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.
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.”
Go here for more detail on the Racial Justice Act.
Read Bryan Stevenson’s op-ed on the importance of the Racial Justice Act.
In these days of COVID, it’s easy to be overwhelmed by bad news. But we shouldn’t forget to celebrate good news, and we’ve had a little of that in the past week. On Friday, the North Carolina Supreme Courtissued a decision that sends a clear message: North Carolina’s courts must finally begin to take the exclusion of black jurors from criminal trials seriously.
The decision says that, when a person on trial suggests that a prosecutor struck a juror because of the juror’s race, the courts must fully investigate. They must consider the history of disproportionate jury strikes in the county, and compare the treatment of white people and people of color in the jury pool to see if it’s been equal.
If these sound like no brainers, that’s because they are. This is the least the courts can do to begin to end the decades-long practice of denying people of color a voice in the criminal punishment system.
But the reality has been that, despite exhaustive studies proving that jury discrimination is a statewide problem, judges across North Carolina have not acknowledged the problem and have often dismissed allegations of jury discrimination out of hand. In this 6-1 decision, the Supreme Court has signaled that era might be coming to a long-overdue end.
Black people have a constitutional right to serve on juries, just like white people. That should go without saying. But the reality is that prosecutors use all kinds of tricks and excuses to stop black citizens from sitting on juries. In this 5-minute audio documentary created by students at Duke’s Center for Documentary Studies, CDPL attorney Johanna Jennings explains how this form of racial discrimination persists in the courtroom. The students did a fabulous job and it’s worth a listen.
This documentary is just in time. Later this month, the NC Supreme Court will hear arguments from six death row prisoners who have uncovered evidence that people of color were illegally struck from their juries. Learn more here about the Racial Justice Act and how you can get involved.
One note: The documentary’s creators, Shaakira Raheem and Khalid Bashr, imagined some fictional questions that prosecutors might ask of black jurors like, “Do you have a birth certificate?” While these are not the actual questions prosecutors have asked black jurors in North Carolina courtrooms, some of the questions they actually have asked are equally outrageous and demeaning. For example:
In a Cumberland County courtroom, the prosecutor asked a black man if he had trouble reading and whether he went “straight through” school. No white jurors were asked similar questions.
Another Cumberland prosecutor asked a black man if he listened to Bob Marley or was familiar with the former emperor of Ethiopia, Haile Selassie — implying that he might sympathize with black defendants who practiced Rastafarianism. Again, no white jurors were asked similar questions.
In Rowan County, a prosecutor asked a black woman if she would face criticism from her black friends if she voted to convict a black person of a crime.
In Transylvania County, a black juror was asked if her child’s father was paying child support.
For generations, North Carolina politicians of both parties have had one thing in common: Almost all of them staunchly supported the death penalty. That’s largely because they believed their voters supported it.
They’ve continued to operate on that belief, even without much data to back it up. But late last month, Public Policy Polling conducted a statewide poll to answer the question: What do North Carolinians think about the death penalty today?
The results should make state politicians question their death penalty orthodoxy. After more than a decade without executions and a wave of exonerations of innocent people on death row, voters no longer trust the system to decide who should live and die.
Some of the striking results of the survey of 501 voters across the state, 47 percent of whom voted for Trump and 45 percent of whom voted for Clinton:
70 percent say it’s likely that an innocent person has been executed in North Carolina. This belief alone is enough reason to end the death penalty!
57 percent say it’s likely that racial bias influences who is sentenced to death. Pervasive racism is another good reason to end it!
When given a choice between the death penalty and a maximum sentence of life without parole, more than 50 percent of voters favor life without parole, while only 44 percent lean toward keeping the death penalty.
When offered a larger range of alternatives, including requirements that offenders work and pay restitution to victims’ families, only 25 percent favored the death penalty.
58 percent prefer to eliminate the death penalty if the millions of dollars spent on it each year were redirected to investigating and prosecuting unsolved rapes and murders.
