Juror discrimination pushes the death penalty conversation

by Sharon McCloskey, NC Policy Watch, August 20, 2015.

It’s been more than two years since the General Assembly repealed the Racial Justice Act, eliminating the right of death row inmates here to assert statutory claims of racial discrimination in juror selection.

The cases of the few inmates who managed during the Act’s short life to establish such discrimination and have their sentences reduced to life without parole still live, though, awaiting decision by the state Supreme Court following arguments in their cases in April 2014.

But the U.S. Supreme Court is now stepping into the fray, agreeing in late May to review a case out of Georgia this term that addresses the constitutional underpinnings such claims.

In Foster v. Humphrey, the court will clarify its ban on using race to exclude potential jurors, first announced in its 1986 decision in Batson v. Kentucky.

The facts in Foster are egregious – including prosecutor notes highlighting and ranking potential black jurors, all of whom were excluded from serving in the case — and not unlike those in the Robinson and Golphin cases pending here.

And while the question in Foster is whether the evidence sufficed to establish a claim under the 8^th and 14^th Amendments of the U.S. Constitution – as opposed to the Racial Justice Act claims asserted in Robinson and Golphin – a ruling from the high court will provide a road map for juror discrimination claims here in the aftermath of the Act.

The high court’s decision to take the Foster case comes at a time when attorneys and advocates continue to uncover of evidence of prosecutorial misconduct in jury selection.

In New Orleans, for example, civil rights attorneys are contemplating a lawsuit after data showed district attorneys striking eligible African-American jurors three times more often than other jurors.

And it coincides with a loudening discussion over the viability of the death penalty itself, amplified by recent comments by justices of the U.S. Supreme Court and state supreme courts alike.

In the high court’s recent decision in Glossip v. Gross, Justices Ruth Bader Ginsburg and Stephen Breyer wrote in their dissent that it was “highly likely” that the death penalty violates the Eighth Amendment’s prohibition on cruel and unusual punishment.

This past week, the Connecticut Supreme Court echoed that sentiment, striking down that state’s death penalty as unconstitutional.

“We are persuaded that, following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose,” Justice Richard Palmer wrote for a 4-3 majority on that court.

And here, former conservative state Supreme Court Justice I. Beverly Lake – who’s spent much of his time after leaving the bench advocating for the rights of the wrongfully convicted – admitted that the time for an end to the death penalty in North Carolina may have arrived.

“There’s always a chance we might execute an innocent person,” he said in an interview.

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The Racial Justice Act, enacted in 2009, allowed death row inmates to seek a reduction in their sentence to life without parole upon a showing — through statistical evidence and otherwise — that race was a significant factor in the imposition of their sentences.

At the time, a review of state Supreme Court decisions showed that the court rarely if ever sustained a challenge to the racial composition of a jury under Batson, and death penalty opponents hailed the passage of the Act as a necessary safeguard from continued racial bias in the judicial system.

From day one, though, prosecutors and other proponents set out to overturn the Act. In 2011, the state senate garnered enough votes for repeal but could not override Gov. Bev Perdue’s veto.

By 2012, the legislature managed by amendment to rein in significant provisions of the RJA, limiting the scope of statistical evidence upon which inmates could rely to prove their claims.

Most of the state’s 152 death row inmates filed motions for appropriate relief, seeking to have their sentences commuted under the Act, but only a few saw their cases move to trial and decision.

Marcus Robinson became the first to have his sentence reduced in April 2012, when Cumberland County Senior Resident Superior Court Judge Gregory Weeks, in a 167-page order, found that race was a significant factor in the imposition of the death penalty statewide as well as in Robinson’s own case.

On the heels of Robinson, death row inmates Tilmon Golphin, Christina Walters and Quintel Augustine asked Weeks to reduce their respective sentences.

But shortly before hearings began in July 2012 in those cases, the legislature amended the RJA to require more than just statistical evidence to prove a claim of racial bias.

The inmates sought to do that in the hearings that followed, and in an opinion sharply critical of the prosecution not only for its conduct during the underlying murder cases but also for continuing to delay RJA proceedings while lobbying for a repeal of the Act in the legislature, Weeks commuted each of their sentences to life without parole.

In his 210-page order, Weeks wrote:

This conclusion is based primarily on the words and deeds of the prosecutors involved in Defendants’ cases. In the writings of prosecutors long buried in case files and brought to light for the first time in this hearing, the Court finds powerful evidence of race consciousness and race-based decision making.

That evidence included prosecutors’ notes discussing the race of potential jurors and “cheat sheets” used to offer up pretextual excuses for eliminating black jurors.

“Despite her testimony to the contrary, the evidence was overwhelming that this prosecutor relied upon a ‘cheat sheet’ of pat explanations to defeat challenges in numerous cases when her disproportionate and discriminatory strikes against African-American venire members were called into question,” Weeks said.

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Timothy Foster was 18 years old when he was charged with the murder of a white woman in Georgia in 1986. At his trial a year later, four of the 42 qualified prospective jurors were black, like Foster, and prosecutors struck them all from serving on the case.

He was then convicted of murder by an all-white jury and sentenced to death.

Foster unsuccessfully challenged the composition of the jury under Batson on appeal, unable to get his hands on the prosecutors’ file to support his case.

Finally in 2006, nearly 20 years after trial, he managed to obtain the prosecutors’ jury selection notes through a public records request.

Those notes showed among other things that prosecutors highlighted the names of potential black jurors and ranked them “in case it came down to having to pick one of them.”

In subsequent proceedings, Foster renewed his Batson challenge, arguing that the prosecutors’ notes showed a clear intent to exclude the black jurors and that the state’s race-neutral explanations for that jury selection were not credible.

A trial court again rejected his claim, and the Georgia Supreme Court upheld that ruling in 2014.

At the U.S. Supreme Court, Foster now argues that the Georgia courts failed to consider all relevant evidence of racial animosity, as required under Batson.

He has the support of a group of former prosecutors who filed an amicus brief with the court, detailing persistent racial discrimination in jury selection across the country, including in North Carolina – highlighted for its training sessions at which prosecutors were given checklists of excuses to offer for excluding black juries.

How the court rules will bear upon how other death row inmates and defendants in general proceed with Batson challenges in the future.

But it also bears upon the inmates whose cases are now before the state Supreme Court on statutory claims of racial discrimination under the Racial Justice Act.

According to Ken Rose, an attorney with the Center for Death Penalty Litigation, if those inmates lose on their RJA claims — which if successful would earn them a reduction in their sentences to life without parole — they should be able to assert new Batson claims. If successful on those, the inmates would get a new trial.

“How court rules in Foster will give guidance on the Batson analysis,” Rose said. “And we have new facts — prosecutor’s notes, the strike sheet used — that weren’t available in earlier proceedings, at trial or on direct appeal. So it’s newly discovered evidence, and we will argue that we should now be able to relitigate the Batson issue.”

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