Chauvin trial shows that justice requires diverse, inclusive juries

By Elizabeth Hambourger

George Floyd Memorial
Remembering George Floyd at the scene of his murder in Minneapolis. Photo by Vasanth Rajkumar.

No one should have been on the edge of their seat about the verdict in Derek Chauvin’s trial. He was caught on video kneeling on George Floyd’s neck for more than nine minutes as Floyd begged for his life. But this is America, where police are almost never held accountable, so we held our breath and prepared for Chauvin to be acquitted. 

But in this rare case, a jury of six white, four Black and two multiracial  people provided a measure of justice, finding Chauvin guilty of murder. Surely, the jury’s diverse makeup helped it reach this much-needed verdict.

Yet, it’s exactly this kind of diversity that prosecutors often work to avoid. They strike Black citizens from juries at far higher rates than whites. Then, when they’re accused of violating the law prohibiting racist jury strikes, they offer the flimsiest possible defenses. And no matter how implausible their excuses are, they almost always get away with it. 

Especially in North Carolina, where the courts have never overturned a case because of racist jury selection, prosecutors have been allowed to break the law with impunity.

But the N.C. Supreme Court may finally be ready to change that. Last week, the state’s highest court agreed to take a closer look at the cases of two men on North Carolina’s death row, Russell Tucker and Christopher Bell, both of whom have compelling evidence that prosecutors unfairly removed Black citizens from their juries.

Tucker and Bell’s cases present our state’s highest court with the clearest evidence yet of the ways prosecutors win death sentences by racially skewing North Carolina juries, and their cases offer the best opportunity to finally do something about it. 

In Christopher Bell’s case, the prosecutor removed most of the Black jurors in the pool. Then, in closing argument, he compared Bell and his co-defendants, all young Black men, to “predators of the African plain” as he urged the mostly white Sampson County jury to sentence them to death. 

When asked to explain his removal of Black citizens from Bell’s jury, the prosecutor defended himself by claiming that he removed one woman not because she was Black but because she was female. Gender discrimination in jury selection is just as unlawful as race discrimination. That this prosecutor so openly traded one unconstitutional reason for another reflects the impunity fostered by years of indifference from our courts. What’s more, despite the prosecutor’s confession of discrimination, the lower court found nothing wrong with his actions.

Russell Tucker’s case is equally clear. When asked to explain their removal of every single Black citizen from Tucker’s jury, Forsyth County prosecutors parroted reasons from a cheat sheet that had been distributed at a training seminar — a cheat sheet specifically designed to help prosecutors disguise their strikes of Black jurors. They claimed they struck Black men and women for subjective and derogatory reasons like “bad” body language or not making eye contact. They struck one Black woman because she rented her home and wasn’t registered to vote, saying she lacked a “stake in the community” even though she’d lived her whole life and raised her family there. The same prosecutor accepted white jurors who rented homes or weren’t registered to vote.

This evidence must also be placed against the backdrop of statewide studies showing that North Carolina prosecutors remove Black jurors at twice the rate of whites. Nearly half the people on North Carolina’s death row were sentenced to death by all-white jury or a jury with only one person of color. In a state as diverse as North Carolina, that’s inexcusable.

Especially when people’s lives are on the line, it’s critical that courts ensure fair trials untainted by racism. Recently, North Carolina appellate courts have started to take the problem more seriously.

In the Chauvin case, the jury brought healing by acknowledging reality: Derek Chauvin murdered George Floyd in the middle of the day, on a city street, while a crowd of people watched. 

It’s time for the N.C. Supreme Court to also acknowledge reality: Prosecutors discriminate against Black jurors in open court, and they’ve been allowed to get away with weak excuses for far too long.

Elizabeth Hambourger is a capital defense attorney at the Center for Death Penalty Litigation.

Virginia just abolished its deeply racist death penalty; North Carolina must follow suit

This piece is reposted from N.C. Policy Watch.

By Elizabeth Hambourger

“This is, as we know, a historic day for Virginia. We are the first Southern state to abolish capital punishment, but we will not be the last.”

— Jayne Barnard, Virginians for Alternatives to the Death Penalty, March 24, 2021

CDPL Attorney Elizabeth Hambourger
CDPL Attorney Elizabeth Hambourger

This week, Virginia became the first southern state to abolish the death penalty. At the signing ceremony, Gov. Ralph Northam and other speakers repeatedly referenced the racist history of the Virginia death penalty as a prime reason for its abolition.

