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Texas Court Stays Execution of Prisoner Whose Lawyer Deliberately Excluded Black Jurors

The Texas Court of Criminal Appeals has stayed the execution of Mark Robertson (pictured), a Dallas death-row prisoner whom Texas had scheduled for execution on April 11, 2019. The court’s April 8 stay order did not specify the reason it halted the execution, but Robertson’s lawyers had filed an appeal seeking review of their claim that his court-appointed trial lawyer, Michael Byck, had “engaged in purposeful discrimination” by deliberately excluding African Americans from serving on his jury. In 1997, Byck testified in a hearing in the case that he had been "more than happy to violate anybody else's rights” in picking a jury and that he had intentionally struck prospective black jurors. He also testified that he had told prosecutors prior to the trial that he “didn't want to have any blacks on the jury” because he believed they would not be sympathetic to Robertson, a white defendant. The Dallas County District Attorney’s office had a long history of racially discriminatory jury selection practices, and Byck testified that he and the prosecutors had agreed to “indulge each other” in their “prejudices.”

Race discrimination in death-penalty jury selection has been an issue for decades. In 1965, the U.S. Supreme Court in Swain v. Alabama, upheld a death sentence imposed by an all-white Alabama jury on a black defendant charged with rape, imposing on the defendant the burden of proving that the prosecutor in a county had systematically removed all black jurors in “case after case … with the result that no Negroes ever serve on petit juries.” In Dallas County, a 1963 office manual instructed prosecutors not to “take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.” In 1986, the Supreme Court ruled in Batson v. Kentucky that Swain had erected an insurmountable evidentiary burden and declared that the removal of even a single prospective juror on the basis of race was unconstitutional. Dallas prosecutors nonetheless continued to discriminatorily strike black jurors, and District Attorney Henry Wade – the county D.A. from 1951 to 1987 – once threatened an assistant prosecutor, “If you ever put another n****r on a jury, you’re fired.” In 2005, in the case of death-row prisoner Thomas Joe Miller-El, the U.S. Supreme Court found that the Dallas D.A.’s office had a “culture of discrimination” that was “suffused with bias against African-Americans.” It twice reversed lower court decisions that had denied Miller-El relief for the racial discrimination in his case and granted Miller-El a new trial.

Jeremy Schepers, one of Robertson’s attorneys, unequivocally condemned Byck’s discriminatory actions. “Mr. Robertson’s trial attorney testified under oath that it was his ‘conscious desire’ to keep African Americans off the jury,” Schepers told the Houston Chronicle. “And, through a variety of methods he succeeded in doing just that. By now there should be no confusion on this matter – racial discrimination in the administration of justice is intolerable. The courts should not hesitate to denounce this unacceptable behavior.” In a motion filed in Robertson’s case, attorney Lydia Brandt urged the court to intercede, rather than allow a death sentence tainted by discrimination to stand. “In the end, Mr. Byck succeeded in his discriminatory plan – Mr. Robertson was tried by an all-white jury,” she wrote. “At best, the State turned a blind eye towards Mr. Byck's discrimination; at worst, they were a willing co-conspirator.”


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Researcher—Capital Sentencing Evidence Shows Death Penalty Race Bias is Real

For decades, studies have shown persistent racial disparities in the administration of capital punishment. Saying “death sentences are unevenly and unfairly applied based on race,” California Governor Gavin Newsom on March 13, 2019 imposed a moratorium on executions in the state with the nation’s largest death row. Responding to the governor’s moratorium In an op-ed for the Los Angeles Times, Stanford psychology professor Jennifer Eberhardt—one of the leading researchers on social science and race—says race discrimination in the death penalty “is real” and that the research supports the governor’s claim. “In a state that is only 6% black, more than one-third of defendants sentenced to death in California are black,” Eberhardt said. California, like other death-penalty states, also shows evidence of bias in favor of white victims. Defendants who kill white victims are much more likely to be sentenced to death than those who kill black victims.

