In New Round of Racial Justice Act Litigation, North Carolina Judge Orders Prosecutors to Disclose Data on Decades of Jury Strikes

In the first Racial Justice Act case to reach a hear­ing since the North Carolina Supreme Court struck down the state legislature’s attempt to retroac­tive­ly repeal the land­mark law, a North Carolina judge has ordered state pros­e­cu­tors to pro­duce decades of data on jury selec­tion in cap­i­tal cas­es. On May 20, 2021, Superior Court Judge Wayland Sermons (pic­tured) grant­ed a request from the legal team rep­re­sent­ing death-row pris­on­er Hasson Bacote that pros­e­cu­tors pro­duce records relat­ed to pros­e­cu­to­r­i­al train­ing and com­mu­ni­ca­tions regard­ing jury selec­tion, includ­ing jury selec­tion notes, since 1980. 

The Racial Justice Act requires that a pris­on­er’s death sen­tence be changed to life impris­on­ment if racial bias or dis­crim­i­na­tion was a sig­nif­i­cant fac­tor in the deci­sion to seek or impose the death penal­ty in his or her case. Bacote, who is a Black, was sen­tenced to death in Johnston County, North Carolina in 2009. His lawyers have pre­sent­ed evi­dence that pros­e­cu­tors in his case struck Black jurors at near­ly triple the rate that they struck white jurors. 

“I don’t know that there’s a weak­er case for the death penal­ty than Mr. Bacote,” Gretchen Engel, exec­u­tive direc­tor of The Center for Death Penalty Litigation, said. ​“This case, with all of the oth­er evi­dence we have, [shows] that racism per­me­ates the death penal­ty in our state and nationwide.”

Bacote is one of more than 140 death-row pris­on­ers who filed claims under the 2009 law, which was repealed in 2013 when Republican leg­is­la­tors took con­trol of the state house and sen­ate. The bill attempt­ed to apply the repeal retroac­tive­ly to claims pris­on­ers had already filed under the act, and tri­al judges across the state dis­missed the Racial Justice Act cas­es that were pend­ing before them. 

The death sen­tences of four pris­on­ers had already been over­turned pri­or to the repeal, but sub­se­quent state court rul­ings rein­stat­ed those death sen­tences. Prisoners whose cas­es had not yet been heard appealed the retroac­tive repeal of the law, and in 2020, the North Carolina Supreme Court ruled in their favor. The court said that ​“the retroac­tive appli­ca­tion of the RJA Repeal vio­lates the pro­hi­bi­tion against ex post fac­to laws under the United States and North Carolina Constitutions” and remand­ed the cas­es to tri­al court to con­duct hear­ings. The court sub­se­quent­ly issued rul­ings restor­ing the Racial Justice Act deci­sions that had tak­en Marcus Robinson, Christina Walters, Quintel Augustine, and Tilmon Golphin off of death row.

Bacote’s case is the first to be heard since that 2020 rul­ing. His lawyers from the ACLU and the Center for Death Penalty Litigation asked that the state pro­duce records dat­ing back to 1980, when North Carolina rein­stat­ed the death penal­ty. Judge Sermons ordered the North Carolina Department of Justice to gath­er and sub­mit that evi­dence, which includes data on train­ing of pros­e­cu­tors as well as the racial demo­graph­ics of all pros­e­cu­tors and staff in dis­trict attorney’s offices. ACLU Capital Punishment Project lawyer Henderson Hill, one of the mem­bers of Bacote’s defense team, said Bacote sought the infor­ma­tion because of the long tenures and out­sized influ­ence of some pros­e­cu­tors. ​“If you went to a Joe Freeman Britt train­ing,” Hill said, refer­ring to a long­time Robeson County District Attorney with a rep­u­ta­tion for being ​“tough on crime,” ​“what he said influ­enced lawyers and the state pros­e­cu­tors in the state for 20, 30 years.”

The evi­dence already sub­mit­ted by Bacote’s attor­neys demon­strates sig­nif­i­cant racial dis­par­i­ties in jury selec­tion. ​“The rate at which the pros­e­cu­tion exclud­ed Black cit­i­zens from his jury was shock­ing,” Engle said. In addi­tion to the case-spe­cif­ic evi­dence of dis­pro­por­tion­ate jury strikes, Bacote’s peti­tion pre­sent­ed evi­dence from a study con­duct­ed by Michigan State University researchers, who exam­ined data from 1500 North Carolina cas­es between 1990 and 2009. That study revealed that, with remark­able con­sis­ten­cy both over time and in coun­ties across the state, pros­e­cu­tors had struck prospec­tive Black jurors from serv­ing in cap­i­tal cas­es at 2.5 times the rate of oth­er jurors. An exten­sive regres­sion analy­sis of hun­dreds of fac­tors that could poten­tial­ly explain the strikes found that the huge dis­par­i­ty in strike rates was attrib­ut­able to race. Studies also showed that 20% of North Carolina death-row pris­on­ers had been sen­tenced by all-white juries, and anoth­er quar­ter had been con­vict­ed by juries with only a sin­gle per­son of col­or. In a case with white vic­tims, the defen­dant was near­ly three times more like­ly to be sen­tenced to death.

Bacote’s case is con­sid­ered a bell­wether. A rul­ing in his favor could por­tend relief for much of the state’s death row. ​“The Racial Justice Act is real­ly a unique law,” Engel said. “[T]here aren’t very many states that have the courage to enact some­thing like [it] that’s real­ly going to take a hard look at our crim­i­nal pun­ish­ment sys­tem in our most seri­ous cas­es and deal with the his­to­ry of racism and the death penalty.”

“Is [the death penal­ty] biased? I think most peo­ple would answer yes,” Hill said. ​“I think the ques­tion is, what do we do about it? How do we undo 300, 400 years of race dis­crim­i­na­tion?” The answer, he said, is ​“Let’s get it right. Let’s fix it. And I think that’s what is so promis­ing about this piece of litigation.”

Judge Sermons did not take evi­dence or hear argu­ment on the mer­its of Bacote’s case at the hear­ing. He sched­uled a con­fer­ence on the sta­tus of the records in 90 days.