A North Carolina death-row prisoner is seeking a new trial based on allegations that prosecutors in his case used a training document steeped in racist stereotypes to manufacture pretextual reasons to exclude African Americans from serving on his jury. In a June 4, 2019 court filing in the appeal of Russell William Tucker (pictured), two national experts say that the Forsyth County prosecutors unconstitutionally exercised their discretionary juror challenges on the basis of race to strike all five black jurors from his case. Bryan Stevenson, executive director of the Equal Justice Initiative, says that the prosecution’s use of pre-prepared reasons contained in the training document shows that the “race neutral” justifications the prosecution offered for their strikes were pretextual. Dr. Ibram X. Kendi, an historian and the director of the Antiracist Research and Policy Center at American University, says that the reasons extracted from the training handout are outgrowths of false white supremacist myths about African Americans and “themselves evince racial bias.”

Tucker was sentenced to death in February 1996 for the 1994 murder of a K-Mart security guard. In selecting the jury in his case, prosecutors David Spence and Robert Lang relied on a document, “Batson Justifications: Articulating Juror Negatives,” distributed in a prosecutorial training session to offer facially race-neutral justifications if the prosecutor’s use of discretionary jury strikes were challenged. Both prosecutors and defense lawyers may peremptorily challenge a limited number of jurors to remove them from the jury pool and they do not have to give a reason for doing so. However, those strikes may not be used to remove jurors because of their race, and in 1986, the U.S. Supreme Court ruled in Batson v. Kentucky that if the defense challenges a strike, the prosecutor must provide a race-neutral explanation for doing so. Tucker’s petition alleges that prosecutors used language directly from the training document to justify their strikes, citing jurors’ “monosyllabic” replies, “body language,” or their opinion that the juror had “no stake in the community.”

In an affidavit supporting Tucker’s petition, Stevenson called “[t]he North Carolina Batson Justifications handout … another example of the common prosecutorial response to Batson: prosecutors came up with ways to conceal racial bias, and avoid findings of Batson violations, by developing ‘reasons’ that would likely be deemed race-neutral, and therefore, acceptable to reviewing courts.” Stevenson said that, despite appearing race-neutral, “many of the listed reasons are based on longstanding racist stereotypes that have been used to deny rights to Blacks for centuries.” Kendi—whose National Book Award-winning book Stamped from the Beginning traces the roots of anti-black racist ideas from colonial times to the modern era—described many of the reasons contained in the training handout as a modern application of the same types of language used to justify Jim Crow policies, segregation, and voter suppression. “[M]any of the reasons listed on the Batson Justifications handout and offered to the court as ‘race neutral’ reasons to remove Blacks from Mr. Tucker’s jury were not race neutral at all,” he wrote in an affidavit. “Instead, many of the listed reasons are based on longstanding racist stereotypes that have been used to deny rights to Blacks for centuries.”

Racial discrimination in jury selection remains a widespread problem in death-penalty cases, despite the Supreme Court’s ruling in Batson. A Michigan State University study of North Carolina prosecutorial jury strikes or acceptances of more than 7,400 jurors from 173 capital cases tried over a twenty-year period showed that prosecutors across the state consistently struck African-American jurors at approximately twice the rate of other jurors. Yet a 2016 study of Batson challenges in North Carolina found that, “[i]n the 114 cases decided on the merits by North Carolina appellate courts, the courts have never found a substantive Batson violation where a prosecutor has articulated a reason for the peremptory challenge of a minority juror.” A 2015 New Yorker article on the discriminatory tactics used by prosecutors highlighted the same training document that is being challenged in Tucker’s appeal. The issue has reached the U.S. Supreme Court several times in recent years. In May 2016, the U.S. Supreme Court granted a new trial to death-row prisoner Timothy Foster after finding that Georgia prosecutors had invented pretextual reasons for striking every black juror from his case. On March 20, 2019, the U.S. Supreme Court heard oral argument in Flowers v. Mississippi, an appeal from a Mississippi prisoner who had been tried six times. Over the course of his six trials, prosecutors removed all but one black juror. The Court has not yet issued a decision in that case.

(Michael Hewlett, Court papers: Training document designed to exclude black jurors in murder case, Winston-Salem Journal, June 8, 2019; Jacob Biba, N.C. Prosecutors Were Taught How to Remove Blacks From Juries. That Might Save Russell William Tucker’s Life, Indy Week/The Appeal, September 5, 2018; Michael Hewlett, Motion: Prosecutors used race in jury selection in Winston-Salem murder trial involving killing of Kmart security guard, Winston-Salem Journal, July 29, 2018.) Read the filing in North Carolina v. Russell William Tucker. See Race and Prosecutorial Misconduct.

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