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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

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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.


JACQUELINE LUQMAN: So in 2012, the first four 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 first person to go to hearing, and he was the first 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 four 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 fourth 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 two 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 two 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 four 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 four— 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.

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Cassy Stubbs is the director of the ACLU Capital Punishment Project and represents Mr. Marcus Robinson.