A clear majority would support actions by the governor or by their local district attorneys to stop executions and death penalty trials.
No wonder N.C. juries have sentenced only a single person to death since 2014. Our citizens clearly see how unjust and wasteful the death penalty is. It’s time for our leaders to listen to their constituents.
Last week, Washington became the 20th state to end the death penalty after its Supreme Court ruled that capital punishment is arbitrary and racially biased. If those are reasons to outlaw the death penalty, then it is surely time for the North Carolina death penalty to go.
How much more proof can you ask for that the death penalty is racist and arbitrary in our state?
More than 63 percent of North Carolina’s death 141 row prisoners are people of color, even though they make up less than 30 percent of the state population. More than two dozen of the people on death row were sentenced to die by all-white juries.
A comprehensive statistical study found that defendants who kill white victims are more likely to get the death penalty, and that across the state, African American citizens are systematically, and illegally, excluded from capital juries.
If that’s not enough, let’s talk about arbitrariness.
A new report from the Center for Death Penalty Litigation shows that most of the people on N.C. death row are only there because they had the bad luck to be tried under outdated laws, before there were basic legal protections to ensure fairness at their trials. Had they been tried under modern laws, most wouldn’t be on death row today.
Watch the story of Nathan Bowie, who because there was no indigent defense agency at the time of his trial, ended up with an alcoholic lawyer who came to court drunk.
Today, after the enactment of many reforms, only a handful of people each year face capital trials. Yet, the selection of that handful remains arbitrary. It has more to do with the practices of the local DA, the county where the crime occurred, and the defendant’s willingness to accept a plea bargain than it does with the severity of the crime.
Across the country, people have become unwilling to ignore the obviousness unfairness that infects the death penalty. Last week, Washington admitted the truth about its death penalty. It’s time for North Carolina to do the same.
Racial bias remains a key factor in deciding who gets the death penalty in North Carolina. Cases with white victims are more likely to get the death penalty than those with victims of color. And prosecutors across North Carolina strike qualified black jurors from death penalty trials at more than twice the rate of white jurors, resulting in white-dominated juries across North Carolina. Nearly half of N.C.’s death row prisoners were convicted and sentenced by juries with no more than one member of color, and about a fifth were sentenced by all-white juries. These were the findings of a Michigan State University College of Law peer-reviewed study of death penalty trials in North Carolina from 1990 to 2010, which proved that racial bias taints the N.C. death penalty. Professor James E. Coleman, Jr. writes in his article, The Persistence of Discrimination in Jury Selection: Lessons from North Carolina and Beyond:
The [Michigan State University College of Law] study showed prosecutors struck 53 percent of eligible African American jurors and only 26 percent of all other eligible jurors in those capital proceedings. The researchers found that the probability of this disparity occurring in a race-neutral jury selection was less than one in 10 trillion. After adjusting for nonracial characteristics that might reasonably explain strike decisions, for example, reluctance to impose the death penalty, researchers found prosecutors struck black jurors at 2.5 times the rate they struck all other jurors.
People facing the death penalty in North Carolina have also found evidence of racial bias in prosecutors’ own statements, notes, and training materials. For example, a Cumberland County prosecutor made notes such as “blk wino” and “black, high drug” about prospective African American jurors before striking them from the jury. What’s more, a training seminar sponsored by the North Carolina Conference of District Attorneys showed prosecutors how to evade laws prohibiting race-based jury strikes. Prosecutors were provided with a cheat sheet of legally acceptable reasons — such as an “air of defiance” or “disheveled appearance” — that they could use to disguise racially motivated strikes of black jurors.
The Racial Justice Act, which provided death row prisoners the opportunity to examine and assert race discrimination in capital sentencing, was repealed in 2013. Most of the evidence uncovered by the Racial Justice Act has never been heard in court, and the defendants who discovered it remain on death row. Read more about the Racial Justice Act and the litigation updates here.