It is not a coincidence that Virginia, the birthplace of American slavery and the capital of the Confederacy, has been at the forefront of the American death penalty. Over the course of its bloodthirsty history, Virginia executed nearly 1400 people, more than any other state in the union — and most of those executed were Black.

Rev. Lakeisha Cook of the Virginia Interfaith Center described how “early death penalty statutes in the Commonwealth reserved the death penalty almost exclusively for Black people… As extrajudicial lynchings became commonplace in the late nineteenth and early twentieth century, the state responded by carrying out more state-sanctioned executions in order to placate and deter white mobs who threatened to take justice into their own hands… Between 1901 and 1981, nearly six times more Black people were executed in Virginia than white people.” [Watch a video of her remarks.]

North Carolina’s death penalty is no less rooted in our own history of slavery and lynching, and it continues to bear the hallmarks of white supremacy. Our state’s modern death penalty is disproportionately used against people of color. Those accused of killing white victims are more likely to get death sentences. Black jurors are systematically excluded from capital juries. And of the twelve innocent people who’ve been exonerated after receiving death sentences in North Carolina, just one is white. The death penalty’s history is explored in depth in the Center for Death Penalty Litigation’s recent project Racist Roots: Origins of North Carolina’s Death Penalty.

The historic signing ceremony was held outside the prison where Virginia carried out its last 101 executions. As someone who has been fighting the death penalty for more than 20 years, I watched through tears, but they were not only tears of joy.

Just four years ago, I stood on the same spot while yet another Black man, my client Ricky Gray, was put to death in that well-used death chamber. We didn’t realize then that his execution would be one of the last. As grateful as I am that the slaughter has ended, I’m painfully aware that abolition came too late for many.

Meanwhile, across the state line, 138 people remain on North Carolina’s death row, and too many prosecutors persist in their efforts to increase that number. Some of the people who await their executions are my clients.

They are people who have made grave mistakes but who have worked hard for redemption. One just finished writing his memoir. Another is caring for a chronically ill fellow prisoner. Many grew up in poverty and dysfunction that was the legacy of racism, lynching and Jim Crow. All have families who love them. Their executions would not make our society safer; they would only cause more suffering and grief.

But Virginia’s reversal on the death penalty brings hope. As Gov. Northam said, punishment and justice are not the same thing. Rev. Cook called for the transformation of our current punitive system into “one that is rooted in fairness, accountability, and redemption.”

Accountability isn’t just for those we label criminals; it applies to all of us, and it begins with acknowledging our history. As Virginia demonstrates, when we properly acknowledge the death penalty’s racist roots — together with its ever-mounting toll — we cannot allow it to continue.

Elizabeth Hambourger is a capital defense attorney at the Center for Death Penalty Litigation in Durham. She represents several men on North Carolina’s death row.

Newly discovered innocence cases show how old problems still haunt the N.C. death penalty

This piece by Kristin Collins of the Center for Death Penalty Litigation was published on March 10, 2021 by N.C. Policy Watch.

Last month, two new men were added to the list of innocent people who’ve been sentenced to death in North Carolina. 

Anthony Carey was sentenced to execution for a murder he took no part in, based entirely on the testimony of a 16-year-old who had made a deal with the police. The teen said that while he robbed and murdered a gas station attendant, Carey was a passenger in a getaway car parked blocks away. In exchange for that testimony, the prosecutor allowed the teen to plead guilty to second-degree murder while Carey went to death row.

John Thomas Alford was sent to death row for a shooting in an auto parts store, even though four people testified he’d been playing basketball with them at the time of the crime — and even the co-defendant who carried out the murder said Alford wasn’t involved.

The district attorney withheld that last piece of evidence, saying he didn’t want to “confuse the jury” by showing them evidence of Alford’s innocence. Instead, he focused on a suspect lineup where four witnesses picked Alford. However, police polluted the lineup by showing witnesses Alford’s photo beforehand, a tactic that all but assured they would select him.

