious legacy of the racially discriminatory application” of the death penalty. 

The 4-3 ruling came in the case of Marcus Robinson, the first death row prisoner to be resentenced to life without parole under North Carolina’s Racial Justice Act. The court found that Robinson had been unconstitutionally returned to death row, despite unrefuted proof that Black jurors were intentionally denied the right to serve on his jury. The court ruled that Robinson cannot be executed, but may serve a life sentence instead, because of the “overwhelming evidence” of racial bias presented in his case.

“Robinson’s claims under the RJA do not negate or diminish his guilt or the impact of his crimes on the victim’s family, the victim’s friends, and the community,” Chief Justice Cheri Beasley wrote. “Rather, the Act ensured that even those who commit the most serious offenses are entitled to a trial and sentencing free from racial discrimination.”

Read the full decision here.

“This is one of the most important decisions I’ve ever seen from our state Supreme Court,” said CDPL Executive Director Gretchen Engel. “It seems that Justice Beasley and her colleagues intend to make good on the promise that no person should be executed if race was a factor in their death sentence. This is a critical issue of racial justice, both for people on death row and for African Americans seeking to participate in our democracy. It’s heartening to see the court recognizing that fact, in all its difficulty and complexity, and taking bold action.”

The decision marked the second time in three months that the state Supreme Court forcefully rejected a legislative effort to void the Racial Justice Act and bury the evidence of racially-biased death sentences that the law revealed. In June, the court ruled that all death row prisoners who filed claims under the Racial Justice Act are entitled to hearings, even though the law was repealed in 2013.

Friday’s decision, in addition to finding clear evidence of discrimination against African American jurors in Robinson’s case, recognized the connection between modern jury selection practices and the centuries-long history of racism in America. It chronicled “the many ways African Americans have struggled to participate in our democratic processes,” beginning with post-Civil War laws explicitly barring Black people from jury service and then morphing into Jim Crow-era poll taxes and literacy tests. It described the modern peremptory strike as the newest tactic used to remove qualified Black citizens from juries.

The court made a strong case for the Racial Justice Act’s necessity, saying it was passed in response to the failure of North Carolina courts to enforce federal standards barring racially motivated jury strikes. “The goal of this historic legislation was simple: to abolish racial discrimination from capital sentencing. That is, to ensure that no person in this state is put to death because of the color of their skin,” Beasley wrote.

The North Carolina legislature passed the Racial Justice Act in 2009. It led to a statewide study showing that, in capital trials, prosecutors dismissed Black citizens at 2.5 times the rate they excluded whites. This disparity was driven entirely by race and could not be attributed to any other factor, such as death penalty views.

Robinson, along with Quintel Augustine, Tilmon Golphin, and Christina Walters, were the only four death row prisoners to have Racial Justice Act hearings before the law was repealed in 2013. All four defendants won their cases, using the study to show a pattern of discrimination that denied them the right to a jury of their peers. In addition to the study, the defendants unearthed prosecutors’ notes referring to jurors with denigrating terms like “blk wino,” and training materials showing that their prosecutors had been instructed on how to invent “race-neutral” reasons to justify their strikes of Black jurors.

In 2012, Cumberland County Superior Court Judge Gregory A. Weeks resentenced all four to life without parole after finding a “wealth of evidence” that systemic exclusion of Black jurors had tainted their death sentences. Friday’s decision recognized that Weeks’ findings were “meticulously detailed.” However, over the next few years, though their evidence of racial bias was never disproven, they were again placed at risk of execution.

After the repeal of the Racial Justice Act, the N.C. Supreme Court overturned Weeks’ ruling on procedural grounds, saying the hearings should have been held separately rather than jointly and that prosecutors should have had more time to prepare their case, even though the trial court had already given the state two continuances. The court ordered new RJA hearings for the four defendants, and in a legally questionable move, the N.C. Department of Public Safety quickly returned them to death row.

Then, when they requested the hearings the Supreme Court had ordered, a Superior Court judge refused to hold them, saying that the defendants were no longer entitled to hearings because the law had been repealed. All four appealed to the state Supreme Court, but the court has not yet decided the cases of Augustine, Golphin and Walters.