“But the truth is more complicated, and more insidious, than a simple black/white divide,” Eberhardt explains. Her groundbreaking 2006 study of two decades of death sentences in Philadelphia found bias operating at the subconscious level based upon an African American’s physical appearance. “When black men are judged by juries in capital cases, their sentences can hinge on just how black they are perceived to be,” Eberhardt writes. “Those with darker skin, wider noses and thicker lips are subject to far harsher sentencing than lighter-skinned blacks with less prominent, so-called black features.” In the study period between 1979 and 1999, black defendants with stereotypically African features were much more likely to be sentenced to death than black defendants with less stereotypical features (see image), but only if the victim was white. In the study of Philadelphia capital convictions, “Of the men rated low in stereotypical features, only 24% had been sentenced to death. But more than 57% of the “highly stereotypical” black defendants were sentenced to die for their crimes.” “Those strong distinctions signal that our perspectives, our criminal justice process and our institutions are influenced by primitive racial narratives that link people of African descent to darkness and evil,” she says.

Eberhardt’s op-ed describes how racial bias has become ingrained in the criminal justice system. “Research has shown that highlighting racial differences in the justice system actually leads members of the broader public to be more supportive of punitive policies, including the death penalty. When the implicit narrative of black ‘wickedness’ is not challenged, it can seem to perfectly explain the disparities in outcomes,” she says. In addition, unlike any other equal protection challenge under the U.S. Constitution, the U.S. Supreme Court’s 1987 decision in McCleskey v. Kemp barred defendants from using statistical evidence as circumstantial evidence of racial bias, instead requiring proof of “particularized discrimination” — that is, direct evidence of intentional discrimination in their case. “The ruling came under heavy criticism from legal scholars and civil rights activists, concerned that it made institutional racial bias constitutional, and simply part of the status quo,” Eberhardt writes, and was the one ruling Justice Lewis Powell, the author of the 5-4 decision, said he regretted in his time on the Court.


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Despite Possible Innocence and Intellectual Disability, Alabama Intends to Execute Rocky Myers

Robin “Rocky” Myers (pictured) may be innocent and intellectually disabled. His jury did not think he should be sentenced to die. Alabama intends to execute him anyway. Myers’ case is rife with legal issues, but he received no federal court review because his appellate lawyer abandoned him without notice, letting the filing deadline for challenging Myers’ conviction and death sentence expire. In a recent feature story in The Nation, reporter Ashoka Mukpo tells the story of how the intellectually-disabled Myers was convicted and sentenced to death for the 1991 murder of his neighbor, Ludie Mae Tucker, even after his jury recommended 9-3 that he should be sentenced to life.

Mukpo reports that the prosecution evidence against Myers was problematic. Two informants initially told police that, on the night of the murder, another man—Anthony “Cool Breeze” Ballentine— had traded a VCR stolen from Tucker’s house for crack cocaine. Another witness corroborated their story, informing police that she had seen Ballentine, wearing a white shirt stained with blood, run into an alley near Tucker’s house. Weeks later, another man, Marzell Ewing, who had known Ballentine for 30 years, came forward to claim a reward for information about the murder. He told police he’d seen a short, stocky man near the crime scene, carrying the stolen VCR. After his statement, the original informants changed their stories, naming Myers as the man who had traded the VCR for drugs. Myers later admitted that he had found the VCR in an alley next to his house—a common drop spot for stolen goods. Because of his intellectual disability, Myers was unable to tell police when he had found the VCR, leading police to conclude he was lying. In 2004, Ewing recanted his story. In a signed statement, he revealed that a detective had offered to eliminate the record of a prior arrest if Ewing testified against Myers. Ewing’s statement admitted that his testimony was “not truthful. I did not see who brought the VCR to the shot house that night.”

