September 1
NORTH CAROLINA:
North Carolina Supreme Court Begins Case on Racial Bias in Jury
Selection----The North Carolina Supreme Court is hearing a case to decide if
racial bias will be allowed to continue in jury selection, or if the
Constitution's promise of due process and a trial by a jury of one's peers
applies to everyone
JACQUELINE LUQMAN: This is Jacqueline Luqman with The Real News Network.
In 2009, four people on death row in North Carolina were resentenced under
North Carolina’s groundbreaking Racial Justice Act after they were able to
prove racial bias was a factor in their sentencing. Their sentence was changed
from death row to life in prison. But their victory was short-lived and their
cases are now before the Supreme Court in North Carolina, where the issue is
not of the innocence or guilt of these men, but the issue that’s being argued
is whether North Carolina will confront the racial bias in its criminal justice
system, or will it continue to perpetuate it. Joining me to talk about this is
Cassandra Stubbs. Cassandra is the Director of the ACLU Capital Punishment
Project and represents Mr. Marcus Robinson, one of the defendants in the case.
Thank you so much for joining me.
CASSANDRA STUBBS: My pleasure.
JACQUELINE LUQMAN: So in 2012, the first 4 people to submit new evidence of
bias being involved in their sentencing actually won under the newly enacted
Racial Justice Act in North Carolina, correct?
CASSANDRA STUBBS: That’s right. Marcus Robinson was the 1st person to go to
hearing, and he was the 1st person to prevail under the Racial Justice Act. And
then Christina Walters, Tilmon Golphin, and Quintel Augustine, their cases
followed later that year. They also won under the newly passed law.
JACQUELINE LUQMAN: And they were all supposed to be resentenced. Their sentence
was supposed to be changed from a sentence of death. They were all on death
row, they were all supposed to be removed from death row, and their sentence
was supposed to be changed to life in prison, but what happened? What actually
happened with their cases?
CASSANDRA STUBBS: Well, that is exactly what happened. What happened was just
what the law called for. The law provided new access to discovery and new
information. And with that, a new mechanism to uncover racial bias. All four
were able to find evidence that had not come to light before about the racial
discrimination in their cases. All 4 had trials, evidentiary hearings that
looked like a trial that were multi-weeks long with lots of expert testimony,
lay witness testimony. And the judge, as the law required, at the end made a
finding in each case. And in each case, he found that racial bias had
contributed to the death sentences, and that therefore, their death sentences
had to be changed to life without parole. And all four were taken off death
row, were resentenced to life, and were serving life sentences at prisons
around the State of North Carolina.
When the North Carolina Supreme Court took cert, the North Carolina Supreme
Court decided under its extraordinary powers that it would review the cases.
And it decided on some pretty procedural technical grounds that it thought that
there should have been more time for the state in order – before the hearing,
the state should have been granted a 4th continuance, and so it remanded for
new proceedings. And that’s where the story gets very unusual. Even though the
North Carolina Supreme Court did not resentence them to death, did not enter a
new order about their life sentences, right after the North Carolina Supreme
Court remanded, all four prisoners were moved from the prisons around the state
where they had been serving for multiple years at that point, their life
without parole sentences, all four were moved back to death row. And so that
became then one of the arguments that we’ve been advancing in the courts, that
that was an unconstitutional move.
JACQUELINE LUQMAN: So there was no order to resentence them back to a death
penalty from the Supreme Court, not from the Department of Corrections. They
were not retried and found – sentenced again to death. They were just
procedurally moved back to death row during a court-imposed continuance. Is
that what happened?
CASSANDRA STUBBS: Yes, there was no new procedure. There was no new finding.
There was no new court order. There was nothing that would direct the
Department of Corrections to move or permit the Department of Corrections to
permit moving these prisoners who had been sentenced to life with parole back
to death row. And I think a continuance is maybe not the technical word, but it
is an interesting way to look at what the Supreme Court did, which was to say,
“All right, the state has said they need more time, so let’s remand this case
down for additional proceedings under the Racial Justice Act.”
