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.

NC Supreme Court sends a message to judges: Start taking jury discrimination seriously

Justices' benches at the Supreme Court of the State of North Carolina

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 Court issued 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.

For all the details about the decision and what it means, read CDPL’s press release.

—May 6, 2020

A history-making day in the North Carolina Supreme Court

The Racial Justice Act legal team

At the end of August, our movement made history. A group of talented attorneys from across the state and the nation argued before the North Carolina Supreme Court. At issue were the cases of six men and women on death row who have uncovered compelling proof that their sentences were poisoned by racial discrimination. All six filed claims under the North Carolina Racial Justice Act (RJA). Black citizens were illegally excluded from their juries. At least two defendants were tried amid public threats of lynching, and in one case those threats came from members of the jury pool. One defendant was referred to by a racial slur in open court … by the prosecutor. The evidence of racism is crystal clear.

 

Sylvia Golphin, mother of Tilmon Golphin

At Tilmon Golphin’s trial, two white members of the jury pool were overheard saying he “never should have made it out of the woods” where he fled while police were trying to arrest him for murder. Those two people were never removed from the jury pool.

 

Shirley Burns, left, and Tawana Choate, the mothers of Marcus Robinson and Quintel Augustine

At Quintel Augustine’s trial, the prosecutor wrote notes such as “blk wino” about the races of prospective jurors and then struck all the black jurors, leaving a black defendant to be sentenced to death by an all-white jury. At Marcus Robinson’s trial, prosecutors singled out black prospective jurors with demeaning questions, like whether they failed in school or knew how to read. No white jurors were asked such questions.

 

Attorney Jay Ferguson, right, with Brian Stull of the ACLU

During the arguments, attorneys for the North Carolina Attorney General’s Office did not dispute the evidence of discrimination. In fact, they admitted that racism in capital trials is serious and must be dealt with. But they asked the Supreme Court to deny the cases and leave the defendants to litigate their discrimination claims in the lower courts, which have failed for decades to root out racial discrimination in the death penalty. The RJA attorneys made a passionate argument that the state’s highest court must take on this critical issue. If it doesn’t, it will send the message that our state is willing to execute people even after overwhelming evidence of racism in their trials has come to light. The arguments concluded with Jay Ferguson’s powerful words to the justices: “If not now, when? If not you, who?”

 

RJA attorney Henderson Hill

For decades, North Carolina’s high courts have refused to acknowledge discrimination in jury selection, even though it has been blatant and endemic. “Weighing on this court’s shoulders is hundreds of years of history of discrimination against African American citizens … With all that history, how does this court respond?” Henderson Hill asked.

 

James E. Ferguson, II

“When we stand back and we take a long view of history, we’ve got to go all the way back to the days of slavery, ” civil rights leader James Ferguson, II said. “During those days, capital punishment was largely imposed upon slaves and more often than not for crimes against white people. This is the original context in which we come today.”

Ferguson said the RJA fits into our state’s history of civil rights advances followed by fierce resistance to change. Slavery was abolished, but resistance led to lynching and Jim Crow. The Supreme Court outlawed school segregation, but resistance kept schools segregated for many years after the court’s ruling. Today, the state is resisting the positive change that the Racial Justice Act sought to create and trying to execute people whose trials were poisoned by racism.

“What particularly is the role of this court, which is the leader of the judiciary in NC? It is not simply to sit and watch this change come about; it is about signaling that there is a change and taking the leadership in seeing that change come about. These are cases which present not just an opportunity for this court to lead, but we submit, they highlight and emphasize the responsibility that this court has to lead.”

RJA Attorney Cassandra Stubbs of the ACLU Capital Punishment Project

Cassandra Stubbs took on the state’s argument that evidence of racial bias in capital cases, which was exposed by the RJA, should be thrown out of court because the law was later repealed. “Never before has a state done what the state of North Carolina is attempting to do here, and never before has any court sanctioned dismissal of comparable allegations and proof of racial bias. The state’s position is, now that the Racial Justice Act has been repealed, we should forget about the evidence of discrimination and move on. But … the court cannot look away.”

It wasn’t just the attorneys who recognized the importance of these cases. Many community members turned out to support the Racial Justice Act.

 

NC Sen. Floyd McKissick, who helped make RJA law

Click here to listen to McKissick talk about the RJA on the State of Things

 

Rev. Dr. T. Anthony Spearman, president of the NC NAACP

 

Jean Parks, left, an Asheville advocate for murder victim families, with CDPL executive director Gretchen Engel

 

The siblings of Al Harden, who is on NC death row
NC Rep. Marcia Morey
Tilmon Golphin’s uncle holding a childhood photo of Tilmon and his family

 

Now we wait for the court’s decision. We hope the justices will seize this opportunity to help create a system that lives up to its promise of equal justice for all.

