Supreme Court ruling shows why NC must end its racist death penalty

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Vernetta Alston, Sen. Floyd McKissick Jr., and author Ken Rose talk during a break in the RJA hearings at the NC Supreme Court in September 2019

Last week, the North Carolina Supreme Court broke new ground for a state court in the South. Not only did the justices nullify a death sentence poisoned by racism, they also spoke directly to the death penalty’s “egregious legacy” of racially discriminatory application: “[t]he same racially oppressive beliefs that fueled segregation manifested themselves through public lynchings, the disproportionate application of the death penalty against African-American defendants, and the exclusion of African-Americans from juries.”

The support for the court’s conclusion that the death penalty is a racial justice issue is overwhelming and the remedy apparent: Ending the death penalty.

A 2017 study by UNC Professor Frank Baumgartner in North Carolina found that .7 percent of homicides of white people resulted in executions, compared to .12 percent of homicides of Black people. This is only the latest of numerous scholarly reports, demonstrating pervasive racial discrimination in seeking or imposing the death penalty, and the racially biased exclusion of jurors from deciding who lives and who dies in death penalty cases. The state does not execute people convicted of the worst of the worst crimes. Overwhelmingly, the state executes people who are poor and accused of killing white people, and it achieves that outcome in part by seeking to exclude Black persons from serving on juries.

For example, in 2003 North Carolina executed Robbie Lyons for an unpremeditated murder following a botched robbery of Stephen Stafford, the white owner of a small Winston-Salem store. Lyons was a severely mentally ill 21-year-old Black man with no prior history of homicide, who had suffered violent beatings and exposure to drugs and alcohol beginning at age four. Robbie Lyons would not have been executed if he were white and the victim Black.

Despite the overwhelming evidence of racial bias in the death penalty, the Supreme Court found in the 1987 case McCleskey v. Kemp that statistical evidence is not enough to challenge the constitutionality of the death penalty, though it invited state legislatures to take on this task. McCleskey is harshly criticized by many, including N.Y.U. Law Professor Anthony G. Amsterdam, as “the Dred Scott decision of our time.” The author of the opinion, Justice Powell, later said the decision was the biggest regret of his tenure on the Court.

That decision led North Carolina to pass in 2009 the Racial Justice Act, the first law to permit the use of state-wide statistics to demonstrate that race was a significant factor in seeking or imposing the death penalty. Republicans repealed the N.C. Racial Justice Act after an election filled with racist depictions, including of my client Henry McCollum who has since been found innocent.

Eleven years after the passage of the Racial Justice Act, the North Carolina courts are doing their part by acknowledging the plague of racism infesting our criminal justice system, and by starting to root out those injustices on a case-by-case basis. Now is the time for the Governor and General Assembly to respond with equal vigor by commuting the sentences of persons currently on death row to life imprisonment and ending the death penalty. This is no pipe dream; ten other states have abolished their death penalties in the last 15 years.

Last month, Governor Cooper announced a task force on racial equity in criminal justice, which will “work to eliminate” racial inequities in the justice system. In the announcement, Attorney General Josh Stein said, “I look forward to working alongside them to find real and meaningful solutions to improve the way Black people are treated in North Carolina. Now it’s time to get to work.”

In eliminating the death penalty, an extreme punishment inextricably linked to lynching and the perpetuation of white supremacy, our leaders have the opportunity to leave one clear legacy of racial justice.

 

Author Ken Rose is the former director of the Center for Death Penalty Litigation, an attorney who has represented multiple clients sentenced to Death Row and a longtime advocate for abolition of the death penalty. He lives in Durham.

This article was originally posted on NC Policy Watch on August 8, 2020.

N.C. Supreme Court: Racial Justice Act is key to ending death penalty racism

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The mothers of Marcus Robinson and Quintel Augustine speaking to attorneys at the North Carolina Supreme Court in 2019

The North Carolina Supreme Court has 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. (Read the full decision here.)

 

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.”

 

“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 Racial Justice Act legal team

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.”


Originally posted as a press release by the Center for Death Penalty Litigation (CDPL). CDPL is a non-profit law firm based in Durham, N.C., that represents people on death row and is part of the team litigating North Carolina’s Racial Justice Act.

Go here for more detail on the Racial Justice Act.

Read Bryan Stevenson’s op-ed on the importance of the Racial Justice Act.

James Ferguson II on the meaning, impact and promise of the Racial Justice Act

James Ferguson II, pictured here with Ken Rose and Burton Craige at the conclusion of the first day of the Racial Justice Act hearings before the N.C. Supreme Court in August of 2019

 

This article was originally published on June 17, 2020 in the NC Policy Watch.

When I was a young Black lawyer in the late 1960’s and 1970’s, there was an unwritten rule in North Carolina’s courtrooms: Though race shaped every aspect of the criminal punishment system, we were not to mention it, let alone raise objections to it. Well over a decade before the U.S. Supreme Court outlawed racial discrimination in jury selection, I objected to Black people being excluded from a jury. The judge not only angrily overruled my objection, but also hastily hauled me into his chambers to berate me for “seeing race in everything.” Although, at the time, I did not “see race in everything,” I have come to realize that perhaps I should have, because in reality, race has permeated practically everything in our criminal punishment system.

Today, we can no longer ignore the racism at the heart of this system. Videos of police officers beating people like my former client, Johnnie Rush, who was brutally beaten and falsely accused of “jaywalking” at midnight in Asheville, and of George Floyd, pinned to the ground and publicly executed in Minneapolis as he cried for his mother, saying, “I can’t breathe,” and many others, have made this painfully clear. People are marching in the streets and demanding change. Two weeks ago, amid these protests, our state Supreme Court issued a momentous decision requiring us to take an honest look at racism and the death penalty.

In its decision, the court declined to ignore evidence that Black people have been systematically denied the right to serve on capital juries. Instead, the evidence must be fully addressed, not just for the good of a few defendants, but for the sake of our courts’ integrity. As Justice Anita Earls, herself African-American, wrote, the harm of racial discrimination in criminal cases “undermines the integrity of our judicial system and extends to society as a whole.”

