STATE OF NORTH CAROLINA GENERAL COURT OF JUSTICE COUNTY OF FORSYTH SUPERIOR COURT DIVISION 96 CRS 9440
STATE OF NORTH CAROLINA ) ) v. ) DEFENDANT’S MOTION ) FOR APPROPRIATE RELIEF ) HENRY JEROME WHITE )
Defendant Henry Jerome White’s conviction and sentence of life imprisonment without parole were obtained in violation of state and federal law prohibiting race discrimination in jury selection. Through counsel, and pursuant to N.C. Gen. Stat. § 15A-1411 to 1422, White respectfully requests that the Court vacate his conviction and grant a new trial.
As set forth below, this Court should summarily grant White relief because the Court of Appeals previously held that White’s prosecutor struck black jurors with discriminatory intent. And since White’s direct appeal, the legal standard has changed such that White is now entitled to relief as a matter of law. Alternatively, this Court should hold an evidentiary hearing on White’s claims of race discrimination in jury selection.
PROCEDURAL HISTORY
1. In 1997, in Forsyth County Superior Court, White was tried capitally, convicted of first-degree murder, and sentenced to life imprisonment without parole. White’s conviction and sentence were affirmed on direct appeal. State v. White, 131 N.C. App. 734 (1998) (attached as Exhibit 1).
2. As discussed in the Court of Appeals opinion, in 1996, Carl Marshburn was robbed and killed at an auto paint and body shop in Winston-Salem where he worked. White’s cousin Harry Beaufort testified for the State at trial. Beaufort said when he and White went to the auto shop to pick up Beaufort’s paycheck, White went inside by himself, fired two gunshots, and came out with several hundred dollars. White testified it was Beaufort who went inside by himself and killed Marshburn. White said he knew Beaufort meant to rob Marshburn, but did not know Beaufort was going to kill him. White, 131 N.C. App. at 736-37. 3. In the State’s closing argument at trial, even the prosecutor conceded Beaufort had a role in the murder: “We’re not contending Harry Beaufort . . . didn’t know what went on. That he didn’t have a role, somehow . . . . [White] may or he may have not been helped in some portion by Mr. Beaufort.” Tp. 1409.1 Despite this, Beaufort was never charged with any crime for his role in the murder.
4. Among other issues, White argued on appeal that the trial court erred in overruling his objections under Batson v. Kentucky, 476 U.S. 79 (1986), that the State improperly struck potential black jurors based on their race.
5. At the trial court Batson hearing, the prosecutor said he struck Sonya Jeter and Caryl Reynolds because they were “[b]oth black females.” White, 131 N.C. App. at 739.2
6. On appeal, the Court of Appeals — in an opinion authored by then Judge Timmons-Goodson — found, in light of this admission, that “it is apparent that race was a predominant factor in [the prosecutor’s] decision to strike” jurors Jeter and Reynolds. Similarly, the Court found the prosecutor’s comment “on its face, belies racial neutrality and manifests an intent to exclude these individual jurors based upon their membership in a distinct class.” Id. at 740.
7. Nonetheless, the Court found no error because the prosecutor had provided other facially-neutral reasons for striking Jeter and Reynolds, and, under the law at that time, Batson was not violated unless a peremptory strike was “based solely upon race.” Id. at 740-41 (emphasis in original).
8. The Court of Appeals found no error under Batson or any of the other arguments raised on direct appeal, and affirmed White’s conviction and sentence. White’s appellate counsel did not seek review in the N.C. or U.S. Supreme Court.
9. After his direct appeal concluded in 1998, White filed a pro se MAR in 2001, which Resident Superior Court Judge Ronald E. Spivey summarily denied. White, again proceeding pro se, sought certiorari review in the Court of Appeals, but
1 The complete transcript of White’s trial, including jury selection, is attached to this pleading in Exhibit 2 as a DVD.
2 In total, White’s trial counsel objected to the State’s strikes against four black jurors: Roderick Conrad, Tp. 123; Sonya Jeter and Caryl Reynolds, Tp. 235; and Brenda Gwyn, Tp. 427. The instant motion primarily discusses jurors Jeter and Reynolds, and White’s request for relief is based on the race discrimination against Jeter and Reynolds.
- 2 - that petition was also summarily denied. See White v. North Carolina, No. COAP01- 325 (order denying petition for writ of certiorari issued June 1, 2001). White’s pro se MAR did not raise any Batson issues.