“Our clients ended up in the ultimate Catch-22,” Engel said. “They had clear proof of racism that they presented under a valid law. Then, the state Supreme Court asked them to present the evidence again. When they tried to do that, the state said, ‘Sorry, too late. The law no longer exists.’ Today, this Supreme Court, under the strong leadership of Chief Justice Beasley, said that North Carolina must stop playing games with justice and start looking at the big picture, which clearly shows that our death penalty is racist.”

Advocates said they believe the evidence of racial bias in capital prosecutions, uncovered as a result of the Racial Justice Act, raises serious questions about the legitimacy of North Carolina’s death penalty.

“It’s unthinkable that we could amass a mountain of evidence showing that race plays a role in the North Carolina death penalty and then just ignore it and return to executing people,” said Henderson Hill, an ACLU attorney who is part of the Racial Justice Act litigation. “Today, the high court declared that it’s unacceptable for North Carolina to keep its head in the sand, and we are grateful. It is time for everyone in North Carolina to ask themselves, after decades of racially-biased prosecutions, whether the state should still have the right to carry out executions.”

June 5, 2020

FOR MORE INFORMATION CONTACT:
Henderson Hill, ACLU Capital Punishment Project Attorney – hhill@aclu.org 704-502-1145
Donald Beskind, Attorney and Duke Law Professor – beskind@law.duke.edu 919-612-3955
Gretchen Engel, CDPL Executive Director – gretchen@cdpl.org 919-682-3983

Raleigh, NC — The North Carolina Supreme Court today issued two landmark civil rights rulings on the Racial Justice Act, clearing the way for a much-needed review of racial discrimination in death penalty cases across the state.

The court decided 6-1 Friday that Rayford Burke and Andrew Ramseur, prisoners on North Carolina’s death row, were entitled to hearings where they can present evidence that prosecutors purposefully excluded African American citizens from their juries and that racism tainted their trials. The rulings also mean that death row prisoners across North Carolina who filed claims under the N.C. Racial Justice Act before its repeal in 2013 are entitled to present their evidence in court. The justices decided the case under the state constitution, so it cannot be appealed. [Read the full decisions: Ramseur and Burke.]

“This is a momentous decision that sends a clear message: Our state’s highest court will not allow North Carolina to ignore evidence that racism has infected the death penalty,” said CDPL Executive Director Gretchen M. Engel. “This was also an urgently needed decision as our state and our nation confront a long history of racism. The death penalty is the apex of a criminal legal system that has failed people of color.”

The court has not yet decided the cases of four other RJA defendants, Marcus Robinson, Quintel Augustine, Christina Walters, and Tilmon Golphin, who initially won their cases but saw them overturned on appeal.

The ruling comes just days after Chief Justice Cheri Beasley responded to protests against police violence with a candid admission that North Carolina’s courts have helped perpetuate racial disparities. “We must come together to firmly and loudly commit to the declaration that all people are created equal, and we must do more than just speak that truth,” Beasley said. “We must live it every day in our courtrooms.”

Justice Anita Earls authored the decision, and affirmed that it was about more than two individual defendants. She wrote 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.”

At oral arguments in August, Burke and Ramseur presented stark evidence. Both are black men convicted by all-white juries in Iredell County. Prosecutors at Burke’s trial referred to him during closing arguments as a “big black bull.” Ramseur’s trial was shadowed by widespread threats of lynching, and the judge and sheriff forced his family to sit in the back of the courtroom while the white family of the victim sat in front.

“This decision is built on basic fairness,” said Don Beskind, a Durham attorney and Duke Law professor involved in the litigation. “The evidence in these death penalty cases was stark and undeniable. The very least we can do is allow it to be heard in court. Even our most conservative U.S. Supreme Court justices, most recently Justice Kavanaugh, have said that race discrimination in jury selection is a serious long-standing problem that courts must address.”