This victory lifts the knee off the necks of people sent to death row after racist trials, and breathes new life into the Racial Justice Act.  The RJA will take its place in the history of other civil rights I have dedicated my career to advancing: integrated public schools, fair employment and the right to vote.

The RJA promised the people of North Carolina that no one would be executed in our names if race played a role in the death sentence. The RJA recognized that the death penalty is a powerful symbol of the state’s power, one that sits at the summit of our criminal punishment system.

The RJA revealed that prosecutors exclude Black citizens from death penalty juries at astonishingly disproportionate rates, and have even been trained to circumvent legal protections against racist jury selection.

It also led us to discover outrageous prosecutor notes reminiscent of those made during the trial of my Wilmington 10 clients in 1972.  Prosecutors in my client Quintel Augustine’s case labeled one potential Black juror a “thug,” another a “blk wino.”

The RJA revealed more than some of our legislators wanted to see, and, in 2013, the law was repealed by a General Assembly different from the one that passed it in 2009. This new legislature – the very same one federal courts found have enacted racially discriminatory voting laws that targeted and disenfranchised African Americans “with surgical precision” – turned its back on our commitment to eradicate race discrimination in the death penalty.

In many ways, this is an old story. Throughout history, civil rights advances have met with resistance. I was attending junior high at an all-Black school in Asheville when Brown v. Board of Education was decided. As North Carolina vehemently resisted Brown, I waited September after September to attend an integrated school. It was only years later, after the federal courts accepted the argument of my firm’s client James Swann and stepped up to enforce it, that the promise of Brown was realized.

Now, the North Carolina Supreme Court has stepped up to say our state’s decades of tolerating race discrimination in death penalty cases are over. Our state must now reckon with undeniable and irrefutable evidence that Black citizens are denied the right to serve on capital juries solely because of the color of their skin.

We must finally bring the evil of race discrimination out of the shadows and into the sunlight. We must speak honestly about the ways it has distorted our capital punishment system and denied Black citizens access to the levers of power in our most serious cases. Only once we have done that can we begin to build a new structure that truly seeks justice.

 

James Ferguson II is a renowned North Carolina attorney and civil rights champion. He represents men and women on death row in litigation under the Racial Justice Act and is a founding partner and the president of Ferguson, Chambers and Sumter in Charlotte, established in 1964 as the first racially integrated law firm in North Carolina.

 

 

Landmark N.C. Supreme Court ruling brings death penalty racism into spotlight

Rayford Burke as a child

The Center for Death Penalty Litigation’s June 5 2020 Press Release:

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.

—-

See post on NCCADP’s Racial Bias page regarding Mr. Ramseur and a recent poem written by Mr. Burke in honor of Covid-19 first responders.

RESTORATIVE JUSTICE

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Our current criminal legal system offers only one remedy when a crime has been committed: punishment. With the largest prison population in the world, the United States spends billions of dollars each year imprisoning and executing people. In North Carolina alone, about 66,000 adults are in prison or jail. And as much as the punishment system pays lip service to the victims of crime, it often ignores the central questions that might help create healing for people harmed by crime, their communities, and even the people who harmed them. But there is an alternative.

Who has been harmed?
Why did it happen?
What would help to repair the harm?
How can we make sure this doesn’t happen again?

These are the questions asked by restorative justice, a growing movement that seeks alternatives to the punishment-only model. Restorative justice sees a crime as more than breaking the law; it’s an action that harms relationships and communities. The restorative justice process empowers those who are most affected by crime to have a voice in how that harm should be repaired. It promotes carefully facilitated dialogues that often result in transformation for both those harmed and those who committed crimes. The process typically ends with concrete steps the offender must take to make amends, tailored to the specific crime, its victims, and the community in which it happened. In other cases, it is used after the fact to help victims and offenders understand and heal from the trauma of the crime.

 

NCCADP Board Member Erica Washington, reading here at the Carolina Justice Policy Center’s annual Poetic Justice event, works with Impact Justice’s Restorative Justice Project

 

Right now, restorative justice is used in some North Carolina school districts — including Wake, Durham, and Chapel Hill — to keep children out of the criminal punishment system. A few North Carolina district attorneys have also begun to use restorative justice alongside the traditional legal process. In some cases, it has helped people take responsibility for their crimes while avoiding long prison terms, which are costly not just for incarcerated individuals but for their families, their communities, and the state. It might be tempting to think of restorative justice as a way for people to get off easy, but those familiar with the process say it makes far more demands on a person than the typical criminal legal system, where defendants passively receive punishment from a faceless system. In the criminal process, defendants sometimes come to feel like victims of a flawed system and avoid the difficult emotional work of taking responsibility for their behavior. By contrast, facing the people they harmed is a grueling process that forces them to reckon with the pain they’ve caused, accept responsibility, and participate in the community’s healing.

 

Each fall, the Capital Restorative Justice Project hosts a gathering in North Carolina for family members who have had a loved one murdered, family members who have had a loved one sentenced to death, and for community members to participate in Circles and to learn together about an aspect of restorative justice.

 

On North Carolina’s death row, some of the men have participated in restorative justice circles that allowed them to hear the stories of people who lost loved ones to violence. The circles encouraged them to explore the roots of their own crimes. Some people on death row say the process was life-changing, forcing them to understand the pain they caused in new ways. However, at present, only a tiny fraction of prisoners and victim family members are able to access a restorative justice process.

We envision a world in which the key questions of restorative justice are asked in every crime, especially in serious crimes that cause the most harm. We envision a system where families of murder victims have a voice in their own healing, rather than being told by the state that the death penalty will bring them “closure.” We envision a society that seeks to understand the causes and conditions of crime, and then implements evidence-based solutions to reduce its frequency. We envision a state whose response to crime is: How can we help to heal? Instead of: Who can we execute?

 



A LETTER TO LYNDA

Excerpt from Jason’s letter to the NCCADP about meeting RJ advocate Lynda Simmons

 

In October 2019, Jason Hurst wrote a heart-felt letter recalling Lynda Simmons, a woman who had shared with men on death row her powerful story of loss and restoration. This is an excerpt from that letter, published with generous permission from both Lynda and Jason.