10. In 2018, undersigned counsel moved in this Court for appointment to represent White on an additional MAR in light of the Batson issue raised on appeal and a subsequent change in law bearing on the issue. In August 2018, the Court granted the undersigned counsel’s request to be appointed for the preparation and presentation of an MAR.
CLAIMS FOR RELIEF
I. IN LIGHT OF A RECENT RETROACTIVE CHANGE IN STATE LAW, WHITE IS ENTITLED TO A NEW TRIAL BASED ON THE COURT OF APPEALS’ BINDING DETERMINATION THAT RACE WAS A PREDOMINANT FACTOR IN JURY SELECTION.
11. The Court of Appeals has already concluded “race was a predominant factor in [the prosecutor’s] decision to strike” two prospective black jurors, Jeter and Reynolds, White, 131 N.C. App. at 740, and this ruling is the binding law of the case. Accordingly, in light of a recent retroactive change in state law that Batson is violated if race is a significant — as opposed to the sole — factor, White is entitled to relief as a matter of law.
A. This Court is bound by the Court of Appeals’ prior holding that race was a “predominant factor” in the State’s decision to strike two black jurors.
12. The Court of Appeals could not have been clearer in its holding that “[f]rom the prosecutor’s statements, it is apparent that race was a predominant factor in his decision to strike Jeter and Reynolds from the venire.” See White, 131 N.C. App. at 740.
13. This holding is the law of the case and is binding on this Court. See Lea Co. v. North Carolina Bd. of Transp., 323 N.C. 697, 699 (1989) (“A decision of [the Supreme Court] on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal”); North Carolina National Bank v. Virginia Carolina Builders, 307 N.C. 563, 566 (1983) (“Once an appellate court has ruled on a question, that decision becomes the law of the case and governs the question not only on remand at trial, but on a subsequent
- 3 -
appeal of the same case”). The law of the case doctrine applies to criminal as well as civil matters. See, e.g., State v. Summers, 351 N.C. 620, 622 (2000); State v. Boyd, 148 N.C. App. 304, 308 (2002). Likewise, it applies in post-conviction proceedings. See State v. Wiggins, No. 99 CRS 100006, 2005 WL 857109, at *1 (N.C. Super. Mar. 18, 2005) (applying law of the case doctrine to deny an MAR based on Court of Appeals prior holding).
14. Accordingly, this Court is bound by the Court of Appeals’ prior determination that race was a “predominant factor” and that White’s prosecutor acted with “an intent to exclude [jurors] . . . based upon their membership in a distinct [racial] class.” 131 N.C. App. at 740.
B. After White’s direct appeal, there was a change in state law controlling his Batson claim; that change in law is retroactively applicable and now requires relief.
15. The Court of Appeals’ binding, prior holding with respect to racial motivation dictates a grant of relief on White’s MAR. This is so because, as discussed below, there has been a recent, retroactive change in state law that now gives the Court of Appeals’ prior holding determinative effect in this case.
16. At the time White’s claim was addressed on appeal, the North Carolina courts held that a Batson violation was established only if “the challenge [was] based solely upon race.” White, 131 N.C. App. at 740 (emphasis in original; citations omitted).3
17. In 2010, over a decade after White was decided, the Supreme Court of North Carolina rejected the sole factor approach to Batson. The state supreme court explained in State v. Waring, 364 N.C. 443, 480 (2010), that “the third step in a Batson analysis is the . . . question whether the defendant has shown ‘race was significant in determining who was challenged and who was not.’” Waring, 364 N.C. at 480 (emphasis in original; citation omitted).
18. In reaching this conclusion, the state supreme court rejected the prior rule that a Batson violation requires race to be “the sole reason for the State’s
3 The U.S. Supreme Court held in Batson that, in order to prevail, the moving party must “establish[] purposeful discrimination.” 476 U.S. at 79. However, the U.S. Supreme Court left it to individual jurisdictions “to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges.” Id. at 99.
- 4 -
peremptory challenge.” Waring, 364 N.C. at 480-81 (explaining that the trial court articulated “an incorrect standard” when it said the defendant had to show under Batson that the State’s strike was “based solely on the fact that [the juror] was an African-American female.”).
19. White must now be permitted to seek reexamination of his Batson claim under this new state law, because it is retroactive.
20. Indeed, MAR claims, which are otherwise procedurally barred, may be considered on the merits when there is a retroactive change in law:
[The MAR may be denied if] [t]he ground or issue underlying the motion was previously determined on the merits upon an appeal from the judgment or upon a previous motion or proceeding in the courts of this State or a federal court, unless since the time of such previous determination there has been a retroactively effective change in the law controlling such issue.