Burke and Ramseur, like most of the people on North Carolina’s death row, first presented this evidence shortly after the N.C. legislature created the Racial Justice Act, which allowed death-sentenced people to bring forward evidence of racism in their trials. Those who could prove that race was a significant factor in their sentences would be resentenced to life in prison without parole. The law’s passage marked the first time a death penalty state allowed for a systematic review of racial bias in capital cases.

A statistical study commissioned as a result of the RJA found overwhelming evidence that, in scores of North Carolina capital cases over two decades, prosecutors illegally struck black jurors because of their race. And death row prisoners across North Carolina unearthed disturbing evidence of racism in their trials that had never before been examined by the courts.

However, in 2013, after the first four RJA defendants won their cases, a new legislature repealed the RJA. This same legislature was found by the U.S. Supreme Court to have enacted racially discriminatory voting laws. The RJA repeal legislation sought to invalidate all pending cases and prevent any court review of the evidence of bias that was uncovered. In its decision today, the Supreme Court rejected that gambit, saying that the evidence of rampant discrimination against black North Carolinians was too troubling to ignore.

Friday’s ruling was based on the precedent of State v. Keith, an 1869 case in which the N.C. Supreme Court ruled that a Confederate soldier charged with war crimes was protected by a post-Civil War amnesty law and could not be prosecuted, even though the amnesty law had since been repealed. The death row prisoners argued that if the Constitution protects Confederate war criminals, it must also protect their right to present evidence of race discrimination against black jurors even after the repeal of the Racial Justice Act.

“In light of decades, if not centuries, of mistreatment and brutalization of black citizens at the hands of America’s criminal system, today’s decision to take the death penalty off the table when there is evidence of racial bias is just one small but important step toward achieving the broad-based reform needed in North Carolina, and across the country,” said Henderson Hill, a prominent ACLU attorney who represents RJA defendants. “It’s  something to celebrate, but also a reminder that we must keep working for justice.”

ADDITIONAL BACKGROUND:

• Go here for more detail on the Racial Justice Act.
• Read Bryan Stevenson’s op-ed on the importance of the Racial Justice Act.

May 4, 2020

FOR MORE INFORMATION CONTACT:
CDPL Attorney David Weiss: dcweiss@cdpl.org, 919-593-7790
James E. Coleman, Jr.: jcoleman@law.duke.edu, 919-414-2017

Raleigh, NC — A new decision from the North Carolina Supreme Court has taken an important first step to address a problem that civil rights advocates have long highlighted: the epidemic of race-based exclusion of black citizens from jury service in North Carolina.

In the case of Cedric Hobbs, the court ruled 6 to 1 Friday that the judge at Hobbs’ 2014 murder trial allowed the prosecutor to strike African American citizens from the jury without fully considering the evidence that race was a key factor in their strikes.

The decision marks a turning point in North Carolina, where two separate studies have found that qualified black citizens are struck from juries at more than twice the rate of qualified white citizens. It will begin a culture change in a state where trial judges routinely dismiss complaints of racially motivated jury strikes without thorough investigation, and where the appellate courts have never in their history upheld a claim of race discrimination against a juror of color.

“For a long time, our courts have stood by as scores of black citizens have been denied the basic civil right to serve on a jury,” said David Weiss, Senior Staff Attorney at the Center for Death Penalty Litigation. “The North Carolina Supreme Court has just said that has to change.”

The decision established that, when claims of race discrimination against jurors are raised, judges must take into consideration the history of disproportionate strikes in that county. For instance, in Cumberland County where Hobbs was tried, studies show that prosecutors were about 2.5 times more likely to strike qualified potential jurors who were black, a statistically significant finding.

The courts also must compare the strikes of black jurors to those of white jurors, to see if they are held to similar standards. For example, at Hobbs’ trial, the defense alleged that the prosecutor struck a black juror based on his race. When the judge asked the prosecutor to state his reasons for the strike, the prosecutor claimed he struck the juror because the juror had experience with mental health professionals. The judge accepted this reason as “race neutral” without considering the fact that several white jurors who the prosecutor accepted had received extensive mental health treatment. Such comparative juror analysis is key to rooting out discriminatory intent in jury strikes.