“I would like to say that I had a full understanding of the pain I caused immediately after committing the atrocity that sent me here, but the truth is, I had no idea. At least not until my participation in the circle group and having the privilege to meet Lynda Simmons. A courageous, forgiving, amazing person, Lynda shared with us how the murder of her son completely changed her life. There was not a dry eye among us and it was then that the destruction my actions had caused began to be clear. It was as if each of us in the room were responsible for the loss of her son and we wanted to be forgiven for it.

Over a period of several weeks, she listened as each of us told her as much or as little about what brought us here as we were comfortable with, all the while offering us comfort while surely reliving the worst day of her life. That whole moving experience opened up the idea that maybe the possibility exists for me to express how remorseful I am to the family whose lives I’ve forever altered. To assure them that not only am I physically incarcerated, but after being granted a view into Lynda Simmons’ life, I hurt internally for what I’ve done as well. I want them to know that.”

 

Lynda holds a her necklace toward the camera. On it, there's a photograph of her and her son Brian, along with a small heart trinket that shares his name. In the photo, her
The last photo Lynda has of her son Brian. Read more about her story here.

RJA COURTROOM OBSERVER GUIDE

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Thanks for your interest in attending the historic RJA hearings on August 26th and 27th. To help you prepare for your visit, we’ve answered a few frequently asked questions below.

 

Know before you visit:

  • A government issued photo identification is required for entry into the courthouse
  • Business casual dress is preferred.
  • Talking is not permitted inside the courtroom.
  • Do not approach or walk to the front of the courtroom.
  • Cell phones must be turned off or placed on silent only.
  • Electronic devices cannot be used to take photographs or to make audio or video recordings of

    court proceedings. Violations may result in the confiscation of your electronic device.

  • No food or drinks of any kind is allowed inside the courtroom. Eating, drinking, and sleeping while

    in the courtroom is not permitted.

 

Parking and timing: The Supreme Court is located at Two East Morgan Street in downtown Raleigh. Several parking lots and decks open to the public are nearby, including parking lots and decks at:

 

  • 120 South Wilmington St.
  • 1 South Wilmington St.
  • 201 West Morgan St.
  • 222 West Hargett St.

 

We recommend an earlier arrival. On the day of the argument, you should arrive at the Court in plenty of time to pass through security, find the courtroom, and settle into your seat before the session begins. The Justice Building opens at 8:00 a.m. The courtroom, located on the third floor, opens at 8:30 a.m. Oral arguments begin at 9:30 a.m.

 

What is the North Carolina Supreme Court (NCSC): The North Carolina Supreme Court is the highest court in the state and has the final say as to issues arising under the NC Constitution, NC General Statutes, and NC common law. Where a decision of the NCSC implicates a question arising under a federal statute or the federal Constitution, the US Supreme Court may elect to grant certiorari and hear an appeal on those issues.

 

Who serves on the North Carolina Supreme Court: The North Carolina Supreme Court consists of a Chief Justice and six Associate Justices. All seven Justices are elected in statewide non-partisan races and serve staggered eight-year terms. More info on the justices can be found here.

 

What is the role of The North Carolina Supreme Court? The NCSC hears:

  • death penalty appeals directly from the North Carolina Superior Courts,
  • appeals from divided panels of the North Carolina Court of Appeals, and
  • certain discretionary appeals from unanimous panels of the North Carolina Court of Appeals

All cases before the Supreme Court are orally argued.

 

What can be expected when hearing a case at the NCSC: An opinion deciding the appeal typically follows about six months after the oral arguments, though it may take shorter or longer.

 

N.C. Racial Justice Act Timeline

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2009 The N.C. Racial Justice Act was adopted by the state legislature on a party-line vote, with Democrats in favor and Republicans opposed.

 

2010 In August, most people on North Carolina’s death row filed claims under the RJA, citing a study by researchers at Michigan State University showing statewide racial disparities in charging, sentencing, and jury selection decisions in capital cases tried in North Carolina between 1990-2010.

After the November elections, the Republicans took control of both houses of the General Assembly.

 

2012 The first evidentiary hearing in the state on an RJA claim is held in the case of Cumberland County’s Marcus Robinson. Following a two-week hearing, Chief Resident Superior Court Judge Gregory A. Weeks entered an order vacating Robinson’s death sentence and resentencing him to life imprisonment without the possibility of parole. Judge Weeks found that prosecutors struck African-American citizens from juries at over twice the rate that they struck white citizens. Judge Weeks also determined that prosecutors in Cumberland County and around the state had engaged in intentional discrimination against African-American jurors.

Just months after the Robinson decision, the newly-GOP-controlled General Assembly amended and narrowed the RJA.

Later that fall, a second RJA hearing was held in Cumberland County in the cases of three more people on death row: Quintel Augustine, Tilmon Golphin, and Christina Walters. Judge Weeks again ruled race was a significant factor in prosecutors’ peremptory strike decisions and that prosecutors had engaged in intentional discrimination against African-American citizens. He resentenced all three defendants to life imprisonment without the possibility of parole. Among Judge Weeks’ findings were that prosecutors used a “cheat sheet” of manufactured answers to justify striking African-American citizens from juries, and that they wrote racially-charged notes about potential black jurors, such as “blk wino – drugs” or being from a “respectable blk family” or from a “blk/high drug” area.

 

2013 In March, the State appealed Judge Weeks’ decisions in all of the Cumberland County RJA cases.

In June, the General Assembly repealed the RJA.

 

2015 In December, the North Carolina Supreme Court remanded the cases of the four Cumberland County defendants to the trial court. The Supreme Court found no specific problem with Judge Weeks’ determinations about prosecutors’ improper use of race in jury selection, but instead found that the prosecution should have been given more time to prepare its own statistical study and that the consolidated RJA case should not have combined the cases of three defendants into one hearing.

 

2016 In March, the North Carolina Supreme Court granted petitions for certiorari review in two capital cases where RJA motions were filed, but never heard in court. These cases raise the question of whether the repeal of the RJA can be applied retroactively to void claims filed prior to the repeal. The defendants in these two Iredell County cases are Rayford Burke and Andrew Ramseur.

