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. 

(News Release, JUDGES, DISTRICT ATTORNEYS, COPS ASK N.C. SUPREME COURT TO DECLARE DEATH PENALTY UNCONSTITUTIONAL, ACLU, February 18, 2019; Group takes on death penal­ty in N Carolina court brief, Associated Press, February 18, 2019; News Release, LDF Files Brief Calling for Rayford Burke to Have the Chance to Challenge Racial Bias in His Death Sentence, February 15, 2019.) Read the ami­cus briefs in State v. Burke filed by the NAACP Legal Defense and Educational Fund and the Promise of Justice Initiative and 12 for­mer judges, jus­tices, and law enforce­ment offi­cials in State v. Burke, No. 181A93‑4 (N.C.). See Race and Arbitrariness.

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