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which provided death row prisoners the opportunity to examine and assert race discrimination in capital sentencing, was repealed in 2013.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.
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.
Regarding North Carolina’s track record with Batson claims, Professor James E. Coleman, Jr. writes in his article, The Persistence of Discrimination in Jury Selection: Lessons from North Carolina and Beyond:
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.
Read more about Russell here.
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.
By Shirley Burns
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.
Originally published in the Charlotte Observer, March 15, 2018, in a special to the editorial board with the heading Mother: Don’t execute my son because of his race.