In November, a superior court judge heard oral argument in the Cumberland County cases on the question of whether the RJA motions that previously resulted in Judge Weeks imposing life-without-parole sentences should be dismissed based on the General Assembly’s repeal of the RJA.

 

2017 In January, the superior court dismissed the RJA motions of the four Cumberland defendants.

In May, the four sought review in the North Carolina Supreme Court.

 

2018 In March, the Court granted review in the four Cumberland cases.

In July, the Cumberland defendants filed their opening briefs in the state supreme court, along with supporting amicus briefs from groups including the NAACP Legal Defense Fund, the NAACP of North Carolina, NC Association of Black Lawyers, prominent civil rights advocates, and a coalition of former prosecutors.

 

2019 On August 26 and 27, the Supreme Court of North Carolina will convene oral argument in the cases of the Cumberland 4 and Iredell 2.

The N.C. Racial Justice Act: Why It Matters In Our Fight to End the Death Penalty

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Tilmon Golphin, held by his uncle, Mr Willie McCray

 

2020 Updates

On June 5th, 2020 the North Carolina Supreme Court 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 that Rayford Burke and Andrew Ramseur, prisoners on North Carolina’s death row, 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 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 cases under the state constitution, so they cannot be appealed.

“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.”

Read the Center for Death Penalty Litigation’s full press release here.

On August 14, 2020 another RJA case was decided by the NC Supreme Court: the Court reinstated Marcus Robinson’s life sentence. 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.

It is not clear how the court’s decision will affect the three other petitioners, Christina Walters, Tilmon Golphin, and Quintel Augustine who had also been re-sentenced to life under the RJA in 2012 but then sent back to death row in 2017.

“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.”

More than 100 other people on death row have also presented evidence of significant racial bias and their claims are still pending in court.

Read the Center for Death Penalty Litigation’s full press release here.

 


On August 26th and 27th, 2019, the NC Supreme Court heard oral arguments in six cases involving the Racial Justice Act (RJA). Here’s what you can do now to learn more and help protect RJA.

  1. Watch the oral arguments on WRAL.
  2. Follow us on Facebook, Instagram, and Twitter and share our posts.
  3. Spread the word. Your voice matters. Write a letter to the editor. Talk to your friends. Think local, think statewide, think about your regional newspaper, faith group, or book club. Share this site and share your thoughts on why capital punishment must come to an end. Go here for a Racial Justice Act fact sheet to help you write your letter, craft your speech, or hand out at your event.

Show up. Share. Let your voice be heard: North Carolina Must End This Racist Machinery of Death.

 

Shirley Burns Racial Justice Act
Shirley Burns, right, hugs a family friend after Superior Court Judge Greg Weeks ruled in 2012 that the trial of her son, Marcus Robinson, was so tainted by the racially influenced decisions of prosecutors that he should be removed from death row and serve a life sentence. Photo by Andrew Craft, AP

 

The Racial Justice Act Overview

In 2009, after several innocent black men were freed from death row, the North Carolina legislature passed the ground-breaking Racial Justice Act (RJA). The law allowed people on NC’s death row to present evidence that racial bias played a role in their death sentences. Those who could prove discrimination would be resentenced to life in prison.

The law led to a statewide study, which showed that people of color are systematically excluded from serving on capital juries at more than twice the rate of whites—along with a trove of evidence that prosecutors were purposefully striking black jurors in violation of federal law.

In 2012, the first four people to bring their RJA cases to court won and were resentenced to life in prison because of discrimination in jury selection. But their victory was quickly snatched away, even though the state was unable to refute the evidence of discrimination. The state appealed the decisions and the North Carolina Supreme Court, finding procedural errors in the first hearings, remanded the cases for new proceedings. 

In 2013, the North Carolina General Assembly voted to repeal the RJA. Governor Pat McCrory signed the repeal into law. Soon after, a court dismissed the four cases that had been remanded for new hearings, saying they were no longer entitled to hearings because of the law’s repeal. The four defendants were returned to death row.

From death to life to death again.

Now, the N.C. Supreme Court must make a key decision.

On August 26 and 27, the state Supreme Court heard six cases under the RJA. The Court will be asked to decide whether those first four defendants are entitled to reinstatement of their life-without-parole sentences, or whether they should get new hearings to present compelling evidence of race discrimination in their cases. In two other cases, the Court will decide whether people on death row who filed claims under the RJA will still get the chance to present their evidence in court, even after the law’s repeal.

Of the six defendants, three were sentenced to death by all-white juries; one by a jury with one person of color. This mirrors state-wide discrepancies. At the time of the RJA’s passage in 2009, North Carolina was 34 percent non-white, but almost half of North Carolina’s death row prisoners had been sentenced by juries with no meaningful minority representation.

As the Court considers these six cases, the essential question is this: Will North Carolina confront overwhelming evidence of racial bias in the death penalty and protect the constitutional rights of jurors and defendants? Or will it throw away a mountain of evidence without addressing it, sending a message that discrimination doesn’t matter and thereby eroding the public’s trust in the system?


“It hurt my heart,” she said, “to hear that evidence of racism . . . . I don’t understand why African Americans can’t serve on juries just like white people.” Mr. Augustine’s mother sat in the courtroom as the prosecutor struck one black juror after the other. Ten years later in an RJA hearing, Ms. Choate returned to the courtroom to learn about the patterns of discrimination in her son’s case and in others across North Carolina.

 

The Evidence

The RJA study, conducted by researchers at Michigan State University, analyzed N.C. capital cases from 1990-2010. It found that qualified black jurors were struck from capital juries more than twice as often as white jurors. The researchers controlled for factors, and the disparity was attributable only to race.

In addition, defendants found direct evidence of discrimination such as prosecutors’ notes about potential jurors’ races. The notes about black jurors who were struck included descriptions such as “blk wino” and “thug.” They also found documents from a training session, in which N.C. district attorneys were taught to strike black jurors for preposterous reasons such as their hairstyles, clothing, or body language. 