Other evidence also suggested Myers is innocent. Before she died, Tucker was able to describe her assailant to the police and the clothing he was wearing. Although Tucker knew Myers, she did not identify him as her attacker. Multiple witnesses testified at Myers’ s trial that he had been wearing a dark shirt the night of the murder, not the light shirt described by Tucker. No physical evidence linked Myers to the murder and none of the fingerprints found at the crime scene matched his. Mae Puckett, one of the jurors in Myers’ case, said she and a few other jurors were not convinced of his guilt but felt pressured by the majority of the jury to vote for guilt. One white juror later spoke to Myers’ defense team, referring to him as a “thug” and describing him with a racial slur. “I never thought for a moment that he did it,” Puckett said, but she and the other jurors who doubted his guilt agreed to vote for convict if the jury would recommend a life sentence. Nonetheless, exercising a since-repealed power to override a jury’s vote for life, the trial judge sentenced Myers to death.

After Myers was sentenced to death, a Tennessee attorney, Earle J. Schwarz, agreed to represent him pro bono in his post-conviction appeals. But when the state courts denied Myers’ appeal, Schwarz never told Myers and never filed a federal habeas corpus petition, causing Myers to miss the federal filing deadline. “Mr. Schwarz decided that he could no longer represent Rocky, but unfortunately he just sat in a room and said that quietly to himself,” said Kacey Keeton, who now represented Myers. “He didn’t tell Rocky, he didn’t call the courts and let them know, he didn’t tell the prosecutors, he just quit doing anything.” On behalf of Myers, Keeton is now seeking clemency from Governor Kay Ivey, Myers’ last chance to avoid execution. “The fact that we are potentially executing a man who did not have his day in court because an attorney screwed up should give everybody pause,” Keeton said.


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Justices Express Concern About “Disturbing History” of Race Bias in Mississippi Death Penalty Case

The U.S. Supreme Court seems poised to grant a new trial to Curtis Flowers (pictured), an African-American death-row prisoner tried six times for the same murders by a white Mississippi prosecutor who struck nearly every black juror from service in each of the trials. During oral argument in Flowers v. Mississippi on March 20, 2019, eight justices expressed concern that Flowers had been denied a fair trial as a result of race discrimination in jury selection in his case. Justice Samuel Alito called the case “very troubling” and Justice Brett Kavanaugh raised concerns about prosecutor Doug Evans’ pattern of discrimination.

Flowers has been tried six times for a quadruple murder in Winona, Mississippi in 1996. His first three convictions were overturned by the Mississippi Supreme Court as a result of prosecutorial misconduct. Two of those reversals included findings that Evans had violated Batson v. Kentucky, the landmark 1986 Supreme Court decision barring the use of discretionary strikes to remove jurors on the basis of race. Flowers’ fourth and fifth trials — the only trials in which more than one black juror was empaneled — ended in hung juries. At issue before the Court was Flowers’ sixth trial, in which a jury of 11 white jurors and one black juror convicted him and sentenced him to death.

The justices focused many of their questions on the records showing that Evans had a pattern of racial discrimination in selecting the juries for Flowers’ trials. Over the course of the five trials for which jury selection transcripts are available, Evans struck 41 of 42 eligible black jurors he had the opportunity to accept. Justice Kavanaugh said, “When you look at the 41 out or 42, how do you look at that and not come away thinking that was going on here was … a stereotype that you’re just going to favor someone because they’re the same race as the defendant?” Justice Alito said that Evans’ history left “reasons to be suspicious,” and said the case had an “unusual and really disturbing history.” Justice Sonia Sotomayor questioned Evans’ motives in personally prosecuting Flowers six times. Jason Davis, the lawyer arguing on behalf of the state of Mississippi, acknowledged that the history was “troubling,” but argued that Evans’ jury strikes in the sixth trial were not racially motivated. Kavanaugh challenged Davis, saying, “Part of Batson was about confidence of the community and the fairness of the criminal justice system. That was against a backdrop of a lot of decades of all-white juries convicting black defendants …. Can you say you have confidence in how this all transpired in this case?”