Cedric Hobbs was convicted of robbery and murder in 2014 and is serving a sentence of life without parole. His case will now return to a Cumberland County trial court for a new hearing on whether black jurors were unlawfully excluded from his jury. If the court finds that they were unfairly struck, he will get a new trial.

However, legal experts say the salient aspect of the decision is the precedent it sets for future cases.

“What’s most important is the message that courts across North Carolina must vigorously investigate the reasons why jurors of color are excluded, not simply rubber stamp the prosecutor’s strikes,” said James E. Coleman, Jr., John S. Bradway Professor of the Practice of Law, Director of the Center for Criminal Justice and Professional Responsibility, and Co-Director of the Wrongful Convictions Clinic at Duke Law School. “This decision is a good starting point in addressing North Carolina’s shameful record of denying African Americans their civil right to serve on juries. These issues will continue to come up. As they do, my hope is that the state supreme court will continue to take this civil rights problem seriously, by enforcing and strengthening legal protections against race discrimination.”

Monday, February 3, 2020                                                 

FOR MORE INFORMATION CONTACT:
Miriam Krinsky, Fair and Just Prosecution, krinskym@krinsky.la, (818) 416 5218
David Weiss, Center for Death Penalty Litigation, dcweiss@cdpl.org, (919) 593-7790

RALEIGH, N.C. – On February 3, at 9:30 a.m., the North Carolina Supreme Court heard oral arguments in the cases of two criminal defendants, Cory Bennett of Sampson County and Cedric Hobbs of Cumberland County. In both cases the court must decide whether prosecutors illegally excluded black citizens from juries because of their race. If the court decides in the defendants’ favor, it will be the first time in North Carolina’s history that the high court has acknowledged race discrimination against jurors of color. 

“These cases are about far more than these two defendants,” said Duke Law Professor James Coleman, a scholar on race and the law who filed an amicus brief in both cases. “They’re about whether North Carolina’s high court will finally confront the problem of African Americans being systematically denied the right to wield power in our justice system. For too long, this discrimination has been an open secret, ignored at the highest levels of North Carolina’s justice system. Now, our court has the chance to say that race discrimination in the jury box must end.”

Two recent studies found that qualified black citizens in North Carolina are excluded from juries at more than twice the rate of white people, denying defendants the right to be judged by a fair cross section of their community. Research has also found that juries with two or more members of color deliberate longer, discuss a wider range of evidence, and are more accurate in their statements about cases, regardless of the defendant’s race. And as recently as June of last year, U.S. Supreme Court Justice Brett Kavanaugh wrote an opinion in Flowers v. Mississippi warning that race discrimination in jury selection is a pressing problem that courts must address.

Despite this, a recent analysis revealed that North Carolina’s high courts have failed to enforce the law established in Batson v. Kentucky, a 1986 U.S. Supreme Court decision that barred racially-motivated jury exclusion. In the thirty years since Batson, more than a hundred North Carolina defendants have raised claims of race discrimination against jurors of color. Yet, the state’s appellate courts have never upheld a single one of those claims.

“Now, the N.C. Supreme Court has a chance to make a clean break from this unfortunate track record, and chart a new path forward,” Coleman said. “There is no question that black citizens are unfairly excluded from jury service because of their race. The only question is whether the North Carolina courts will finally provide meaningful protection from this longstanding civil rights violation.”

North Carolina’s appellate courts stand alone among southern states in failing to acknowledge this type of discrimination. Courts in every southern state, except North Carolina, have enforced the law against jury discrimination and overturned convictions because of racial discrimination against jurors of color. Alabama, for example, has had more than 80 appellate reversals because of racially-tainted jury selection.

The evidence in the cases now before the court mirrors what has been found in studies of broad patterns in North Carolina. In both trials, prosecutors used most or all of their strikes to remove black jurors. When asked to explain their strikes, prosecutors cited characteristics virtually identical to those of white jurors who were accepted. Bennett and Hobbs will get new trials if the court decides in their favor.

