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Attorneys to NC Supreme Court: Lead us in ending racial discrimination in jury selection

(Illustration: Adobe Stock)

Imagine three people being interviewed in succession in Juror Seat #10 about their ability to serve in a felony drug trial involving a Black man considered to be a felon who allegedly also possessed a firearm.

You’re the prosecutor, and you want the juror who can sympathize most with how you present the case.

Juror A is a supervisor at a termite company. He says he’s previously been a victim of crime, and that even though no one was arrested, charged or convicted, he still feels law enforcement did everything it could. He speaks warmly of law enforcement. He is not familiar with the victim or the case and has no reservation about the law regarding possession of firearms by a felon or possession of drugs – both of which are important to the state’s case. He is certain he could be fair and impartial.

Juror B is a child nutrition specialist with the city schools. She has had some prior jury service in a criminal case; she has no problem with the law regarding important issues in the case. She has no strong feelings about law enforcement one way or another. She says she could base her decision on testimony but expresses some concern about the idea of someone testifying in exchange for a deal – something the primary witness in the case will be doing. She also has a brother who faced drug charges in the same county and was subject to prosecution by the same office prosecuting this case.

Juror C is self-employed, owning her own beauty shop. She doesn’t know anyone involved in the case; she’s never been a crime victim or a defendant in court. She has no problem with the law that criminalizes the possession of firearms by a felon or the idea of cooperation between a witness and the state in exchange for consideration. She says she can decide the case based on the testimony presented, though she prefers the parties not rely on hearsay evidence.

Which jurors will you strike?

The prosecutor in Sampson County who selected a jury to serve in Cory Dion Bennett’s 2016 trial struck Juror A and Juror C, a Black man and a Black woman. Juror B was a white woman.

Bennett’s attorney, Franklin Wells, contended Monday before the North Carolina Supreme Court that those strikes were unconstitutionally race-based and asked for a new hearing to determine as much.

“You might think Juror A is a state juror, a crime victim who talks warmly of law enforcement – they’re going to keep him,” Wells explained. “Juror B – no, she’s not so good for the state. She’s got a brother who’s been in trouble with the law. She has some questions about whether we should take witnesses’ testimony into account if they’re getting a deal. But, the state excused Juror A, an African-American male; excused Juror C, who came next, an African-American female; and they kept Juror B, the one we would think up-front would be the least prosecution-minded, a white woman.”

Bennett was sentenced to 13 years in prison on felony drug charges (he was acquitted of the firearm charge). If a court finds at a new hearing that racial discrimination was a factor in jury selection, he could be granted a new trial.

The state Supreme Court also heard arguments about racial discrimination in the jury selection of a Cumberland County murder case. Cedric Hobbs is serving life in prison after being convicted of murdering a pawn shop store clerk, but he is seeking a new trial.

‘A low bar’

North Carolina appellate courts have never acknowledged race discrimination against jurors of color – it stands alone in that regard among southern states.

“The problem is not that there hasn’t been enough opportunities for the appellate courts [to address the issue],” said David Weiss, a staff attorney at the Center for Death Penalty Litigation.

He said there have been 120 claims of racial discrimination in jury selection – not including the two cases heard yesterday at the high court – or claims of Batson violations in jury selection over the past 34 years in the North Carolina appellate courts.

Batson v. Kentucky, where the term “Batson violation” comes from, is the case that set the modern rules for addressing racial discrimination in jury selection. The U.S. Supreme Court ruled in that case that a prosecutor’s use of a peremptory challenge in a criminal case (the dismissal of jurors without reason) cannot be used to exclude jurors based solely on their race.

At the time of trial, an objection was made in the Bennett case regarding the two strikes of potential Black jurors. According to Wells, the judge presiding in the case said, “well, you kept three African-Americans,” effectively misunderstanding the Batson standard – which prohibits the use of racial discrimination against even a single juror.

The judge also asked the defense at the time why they excused three “white Americans,” according to Wells.

“The idea that everybody gets discriminated against at some point or another doesn’t make it OK to discriminate in jury selection against anyone, to use race as a substantial fact, and that’s what was going on here – at least there’s an inference that was, and remember, that’s what the bar is: an inference that race may play a role in the exercise of a peremptory challenge,” he said. “It is in fact a low bar; it’s intended to be a low bar.”

The three-judge appellate panel in Bennett’s case denied his request for relief, because they did not think the evidence in the case was proper. There was no evidence in the record that the prospective jurors filled out questionnaires or self-identified their race.

Wells agreed that it would have been better to have evidence that identifies the race of jurors in the case, but said, regardless, they were able to prove “at the very least” race played a role in jury selection, because of the inference to it in the record.

Assistant Attorney General Kristin Uicker argued at the Supreme Court that the trial court record was not sufficient for review of a Batson violation.

“While it is a low bar, it is still some bar,” she said. “You have to show something, produce some sort of evidence of some kind.”