Sheri Lynn Johnson, arguing on behalf of Flowers, said Evans entered Flowers’ trial “with an unconstitutional end in mind – to seat as few African-American jurors as he could.” “The history is relevant,” she said, calling it “a history of a desire for an all-white jury, a history of willingness to violate the Constitution, and a history of willingness to make false statements to a trial court.” She urged the justices to consider the pattern of discrimination, not just Evans’ actions in the most recent trial. If the Court overturns Flowers’ conviction, the case will return to the state to decide whether to try Flowers for a seventh time.


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Supreme Court Refuses to Hear Georgia Death-Penalty Case Involving Racist Juror

For the second time in just over one month, the United States Supreme Court has cleared the way for the execution of an African-American prisoner in the face of strong evidence of racial or religious bias. On March 18, 2019, the Court unanimously declined to hear an appeal from Georgia death-row prisoner Keith Tharpe (pictured), who argued his death sentence was unconstitutionally tainted by the participation of racist white juror who called him a “ni***er” and questioned “if black people even have souls.” That juror, Barney Gattie, signed an affidavit also saying that there were “two types of black people: 1. Black folks and 2. Ni**ers.” Tharpe, Gattie said, “wasn’t in the ‘good’ black folks category [and] should get the electric chair for what he did.” In February, in a decision that evoked widespread condemnation from critics across the political spectrum, the Court vacated a stay of execution for Domineque Ray, a Muslim death-row prisoner, after Alabama denied his request to have an Imam present at the execution in circumstances in which it provided a chaplain for Christian prisoners.

Though agreeing on procedural grounds that the Court should not review the case, Justice Sonia Sotomayor issued a statement in connection with the Court’s action saying she was “profoundly troubled by the underlying facts of the case.” She wrote: “These racist sentiments, expressed by a juror entrusted with a vote over Tharpe’s fate, suggest an appalling risk that racial bias swayed Tharpe’s sentencing.” Justice Sotomayor said the latest decision “may be the end of the road for Tharpe’s juror-bias claim,” and the Court should therefore “not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.” "It may be tempting to dismiss Tharpe's case as an outlier, but racial bias is a familiar and recurring evil," she wrote. "That evil often presents itself far more subtly than it has here. Yet Gattie's sentiments—and the fact that they went unexposed for so long, evading review on the merits—amount to an arresting demonstration that racism can and does seep into the jury system."

In January 2018, the U.S. Supreme Court ordered the U.S. Court of Appeals for the Eleventh Circuit to reconsider Tharpe’s case, acknowledging that Tharpe had “present[ed] a strong factual basis for the argument that [his] race affected Gattie’s vote for a death verdict.” However, the appeals court refused to review his discrimination claim, saying he had never presented the issue to the state courts. Tharpe sought review of that decision by the U.S. Supreme Court, and received support from a number of groups, including Catholic bishops and the NAACP Legal Defense Fund.

Responding to the Court’s decision, Tharpe’s attorney Marcia Widder said in a statement: “Today’s decision from the U.S. Supreme Court takes giant steps backwards from the Court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice. What happened in Mr. Tharpe’s death penalty case was wrong. … Allowing Mr. Tharpe’s death sentence to stand is an affront to the fairness and decency to which we, as a society, should aspire.  True justice would not permit the State of Georgia to execute Mr. Tharpe on the basis of this record.” The NAACP Legal Defense Fund, which filed an amicus brief urging the Court to hear Tharpe’s case, issued a statement saying, “the Court’s refusal to consider his case on the merits is deeply distressing. As the Court recognized in Buck [v. Davis, in which a mental health expert testified that Buck posed an increased risk of future dangerousness because he is black], allowing death sentences to stand tainted by overt racial discrimination weakens public confidence in the rule of law and the administration of justice.” Putting it more directly, commentator Michael Harriot wrote for The Root, “Unlike the appeals process, apparently racism has no expiration date.”