Watch a video to understand how African Americans are systematically excluded from death penalty juries in N.C.:
Read the stories below of North Carolinians affected by pervasive racial bias in their capital trials.
At Robert Bacon’s 1987 trial, prosecutors methodically excluded every prospective black juror. As a result, Robert, a black man, had his case heard by an all-white jury in a county that was 20 percent African-American.
Robert and his white girlfriend, Bonnie Clark, were accused of conspiring to murder Bonnie’s estranged husband, Glennie Clark. The evidence pointed to Bonnie Clark being the mastermind of the crime. She wanted to rid herself of an abusive husband, and she expected to receive $130,000 in life insurance proceeds.
At Bonnie’s trial, even prosecutors argued that Robert was “just a pawn” in the crime. Yet, Bonnie received life and was paroled in 2009. Robert was sentenced to death even though he had no criminal record, promptly confessed to the crime, and aided police in Bonnie’s arrest.
Bonnie’s jury heard evidence of her husband’s history of alcoholism and physical abuse of her and their children. The same evidence was never presented at Robert’s trial, nor did the jury hear about Robert’s own childhood abuse at the hands of an alcoholic parent.
After the trial, a member of the jury swore in an affidavit that other jurors made openly racist jokes, and that they held it against Robert that he was dating a white woman.
In 2001, Robert received clemency from Gov. Mike Easley and is now serving life without parole. Gov. Easley never gave a reason for his grant of clemency, but it marked a rare moment in which clear racial bias in capital sentencing was remedied.
Russell Tucker is an African American man who was sentenced to death in 1996 by an all-white Forsyth County jury. During jury selection, there were five potential African American jurors in the pool, and the prosecutor used discretionary strikes to remove all five. In the 1986 case Batson v. Kentucky, the Supreme Court ruled that removal of jurors on the basis of race violates the Constitution. Russell’s lawyers objected under Batson. The judge found no discrimination.
But the judge did not know the whole story. Years after the trial, as part of the Racial Justice Act, Russell’s lawyers obtained the complete prosecutorial files in his case. They found a copy of a handout from “Top Gun II,” a training course for North Carolina prosecutors. The handout is a cheat sheet designed to help prosecutors violate Batson. During a trial, when the defense objects to the removal of a juror based on Batson, the judge then gives the prosecutor an opportunity to give non-racial reasons for the strike, if they can. By providing a prefabricated list of justifications for strikes, the cheat sheet ensured that prosecutors would always have a reason at the ready, even if their true reason was race.
[pdf-embedder url=”https://nccadp.org/wp-content/uploads/securepdfs/2019/06/Good-Copy-of-Articulating-Juror-Negatives.pdf” title=”Good Copy of Articulating Juror Negatives”]
The handout encourages prosecutors to cite African American jurors’ “rebelliousness,” “air of defiance,” “lack of respect,” “resistance of authority,” and “antagonism,” as reasons they would not make good jurors.
It is clear from Russell’s trial transcript that his prosecutor read from the cheat sheet in court. The prosecutor explained his strike of African American juror Thomas Smalls this way:
This exact language can be found in the handout.
National experts have condemned this cheat sheet. A group of former prosecutors has called it an example of how “some district attorney offices train their prosecutors to deceive judges” as to their race-based motives for striking jurors of color.
Forsyth County has a longstanding problem with racial discrimination in jury selection. Russell is one of four Forsyth defendants on death row who was sentenced to death by all-white juries. A recent Wake Forest University study found that Forsyth prosecutors were three times more likely to strike African Americans than white jurors, the highest strike disparity in the state. The statistical study conducted for the Racial Justice Act concluded that in capital cases from 1990 to 2010, Forsyth prosecutors were more than twice as likely to strike African Americans.