She added later that without a complete or accurate record, it’s impossible to move forward with the appeal.

N.C. discrimination ‘an open secret’

Sterling Rozear, Assistant Appellate Defender at the North Carolina Office of the Appellate Defender, argued on behalf of Hobbs at the high court.

He said in the two decades leading up to the case, Cumberland County was found to have struck Black jurors two and a half times more than white jurors.

He presented evidence about the jurors that were struck from Hobbs’ case, and said while prosecutors provided a laundry list of “pretextual” objections, it was clear that race was the motivation behind the strikes.

Amy Irene, with the North Carolina Department of Justice, argued that there was no error of law in the case and that the prosecutor’s strikes in the case were not pretextual.

James Coleman (Photo: Duke Law)

“These cases are about far more than these two defendants,” said Duke Law Professor James Coleman, a scholar on race and the law who filed a “friend of the court” brief in both cases. “They’re about whether North Carolina’s high court will finally confront the problem of African Americans being systematically denied the right to wield power in our justice system. For too long, this discrimination has been an open secret, ignored at the highest levels of North Carolina’s justice system. Now, our court has the chance to say that race discrimination in the jury box must end.”

Two recent studies found that qualified Black citizens in North Carolina are excluded from juries at more than twice the rate of white people, denying defendants the right to be judged by a fair cross section of their community, according to a news release from the Center for Death Penalty Litigation [3] and the prosecutors’ organization, Fair and Just Prosecution [4].

Research has also found juries with two or more members of color deliberate longer, discuss a wider range of evidence, and are more accurate in their statements about cases, regardless of the defendant’s race. And as recently as June of last year, U.S. Supreme Court Justice Brett Kavanaugh wrote an opinion in Flowers v. Mississippi warning that race discrimination in jury selection is a pressing problem that courts must address.

“There is no question that Black citizens are unfairly excluded from jury service because of their race,” Coleman said. “The only question is whether the North Carolina courts will finally provide meaningful protection from this longstanding civil rights violation.”

Weiss said Flowers is just one of several cases the U.S. Supreme Court has taken up over the past decade signaling to lower courts that they need to address race discrimination in juries.

“They’re sending a message that we need to do better,” he said.

He pointed to other states, like Washington, that had a similar record to North Carolina but, in 2018, that state’s Supreme Court was the first in the nation to adopt a court rule addressing implicit and intentional racial bias in jury selection.

Other states such as Nevada and Connecticut took additional steps, including reversing convictions marred by racial bias, crafting new legal approaches and appointing study commissions on jury discrimination.

“Every day, Black citizens are denied the civil right to sit on juries,” Weiss said. “Like voting, jury service is the way that we participate in the criminal justice system. We’re not asking our court to do something no other court has done.”

‘Make Batson real’

Several national organizations, along with North Carolina civil rights leaders and advocacy groups, have filed amicus briefs in Hobbs’ and Bennett’s cases urging the Supreme Court to take action. The groups include Fair and Just Prosecution, the North Carolina NAACP, the North Carolina Advocates for Justice, the Charles Hamilton Houston Institute for Race and Justice, the Anti-Defamation League, Latino Justice and the Korematsu Center for Law and Equality.

“The exclusion of African Americans from the jury box is a fundamental civil rights problem rooted in our shared history of subjugation and segregation based on race,” said Miriam Krinsky, a former federal prosecutor and Executive Director of Fair and Just Prosecution. “It will take a concerted effort at every level of the justice system to solve this problem. Right now, the North Carolina Supreme Court has a chance to step up to the task, apply the law fairly, and send a message that North Carolina’s tolerance of this injustice must end.”

Franklin Wells expressed a similar sentiment in his closing argument Monday.

“This court is very aware of shortcomings of Batson jurisprudence, and here I am, a small town lawyer representing his client the best I can, and I believe my client has a claim,” he said.

He said it might sound in his argument as if he just discovered Batson violations are a problem, but he acknowledged the many people in the room who spent their lives working on ending race discrimination in the justice system. Then he got personal.

“If it sounds like I take this personally, I guess it’s because I do,” Wells said. “I was born and raised in North Carolina… If I may, my family has been in this state since 1700. There is a will in the state archives filed in 1725 by a guy named Jacob Wells, my sixth great grandfather, and in that will, Jake disposed of a dozen human beings who he and the law at the time considered to be their property.

“When I talk about troubling, very uncomfortable history we have in this state with race, I’m talking about my history too. I know it’s not easy to talk about. I know trial lawyers don’t want to talk about it. I know trial judges don’t want to deal with it. I know appellate courts aren’t comfortable dealing with it. But I’m convinced until we do, until we confront our history of discrimination, we’re going to continue to have problems. I’m also convinced that the Bar and the judiciary of this state are ready to do something, but we need leadership from this court.”

Wells asked the justices to use the “apparent authority of this court to make Batson real in this state.”