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NEW PODCAST: The Race Study that Convinced the Court to Declare Washington’s Death Penalty Unconstitutional

In October 2018, the Washington Supreme Court unanimously struck down the state’s death penalty, finding that it had been “imposed in an arbitrary and racially biased manner.” In reaching its decision in State v. Gregory, the court relied upon a study of twenty-five years of Washington State capital prosecutions that demonstrated that Washington juries were 4.5 times more likely to impose a death sentence on a black defendant than on a white defendant in a similar case. The authors of that study, Dr. Katherine Beckett (pictured, left) and Dr. Heather Evans (pictured, right), join DPIC’s Managing Director Anne Holsinger in the latest episode of our podcast, Discussions with DPIC, to discuss their research and its impact on the court’s decision to strike down the state’s death penalty. Beckett and Evans describe the factors they examined at various stages of capital sentencing, the major results of their study, and the role social science research plays in policymaking.

One of the most dramatic findings of the Washington study was that racial bias was rampant in the state’s capital sentencing outcomes even though there was no statistical evidence of racial discrimination in prosecutorial decisions on whether to seek the death penalty. “The research literature has identified a number of factors that contribute to bias in decision-making outcomes by juries,” Beckett explained. “We know, for example, that implicit bias is pervasive and affects perception and decision-making. … The death-qualification process is also a contributing factor, so we know that people who are in favor of the death penalty are more likely to exhibit implicit and possibly explicit bias. By excluding people who don’t feel comfortable or are philosophically opposed to the death penalty, we amplify the implicit bias that exists in the general population.” They noted that “substantial changes” would have to be made to the process of jury selection in capital cases in order to reduce the effects of implicit bias.

Although their study profoundly influenced capital litigation in Washington, Beckett and Evans said the information that allowed them to prove discrimination in sentencing may not be available in some other states. Under Washington’s death-penalty statute, the state supreme court was required to conduct proportionality review to determine whether a sentence was disproportionate to others imposed in similar circumstances. As a result, the state courts kept thorough records of the facts of murder convictions that are not necessarily available in other states. The researchers also noted that because the Washington Supreme Court decision was ultimately based on state constitutional law, other state courts might reach a different conclusion even if defendants could show similar patterns of bias in their state sentencing practices. With those caveats, Beckett and Evans believe that courts in other death-penalty states could benefit from similar studies. They noted that the Washington Supreme Court engaged “thoughtfully” and “deeply” with their research and found it heartening that “facts and evidence and rigorous research could be included in a deliberation of how to achieve more equity in the criminal justice system.”


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California Governor Announces Moratorium on Executions

California Governor Gavin Newsom on March 13, 2019 declared a moratorium on executions in the state with the nation’s largest death row. Newsom implemented the moratorium through an executive order granting reprieves to the 737 prisoners currently on California’s death row. He also announced that he was withdrawing the state’s execution protocol—the administrative plan by which executions are carried out—and was closing down the state’s execution chamber. In his executive order imposing the moratorium, Newsom said, “I will not oversee the execution of any person while Governor.”

With the governor’s announcement, California joins Colorado, Oregon, and Pennsylvania as states in which governors have imposed moratoria on executions, meaning that more than one-third (34.1%) of all death-row prisoners in the U.S. are now incarcerated in states in which governors have said no executions will occur. As a result of legal challenges to the state’s execution protocol and appeals challenging the constitutionality of the state’s death-penalty system, California has not carried out an execution since 2006. “Our death penalty system has been, by all measures, a failure,” Newsom said in a statement accompanying his moratorium declaration. “It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation. It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars. But most of all, the death penalty is absolute. It’s irreversible and irreparable in the event of human error.”