A 2016 study published in the North Carolina Law Review revealed that, in the three decades since Batson was decided, the North Carolina Supreme Court has never found a single instance of discrimination against a minority juror. Nor has the North Carolina Court of Appeals ever found discrimination against a minority juror under Batson. Remarkably, North Carolina is the only state in the entire South in which an appellate court has never in 30 years recognized peremptory strike discrimination against a minority juror. “Statistics are not, of course, the whole answer, but nothing is as emphatic as zero. …”
In a state where people of color comprise a third of the population, and whose history is rife with race discrimination, it is nothing short of stunning that North Carolina’s appellate courts have failed to discern even a single instance of racial bias in jury selection.
To make matters worse, the North Carolina appellate courts ironically have found Batson violations when the defendants were African American and the jurors struck were white. In two cases, the appellate court found discrimination not against African Americans, who have historically been excluded from jury service, but against white citizens.
During his 1992 trial, Kenneth Rouse attempted suicide by smashing his hands through a window and slashing his wrists. His mental disabilities were so severe that he was not fully capable of understanding his actions or participating in his defense. But the biggest strike against him was that he was a black man charged with killing a white woman, and at least one member of his all-white jury was openly racist.
Kenneth was sentenced to death for the 1991 robbery and murder of Hazel Broadway, a clerk at an Asheboro convenience store. After the trial, defense investigators assigned a law student to interview jurors in the case. One juror, Joseph Baynard, signed a sworn affidavit admitting that he had lied to earn his spot on the panel.
Baynard’s mother had been murdered by a black man 40 years earlier, under very similar circumstances to the crime Kenneth stood accused of. In the affidavit, Baynard said, “In particular, the pictures of Mrs. Broadway [the victim] at the murder scene reminded me of pictures of my mother after she had been murdered.” He said he decided not to mention his mother’s killing because he wanted to serve on the jury.
The juror also admitted inthe affidavit that racial bigotry played a role in his decision to sentence a black man to death. Baynard said he believed that “blacks do not care about living as much as whites do” and that “black men rape white women so they can brag about it to their friends.” He referred to African-Americans with racist slurs. He said that one purpose of the death penalty is to rid the world of defective human beings and that Kenneth was “one step above a moron.”
This evidence has never been heard in court. The lower courts denied requests for a new trial, and the federal appeals court refused to hear it because Kenneth’s lawyers filed his petition one day after the deadline.
Four U.S. District Court judges disagreed with the decision not to hear this new evidence in Kenneth’s case. In her dissent, Judge Diana Gribbon Motz said, “I cannot join a decision that would allow the most minor procedural default imaginable to prohibit all evidentiary inquiry into such a serious constitutional claim.” Because of a single day, this important evidence of racial bias and improper jury conduct has never been examined in court — and the death sentence imposed by a biased jury still stands.
In 1998, a jury was called to decide the fate of brothers Tilmon and Kevin Golphin, black teenagers who were accused of killing two white law enforcement officers during a traffic stop. Tilmon was 19 and Kevin was just 17 when the crime occurred, yet under the law at the time, both faced the death penalty.
The shooting happened in Fayetteville, but because of a media frenzy, the trial had to be moved. The judge chose Johnston County, a heavily white, conservative county that for many years welcomed visitors with a sign advertising it as the home of the Ku Klux Klan.
During jury selection, a black member of the jury pool overheard two white members agreeing that the brothers “never should have made it out of the woods” where police arrested them. The black juror reported this baldly racist comment to the court. Yet, the judge made no attempt to identify or remove the white jurors.
Instead, the prosecutor aggressively questioned the black man about why he reported the incident, then struck the black man from the jury, citing his report as one of the reasons.
The same prosecutor questioned potential black jurors about whether they listened to Bob Marley or were familiar with Ethiopian emperor Haile Selassie, implying that they might sympathize with black defendants who practice Rastafarianism. No white jurors were asked similar questions.
