DPIC’s Summary of North Carolina v. Marcus Robinson

(Superior Court, Judge Gregory Weeks, April 22, 2012)

The first rul­ing under North Carolina’s Racial Justice Act

Read the com­plete opin­ion.

Discrimination in jury selec­tion frus­trates the com­mit­ment of African-Americans to full par­tic­i­pa­tion in civic life. One of the stereo­types par­tic­u­lar­ly offen­sive to African-American cit­i­zens is that they are not inter­est­ed in see­ing crim­i­nals brought to jus­tice. African-Americans who have been exclud­ed from jury ser­vice on account of race com­pare their expe­ri­ences to the injus­tice and humil­i­a­tions of the Jim Crow era.
(All block­quotes are tak­en from Judge Weeks’ ruling.) 

UPDATE: The Racial Justice Act was repealed by the leg­is­la­ture in 2013. In December 2015, the North Carolina Supreme Court vacat­ed the deci­sions in North Carolina v. Robinson and three sub­se­quent cas­es in which defen­dants’ death sen­tences had been reduced to life, hold­ing that the state had not been giv­en suf­fi­cient time to review and respond to the stud­ies on racial bias in jury selec­tion. The case has been assigned to a new Senior Judge, since Judge Weeks has retired. The Supreme Court did not take a posi­tion on the mer­its of Judge Weeks’ rul­ing that race had been a sig­nif­i­cant fac­tor in the death sen­tences of the four defendants.

Introduction

Background on the Racial Justice Act

Under the Racial Justice Act (RJA), a cap­i­tal defen­dant can have his or her sen­tence reduced to life in prison with­out parole if there is evi­dence prov­ing ​“that race was a sig­nif­i­cant fac­tor in deci­sions to seek or impose the sen­tence of death in the coun­ty, the pros­e­cu­to­r­i­al dis­trict, the judi­cial divi­sion, or the State at the time the death sen­tence was sought or imposed.” (N.C. Gen. Stat. §15A-2010)

Defendants may present evi­dence in three categories: 

• Evidence that death sen­tences were sought or imposed more fre­quent­ly upon defen­dants of one race than others
• Evidence that death sen­tences were sought or imposed more fre­quent­ly on behalf of vic­tims of one race than oth­ers, or
• Evidence that race was a sig­nif­i­cant fac­tor in deci­sions to exer­cise peremp­to­ry strikes dur­ing jury selection

Any one of these three cat­e­gories is suf­fi­cient to estab­lish a RJA vio­la­tion. Robinson pre­sent­ed evi­dence in the third cat­e­go­ry, peremp­to­ry strikes dur­ing jury selec­tion. Peremptory strikes allow pros­e­cu­tors and defense lawyers to remove mem­bers of the jury pool they believe may be unfa­vor­able to their side. Each side is allowed a set num­ber of peremp­to­ry strikes, which may not tar­get venire mem­bers based on race or gen­der. Potential jurors who indi­cate bias in the case or can­not fol­low the applic­a­ble laws can be elim­i­nat­ed ​“for cause.” Strikes for cause are not includ­ed in the the evi­dence pre­sent­ed in this case.

Witnesses

Five wit­ness­es tes­ti­fied on Robinson’s behalf, includ­ing the co-authors of a Michigan State sta­tis­ti­cal study exam­in­ing whether race was a fac­tor in jury selec­tion in North Carolina.

Eight wit­ness­es tes­ti­fied for the state, includ­ing six cur­rent or for­mer North Carolina judges who presided over cas­es includ­ed in the sta­tis­ti­cal study, and a sta­tis­ti­cal expert who assist­ed the Georgia Attorney General in McCleskey v. Kemp.

To hold that a defen­dant can­not pre­vail under the RJA unless he proves inten­tion­al dis­crim­i­na­tion would read a require­ment into the statute that the General Assembly clear­ly did not place there.

Statutory Interpretation of the Racial Justice Act

The court need­ed to deter­mine the mean­ing of ​“sig­nif­i­cant” in order to find if race was a ​“sig­nif­i­cant fac­tor” in Robinson’s case. Based on past North Carolina Supreme Court deci­sions, the court defined ​“sig­nif­i­cant” as ​“hav­ing or like­ly to have influ­ence or effect.” Thus, the Court exam­ined ​“whether race had or like­ly had an influ­ence or effect on deci­sions to exer­cise peremp­to­ry strikes dur­ing jury selec­tion in capital proceedings.”

For sta­tis­ti­cal evi­dence, the court required a prob­a­bil­i­ty of 5% or less that a sta­tis­ti­cal result is due to chance in order to demon­strate sta­tis­ti­cal sig­nif­i­cance of that result under the RJA.