Despite the large number of death sentences in California, the state has conducted only 13 executions since reintroducing the death penalty in 1978. A 2011 study estimated the state had spent more than $4 billion on death penalty trials, appeals, and incarceration, and estimated an annual savings of $170 million if the death penalty were abolished. In his executive order, the governor said that the cost has since risen to $5 billion. In his remarks at the news conference, Newsom said that 164 wrongly convicted prisoners have already been exonerated from U.S. death rows since 1973, and an estimated 30 innocent prisoners may be among those still sentenced to death in California. In 2012 and 2016, voters narrowly rejected referenda that would have abolished capital punishment. In 2016, a voter referendum intended to speed up executions by limiting appeals passed by a two-percentage point margin. That measure, Proposition 66, was upheld but curtailed by a 2017 California Supreme Court decision.

Governor Newsom follows the lead of governors in three other Western U.S. states who have imposed moratoria on executions in the last decade. Governors John Kitzhaber of Oregon (November 2011), John Hickenlooper of Colorado (May 2013), and Jay Inslee of Washington (January 2014) halted executions in their states, and Kate Brown of Oregon announced in February 2015 that she would extend the existing moratorium. Washington’s supreme court struck down the death penalty in October 2018 on grounds of geographic arbitrariness and racial bias, making it the 20th state to abolish the death penalty. Legislators in Colorado and Oregon are considering bills to abolish or seriously restrict the death penalty, and a Republican-backed bill to repeal the death penalty passed the Wyoming state House and a Senate committee earlier this year before failing in a vote before the full Senate. No state west of Texas carried out any executions in 2018, and those states collectively imposed the fewest new death sentences since California brought back capital punishment in 1978. Newsom said “[t]he intentional killing of another person is wrong” and that his moratorium was a first step towards the ultimate goal of ending the death penalty in California.


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Diverse Voices Urge Supreme Court to Reverse Georgia Death Sentence Involving Racist Juror

Responding to the Georgia state and federal courts’ refusal to reverse a death sentence imposed on an African-American defendant by a jury tainted by racism, an ideologically diverse range of voices have called on the U.S. Supreme Court to intervene. Georgia death-row prisoner Keith Tharpe (pictured) was sentenced to death by a juror who later said, “there are two types of black people: 1. Black folks and 2. N***rs,” and wondered “if black people even have souls.” Tharpe, the juror wrote in a signed affidavit, “wasn’t in the ‘good’ black folks category in my book, [and] should get the electric chair for what he did.” In September 2017, the Supreme Court stayed Tharpe’s execution just three hours before it was set to begin, and subsequently ordered the U.S. Court of Appeals for the Eleventh Circuit to reconsider the case. In April 2018, the circuit again denied Tharpe’s appeal. Now, as he seeks a new hearing before the Supreme Court, his case has garnered support from the NAACP Legal Defense Fund, a Harvard Law Professor, three Catholic bishops, and a prominent Georgia Republican. They all raise concerns that Tharpe’s execution would undermine confidence in the justice system.

In a New York Times op-ed, Harvard Law Professor Russell Kennedy wrote that Tharpe’s case carries a “stench of prejudice” and that his execution would be a miscarriage of justice. “[U]nique historical, constitutional and institutional concerns” should motivate the Court “to rectify the racism that remains all too evident in our administration of criminal justice,” he said. Sam Spital, Director of Litigation at the NAACP Legal Defense & Educational Fund, Inc., wrote in the National Law Journal that “overt racial bias in sentencing harms not only the defendant sentenced to die but undermines public confidence in the justice system.” He criticized the lower courts for inventing “inherently inconsistent … procedural roadblocks” as a way to uphold Tharpe’s death sentence.  Initially, the Eleventh Circuit denied Tharpe’s race discrimination claim saying he should have raised it sooner, Spital said. But even after the Supreme Court directed the court to reconsider, the circuit refused to address the issue claiming that the case allowing him to present evidence of the juror’s racist statements had not been decided until long after Tharpe’s conviction and death sentence. Spital disagreed with the decision, arguing that “[w]hen a person has presented compelling evidence that he was sentenced to death because of his race, no judge-made procedural obstacles should preclude review of his claim on the merits.”