In the end, the prosecutor struck all but two of the black jurors. The defense attorneys had to strike another who they felt wouldn’t be fair to their client. That left a jury of eleven whites and one black woman to decide the fate of two black teens. The white jurors who made racist comments were never identified, so it’s possible they were members of the final jury.
In front of this skewed jury, the prosecutor depicted Rastafarianism as a white-hating cult, rather than a religion that preaches black empowerment and redemption. The Golphin brothers were badly abused children growing up in a culture of violence, addiction, deprivation, and racism, factors that could have led the jury to choose life sentences. But the boys’ tragic life story sparked no mercy in a jury with such limited understanding of their backgrounds.
Both were sentenced to death. Kevin later received a life without parole sentence after the law was changed to prohibit death sentences for children.
In 2012, Tilmon was temporarily removed from death row and sentenced to life without parole after his attorneys proved, under the Racial Justice Act, that prosecutors used racist jury selection practices. It’s illegal to strike jurors because of their race, but a judge found that’s exactly what happened at Tilmon’s trial.
However, Tilmon was soon sent back to death row when his Racial Justice Act case was overturned on a technicality. The N.C. Supreme Court said he should get a new hearing on his claims of racial bias in jury selection. Today, Tilmon is still waiting to see if the courts will allow that hearing to go forward, or whether the state can continue its push to execute him despite clear evidence of racism.
Watch Tilmon’s longtime attorney Ken Rose and poet Cameron L. Bynum talk about the case at the Carolina Justice Policy Center’s Poetic Justice event in 2018.
Sometimes, racism today is more covert than in the past. It often takes statistical studies to uncover patterns of discrimination in jury selection or disproportionate sentencing in cases with white victims. But at Andrew Ramseur’s trial in 2010, the racism was right out in the open.
Andrew was a young black man accused of killing two white people in Iredell County during a convenience store robbery that went wrong. As soon as he was charged, white community members began hurling racist slurs and calling for vigilante justice. “Where did I put that noose?” one online comment said.
Prosecutors often seek life sentences in cases like this one. Andrew was just 19, barely old enough to be eligible for the death penalty, and had no record of violent crime. He was an abandoned and neglected child who grew up in poverty, living in a neighborhood polluted by toxic waste. Yet, before Andrew was even indicted, the district attorney promised to seek his execution.
As Andrew sat in jail awaiting trial, the barrage of racist online comments continued. “Once upon a time … during another time, these senseless crimes did not happen,” one commenter wrote. “There was a group that took care of these people at night. ‘WE’ were able to sleep at night with our doors unlocked without fear of these vermin.”
Another person wrote: “Racism, schmacism. Get a rope and let’s go hang us one.”
When Andrew’s defense attorneys came to town to investigate the case, they too received death threats. They argued that Andrew could not get a fair trial amid the furor in Iredell County and asked that the trial be moved. The judge refused, and dismissed their concerns about the death threats they were receiving.
On the first day of trial, the sheriff’s department cordoned off the rows of seats behind the defense table with yellow crime scene tape, making it appear to the jury pool that Andrew was so dangerous that even court observers shouldn’t get near him. The defense eventually persuaded the judge to order the tape removed, but Andrew’s family was still forced to leave the front rows empty and sit in the back. On the other side of the courtroom, the white families of the victims sat in the front.
The prosecutor used peremptory strikes to remove all the black jurors, leaving Andrew’s fate in the hands of an all-white jury with no understanding of the impoverished, segregated neighborhood where Andrew grew up. They deliberated only a few hours before sentencing Andrew to death
Andrew is now seeking a chance at a fair sentence under the Racial Justice Act. His case was argued in the N.C. Supreme Court in 2019, and he is awaiting the court’s decision about whether he is entitled to a hearing on the overwhelming evidence of racism in his case.
I am a mother of four and no stranger to tragedy. One of my sons, Curtis Green, was beaten to death in 2006. His killers dropped his body in a ditch beside a road like he was a piece of garbage.