The History

Black people have been denied the right to serve on juries throughout American history. Many black men in America, in spite of their innocence, have been convicted and sentenced to death with charges brought by white prosecutors, tried in front of white judges, and before all-white juries. While citizens of color were once kept off juries by openly racist laws and policies, the discrimination is now more difficult to detect. Prosecutors use peremptory strikes to remove black jurors, and are often not required to provide any explanation for why they struck those jurors. 

Why It Matters

The right to a jury of one’s peers is a fundamental Constitutional right. For most Americans, serving on a jury is, along with voting, the most direct way to participate in democracy. Studies also show that diverse juries deliberate more thoroughly and are less likely to convict innocent people.

Evidence of Discrimination in Each Case

Despite a prohibition against prosecutors using peremptory strikes in a race-conscious manner, all of the defendants obtained evidence of racial bias in jury selection. Many of the cases also included deeply troubling evidence of other forms of racial discrimination during legal proceedings. These include:

  • During jury selection in Tilmon Golphin’s case, a prospective African American juror heard two white jurors saying that Mr. Golphin “should have never made it out of the woods” [when he was taken into police custody]. The African American juror was struck, in part, because he reported overhearing these statements. It is unknown whether the white jurors who made the comments served on Mr. Golphin’s jury. Read Tilmon Golphin’s full brief.
  • “In front of an all-white jury, the prosecutor explicitly drew attention to [Rayford] Burke’s race. In closing arguments, while urging jurors to find [Mr.] Burke guilty, the prosecution referred to [Mr.] Burke as a ‘big black bull.’Read Rayford Burke’s full brief.
  • In the courtroom in which Andrew Ramseur was tried, there was “crime scene tape” cordoning off the four rows behind him; his family, including his elderly grandfather, was literally required to sit in the back of the courtroom despite no reason being provided. Counsel moved to have the crime scene tape removed. After the Court initially denied the request, the tape was eventually removed, but Mr. Ramseur’s family was still required to sit in the back of the courtroom rather than behind him, without explanation. Read Andrew Ramseur’s full brief.
  • The prosecutor in Quintel Augustine’s case wrote racially-charged handwritten notes about prospective jurors. He described a Black juror who drank as a “blk. Wino” but a white juror who drank as a “drinks–country boy–OK.” He described a Black female juror as “ok” because she was from a “respectable blk family.”  Read Quintel Augustine’s full brief.
  • During jury selection in Marcus Robinson’s case, the prosecutor asked a Black high school graduate whether he had repeated any grades or had trouble reading – questions he had asked no white juror. The prosecutor later testified that he recognized that he harbors implicit racial biasesRead Marcus Robinson’s full brief.
  • At Christina Walters’ trial, the prosecutor struck 10 of 14 potential black jurors, a strike rate of 3.6 times that of potential white jurors. Her explanations for why she struck black jurors did not hold up to scrutiny. For example, the prosecutor struck one black juror because he “did not feel like a victim” after his car had been broken into and a CD player stolen. Yet, she kept two white jurors who minimized the impact of their experience as victims of minor property crimes. Read Christina Walters’ full brief.

What Friends of the Court (otherwise known as Amici) Are Saying

NAACP Legal Defense & Education Fund (full brief here)

“After a long and tragic history of entrenched racial discrimination in the administration of North Carolina’s death penalty, this Court can pave a new path for North Carolina’s judicial system that demonstrates an unequivocal commitment to fundamental fairness and racial equality. Especially with respect to juries, which are a crucial exercise of citizenship that is essential to the integrity of the judicial process, there simply should be no tolerance for the taint of racial bias. 

[..]

No act by the North Carolina Legislature can wish away what we now know to be true from overwhelming statistical evidence: racial discrimination impermissibly influences the administration of North Carolina’s death penalty.” 



ACLU Capital Punishment Project, ACLU of North Carolina,

North Carolina Advocates for Justice, and NC Conference of the NAACP (full brief here)

Whether our state courts will tolerate epidemic levels of racial bias and discrimination in jury selection is a question of grave importance to both our State and the perceived legitimacy of the criminal justice system.

In light of the evidence uncovered under the RJA, there can be no real question about whether race played a role in defendants’ capital trials. The only question is whether this Court will squarely face the record and respond in a way that honors our Constitution.



Promise of Justice Initiative and

12 Former Judges, Justices and Law Enforcement Officials (full brief here)

Capital punishment is now constrained to a dwindling handful of locations, reserved not for the most culpable offenders, but for those unlucky few prosecuted under anachronistic circumstances. In North Carolina, whatever standard method of measurement used, it is now beyond dispute that use of the death penalty is unusual. Indeed, use of capital punishment has dropped to such low levels that it would be hard to argue that it fulfills an indispensable role in the criminal justice system. And yet, the death penalty has an out-sized effect on our confidence in the fair administration of punishment.

Experience has taught us that while many prisoners undergo significant transformation, the death penalty leaves no room for the possibility of redemption. It thereby diminishes the dignity of human life that it was designed to enhance.

In every generation, there are those who counsel deliberation, patience, and a measured approach to the evolution of the standards of decency. But it comes at a cost: delay in addressing the constitutionality of capital punishment serves to further undermine and erode confidence in the administration of the system that capital punishment was once enacted to protect. The time has come to consider whether the system of capital punishment that currently operates in North Carolina violates the evolving standards of decency.” 


North Carolina Supreme Court

 

What Other North Carolinians Are Saying:

Shirley Burns, mother of son on death row (full article here)

Marcus should not be executed, especially not before the courts hold a fair hearing on the evidence that his death sentence came about in a racially biased manner. One judge has already found that such bias existed. Our Supreme Court, which is bound to fairness, now has a duty to all North Carolina citizens to make sure that this evidence sees the light of day.



James E. Ferguson II, renowned NC lawyer and civil rights champion (full article here)

The one thing that could not be repealed was the evidence that was brought out in the cases that we tried under the Racial Justice Act. We showed that racism has been a defining factor in jury selection in capital cases. So, the repeal of the act doesn’t change the facts. Our courts have the power, when racism is demonstrated as it has been under the Racial Justice Act, to take action and make sure that we don’t have people going to the death chamber because race played a role in jury selection or any other aspect of the case. I hope they will use their authority to ensure a more fair system, one that is not tainted by racial prejudice.