Three Catholic bishops called for the Supreme Court to vacate Tharpe’s death sentence “for our collective dignity.” In a joint op-ed for The Atlantic, Archbishop Wilton D. Gregory of Atlanta, Georgia, Bishop Frank J. Dewane of Venice, Florida, and Bishop Shelton J. Fabre of Houma-Thibodaux, Louisiana wrote that “part of our work as religious leaders is to challenge racism by reminding the public that we are all brothers and sisters, equally made in the image of God.” Citing policy statements committing the church to the eradication of racism and declaring the death penalty inadmissible, the bishops wrote: “The U.S. Supreme Court must intervene … to ensure that fairness is protected and justice is defended—before it’s too late.” Additionally, David J. Burge, the former Chairman of the Georgia 5th Congressional District Republican Party, wrote in Newsweek, “As a conservative, I strongly believe that the laws that govern us must be followed and applied in a fair and consistent manner to all citizens.  As such, it is obvious to me that jurors who hold racially biased beliefs can never be allowed to judge a case in which their views might influence their verdict.” Tharpe’s case, he wrote, “powerfully remind[s] me that the system is not foolproof. When we know there is error, it is incumbent on the courts to intervene and make it right. … The integrity of the entire process is predicated on the assumption that all jurors evaluate the case through an unbiased lens.”


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Friend-of-the-Court Briefs Challenge Systemic Injustices in North Carolina Death Penalty 

Two amicus curiae briefs filed in the Racial Justice Act appeal of North Carolina death-row prisoner Rayford Burke (pictured) are asking the North Carolina Supreme Court to redress systemic problems in North Carolina’s administration of its death penalty. One brief, filed by the New York-based NAACP Legal Defense and Educational Fund (LDF), urges the court to provide Burke “the opportunity to prove that racial bias impermissibly influenced jury selection and infected his death sentence.” A second brief, filed by the Promise of Justice Initiative and 12 former judges, prosecutors, and law enforcement officials from North Carolina, asks the court to declare the state’s death penalty unconstitutional.  

Burke was convicted and sentenced to death for the 1992 murder of a man who he said had testified falsely against him in a prior case. He had sought review of his death sentence under North Carolina’s Racial Justice Act (RJA), enacted in 2009, which permitted prisoners to challenge their death sentences based on statistical evidence of racial discrimination. However, before a hearing was held on Burke’s Racial Justice Act claim, Cumberland County Superior Court Judge Gregory Weeks conducted an extensive evidentiary hearing in the case of Marcus Robinson and granted Robinson relief. In a 167-page opinion, Judge Weeks reviewed an “exhaustive study” of North Carolina prosecutors’ strikes and acceptances of more than 7,400 jurors in 173 North Carolina capital murder trials between 1990 and 2010 and found “a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina.” Weeks wrote that prosecutors struck black jurors at more than twice the rate of all other jurors, with “remarkable consistency” in strike rates in every county and across the entire period of time studied. Race, he said, “was a materially, practically and statistically significant factor in decisions to exercise peremptory challenges during jury selection by prosecutors when seeking to impose death sentences in capital cases” and he concluded that the strikes were intentionally undertaken on the basis of race. 

The legislature responded by repealing the RJA in 2013. Although four death-row prisoners had received sentence reductions prior to repeal, Burke’s claim had not yet been heard in court and his trial court ruled that the repeal had extinguished any right he had to a hearing. The state courts also overturned the grants of relief to the four prisoners. In March 2018, the state supreme court announced that it would hear RJA appeals from those prisoners, as well as from Burke and another prisoner whose RJA claim had also been filed but not heard. 