My youngest son, Marcus Robinson, was sentenced to death in 1994. It truly breaks my heart that Marcus was involved in a crime that took another young man’s life, Erik Tornblom, from his family. He didn’t deserve to die. I know that his parents have suffered this loss with great pain and I am so very sorry.
In 2007, Marcus came within hours of his execution date and time, before it was stopped by the court. They said it was because of problems with the lethal injection process. If the state had killed Marcus, he wouldn’t have lived to see the N.C. Racial Justice Act passed in 2009. This Act revealed evidence that Marcus’s case and others were influenced by racial bias in how prosecutors chose which cases were capital, and how they selected capital juries.
After a two-week hearing in 2012, a judge found that race had been a significant factor in sentencing Marcus to death. The judge resentenced Marcus to life without parole. Our legislature later repealed the Racial Justice Act, which allowed a different judge to overturn Marcus’s resentencing. The repeal disregarded the evidence of racial bias without even looking at it.
Marcus was sent back to death row. This month, the N.C. Supreme Court agreed to hear Marcus’s case to consider whether it was illegal for the legislature to take the RJA away from him after the original judge found there was racial bias in his trial. I am optimistic that the court will not allow the legislature, through its RJA repeal, to sweep the evidence of racial bias under the rug.
The men who killed my son Curtis, who were black, got shockingly lighter sentences. One served 12 to 15 years, a second one got 5 to 6 years and the last one got 2 to 3 years. Seeing Curtis’s case treated this way made me feel like the state didn’t value his life at all.
The state’s approach was completely different when my son Marcus was involved in the murder of Tornblom, a white 17-year-old. The prosecutors pushed for the death penalty for Marcus even though there were many reasons the case should never have been a capital case.
Marcus suffered extreme physical abuse by his father. When he was 3, he was hospitalized with seizures and a traumatic brain injury because of the beatings. I tried to protect Marcus, but my husband beat me too, and threatened to kill me. I left his father when Marcus was 4, but the damage was done. Marcus had brain damage, depression and trouble controlling his behavior.
By the time he was a teenager he ended up in a juvenile detention center for a minor offense. However, he never got the psychiatric care he needed.
Marcus, just turning 18 at the time of Tornblom’s murder, was placed on death row. He was the youngest person there. If Marcus had been only a few months younger, the U.S. Supreme Court would have forbidden a death sentence, because he would have been a juvenile.
Years after the trial was over, prosecutors said in a statement to the legislature that the co-defendant, not Marcus, was the real shooter. Their statement was consistent with what Marcus has always said.
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.
“After studying the Bible,” the juror said, “I have wondered if black people even have souls.” Prosecutors later made the ludicrous claim that, when the juror said “n—-r,” he didn’t mean it in a racist way.
This kind of racism in a life-or-death trial flies in the face of our country’s most basic beliefs about justice. It might be tempting to believe this case was just an anomaly. But Keith Tharpe is far from the only defendant to be sentenced to death by a deeply racist juror.
Just look at these North Carolina cases:
Kenneth Rouse was sent to N.C. death row 1992, the same year Tharpe received his sentence in Georgia. After the trial, one of Rouse’s jurors told defense investigators that “bigotry” played an important role in his decision. The juror also used the n-word and said that “black men rape white women so they can brag about it to their friends.” He said he believed that “blacks do not care about living as much as whites do.” Rouse remains on death row.
At Robert Bacon’s trial in 1987, jurors made racist jokes and held it against Bacon that he was dating a white woman. He eventually won clemency from the governor.
Like many death row inmates, Rouse and Bacon were sentenced by all-white juries. Often, prosecutors make explicitly racial appeals to white juries. Both of these men remain on death row:
During his trial in front of an all-white jury, Guy LeGrande was called a “n—-r” by three separate witnesses. The Stanly County prosecutor, known for wearing a noose-shaped lapel pin, invoked the image of evidence that would come together “twisted and bound into a rope.”
