Newly constituted NC Supreme Court revisits the issue of racial discrimination in jury selection

High court weighs whether prosecutors used a ‘cheat sheet’ to eliminate Black people from a death penalty case jury pool

The North Carolina Supreme Court heard oral arguments Wednesday over whether a Forsyth County prosecutor used a “cheat sheet” to remove Black people from a jury in a capital trial in 1996.

Attorneys have broad leeway to excuse people from jury pools, but they cannot send them home because of the color of their skin. The pamphlet, attorneys argued Wednesday, suggested reasons lawyers could cite as a pretext for removing jurors on the basis of their race.

The year before, prosecutors who attended a training offered by the North Carolina Conference of District Attorneys received a pamphlet guiding them on how they could defend removing Black prospective jurors during jury selection. Among the suggestions were claiming that Black jurors seemed to show a “resistance to authority,” held “anti-prosecution tendencies,” and did not maintain eye contact.

Months later, Forsyth County Assistant District Attorneys Rob Lang and David Spence selected a jury in the trial of Russell Tucker, a Black man charged with murdering a Kmart employee.

Lang, who had attended that training, and Spence removed five Black prospective jurors from the jury pool.

An all-white jury later sentenced Tucker to death. He remains on death row today. North Carolina has not carried out an execution since 2006.

At a North Carolina Supreme Court hearing Wednesday morning. Tucker’s attorneys argued that Lang used the “Batson Justifications” handout as a “cheat sheet,” a means of keeping Black people off the jury.

“When asked to give his true subjective explanations for removing Black jurors, the prosecutor read his answers off of the training document,” Elizabeth Hambourger, an attorney with the Center for Death Penalty Litigation, told the Supreme Court justices.

A potentially momentous case

The case is among the first heard by the newly constituted court. Democrats held a majority of seats on the state’s high court until last month. Republicans picked up two seats in the midterm elections last year, giving them a 5-2 majority.

The consequences of that election could be felt on many issues intersecting with the criminal justice system. Last week the court heard arguments in a case involving the voting rights of tens of thousands of people on probation or parole as part of a felony conviction — and appeared open to rolling those rights back.

All four of the cases argued before the Supreme Court on Wednesday involved allegations of racial discrimination during jury selection. They each flowed from a 1986 U.S. Supreme Court decision, Batson v. Kentucky, which found that prosecutors selecting a jury in a criminal case could not dismiss prospective jurors without valid cause to exclude them solely on the basis of race.

The North Carolina Supreme Court was the last state in the South to determine that a prosecutor had racially discriminated during jury selection, known as Batson violation. In May 2020 the court issued a 6-1 ruling in a capital case out of Cumberland County in which it gave lower courts detailed guidance on how to better assess racial discrimination claims in jury selection. Then-Associate Justice (and current Chief Justice) Paul Newby was the lone dissenter.

Many advocates for criminal justice reform are concerned the high court could roll back that ruling now that Republicans have regained control of the court and once again render it almost impossible to show Batson violations.

“If Batson can be actually enforced in a meaningful fashion, you end up with more inclusive or diverse juries, and you end up with jurors who aren’t going to be excluded from important government functions based on their race,” Thomas Maher, a private attorney who worked on Tucker’s case, told Policy Watch.

Jurors have immense responsibility, Maher said.

“In a death penalty case, they literally have the power decide life or death,” Maher said. “And to have that decision made by a group of people who are not representative of the community they come from, and particularly skewed racially, greatly diminishes the credibility and the reliability of our system.”

Policing discrimination

Hambourger, of the Center for Death Penalty Litigation, told the justices Tucker’s claim hinged on the Batson cheat-sheet.

A defendant-appellate brief filed in the case states that Lang cited “body language” and inappropriate responses as the justifications for why he struck Black jurors, language that is used verbatim in the cheat sheet.

“The decisive question in a Batson determination is whether or not counsels’ reason should be believed. It is the honesty and the truthfulness of the prosecutor that is at issue in determining his or her intent,” Hambourger said. “If you have a true reason, you don’t need to read it off a piece of paper.”

Attorneys for the state argued that Tucker’s case did not clear a critical procedural hurdle outlined in the law.

Associate Justice Philip Berger Jr. appeared skeptical of racial discrimination. He zeroed in on prosecutors’ striking of Debra Banner, a nurse who worked long hours and who had trouble staying awake during jury selection. Berger pointed out that Banner was not registered to vote, and that the first thing Lang said to her in court was “wake up.”

Berger said it was unclear from the record whether white members of the jury pool had trouble staying awake that day or found it hard to pay attention to the trial. Berger implied that assessing a juror strike based on racial discrimination neglects to account for legitimate reasons an attorney might have for removing someone from a jury pool.

“And isn’t that the problem with grouping everyone as white jurors or Black jurors, is that you’re not dealing with a specifics, you’re talking in generalities about a group?” Berger asked.

Berger dissented in a ruling issued last year involving another Batson violation, accusing his fellow justices of relying on “cherry-picked facts.” In that dissent he noted that the majority opinion mentioned one juror more than 30 times, but did not “analyze or even consider the legitimate reasons for her strike because doing so destroys their narrative.”

Hambourger said that any reason for striking a juror is valid — except race or gender. She acknowledged that there was value in prosecutors exercising peremptory strikes, “but it pales in comparison to the need for the system to police discrimination and prevent discrimination.”

Central to Tucker’s case, Hambourger said, is whether the reasons the prosecutor gave for striking Black jurors like Banner were true, or just pretexts for keeping them off the jury that would ultimately sentence Tucker to death.

After all, she said, Lang claimed he removed Banner because she was a nurse, but he did not strike a white juror who said he wasn’t sure how his job as a health care worker would affect his ability to consider the death penalty.

“Jury selection is never going to be about picking the 12 perfect people in the pool,” Hambourger said. “It’s going to be about selecting people who have a variety of characteristics.”

It is not clear when the court will issue its decision.