Both men were tried in Charlotte in the 1970s and had their convictions overturned after spending about a year on death row. Their exonerations had been lost to time until the national Death Penalty Information Center discovered them in the course of researching a new report. Nationwide, DPIC uncovered eleven new death row exonerations, bringing the total to 185 — one for every eight executions that have been carried out in the United States. 

With the addition of these cases, North Carolina has sentenced 12 innocent men to death since 1973. They spent a total of 157 years in prison for crimes they didn’t commit. 

John Thomas Alford’s mother was interviewed for the March 3, 1976 edition of the Charlotte News, after he won a new trial. After being sentenced to death at his first trial, Alford was acquitted at his second trial.

Both Carey and Alford are Black men who were accused of killing white people — once again bearing out the truth that Black men are more likely to be wrongly convicted , especially in cases with white victims. Of North Carolina’s twelve exonerees, ten are Black, one is Latino, and only one is white. Seven of the cases involved white victims.

Though these exonerations happened close to 50 years ago, many of the systemic flaws they exposed play a role in current death row cases. 

For instance, several people on North Carolina’s death row were implicated by unreliable witnesses or co-defendants who were seeking deals in their own cases. Others were convicted with the help of tainted eyewitness identifications, which are a frequent cause of wrongful convictions. And under North Carolina’s felony murder rule, people can still be sentenced to death for killings they did not personally carry out or for which they were not even present. 

News stories from the time also noted that Alford had an all-white jury, which discounted the testimony of four Black alibi witnesses. “To hear those four tell it, all they did was play basketball,” one juror told the Charlotte News. “They didn’t work. How could you believe somebody who doesn’t work?”

The exclusion of Black jurors remains a pressing problem across North Carolina. Recently, the N.C. Supreme Court ruled that almost everyone on death row should be allowed to present evidence of systemic discrimination in jury selection under the Racial Justice Act.

These cases are also a reminder that every wrongful conviction is like a bomb going off, affecting not just the person who receives the death sentence but their family and community.

Carey’s brother Albert was sentenced to death alongside him, as the alleged driver of the getaway car, and he was never exonerated. Instead, he was resentenced to life and spent three decades in prison because of a 16-year-old’s allegation.

According to interviews in the Charlotte News, Alford’s mother took a second mortgage on her home to pay for his defense. His stepfather had to work a second job at night to pay it off. And hundreds of community members contributed to his legal defense fund for a second trial. His mother said she asked herself during the ordeal, “Why is this happening to us? Are we being punished? What’s the use of trying to live a good, decent life?”

A system as error-prone as the death penalty breeds distrust that can last for generations and creates harm that can never be healed, no matter how many people we exonerate.

We must remove racist symbols from North Carolina’s courthouses

Raleigh Confederate Monument
The Confederate monument at the State Capitol in Raleigh was removed in 2020.

This week, a diverse group of criminal justice leaders announced a campaign to rid North Carolina’s courthouses of Confederate symbols. At least 39 counties have these racist monuments on grounds that should be dedicated to impartial justice.

The N.C. Commission on Racial and Ethnic Disparities in the Criminal Justice System says it will create a complete database of all Confederate symbols on courthouse grounds; sponsor events to educate the public on the history of these monuments, most of which were erected in the Jim Crow era as symbols of white supremacy; develop a legislative and legal strategy for monument removal; and serve as a resource for communities seeking to remove them.

At NCCADP, we wholeheartedly support this work and see it as closely related to our efforts to abolish the death penalty. Confederate monuments are the clearest symbols of the racist roots that created our modern criminal punishment system and spawned its cruelest punishment, the death penalty.

As our partner organization CDPL points out, many of the 137 people on death row were sentenced to death in the shadows of Confederate monuments, sometimes by all-white juries. [Read one such story here.] Every day that these monuments stand, they continue to harm our communities.

We also should acknowledge that, in the past, NCCADP might have stayed silent on this issue. We might have thought it wasn’t directly related to the death penalty and let others raise their voices instead.

But, as NCCADP’s new Executive Director Noel Nickle said in this article on Waging Nonviolence, we now want to be more intentional in acknowledging that racism and the death penalty are inextricably linked. We also realize that we cannot create a successful movement to end the death penalty in isolation. We must support all movements for justice, knowing their success is bound up with our own.