The LDF brief sets forth evidence that prosecutors discriminated in Burke’s case, including that prosecutors struck all African-American prospective jurors, resulting in an all-white jury, and called Burke “a big black bull” during the trial. It also catalogues what it describes as “a long and tragic history of entrenched racial discrimination in the administration of North Carolina’s death penalty.” In a statement accompanying the filing of the brief, LDF Senior Deputy Director of Litigation Jin Hee Lee said: “Allowing racial bias in Mr. Burke’s case to go unchallenged would be tantamount to condoning racial bias in the administration of justice. The Court must affirm its unwavering commitment to fundamental fairness and racial equality by affording Mr. Burke the opportunity to prove that discrimination tainted his death sentence,” said. 

The Promise of Justice Initiative brief, joined by the former judges, prosecutors, and law enforcement personnel, takes an even broader view, calling on the court to strike down North Carolina’s death penalty as unconstitutional. “The time has come to consider whether the system of capital punishment that currently operates in North Carolina violates the evolving standards of decency,” the brief states. Citing evidence that, in North Carolina, no one has been executed since 2006 and the state has averaged fewer than one new death sentence per year over the last seven years, the brief argues that “it is now beyond dispute that use of the death penalty is unusual.” It also points to recent court decisions striking down the death penalty in other states, including Delaware in 2016 and Washington in 2018. “Courts have recognized that the penalty is corrupted by arbitrariness, plagued by error and discrimination, and unsupported by evidence that it deters,” it says.  


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Death-Row Prisoners Ask Supreme Court to Review Georgia, Oklahoma Verdicts Involving Racist Jurors

Georgia death-row prisoner Keith Tharpe (pictured, left) and Oklahoma death-row prisoner Julius Jones (pictured, right) are asking the U.S. Supreme Court to grant them new trials after evidence showed that white jurors who described the defendants with racist slurs participated in deciding their cases. The involvement of the racist jurors, the prisoners say, violated their Sixth Amendment rights to impartial juries. A juror in Tharpe’s trial gave a sworn affidavit years after voting to convict Tharpe, in which he wondered “if black people even have souls,” and said, “there are two types of black people: 1. Black folks and 2. N***rs." Tharpe, he wrote, “wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did." In Jones’s case, a juror told Jones’s legal team that another juror had said the trial was “a waste of time” and “they should just take the n***r out and shoot him behind the jail.”

Tharpe and Jones argue that two 2017 Supreme Court decisions, Peña-Rodriguez v. Colorado and Buck v. Davis, require the Court to reconsider their cases. In Buck, Chief Justice John Roberts declared for the Court that “the law punishes people for what they do, not who they are,” and overturned a death sentence imposed after a psychologist testified that Buck posed a greater risk of future dangerousness because he is black. The Chief Justice wrote that “discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice,” calling racism a “toxin[ that] can be deadly in small doses.” In Peña-Rodriguez, now-retired Justice Anthony Kennedy wrote for a five-justice majority of the Court that courts may consider a juror’s statement showing he had relied on racial stereotypes to convict a defendant as evidence of a Sixth Amendment violation.

In January 2018, the U.S. Supreme Court overturned a federal appeals court’s refusal to consider Tharpe’s racial discrimination claim.  Less than three months later, that court again refused to consider the issue, saying Tharpe had not previously presented it to the state courts. Jones has also repeatedly sought review of claims that racial discrimination has infected his case. He previously asked the Court to overturn his death sentence based on the findings of a 2017 study that showed significant racial disparities in Oklahoma’s death sentencing practices. On January 22, 2019, after having rescheduled consideration of Jones’s appel 25 times, the Court declined to review the case. Samuel Spital, who was co-counsel in Buck’s case and is lead counsel on the brief of the NAACP Legal Defense and Educational Fund’s friend-of-the-court brief supporting Tharpe, said of Tharpe and Jones, “We know that these two men are facing execution at least in part because they’re black. Under those circumstances, the state just doesn’t have an interest in enforcing a death sentence, and for that reason, the procedural obstacles that you would have with respect to certain other claims should not be part of the analysis.” The cases are considered a bellwether of the post-Kennedy Court’s commitment to racial justice.


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