 

 

 

Coming up: Racial Justice Act cases will put evidence of death penalty racism before the North Carolina Supreme Court

 

A big day is coming up, and we need your help! Beginning one week from today, North Carolina’s highest court will hear six cases under the North Carolina Racial Justice Act. These cases go to the heart of our fight to end the racist death penalty.

They include stunning evidence of racism in death penalty trials. The court must decide whether that evidence will get its day in court, or whether it will be thrown away. The decision comes down to whether the state will be allowed to execute people whose death sentences are tainted by racism.

Just look at some of the evidence these six death row prisoners have uncovered:

  • A prosecutor referred to a defendant as “a big black bull” during closing arguments.
  • During jury selection at a black man’s trial, two white jurors suggested that he should have been lynched, yet were allowed to remain in the jury pool.
  • At another trial, the sheriff’s department cordoned off the area behind the defense table with crime scene tape, prejudicing the jury and forcing the defendant’s black family to sit in the back of the courtroom.
  • Prosecutors wrote insulting notes about black jurors. A black juror with criminal history was a “thug” while a white juror who trafficked in drugs was “a fine guy.” A black juror was a “blk wino” while a white juror with a DUI conviction was a “country boy – ok.” A Black woman was acceptable because she was “from a respectable BLK family.”
  • A statistical study showed that prosecutors in the counties where the trials took place routinely struck qualified black jurors at far higher rates than white jurors, denying African American citizens the fundamental right to wield power in the jury box and defendants the right to a jury of their peers.

We need you to:

  1. Attend the hearings and invite your friends. The NC Supreme Court will hear arguments in five of the cases on August 26, beginning at 9:30 a.m. and the sixth case on August 27, at 9:30 a.m. Watch on WRAL if you’re unable to attend in person.
  2. Follow us on FacebookInstagram, and Twitter and share our posts.
  3. Spread the word. Your voice matters. Write a letter to the editor. Talk to your friends. Think local, think statewide, think about your regional newspaper, faith group, or book club. Share this site and share your thoughts on why capital punishment must come to an end.

Go here for a Racial Justice Act quick fact sheet to help you write your letter, craft your speech, or hand out at your event.

Go here for the full story of the Racial Justice Act and why it matters in our fight to end the death penalty.

 

 

 

Fact Sheet: The North Carolina Racial Justice Act

Aug. 15, 2019

  • The 2009 Racial Justice Act in North Carolina allowed death row prisoners who could prove that discrimination affected their trials and sentences to be resentenced to life in prison without parole. The law led to the discovery that African American citizens were being denied the fundamental democratic right to serve on juries in death penalty cases.
  • In six Racial Justice Act cases now before the N.C. Supreme Court, death row defendants submitted clear and compelling evidence that jury discrimination tainted their trials. The state is seeking to dismiss all six cases and slam the door on this evidence without it being heard in court.

  • In 2013, a newly Republican-led legislature repealed the Racial Justice Act. Nevertheless, the evidence the Racial Justice Act revealed must be addressed. North Carolina constitutional law dating back to the Civil War ensures defendants the right to have legally filed claims heard in court, regardless of whether the law is later repealed.

  • Four of the defendants were the only prisoners to receive hearings under the Racial Justice Act. All prevailed and received sentences of life without parole, but they were returned to death row after the legislature repealed the Racial Justice Act in 2013. The other two had their cases dismissed without ever being heard. The State Supreme Court must now decide whether the constitution requires that the six defendants facing execution get a fair hearing on their evidence of racial bias.

  • Denying evidence of racism its day in court is unfair and unconstitutional.  Dismissing these claims would be a stain on North Carolina’s record that would erode public trust in its criminal justice system.

  • These cases involve key civil rights: the right of citizens to serve on a jury and be selected in a manner free of discrimination, and the right of capital defendants to a fair trial, free of discrimination. It is illegal to strike any juror based on race, and these cases test North Carolina’s resolve to enforce this vital civil rights protection.

  • The evidence shows that, in the six cases, N.C. prosecutors engaged in racially discriminatory conduct. For example, in one case, the prosecutor made derogatory references to African Americans as “blk wino” and “thug,” while accepting white jurors with criminal backgrounds as “fine” or “ok.”

  • The evidence also shows that racial bias in North Carolina’s death penalty is pervasive. A statistical study found that, in the defendants’ counties, prosecutors excluded black jurors at more than twice the rate of white jurors. Documents showed that prosecutors were specifically trained in how to disguise racially motivated strikes of black jurors.

Go here to learn how to take action against North Carolina’s racist death penalty.

The whitening of the jury: How discrimination thrives in NC courtrooms

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.

 

Johanna
Johanna Jennings, right

Keith Tharpe is not an anomaly. Lots of death row inmates have been called at “n___r” at their trials.

Keith Tharpe death penalty Georgia
Keith Tharpe with his grandchild

Last week, the Supreme Court halted the execution of Keith Tharpe in Georgia because of a juror’s admission that he voted for death because he believed Tharpe was a “n—-r.”

“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.