This past summer, Noel went before the city council in her hometown of Asheville to support the removal of a downtown monument to Zebulon Vance, a Confederate colonel and three-term governor of North Carolina who enslaved people and was known for his abhorrent racist rhetoric. Noel is Vance’s direct descendant, and she asked on behalf of her family that the city remove the monument.

She told the council, “I deeply desire to transform my family’s legacy for future generations. This monument represents what I hope to dismantle.”

Confederate monuments on courthouse lawns represent what NCCADP hopes to dismantle: A criminal and carceral system built to preserve the racial order. A system that dehumanizes and marginalizes people, traumatizes families, and devalues life. 

Three more federal executions planned this week will bring no justice, only cruelty and heartbreak

Lisa Montgomery as a kindergartener. She is set to be executed tomorrow by the federal government.

This week, the federal government plans to execute three people: Lisa Montgomery, Cory Johnson and Dustin Higgs. If all three executions are carried out, that will make 13 people executed by the Trump administration since July — all against the backdrop of a raging pandemic that has infected even the people facing execution and their attorneys and, now, the recent mob violence that killed five people at the Capitol. 

If there has ever been a time for our nation to see that more killing is not the path to justice, this is it.

Lisa Montgomery suffered childhood abuse so severe and unimaginable that she developed psychosis. Cory Johnson is intellectually disabled. Dustin Higgs received death for murders that he did not carry out, while the person who pulled the trigger received a lesser sentence.

The stories of these individuals sound familiar because they are much like the stories of people on death row in North Carolina. The people our government seeks to execute are, almost always, people who live on society’s margins. People scarred by poverty, violence, and childhood trauma. 

Their death sentences are not the result of a careful process, but arbitrary and disproportionate — depending more on the quality of their lawyers or the place where they were prosecuted than on the facts of their crimes.

They are also, very clearly, tainted by the same racism that recently paraded itself through the halls of the nation’s Capitol. White people make up more than three-quarters of the U.S. population, yet less than half of those sentenced to die, both at the federal level and in North Carolina. If these three executions are carried out, the current administration will have executed 13 people, eight of whom — 60 percent — are people of color. 

Joe Biden has promised to end the federal death penalty. And before 2020, no president had carried out an execution since 2003. People can make their own assumptions about what’s behind this administration’s frenzied killing spree in its waning days.

But it’s clear that our nation faces many dangers right now, and these three people are not among them. Their deaths will bring no healing, only more cruelty and heartbreak.

Don’t miss this new project on the Racist Roots of the NC death penalty

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October 15, 2020

Racist Roots quote

This month, the Center for Death Penalty Litigation launched an ambitious new online project, Racist Roots: Origins of North Carolina’s Death Penalty

The project includes essays, poetry, artwork, commentary, and historical documents that place the state’s death penalty in the context of 400 years of history and expose its deep entanglement with slavery, lynching, Jim Crow, and modern systemic racism. The death penalty, the project contends, is another Confederate monument that North Carolina must tear down.

“The death penalty began as a way to enforce a racist social order, and as it evolved through the generations, our state never addressed the original sin that lay at its root,” said CDPL Executive Director Gretchen Engel. “Today, the death penalty is the apex of a racist criminal punishment system that cages hundreds of thousands of people and declares human lives, particularly those of Black people, expendable. The clear message of this project is: Any meaningful conversation about race and criminal justice in North Carolina must include the death penalty.”

Racist Roots shows that in every incarnation, from slavery to post-Civil War Reconstruction, to Jim Crow, and to the modern criminal punishment system, those wielding the death penalty have imposed it disproportionately on Black people; valued the lives of white victims above all others; and excluded citizens of color from power by systematically excluding them from capital juries. So, while the precise influence of racism in the death penalty has changed from era to era, its essential nature has not.

Read Henderson Hill’s essential introduction to the project here, and then head over to RacistRoots.org to explore the rest.


Raleigh Confederate Monument  

The Death Penalty is Another Confederate Monument We Must Tear Down

By Henderson Hill

Right now, our nation is in a moment of reckoning with our criminal punishment system. We are finally seeing clearly what should have been obvious long ago: The system has its knee on the necks of Black people.

In North Carolina, as we begin a long-overdue conversation about the future of police and prisons, we must confront the punishment that sits at the top of that system, condoning all its other cruelties — the death penalty.