James Coleman, Duke Law Professor (full article here)

Study after study has shown that North Carolina prosecutors exclude qualified African-Americans from juries at twice to three times the rate they exclude white citizens. Prosecutors’ notes sometimes reflect their distrust of black jurors. In one case, for example, a prosecutor tagged African-American jurors with notations such as “blk wino,” and “blk/high drug area.” This is not an isolated occurrence.

My point is not that North Carolina prosecutors are racists or bigots; most likely intend to follow the law. But we now accept as fact that implicit bias affects human decisions, regardless of our legal training or good intentions. However, in a world in which the practice of excluding African-Americans from jury service is longstanding and tacitly accepted by our courts, such bias is persistent.



Floyd B. McKissick, Jr., NC State Senator (full article here)

The RJA was only the second law of its kind in the nation and it was the first to address race discrimination in jury selection. The RJA established that no person in North Carolina could be capitally-prosecuted or executed if racial bias was a significant factor in the case. The law was sorely needed in the wake of several exonerations of African-Americans wrongfully convicted and even sentenced to death by all-white or nearly all-white juries.

On this Day: Racial Justice Act Exposes Racial Bias; Then Is Repealed

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April 20, 2019

Cumberland County Judge Gregory Weeks issued the first decision under North Carolina’s Racial Justice Act

Originally posted on EJI’s History of Racial Injustice:

 

On April 20, 2012, Cumberland County Judge Gregory Weeks issued the first decision under North Carolina’s Racial Justice Act, ruling that racial bias had played a role in Marcus Robinson’s 1991 trial and commuting Mr. Robinson’s death sentence to life imprisonment without parole.

Marcus Robinson, an African American man who was eighteen at the time of the crime, was sentenced to death in Cumberland County for the murder of a white person. North Carolina’s Racial Justice Act (RJA), which was narrowly adopted in 2009, authorized relief for death row defendants who could prove that race was a “significant factor” in jury selection, prosecutorial charging decisions, or the imposition of the death penalty. The RJA authorized defendants to bring claims based on evidence of discrimination at the statewide, judicial division, or district/county level.

According to a Michigan State University Law School study, during the time period Mr. Robinson was tried, North Carolina prosecutors used peremptory challenges to remove black people from capital juries more than twice as often as they did white people, and that disparity was even more pronounced in Cumberland County. At Mr. Robinson’s trial, prosecutors removed only 15% of white prospective jurors, compared to 50% of the qualified African American jurors. At an evidentiary hearing on the RJA challenge, EJI Director Bryan Stevenson testified regarding the history and broader context of racial discrimination in jury selection. Following the decision, prosecutors immediately made plans to appeal and the state legislature passed measures that weakened the RJA.

43 years after death sentence, Charles Ray Finch proves his innocence

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Charles Ray Finch in 2015.
Charles Ray Finch in 2015. Photo by Brad Coville, Wilson Daily Times.

Jan. 31, 2019

A man who was sentenced to death in North Carolina may soon be exonerated after spending more than 40 years in prison.

Last week, a federal court said Charles Ray Finch — who was sentenced to death in 1976, but later resentenced to life because of changes to state death penalty laws — is entitled to a new hearing to determine whether he is innocent. The court also discounted nearly every piece of evidence used to convict Finch of murder.

The verdict was the result of work by Duke University’s Innocence Clinic, which has been investigating Finch’s case since 2001. Finch has claimed innocence since the day of his arrest, but other courts had refused to consider the evidence he offered. He is now 80 years old. Finch’s lawyers are  asking Attorney General Josh Stein to agree to his release, since the court ruling said no rational jury would convict him based on the evidence available today.

According to the opinion, one witness who testified against Finch has since recanted, saying that police and prosecutors pressured him into identifying Finch as the killer. All of the physical evidence that police said connected Finch to the crime has been discredited.

Most importantly, the testimony of the state’s main eyewitness was proven unreliable. Lester Jones was working in a convenience store alongside Richard Holloman when three men robbed the store and shot Holloman to death. Jones was unable to describe the shooter’s face, but told police the man was wearing a three-quarter length jacket. That night, during three separate lineups, Finch was the only suspect wearing a three-quarter length jacket. Such highly suggestive lineups have been proven to lead to false identifications and are now illegal.

Other people who were convicted based on questionable eyewitness identifications remain on death row in North Carolina. For example, Elrico Fowler was sentenced to death in 1997 based largely on the testimony of an eyewitness. Despite having seen only one suspect, the witness picked several other men in photographic lineups — and when he was first shown Fowler in a photo lineup, he failed to identify him. He only picked Fowler in a second photo lineup administered several days after the crime, after the same photo of Fowler had appeared in the newspaper listing him as a suspect. And the witness became certain of his identification only after investigators told him that he picked the right person.

Virtually every aspect of Fowler’s identification is now illegal, thanks to reforms meant to prevent mistaken IDs. Yet, Fowler remains on death row because of a tainted police lineup from 20 years ago. [Learn more about how most of North Carolina’s death row prisoners were tried under obsolete laws.]

As long as we have the death penalty, innocent people will be in danger of execution. How many more people must be exonerated before North Carolina ends the death penalty?

WRONGFUL CAPITAL PROSECUTIONS

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We often hear about wrongful convictions in death penalty cases, leading to innocent people spending years or decades on death row. But another, often hidden problem is wrongful death penalty prosecutions — cases where innocent people are charged with capital murder and tried for their lives only to eventually be cleared of all charges. These innocent people, while never convicted, spend years in jail, and lose their jobs, savings, reputations and family relationships. Dozens of people have been capitally prosecuted in North Carolina despite evidence too weak to prove their guilt, showing that the death penalty is used broadly and indiscriminately instead of being reserved for the “worst of the worst.”