N.C. Gen. Stat. § 15A-1419(a)(2) (emphasis added). See also N.C. Gen. Stat. § 15A- 1415(b)(7) (MAR may raise claim that “[t]here has been a significant change in law, either substantive or procedural, applied in the proceedings leading to the defendant’s conviction or sentence, and retroactive application of the changed legal standard is required.”); N.C. Gen. Stat. § 15A-1419(c)(2) (procedural bars are lifted if there is “recognition of a new federal or State right which is retroactively applicable”).
21. “[S]tate law decisions . . . ‘are generally presumed to operate retroactively’ and ‘are given solely prospective application only when there is a compelling reason to do so.’” State v. Harwood, 228 N.C. App. 478, 483 (2013) (quoting State v. Rivens, 299 N.C. 385, 390 (1980)); see also State v. Zuniga, 336 N.C. 508, 513 (1994) (explaining that “Rivens correctly states the retroactivity standard applicable to new state rules”). The factors at play when considering whether to overcome the retroactivity presumption are “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Harwood, 228 N.C. App. at 483 (quoting State v. Harris, 281 N.C. 542, 550 (1972)).
- 5 -
22. Here, each factor supports the presumption that Waring’s rejection of the sole factor test is retroactive.
23. First, the purpose of Batson is “to protect individual defendants from discrimination in the selection of jurors,” and also to guard against “harms [to] the excluded jurors and the community at large.” Powers v. Ohio, 499 U.S. 400, 406 (1991) (citations omitted). Batson was likewise designed to protect “the integrity of the courts.” Powers, 499 U.S. at 402. In light of these weighty interests, it only makes sense to retroactively apply a new state rule designed to more effectively implement Batson.
24. Second, with respect to reliance interests, to the extent the State argues it relied on pre-Waring law in striking jurors only partially on the basis of racial bias, such reliance should be assigned zero value. The State should not be permitted to rely on an interpretation of prior law that allows racial bias in jury selection. This would improperly protect convictions obtained on the basis of race discrimination, and erode public confidence in the criminal justice system. See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 867 (2017) (“It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.”); see also State v. Cofield, 320 N.C. 297, 302 (1987) (“The people of North Carolina have declared in [Art. I, § 26 of the state constitution] that they will not tolerate the corruption of their juries by racism, sexism and similar forms of irrational prejudice.”).
25. Finally, a retroactive application of the Waring standard would have a favorable effect on the administration of justice. “Permitting racial prejudice in the jury system damages both the fact and the perception of the jury’s role as a vital check against the wrongful exercise of power by the State.” Pena-Rodriguez, 137 S. Ct. at 868 (internal citation and quotations omitted); see also Cofield, 320 N.C. at 303 (“Exclusion of a racial group from jury service . . . entangles the courts in a web of prejudice and stigmatization. To single out blacks and deny them the opportunity to participate as jurors in the administration of justice – even though they are fully qualified – is to put the courts’ imprimatur on attitudes that historically have prevented blacks from enjoying equal protection of the law.”). By applying Waring retroactively and addressing White’s race discrimination claim on its merits, this Court will protect the fair administration of justice and its own institutional integrity.
26. Moreover, failing to apply Waring retroactively, and continuing to subject White to life imprisonment based on a conviction tainted by racial bias,
- 6 -
would be grossly unfair, and would violate the constitutional ban on cruel and/or unusual punishment. See U.S. Const. amend. XIII; see also Medley v. North Carolina Dep’t of Correction, 330 N.C. 837, 845-46 (1992) (Martin, J., concurring) (Article I, § 27’s bar against “cruel or unusual punishments” is broader than the federal guarantee and thus “imposes at least this same duty [as the federal constitution], if not a greater duty.”).
27. In sum, this Court should summarily vacate Henry White’s conviction and sentence so he may receive a new trial free from racial discrimination. First, the Court is bound by the prior appellate determination that race motivated the State’s exercise of peremptory strikes. Second, the subsequent change in state law adopting a “significant factor” standard under Batson is retroactively applicable.
II. IN THE ALTERNATIVE, WHITE SHOULD RECEIVE A NEW TRIAL IN LIGHT OF NEWLY DISCOVERED EVIDENCE DEMONSTRATING THAT THE STATE RELIED ON RACE TO SELECT HIS JURY.