Judge Weeks held that evi­dence of inten­tion­al dis­crim­i­na­tion is not required. ​“To hold that a defen­dant can­not pre­vail under the RJA unless he proves inten­tion­al dis­crim­i­na­tion would read a require­ment into the statute that the General Assembly clear­ly did not place there.” In addi­tion, the defen­dant does not have to prove dis­crim­i­na­tion in his or her par­tic­u­lar case because the General Assembly exclud­ed such a pro­vi­sion from the final ver­sion of the RJA.

The rul­ing also stat­ed that defen­dants do not have to show prej­u­dice, that is, they do not have to prove that the use of race affect­ed the out­come of his or her case, or the final com­po­si­tion of the jury.

Post-Batson stud­ies of jury selec­tion in the United States show that dis­crim­i­na­tion against African-Americans remains a sig­nif­i­cant prob­lem that will not be cor­rect­ed with­out a con­scious and overt com­mit­ment to change. The RJA is North Carolina’s com­mit­ment to change.

Statistical Evidence

Robinson pre­sent­ed a sta­tis­ti­cal study on jury selec­tion con­duct­ed by two pro­fes­sors at the Michigan State University School of Law. The study con­sist­ed of two parts: an unad­just­ed study of race and strike deci­sions for 7,421 poten­tial jurors drawn from 173 pro­ceed­ings for North Carolina’s death row inmates in 2010, and a regres­sion study of a 25% ran­dom sam­ple of that group, ana­lyz­ing whether alter­na­tive expla­na­tions affect­ed the rela­tion­ship between race and strike deci­sions. Additionally, a regres­sion study was con­duct­ed of all pos­si­ble jury mem­bers in the cas­es from Cumberland County, where Robinson was tried. For Cumberland County jurors and those in the ran­dom sam­ple group, researchers exam­ined addi­tion­al data, includ­ing demo­graph­ic char­ac­ter­is­tics oth­er than race, pri­or expe­ri­ences in the legal sys­tem, atti­tudes about the death penal­ty, and any stat­ed bias or dif­fi­cul­ty in fol­low­ing the applicable laws.

The court found the MSU study to be ​“a valid, high­ly reli­able, sta­tis­ti­cal study of jury selec­tion prac­tices in North Carolina cap­i­tal cas­es between 1990 and 2010. The results of the unad­just­ed study, with remark­able con­sis­ten­cy across time and juris­dic­tions, show that race is high­ly cor­re­lat­ed with strike deci­sions in North Carolina.”

Findings of the MSU Study

Based on the MSU study, the Court found that pros­e­cu­tors statewide struck 52.6% of eli­gi­ble black venire mem­bers, com­pared to only 25.7% of all oth­er eli­gi­ble venire mem­bers. The prob­a­bil­i­ty of this dis­par­i­ty occur­ring in a race-neu­tral jury selec­tion process was less than one in ten tril­lion. (See p. 58 of Opinion).

The Court found that MSU’s unad­just­ed data were con­sis­tent with an infer­ence that race was a sig­nif­i­cant fac­tor in pros­e­cu­tors’ use of peremp­to­ry strikes in North Carolina at the time of Robinson’s tri­al, in the Second Judicial Division at the time of Robinson’s tri­al, in Cumberland County at the time of Robinson’s tri­al, and in Robinson’s tri­al itself, per­mit­ting ​“an infer­ence of intentional discrimination.”

In the adjust­ed analy­sis, researchers iden­ti­fied four pos­si­ble explana­to­ry fac­tors that were among the most com­mon rea­sons giv­en by pros­e­cu­tors for exer­cis­ing peremp­to­ry strikes. Some of the fac­tors cor­re­lat­ed with race, but were them­selves race-neu­tral. They removed venire mem­bers with each char­ac­ter­is­tic from the sam­ple, then ana­lyzed strike pat­terns for the remain­ing sam­ple. The four fac­tors the researchers iden­ti­fied were: 1) any expressed reser­va­tions on the death penal­ty; 2) unem­ploy­ment; 3) the venire mem­ber or a close rel­a­tive had been accused of a crime; and 4) the venire mem­ber knew any tri­al par­tic­i­pant. They also per­formed an analy­sis in which all venire mem­bers with any one of the four char­ac­ter­is­tics were removed.

Even in the adjust­ed sam­ples, racial dis­par­i­ties were still observed:

The researchers also per­formed mul­ti­ple logis­tic regres­sion analy­ses to account for the effect of these and oth­er fac­tors, such as age, pro­fes­sion, and edu­ca­tion. ​“O’Brien tes­ti­fied, and this Court finds as fact, that no regres­sion analy­sis mod­el with any com­bi­na­tion of non-racial poten­tial explana­to­ry vari­ables was ever iden­ti­fied that revealed the pre­dic­tive effect of race to be attrib­ut­able to any non-racial vari­able.” That is, even when researchers con­trolled for every iden­ti­fi­able vari­able, racial dis­crep­an­cies were still found, show­ing as con­clu­sive­ly as pos­si­ble that race was a fac­tor in peremptory strikes.