JACQUELINE LUQMAN: So then another interesting thing happened. As this was
playing out, the Legislature in North Carolina changed parties from Democrat to
Republican. The Racial Justice Act was implemented under a Democratic
administration, right, in North Carolina. Then, a Republican administration
came in, and then what happened to the Racial Justice Act when the new
Republican Governor took office?
CASSANDRA STUBBS: Yeah, so one of the things that we saw pretty early on, and
one of the claims that Mr. Robinson has been advancing in the North Carolina
Supreme Court is that the legislature’s actions in this case were
unconstitutional. The legislature was very closely following what had happened
after Mr. Robinson had won and proved his case of discrimination. And the
legislature, in the debates about the Racial Justice Act, made clear that they
were very concerned that multiple people might be able to prove racial bias.
And based on those concerns, that multiple people might be able to prove the
racial bias, that it had just a few years ago when it passed the Racial Justice
Act announced were necessary because of its concern about racial bias
operating, they voted to repeal it.
And actually, they tried multiple times. First, they tried to narrow the law,
but under the more narrow version of the law, the three— Golphin, Augustine,
and Walters— all three were able to win under the more narrow law. So then the
legislature came back and said, “Actually, it looks like lots of people are
still able to pursue these claims, so let’s shut the whole thing down. Let’s
repeal the Racial Justice Act.” And that’s one of the claims that Mr. Robinson
is asking North Carolina Supreme Court to rule on— is that the legislature, by
doing so, was acting with a discriminatory purpose.
JACQUELINE LUQMAN: I think it’s important to note here that incarcerated people
on death row were not arguing for their innocence as much as they were arguing
that racial bias played a role in their sentencing to death. Is that what is
really the argument here?
CASSANDRA STUBBS: Yeah, so the Racial Justice Act, the link to innocence was
that part of how the Racial Justice Act got passed was that a number of death
row prisoners in North Carolina had turned out to be innocent, including my
client Bo Jones, who was on death row for more than 14 years for crime he did
not commit. And what is really striking when you look at the exonerees from
North Carolina’s death row is how many are people of color, and how many were
sentenced to death by all-white and nearly all-white juries. That’s what really
brought these issues about the problem that the constitutional protections we
have probably have not been sufficient. They have not rooted out the racial
bias. That’s what brought the issue to the legislature in the first place.
But absolutely, the promise that the legislature made when it passed the Racial
Justice Act was going forward in North Carolina: “We’re going to break the link
between the death penalty and race, we’re going to look at whether or not there
was racial bias, and we’re not going to require you to prove that somebody
meant and intended to discriminate. We’re just going to ask whether there was
discrimination.” And that was a really different approach than the existing
constitutional doctrines. Under the existing constitutional doctrine, you have
a smoking gun, essentially, that the prosecutor acted out of racial hatred and
had a discriminatory purpose, and that’s why race had a role in your case.
Under the new law, all you had to prove was that there was racial bias, that
there was racial discrimination. You didn’t have to talk about the prosecutor’s
intent. And under that bar, broader and more objective reasonable standard, it
was a lot easier for defendants to actually show what had been going on in
their cases and the extent of this racial bias.
JACQUELINE LUQMAN: The study proved that racial bias does exist in North
Carolina’s jury selection process. So can you tell us a little bit about the
study, what it concluded, and why are these statistics important?
CASSANDRA STUBBS: Yeah, absolutely. So as many capital lawyers or regular
criminal lawyers would readily admit, if you go in to watch jury selection, it
seems that there is a pattern of prosecutor and sometimes defense lawyers
striking on a racially biased manner. What that means is in a jury, when you’re
picking a trial, both sides get to use what are called peremptory strikes.
There are times when you can say, “I don’t want this juror to serve in the jury
without giving any explanation.” So a juror who has some reason why they can’t
be on the case, why they can’t be fair and impartial, that juror is removed
from what’s called cause. But when a lawyer just doesn’t want a juror, for
whatever reason, they use what’s called a peremptory strike.