28. Even if the Court finds White is not entitled to summary relief under Claim I, the Court should nonetheless conduct an evidentiary hearing and reconsider White’s Batson claim in light of newly discovered evidence that was not available at the time of his direct appeal in 1998 or his pro se MAR in 2001. See N.C. Gen. Stat. § 15A-1419(a)(1) and (a)(3) (issue not raised in a prior appeal or MAR is barred unless the defendant was not “in a position to adequately raise the ground or issue”); N.C. Gen. Stat. § 15A-1419(c)(3) (procedural bar lifted where the claim is “[b]ased on a factual predicate that could not have been discovered through the exercise of reasonable diligence in time to present the claim on a previous State or federal postconviction review.”).
A. New evidence: statistical pattern of discrimination by White’s prosecutors, and in Forsyth County.
29. In White’s case, the State struck 4 of 7 eligible4 black jurors, or 57%. The result was a deliberating jury with only two people of color (and one alternate black juror). In contrast, the State struck only 8 of 34 eligible white jurors, or 24%.5 Thus, in White’s case, the State removed black jurors at more than twice the rate
4 “Eligible” refers to those jurors not removed for cause.
5 These statistics were calculated using the peremptory strike and race information contained in the jury selection transcript, Exhibit 2; the juror questionnaires, Exhibit 3; and the superior court clerk’s jury chart, Exhibit 4.
- 7 -
that white jurors were removed. These statistics supply substantial evidence of discrimination. See Miller-El v. Dretke, 545 U.S. 231, 240-41 (2005) (noting that “[t]he numbers describing the prosecution’s use of peremptories” may provide evidence of a Batson violation).
30. New evidence shows the disparity in White’s case was no coincidence. White’s prosecutors have a history of disproportionately using peremptory strikes to remove black jurors. See Miller-El, 545 U.S. at 264; Flowers v. Mississippi, 139 S. Ct. 2228, 2244-45 (2019) (finding Batson violations based in part on a history and pattern of discriminatory practices by the trial prosecutors).
31. Data that became available in 2010 (when researchers conducted a new statistical study) show that the prosecutor who conducted voir dire at White’s trial, David Spence, also participated in jury selection for capital defendants Thomas Larry (1995), Darrell Woods (1995), Russell Tucker (1996), and Errol Moses (1997). In those four cases combined, Spence struck 15 of 24 black jurors, or 63%, but only struck 26 of 127 non-black jurors, or 20%. See Grosso and O’Brien Affidavit, Exhibit 5, p. 23, Table 10; Exhibit 6 (transcript cover pages showing Spence’s participation in these cases). Thus, Spence struck black jurors at over three times the rate as all other jurors.
32. Spence’s jury selection practices resulted in two all-white juries, Larry and Tucker, and another capital jury with only one person of color, Woods. See Grosso and O’Brien Affidavit, Exhibit 5, ¶¶ 18, 19.
33. Spence’s co-prosecutor in White’s case, Timothy Severo, participated in capital jury selection for Cerron Hooks in 2000. Exhibit 6 (transcript excerpt showing Severo’s participation). In that case, the State struck 4 of 6 black jurors, or 67%, but only 12 of 43 non-black jurors, or 28%. Grosso and O’Brien Affidavit, Exhibit 5, Table 10. Hooks was tried by an all-white jury. Id. at ¶ 18.6
6 Spence and Severo’s patterns appear to be part of a broader practice within the Forsyth County District Attorney’s Office. See Baumgartner Affidavit, Exhibit 7, ¶ 6 (study finding that, between 1990 and 2010, Forsyth prosecutors struck black jurors in capital cases at a rate that was 2.2 times higher than non-blacks, and that the chance of this disparity occurring randomly was 5 in 10,000); see also Ronald F. Wright, Kami Chavis, and Gregory S. Parks, The Jury Sunshine Project: Jury Selection Data as a Political Issue, 2018 U. ILL. L. REV. 1407, 1428, Table 6 (2018) (examining all non-capital felony trials in North Carolina from 2011 to 2012, and finding that Forsyth prosecutors had the most racially disproportionate strike rate in the state).
- 8 -
34. This newly available evidence demonstrates that the racially-disparate strike rate in White’s case was not a coincidence, or the result of the particular jurors called to serve, but rather part of a broader pattern of consistently preferring white jurors over black jurors.
B. New evidence: reliance on discriminatory strategies to evade Batson review.
35. There is also newly discovered evidence that White’s prosecutor conducted jury selection using a prefabricated cheat sheet designed to justify striking black jurors, and to evade meaningful Batson review.