A prosecutor at Rayford Burke‘s trial referred to him as a “big black bull” during closing arguments in front of the all-white jury.
Diverse juries are key to driving racism out of capital sentencing. Studies show that they deliberate more thoroughly and make fewer mistakes. Juries with people of color are also less likely to be swayed by prosecutors who use racial stereotypes to push for death sentences.
Yet, the practice of excluding people of color from juries remains rampant in N.C. capital trials.
Prosecutors are more than twice as likely to strike qualified African Americans as they are to strike whites. More than 60 of N.C.’s 145 death row inmates were sentenced by juries with no more than one person of color. More than 25 of them had all-white juries.
The legislature repealed the Racial Justice Act, which was enacted to remedy jury discrimination, and the courts have refused to hear more than 100 claims of such discrimination brought by N.C. death row inmates.
Georgia is not an exception. In North Carolina and across the country, we are a long way from fulfilling our promise of color-blind justice, even in life-and-death trials.
Last week, a man who spent nearly 20 years on death row was re-sentenced to life in prison without parole. This was a sane resolution to a senseless and much-regretted crime committed by a deeply troubled teenager.
Phillip Davis was re-sentenced with the full of support Buncombe County District Attorney Todd Williams, who acknowledged unfairness in Davis’ case. “Our system has built-in checks on abuses such as discrimination and prosecutorial misconduct. When the system is not allowed to work as it’s naturally intended to, that’s when you have a problem,” Williams told the Asheville Citizen Times.
It’s a prosecutor’s job to seek justice, rather than blindly seeking the harshest possible punishment. That’s why it was so refreshing to see a prosecutor willing to consider all the circumstances and come to a sensible agreement that serves justice and saves taxpayers money.
If only more North Carolina prosecutors would begin reevaluating the cases of the nearly 150 men and women on death row. The majority of them were sentenced to death more than 15 years ago, some as long as 30.
They were sentenced at a time when vastly different laws led to dozens of people being sent to death row each year. Now, with executions on hold for a decade and juries imposing an average of only one death sentence a year, they languish on death row year after year.
Settling these old cases for sentences of life imprisonment with no possibility of parole would end costly appeals and ensure that defendants are never released from prison — while giving a punishment that is far more fitting with North Carolina’s current standards of justice. Once in general population, inmates cost less to house and can get jobs that allow them to contribute to society.
In Davis’ case, he was just four months past the age that would now make him ineligible for the death penalty when, as a high school senior, he killed his cousin, Caroline Miller, and his aunt, Joyce Miller, after an argument. Davis was living with them because his mother — a lifelong drug addict who had subjected him to a traumatic childhood — was in prison.
Davis, whose IQ puts him in the range of borderline intellectual functioning, immediately accepted responsibility for his crimes and expressed deep remorse. He voiced his sorrow and regret for his actions again in court last week, his voice choked with emotion: “To family members and anyone who knew Joyce and Caroline, they were two very special people who were loved by a lot of people including myself. I regret everything that happened and it’s something I’ll regret for the rest of my life.”
The prosecutor who agreed to his new sentence acknowledged that race wrongly played a role in selecting the all-white jury that sentenced Davis to death in 1997. It is illegal to strike jurors based on race, and in 2016, the U.S. Supreme Court confirmed that in the strongest terms ever.
The problem was compounded when prosecutors in Davis’ case took the unusual step of shredding many of their notes from jury selection, making it impossible to examine them for evidence of racial bias.
The victims’ family members said they were satisfied with the life sentence. They have worked over many years to rebuild their relationship with Davis, and his new sentence allows the family’s healing to continue.
It’s a resolution that makes sense for all involved.
the more you know about a person, the less likely you are to support their execution; the more you know about the criminal justice system, the less likely you are to support anyone's execution