And what we’ve seen over time in every study that’s ever looked at it, where
you just add up who’s striking who, we’ve seen overwhelmingly that as a problem
in capital cases that prosecutors overwhelmingly strike black jurors. But
oftentimes, those states are done just one case at a time. What the North
Carolina researchers did was they came in and they looked at every case in
North Carolina’s death row. Every single one. They added up all the jurors, and
they looked at these strike patterns. And they saw overwhelmingly that the
prosecutor struck black jurors compared to white jurors.
And then this study went a further step, and this is where it really was this
kind of Cadillac study. It was a top study of a quality that is really
unparalleled. And they looked at every explanation that prosecutors give for
why they strike jurors— their marital status, their death penalty views, who
they knew. They looked at all of those kinds of explanations, and they applied
them through this very rigorous data protocol to white jurors, black jurors, to
every juror who’s served in North Carolina on these capital trials, to see
whether there was some other reason that would explain why prosecutors were
overwhelmingly striking black jurors. And what they found was that there was
not.
What they found was that race is the driving explanation. And it was an
unmistakable conclusion. And even the state’s expert in these Racial Justice
Act hearings, the state’s experts said that the data was basically a prima
facie case. It was evidence of discrimination that would require some rebuttal
from the state, some explanation from the state for why we should not conclude
that there has been discrimination in these cases.
JACQUELINE LUQMAN: So the study proved statistically without a doubt, by
looking at all of the criminal cases in North Carolina – they’re not the
criminal cases, but the capital cases, where the death penalty could possibly
be the sentence, that black jurors were overwhelmingly excluded for no reason
controlled for every other reason that they could have been excluded. That has
been proven to be an issue. Racial bias in jury selection in North Carolina
capital cases was proven by the study. Not only that, but apparently there were
documents that have been unearthed that came from some of the district
attorney’s office that have guidelines for how to strike black jurors without
saying that we’re striking this person because they are black— pointing out
things like inappropriate dress, or low intelligence, or something like that.
But there were also cases of white jurors that expressed their own biases. How
prevalent was that in this investigation into this issue?
CASSANDRA STUBBS: Well, most of the time, what we were focused on was trying to
look at the evidence of what the prosecution was doing with respect to the
strikes. And as you just alluded to, we found this very troubling document
about their training. Where statewide prosecutors around the State of North
Carolina had attended a training where they had been given a list of
explanations that they could use if somebody complained about these
discriminatory tactics. And in addition, we found in multiple cases,
handwritten notes. Some of those handwritten notes were taken by the prosecutor
before jury selection. In Mr. Augustine’s case, for example, the prosecutor had
taken notes about 2 jurors who police officers in the community had mentioned
were drinking. The black juror was referenced as a black whino. The white juror
who the police just described as drinking, they wrote down was a country boy,
okay, drinks a lot. So we see very racially charged language.
We saw with respect to one juror, who was from what the document described as a
high-crime neighborhood, that she was okay because she was from a respectable
black family. There were no references to any white juror being from a
respectable white family. Again, these racially charged notes that we found.
But in addition to that, there were comments in Mr. Golphin’s case that
happened during the jury selection procedure that were particularly troubling.
In Mr. Golphin’s case, he was rushed to trial five months after his arrest in a
very racially charged atmosphere. The case had been moved to Johnston County,
where no black defendant has ever gone to capital trial and not been sentenced
to death. That’s the county that made news recently because of the Klan
billboards that were up on the highways, as many North Carolina residents
remember well into the ’70s and ’80s.
But Mr. Golphin was tried in Johnston County. And from the jury pool, one of
the jurors reported that he overheard two jurors behind him saying that Mr.
Golphin should’ve never made it out of the woods alive. That juror who was
black reported overhearing this event. And what happened next was not that the
jury pool got investigated about who had made this call for the defendant’s
lynching, and who had heard it and who might be tainted by overhearing that.
Instead, what happened was that the prosecutor then questioned that juror, and
struck the juror because he had reported the call for lynching by the white
jurors.
JACQUELINE LUQMAN: The prosecutor questioned the black juror who reported the 2
white jurors calling for the lynching of the defendant?