In enact­ing the Racial Justice Act (RJA), the North Carolina General Assembly made clear that the law of North Carolina rejects the influ­ence of race dis­crim­i­na­tion in the admin­is­tra­tion of the death penal­ty. The RJA rep­re­sents a land­mark reform in North Carolina, a state which has long been a leader in for­ward-think­ing crim­i­nal justice policies.

Non-Statistical Evidence

Robinson and the State both pre­sent­ed non-sta­tis­ti­cal evi­dence, such as court tran­scripts and sworn affi­davits. The Court found that the non-sta­tis­ti­cal evi­dence ​“over­whelm­ing­ly sup­ports a find­ing that race was a sig­nif­i­cant fac­tor in jury selec­tion statewide, in the for­mer Second Judicial Division, and in Cumberland County at the time of Robinson’s trial.”

Three wit­ness­es tes­ti­fied about uncon­scious bias, not­ing that race influ­ences deci­sion-mak­ing process­es at a sub­con­scious lev­el, and that those who are con­scious of racial bias are reluc­tant to admit it.

The State’s sta­tis­ti­cal expert, Joseph Katz, tes­ti­fied about a pros­e­cu­tor sur­vey he con­duct­ed, in which he asked pros­e­cu­tors to pro­vide a race-neu­tral rea­son for the peremp­to­ry strikes of every African-American from the MSU study. He was able to col­lect respons­es for approx­i­mate­ly half of the struck venire mem­bers. The Court crit­i­cized his sur­vey for its poor method­ol­o­gy (request­ing a race-neu­tral expla­na­tion, rather than ask­ing why a spe­cif­ic juror was struck), his reliance on self-report­ed data, his close work with the State in design­ing and imple­ment­ing the sur­vey, and the fact that he cir­cu­lat­ed a sam­ple affi­davit to pros­e­cu­tors, poten­tial­ly skew­ing their respons­es. Additionally, the Court not­ed that the sur­vey’s 50% non-response rate sug­gest­ed that the non-respond­ing pros­e­cu­tors may have dis­crim­i­nat­ed on the basis of race in select­ing capital juries.

Included in the non-sta­tis­ti­cal evi­dence pre­sent­ed by Robinson were a num­ber of case exam­ples of dis­crim­i­na­tion. African-Americans, for exam­ple, were struck for mem­ber­ship in the NAACP or for attend­ing a his­tor­i­cal­ly black uni­ver­si­ty; some African-Americans were sub­ject­ed to dif­fer­ent ques­tion­ing than oth­er jurors; and some African-Americans were struck for what the Court called ​“patent­ly irra­tional rea­sons,” such as past ser­vice in the U.S. Army or answer­ing ques­tions with ​“yeah.” Robinson also pre­sent­ed numer­ous instances when pros­e­cu­tors struck African-American venire mem­bers for a seem­ing­ly objec­tion­able char­ac­ter­is­tic but then accept­ed non-black venire mem­bers with com­pa­ra­ble or even identical traits.

Three wit­ness­es tes­ti­fied on the avail­abil­i­ty of train­ing pro­grams on how to min­i­mize the effects of racial bias. In its clos­ing argu­ment, the State con­ced­ed that such train­ings might be beneficial.

In the first case to advance to an evi­den­tiary hear­ing under the RJA, Robinson intro­duced a wealth of evi­dence show­ing the per­sis­tent, per­va­sive, and dis­tort­ing role of race in jury selec­tion through­out North Carolina. The evi­dence, large­ly unre­butted by the State, requires relief in his case and should serve as a clear sig­nal of the need for reform in cap­i­tal jury selec­tion pro­ceed­ings in the future.

Conclusions

The Court con­clud­ed ​“that Robinson has estab­lished that race was a sig­nif­i­cant fac­tor in deci­sions of pros­e­cu­tors to exer­cise peremp­to­ry strikes in Cumberland County, the for­mer Second Judicial Division, and in the State of North Carolina…from 1990 to 2010.” The rul­ing stat­ed that Robinson’s sta­tis­ti­cal data, as well as the anec­do­tal and his­tor­i­cal evi­dence pre­sent­ed by Robinson, showed pat­terns of dis­crim­i­na­tion, and that the State’s rebut­tal was insuf­fi­cient to rebut Robinson’s case.

Although the RJA does not require proof of dis­crim­i­na­tion in the defen­dan­t’s par­tic­u­lar case, Judge Weeks found ​“that race was a sig­nif­i­cant fac­tor in pros­e­cu­to­r­i­al deci­sions to exer­cise peremp­to­ry strikes in Robinson’s capital trial.”

Robinson’s death sen­tence was vacat­ed, and he was resen­tenced to life impris­on­ment with­out parole. The State may appeal Judge Weeks’ deci­sion to the North Carolina Supreme Court. One hun­dred and fifty oth­er death row inmates have filed chal­lenges under the RJA, some claim­ing racial dis­crim­i­na­tion in the selec­tion of cas­es, oth­ers claim­ing bias in jury selection.