In the Center for Death Penalty Litigation’s 2015 report, On Trial for Their Lives: The Hidden Costs of Wrongful Capital Prosecutions in North Carolina, authors pored over case files, court records, and news reports, contacted attorneys, and interviewed the accused to find cases in which a person was charged with capital murder and eventually acquitted by a jury or had all charges related to the crime dismissed by the state. The report found 56 wrongful capital prosecutions over 26 years, or an average of two each year. These unjust prosecutions had a devastating impact on the lives of the defendants  — as well as a large public cost.

The report found that, between 1989 and 2015:

  • The state spent nearly $2.4 million in defense costs alone to pursue these failed cases capitally. (This conservative figure does not take into account the additional prosecution, court, and incarceration costs in capital cases.)
  • Defendants who were wrongfully prosecuted spent an average of two years in jail before they were acquitted by juries or had their charges dismissed by prosecutors.
  • The 56 defendants in the study spent a total of 112 years in jail, despite never being convicted of a crime.
  • By the time they were cleared of wrongdoing, many people lost their homes, jobs, businesses, and savings accounts, and saw personal relationships destroyed. They received no compensation after they were cleared of charges.
  • Serious errors or misconduct played a role in many cases. The 56 cases involved instances of witness coercion, hidden evidence, bungled investigations, the use of improper forensic evidence, and highly unreliable witnesses.

Read about some of the lives affected by wrongful prosecution below.

 

Jerry Anderson
Leslie Lincoln
Mike Mead


JERRY ANDERSON

Jerry Anderson, an innocent man, faced the death penalty in North Carolina.

Jerry Anderson spent a lifetime building the 1,500-cow dairy farm he owned in rural Caldwell County. At age 46, he lost it all in the space of a few months, after he was arrested for the murder of his wife, Emily Anderson. He spent 18 months in jail and was tried for his life, even though no credible evidence connected him to the crime.

During his death penalty trial in July 2007, it became apparent that Emily died days after Jerry last saw her, during a time when he was searching for her with friends and family. The trial ended with a hung jury — eleven jurors voting not guilty and the lone holdout telling the press that he had a vision in which God told him to vote guilty. Prosecutors dropped the charges and never retried Jerry.

Jerry regained his freedom, but he says he will never be able to repair all the damage from being accused of a murder he did not commit. He moved back to his native Kentucky and settled into a mostly solitary existence, unsure how people would respond to his story. “You’re branded with it,” Jerry said. “To a lot of people, you’re guilty and they couldn’t prove it. You’re never innocent.”

Emily disappeared on Dec. 29, 2005. For days, Jerry and fellow church members searched the county. He allowed officers to search his farm and interview his employees. He submitted to a polygraph test, which he passed.

Nine days after she disappeared, Emily’s truck was found at a Quality Inn in South Carolina. Officers from the Caldwell County Sheriff’s Department went to pick it up, but failed to conduct a thorough search. It was the tow truck driver, after hauling the vehicle 120 miles back to North Carolina, who discovered Emily’s body in the large toolbox in the truck bed. She had been shot twice.

The sheriff’s department’s blunder made the news, and the sheriff, who was facing a contentious reelection campaign, had to admit to reporters that he had no suspects. Soon after, Jerry felt the investigation close in on him. He was arrested on January 27, 2006. His business collapsed quickly. Creditors auctioned off his cows, tractors, and farm equipment. He lost the down payment on a new home and dairy he and Emily were planning in Tennessee. Creditors and members of Emily’s family filed lawsuits against him.

After 18 months in jail, the prosecutor offered him a deal: If he pled guilty to second-degree murder, he could be out of prison in five years. Set on proving his innocence, he refused.

At his trial, two medical examiners concluded that Emily died two to four days before her body was discovered. The state’s theory of Jerry’s guilt hinged on Emily having been dead for at least nine days, but the prosecutor produced no medical experts to support that theory.

It also became clear that evidence that might have pointed to the killer was ignored. A rape kit was taken from Emily’s body but never tested. Witnesses who reported that they saw Emily alive in South Carolina after her disappearance were never interviewed. Hairs found in her truck were not tested.

Jerry said he concluded that the criminal justice system is not about seeking truth. Rather, it’s about each side trying to prove its own theory, sometimes in spite of the evidence. “It’s about winning,” Jerry says. “It doesn’t matter who’s right and who’s wrong.”

For more on Jerry’s case, see ontrialfortheirlives.org


LESLIE LINCOLN

A North Carolina jury found Leslie Lincoln innocent after she was charged with capital murder in her mother's death.
©Jenny Warburg

At 46, Leslie Lincoln was making a comeback from a painful divorce. She had just bought a house across the street from the land where her three horses grazed. She had a new boyfriend. She had recently landed a good job as an administrator at an assisted living facility making $42,000 a year, the most she had ever earned.

Then, in March 2002, her mother, Arlene Lincoln, was found beaten and stabbed to death in her home in Greenville, N.C. Leslie, who lived nearby and visited her mother often, had been the last known person to see her alive. Six months later, Leslie was charged with the murder and the prosecutor said he would seek the death penalty.

It would take five years—during which she was falsely implicated by flawed DNA evidence—before Leslie was finally acquitted by a jury. During that time, she lost her home, her savings, and her stability. Since her acquittal in 2007, she has been diagnosed with post-traumatic stress disorder and has drifted in and out of homelessness. She still grieves her mother’s death and cannot accept that the person who killed her will never be found.

“It takes a hole out of your heart, and you just can’t fill it back up again,” she says. “You try to pour good memories in, but the bad ones get in.”

Leslie spent more than three years in jail awaiting trial, during which she was never allowed outside and saw the outdoors only through a frosted window. During one jail visit, her attorney shocked her with the news that police had found her DNA in a bloody handprint left at the crime scene. Her lawyer requested that the sample be retested, but the state lab refused. He went to a private lab instead, and new tests uncovered a critical mistake: the DNA samples had been switched, and the DNA identified as Leslie Lincoln’s had actually belonged to her mother. In truth, none of Leslie’s DNA was found at the crime scene. Leslie says she will never be sure whether the incorrect results were the result of an error or an intentional effort to implicate her.

After the bungled DNA testing, the prosecutor took the death penalty off the table but continued to pursue first-degree murder charges. Prosecutors began offering to dismiss charges against other jail inmates, in return for testimony against Leslie. They used the testimony of two snitches at trial. Still, the jury took less than an hour and a half to find her not guilty.