If the North Carolina Supreme Court finds race discrimination in these cases, it will join other state courts that have recently confronted the issue, such as Washington, Nevada and Connecticut. All have taken steps to end racial discrimination, including reversing convictions marred by racial bias, crafting new legal approaches, and appointing study commissions on jury discrimination. 

Several national organizations, along with North Carolina civil rights leaders and advocacy groups, have filed “friend of the court” briefs urging the North Carolina Supreme Court to take action. These groups include Fair and Just Prosecution, the North Carolina NAACP, the North Carolina. Advocates for Justice, the Charles Hamilton Houston Institute for Race and Justice, the Anti-Defamation League, Latino Justice and the Korematsu Center for Law and Equality. 

“The exclusion of African Americans from the jury box is a fundamental civil rights problem rooted in our shared history of subjugation and segregation based on race,” said Miriam Krinsky, a former federal prosecutor and Executive Director of Fair and Just Prosecution. “It will take a concerted effort at every level of the justice system to solve this problem. Right now, the North Carolina Supreme Court has a chance to step up to the task, apply the law fairly, and send a message that North Carolina’s tolerance of this injustice must end.”

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 Fair and Just Prosecution is a national network of elected prosecutors working towards common-sense, compassionate criminal justice reforms. To learn more about FJP’s work, visit http://www.fairandjustprosecution.org/ or follow us on Facebook @FairAndJustProsecution.

 Center for Death Penalty Litigation is a non-profit law firm that provides direct representation to inmates on North Carolina’s death row, as well as consulting with and training attorneys who practice capital litigation across the state. In addition to representing individual clients, CDPL spearheads litigation that addresses systemic injustices and educates the public about the death penalty. To learn more about CDPL’s work visit https://www.cdpl.org.

Additional background information

 State v. Cory Bennett was tried in 2016 in Sampson County, North Carolina, on charges of possession and trafficking of methamphetamines. Mr. Bennett was convicted and sentenced to a maximum of 13 years in prison. During jury selection, the prosecutor used only two peremptory strikes to remove jurors, both against African-Americans. When the defense lawyer objected that the strikes were racially motivated, the trial judge overruled the objection and did not even require the State to explain its reasons for the strikes. The trial judge instead questioned the defense lawyer about her strikes against, what the judge termed, “white Americans.” The N.C. Court of Appeals found no error, but the N.C. Supreme Court decided to review the case further, even though it was not required to do so.

State v. Cedric Hobbs was tried in 2014 in Cumberland County, North Carolina, on one charge of first-degree murder related to the armed robbery of a pawn shop. Mr. Hobbs was convicted. The State sought the death penalty, but the jury chose a sentence of life imprisonment. During jury selection, the prosecution used eight peremptory strikes to remove jurors, six of whom were black. When the defense lawyer objected, the prosecutor responded defensively that the objection “was somehow [saying] we’re just racists in this county.” The trial judge required the prosecutor to explain the reasons for striking the black jurors, but nonetheless overruled the defense. The N.C. Court of Appeals reviewed the case and found no error, but the N.C. Supreme Court granted discretionary review. The defense argues the State’s strikes were discriminatory because the prosecutor cited “race-neutral” traits that caused them to remove black jurors but accepted white jurors with the very same traits. A statistical study showed the prosecutor’s office in this county has a twenty-year track record of removing black jurors at twice the rate that they remove all other jurors. And the prosecutors in this case questioned black jurors very closely on certain issues but did not closely question white jurors who had the same characteristics. 

Discrimination against jurors of color is a major problem in North Carolina. Studies show that North Carolina’s appellate courts have failed to police jury discrimination. Other studies show the effect of this failure: such discrimination is rampant in North Carolina’s trial courts. These studies are discussed in an article published in NACDL’s legal magazine, The Champion. That article also highlights efforts by several state supreme courts to address the problem. In addition, in December 2019, the Connecticut State Supreme Court announced a new Jury Selection Task Force, because “allow[ing] the systematic removal of minority jurors . . . create[s] a badge of inferiority, cheapening the value of the jury verdict.” It is time for North Carolina to take similar steps to enforce and update its own laws barring race discrimination in jury selection.

The briefs in the two cases, including amicus briefs, can be found here.