CASSANDRA STUBBS: That’s right, that’s right. And one of the things that was so
remarkable about the Racial Justice Act was that in North Carolina when you
suspected that the prosecutor was acting discriminatory, you had no opportunity
to question the prosecutor about what was going on through his or her mind when
they took the actions that they did. But under the Racial Justice Act, the
prosecutors in these hearings testified. They testified about what they were
thinking when they exercised these overwhelming strikes against black jurors.
The prosecutor in that case who had struck that juror, he did admit that race
was in his mind because he later on, when he was questioning that juror, which
in the process of jury selection, it’s routine for lawyers to question jurors,
but what was not routine was that the prosecutor asked the juror how he felt as
a black man about the fact that he had been pulled over by the police. And then
he went on to strike the juror. And when asked why he struck the juror, he said
that it was because he had reported the call for lynching by the two white
jurors. So this is a very extraordinary sequence of events and we think proved
racial bias in his case.
JACQUELINE LUQMAN: So we have a clear pattern of racial bias being certainly an
influencing factor in not just jury selection, but eventually in the sentencing
of capital defendants in North Carolina. Now we are at the point in which the
Supreme Court of North Carolina is once again hearing the cases in relation to
the Racial Justice Act. The four defendants who proved racial bias was involved
in their sentencing, and were resentenced under the RGA are now presenting
their case again in front of the North Carolina Supreme Court. What is being
argued here? Why is this case so important constitutionally and for fair
criminal justice, if we want to really have that in this country?
CASSANDRA STUBBS: Yeah, so the story about how we’re back at the North Carolina
Supreme Court picks up from that very unprecedented move where the 4 were
returned to death row after the Supreme Court had remanded the cases below. The
Supreme Court remanded it down to the trial court for additional proceedings
about the Racial Justice Act. But the only proceeding the lower court had was
that that judge there said he was going to have arguments about why the cases
should be dismissed now that the Racial Justice Act had been repealed. In what
is really an extraordinary order, the lower court said not only was he going to
dismiss the cases, he was going to dismiss the constitutional arguments that
the four had made about why they were entitled to their life sentences, about
why the Racial Justice Act repeal – applying that to them was unconstitutional.
He was going to dismiss those, and he was not going to reach any of the
constitutional questions except the few that he cherry picked and addressed. So
based on that order, all four then we’re left on death row, even though no
court had ever resentenced them to death. And all four were left out of court
on these claims of racial bias, even though they had earlier proved
intentional. So the 4— and I represent Mr. Robinson— one of the four petitioned
to the North Carolina Supreme Court and said, “Please review this. This is not
fair. This is not constitutional.” I think what’s at stake are enormous
questions about who the constitution works for.
One of the lead cases that we have argued about why they are entitled, why
everyone who had filed a Racial Justice Act case is entitled to a hearing on
their Racial Justice Act claims, it was a case that was decided after the Civil
War, and it’s a case called Keith. Under Keith, the North Carolina Supreme
Court said, because of what’s called due process, the constitutional right to
fairness, after – in those cases a war criminal who had killed and massacred
boys and adult men ages 13 to 60, he was given amnesty. He was given a defense
by the North Carolina legislature. A few years later, the North Carolina
Legislature came in and repealed that act. And Colonel Keith tried to invoke
the defense that had been given to him by the legislature. And the North
Carolina Supreme Court said. “He’s entitled to it. He was entitled to it. The
repeal can’t take it away.” And so the question now, for these death row
prisoners who have proven racial bias in their cases is, will the same law that
protected Confederate soldiers and has never been overturned be applied to
protect their cases?
JACQUELINE LUQMAN: This is an incredibly fascinating and extremely troubling
case. We cannot wait to find out what the decision will be, that the Supreme
Court in North Carolina will make. We will certainly check in with you to find
out what that decision will be. But in the meantime, I want to thank you,
Cassy, for coming on and talking about this case with me and elevating this
issue so people understand that there is an ongoing fight against racial bias
in the criminal justice system today. Thank you very much for joining me.
CASSANDRA STUBBS: Thank you. My pleasure.
JACQUELINE LUQMAN: And thank you for watching. This is Jacqueline Luqman with
The Real News Network in Baltimore.
(source: therealnews.com)
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