By the time she was exonerated, Leslie had little to return to. Her horses and truck had been sold, her dogs had died, and her boyfriend had left her. She couldn’t find a good job, and had to take part-time work in fast food restaurants. She moved into an apartment, but couldn’t earn enough to hold on to it. Her grief over her mother’s death, pent up for five years, began to overtake her. She saw a psychiatrist and was prescribed medications for anxiety and depression, but still wore out the patience of close family members. She ended up moving into a homeless shelter and, in 2013, she spent several months living in her truck.

She says she never received an apology from police or prosecutors.“You just feel so helpless because you’re just this one little person. You want to say, ‘Don’t do this to anybody else.’”

For more on Leslie’s case, see ontrialfortheirlives.org


MIKE MEAD

Mike Mead, wrongfully prosecuted for the death penalty in North Carolina.

Mike Mead was newly engaged and about to have a child. Then, on July 16, 2008, he got a call: His fiancée, Lucy Johnson, had been shot to death and her house set on fire. Mead immediately thought of Lucy’s ex-boyfriend—the two were involved in a bitter custody fight over their infant son—but months went by and no one was arrested. Then, six months after Lucy’s death, police finally made an arrest. They charged Mike with capital murder.

“It’s like a light switch was flicked, and my entire world came crumbling down,” Mike wrote shortly after his arrest, in a letter to friends and family.

In 2011, Mike was tried for his life in Gaston County and acquitted by a jury. There was not a shred of physical evidence linking Mike to the murder.

Like many modern couples, Mike and Lucy met on an online dating site. They knew each other only three months, but Mike says they felt an immediate connection. By the time Lucy died, she was pregnant with Mike’s child. He says they were both excited about the baby, and less than a week before her death, he asked her to marry him.

Mike submitted to interrogation without an attorney, searches of his home, gunshot residue tests, and a polygraph test—believing that police would recognize his innocence. Instead, in January 2009, they issued a warrant for his arrest. The prosecutor announced he would seek the death penalty.

Mike owned a successful engineering consulting business, which quickly collapsed. He sold his possessions and declared bankruptcy. On top of his legal bills, he had to pay monthly for his electronic monitoring bracelet. By the time of his trial, the cost topped $15,000, and he was never reimbursed. The bank foreclosed on his house a few months after he was acquitted.

Meanwhile, Mike’s attorney found that police had virtually no evidence to support their case. The attorney focused on the father of Lucy’s 6-month-old son, James Spelock, who had become enraged when Lucy refused to name the child after him. Since the child’s birth, the pair had been fighting over custody and child support. Lucy told friends she was afraid of James, and she wrote in her diary that if anything were to happen to her, James would be the culprit.

At trial, Mike’s defense team presented a strong case that James was the person with motive and opportunity. They also tore apart the state’s case against Mike, and caught investigators in a lie. At trial, police claimed that, after Lucy was found shot to death, they never tested Mike for gunshot residue. On cross-examination, police finally admitted that a gunshot residue test had been performed; they then claimed the test results had been lost.

At the end of the trial, with no physical evidence and their case unraveling, the state put a jailhouse snitch on the stand to testify that Mike had confessed to him during the few weeks he spent in jail. Mike says he had never met the snitch. The man’s testimony was so unbelievable that, by the time the snitch left the stand, the judge and jury were laughing.

After the verdict, Mike walked across the street to a hotel bar, where he found several members of the jury. He says they bought him drinks and cheered his freedom.

For more on Mike’s case, see ontrialfortheirlives.org

UNEQUAL JUSTICE

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North Carolina death penalty reforms Nathan Bowie
Nathan Bowie at 4. He has lived on death row since 1993, for a crime committed at 19.

North Carolina death row is the fifth largest in the nation, with more than 140 men and women. About three-quarters of them were sentenced in the 1990s, before a slate of reforms transformed the North Carolina death penalty. They were tried and sentenced to death before basic protections were written into the law, and when public attitudes about the death penalty were far more favorable. Under modern laws and standards, almost none of today’s North Carolina death row prisoners would have gotten the death penalty.

People tried before 2001, when North Carolina’s death penalty reforms began to take effect, had no agency to ensure them a trained capital attorney. They weren’t guaranteed the right to see all the evidence in the prosecutor’s case file. Procedures had not yet been created for recording confessions and preventing mistaken identifications in police lineups. Also during those years, a court mandate required prosecutors to seek death for virtually every first-degree murder. It was the only such requirement in the nation, and it led North Carolina to have one of the nation’s highest death sentencing rates during the 1990s. Dozens of people were sent to North Carolina death row each year.

Under today’s laws, the system remains imperfect and unjust. But North Carolina death penalty reforms have at least reduced the capital punishment’s reach. N.C. juries now sentence an average of less than one person a year to death. There are just a handful of death penalty trials each year.

Yet, more than 100 people sentenced under outdated laws remain on North Carolina death row, year after year, decade after decade. They are trapped a system that has moved on, but refuses to reckon with its past. The people on North Carolina’s death row received Unequal Justice.

Watch the story of Nathan Bowie, who has spent more than 25 years on death row for a crime committed as a teenager:


Read the Center for Death Penalty Litigation’s 2018 report, Unequal Justice, about North Carolina death row:


For more on North Carolina death row, read the Intercept’s “Relic of Another Era”: Most People on North Carolina’s Death Row Would Not Be Sentenced to Die Today:

Parker, the former prosecutor, did not attend the execution of Ronald Frye in 2001. “I gave my ticket to the arresting officer,” he said. Parker said he had developed a certain level of affection for Frye by then. “I thought he has what’s coming to him, but I wasn’t gonna go watch him die.”

I asked Parker if he would feel satisfied if Nathan Bowie were to be executed today, 25 years after he was convicted. Would he consider it justice? Parker paused. “I really haven’t given it much thought,” he said, adding, “I did my job.” He doesn’t miss it. He’s happily retired, playing golf a few times a week, he told me. “I don’t think about it much anymore. I leave it alone.”

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