When citizens have acclimated to the state strapping a person to a gurney and killing them in front of an audience, it becomes harder to shock them. The death penalty teaches a cruel and inhumane lesson: As long as we brand people criminals, we can kill them.

Meanwhile, there is absolutely no evidence that capital punishment enhances public safety or prevents crime. Instead, it creates more violence and pain, more parentless children and grieving families. I’ve seen this trauma up close as an attorney representing people on death row.

The death penalty’s history is inseparable from our history of slavery, Jim Crow, and mass incarceration.

It is time for us to examine not just the daily cruelties of today’s death penalty, but to see its true nature. And to understand that, we must understand its history.

This report lays bare what too many people, lulled by the myth of a post-racial society, have allowed themselves to forget. The death penalty’s history is inseparable from our history of slavery, Jim Crow, and mass incarceration. Even as the number of executions and death sentences declines, it remains a powerful symbol of white supremacy.

When we open our eyes to the history of capital punishment, the conclusion becomes inescapable. The death penalty is just one more Confederate monument that we must tear down.

READ MORE AT RACISTROOTS.ORG

Three More RJA Cases Decided: NC Supreme Court Removes Ms Walters, Mr Augustine, and Mr Golphin from Death Row

Tilmon Golphin, held by his uncle, Mr Willie McCray in 2019.

 

On Friday, September 25th, 2020, Christina Walters, Quintel Augustine, and Tilmon Golphin were resentenced from death to life without parole. The North Carolina Supreme Court ruled that they had been unconstitutionally returned to death row after receiving life sentences under the state’s Racial Justice Act. The decisions in their cases are based on the state constitution and cannot be appealed.

“Hallelujah!” cried Sylvia Golphin, Tilmon’s mother, upon hearing the news. Her brother, Willie McCray added, “Justice is not always perfect, and it’s often slow. We see people fall through the cracks; we know it happens–just look at Breonna Taylor. But today, for my family, this time justice came through.”

This decision 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.

LeRoi Brashears, a friend of Tilmon’s, said, “In these days, this is a badly-needed reaffirming symbol of the possibilities of extracting justice out of our system. I’m grateful for the Court saw fit to make it happen in this case.”

 

 

From CDPL’s Press Release:

“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.”


A portion of the post contains 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.

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.

Firing racist Wilmington police officers caught on tape should be only the beginning

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Wilmington Police Department

Last week, three Wilmington police officers were fired after being caught on tape making some of the most vile and racist statements imaginable. Unbelievably, their desire to gun down Black people in a race war was just one entry in a litany of shocking and despicable comments. 

Of course, we support the Wilmington Police Department’s decision to immediately fire the officers and make their statements public. The district attorney’s office also said it is investigating all pending cases in which the officers played a major role and has already dismissed 89 of them. In addition, the office said it might be willing to negotiate convictions in which the officers played a part. It’s still unknown how many people these racist officers sent to prison. 

These are necessary actions, but they address only cases in which these three officers were involved. Stopping there would be like finding a few cancer cells and not checking to see if the disease has spread. If we look only at these three officers, we could be missing a far broader problem.

The officers worked for the Wilmington police department for decades and seemed very comfortable voicing the most brazen racist ideas in casual conversation. It’s likely that others knew about their attitudes toward Black citizens, but as far as we know, no one reported them.

Their conversation was captured by chance when one of them accidentally activated a patrol car’s recorder. This single fragment prompts a host of questions:

How many other conversations like this took place, and who was involved?

More importantly, what were the real-life consequences of these racist attitudes? What was the racial breakdown of the people they arrested? How many people did they injure, terrorize, or kill on the job? How many wrongful convictions resulted from their work? How many complaints of excessive force have been filed against them?  

Did these attitudes affect the prosecutions of the four people — three Black and one Native American — on death row from New Hanover County?

It’s time for a thorough investigation, not just of these officers but of every Wilmington police officer. Only once we see the full scope of the problem can we begin to solve it.

Police officers, even those caught on tape fantasizing about killing innocent Black people, invariably say they are “not racist.” Regardless of individual officers’ intentions, the data will show whether they are contributing to the problem of racist policing. 

In 1898, Wilmington made history for being home to the worst racist massacre in North Carolina. Now, let it make history for a different reason. Let this incident be the start of a real reckoning with race and policing, one that can serve as a model for other departments.

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.

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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.

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