Will North Carolina's Supreme Court Allow Racism to Remain a Persistent Factor in its Death Penalty?

In 2009, North Carolina passed the Racial Justice Act (RJA), which allowed defendants to strike the death penalty from their cases if they could show that racial discrimination was a factor in their prosecution. The law came as a response to a series of exonerations of Black people who were falsely convicted of crimes they did not commit by all-white or nearly all-white juries. The legislature took a bold step to address was what suspected to be deeply troubling evidence of racism infecting the death penalty--but no one knew for sure what evidence uncovered by the RJA would find.

In 2010, people on death row began filing RJA claims. Four had hearings, and the evidence uncovered was indeed stark, troubling, and clearly pointed to the systemic ways that racism infects capital cases in North Carolina. The four petitioners had death sentences reversed and were resentenced to life without parole (LWOP).

But in 2013, the law was repealed by the same new legislature that targeted Black voters with "surgical precision" in gerrymandering, and the four petitioners were all sent back to death row without new trials. Two additional petitioners--who had uncovered evidence through the RJA but not yet had hearings--were also subsequently denied their day in court.

On August 26^th and 27^th, we, along with five other legal teams and the NAACP Legal Defense and Educational Fund, Inc., will go before the North Carolina Supreme Court to fight for the rights of the six petitioners to have their evidence recognized and their death sentences overturned. The Attorney General for North Carolina will ask the Court to do one of two things: Sweep clear and obvious evidence of racism under the rug and pretend it does not exist or shold that, in 2019, it is fine to use trials infected with racism as the vehicle to execute Black men.

In its quest to disregard the troubling evidence of racial bias, the State will ask the North Carolina Supreme Court to overturn constitutional law, dating back to the Civil War, protecting the right to have a legally filed defense heard in court, regardless of whether those defenses are later repealed. North Carolina established this legal principle in a case that dismissed prosecution for multiple murders committed during the Civil War, based on a law granting immunity for such acts, even though the law was later repealed. That precedent has stood in North Carolina law for almost 150 years.

Hypocrisy often produces irony, and that is true here: A legal principle was established to protect confederate soldiers for the massacres of civilian children and men. Now, the North Carolina Supreme Court is being asked to ignore this principle in a case challenging discrimination against Black jurors at the life and death trials of persons of color. We can learn a lot by studying who the law is selectively applied to benefit.

Allegations made in the six complaints and evidence produced in the hearings included a prosecutor calling a defendant "a big black bull;" a suggestion during jury selection that a Black defendant should have been lynched; the use of crime scene tape to section off the area behind the defense table, with the defendant's family forced to sit in the back of the courtroom, while the white family of the victim sat in front behind the prosecutor; derogatory and demeaning interrogation of Black jurors, including questions about whether a juror had trouble reading and whether he had gone "straight through" school, implying he may have repeated grades.

One prosecutor wrote in his notes that a Black juror with a criminal history was a "thug" while a white juror who trafficked in drugs was "a fine guy;" a Black juror was described as a "blk wino" while a white juror with a DUI conviction was a "country boy - ok."

There is evidence prosecutors were trained on how to give pre-planned responses to Batson objections regardless of the evidence. At least one of the prosecutors in the RJA cases persistently relied on this training to respond to Batson objections to her decisions about removing Black jurors. One had the audacity to read from a list of excuses and struck a Black juror for age, despite the fact that she had let a white juror with the same birthday remain immediately prior. When the judge noticed and asked her about it, she ran down to the next reasons on her cheat sheet.

The data corroborate all of this anecdotal evidence and prove that racial bias in North Carolina's death penalty is systematic--not the work of a few isolated bad actors. The state's own statistical expert conceded that the patterns of exclusion of Black jurors in the cases suggested racial discrimination. A Michigan State University study conducted in connection with the RJA examined the decisions of prosecutors across the state involving over 7,000 jurors, in 173 capital trials, over twenty years. The study found that--across all time periods and geographic areas--race played an "overwhelming" role in jury selection in the state. A subsequent study, conducted by former prosecutors from Wake Forest Law, found the same patterns. All of this evidence is clear, shameful, and undeniable.

The State has continually argued that all of the evidence of blatant racism in all six cases should be ignored or that it just does not matter. Those positions are especially shameful in light of North Carolina's legacy of racial terror and lynching. EJI calculated 123 lynchings in North Carolina between 1877 and 1950. This legacy of executions should be a stark reminder of the role race has played in who is executed in North Carolina.

Sweeping this under a rug won't work: There is no rug big enough to hide the stench of this evidence. More than a century of North Carolina law says you get your day in court even if the law is repealed; 73 years of lynchings and evidence of overwhleming racial bias in the death penalty say enough is enough. If North Carolinians are to have any faith in their legal system, the Court must intervene and set this right. Our democracy depends on it.