36. In 1996, a year before White’s capital trial, prosecutor David Spence, participated in jury selection in the capital trial of defendant Russell Tucker. See Exhibit 6 (transcript excerpt showing Spence’s participation). In 2012, in connection with discovery proceedings in Forsyth County under the Racial Justice Act,7 the District Attorney’s Office disclosed prosecution files from the Tucker case that included a worksheet titled, “Batson Justifications: Articulating Juror Negatives.” Exhibit 8.8 This Batson worksheet supplied a list of pat, prefabricated “race- neutral” reasons, such as eye contact or body language, that a prosecutor could give in the event their peremptory strikes were challenged under Batson.
37. At White’s trial, Spence used the strategies laid out in the Batson cheat sheet to justify excluding black citizens.
38. The cheat sheet notes that a juror may be excused because of “sympathy with the defendant.” See Exhibit 8. In White’s case, Spence claimed he
7 The Racial Justice Act, or RJA, was a law enacted in 2009 which permitted capital defendants to obtain relief from death sentences using statistical evidence that their death sentences were sought or obtained on the basis of race. The RJA provided capital defendants new discovery rights to pursue these claims. See N.C.S.L. 2009- 464 (enacting N.C. Gen. Stat. § 15A-2010 to 2012). In 2013, after the Legislature changed political leadership, the RJA was repealed. See N.C.S.L. 2013-154, § 5.(a) to 5.(d).
8 The documents disclosed during discovery in the Forsyth County RJA proceedings are on file with undersigned counsel’s firm, the Center for Death Penalty Litigation, because another Center attorney was counsel in the Forsyth RJA matter.
- 9 - struck black jurors Sonya Jeter and Caryl Reynolds, in part, because they were “both 27 years old, old enough. Almost the same age as the defendant.” Tp. 236.
39. Spence claimed he struck black juror Roderick Conrad because of his “[b]ody language, [criminal] record, never made eye contact.” Tp. 124. Every one of these reasons appears on the cheat sheet. See Exhibit 8.
40. When striking black juror Brenda Gwyn, Spence said, in part, that she “[l]ooks confused, looks addled . . . .” Tp. 425. Here again, the prosecutor appears to have relied on the cheat sheet’s list of prefabricated reasons: “communication difficulties,” in which black jurors allegedly “appear[] to have difficulty understanding questions and the process.” See Exhibit 8.
41. Spence’s use of the Batson Justifications cheat sheet in White’s case was part of a pattern of conduct. As noted above, Spence participated in jury selection in the 1996 capital trial of Russell Tucker. In Tucker, the prosecution justified the removal of black jurors using terms taken directly from the cheat sheet, including that black jurors had poor body language and failed to make eye contact, and that black jurors gave answers that were “inappropriate,” “vacillating,” “confused,” and “monosyllabic.” See State v. Tucker, No. 94 CRS 40465 (MAR filed in Forsyth County Superior Court on Oct. 31, 2017), p. 7.9
42. The use of North Carolina’s Batson cheat sheet has been widely condemned as an improper, racially discriminatory practice. See Foster v. Chatman, Amicus Brief of Former Prosecutors to U.S. Supreme Court, p. 8 (explaining, with respect to the North Carolina Batson cheat sheet, that it is an example of “district attorney offices train[ing] their prosecutors to deceive judges as to their true motivations.”);10 State v. Golphin, Walters, and Augustine, 97 CRS 47314-15; 98
9 Moreover, in both White and Tucker, the prosecutors relied on additional prepackaged reasons that were not included in the cheat sheet, namely, that black jurors were undesirable because they were health care providers, and did not have a sufficient stake in the community. See White Tp. 236; Tucker, MAR filed Oct. 31, 2017, pp. 33-34. The fact that these reasons appear across cases supports a conclusion that they are prefabricated and pretextual. So too does the fact that the prosecution in Tucker accepted white jurors who were not registered to vote and not homeowners, and also accepted a white pharmacist who worked directly with cancer patients. Tucker, MAR filed Oct. 31, 2017, pp. 33-34.
10 This amicus brief is available online at: https://www.scotusblog.com/case-files/cases/foster-v-humphrey/
- 10 -
CRS 34832, 35044; 01 CRS 65079 (Cumberland County, Dec. 13, 2012) (finding, at ¶ 130 that “use of a prosecutorial ‘cheat sheet’ to respond to Batson objections” was “substantive evidence that . . . prosecutors regularly took race into account in capital jury selection and discriminated against African-American citizens.”);11 Affidavit of Bryan Stevenson, J.D., Exhibit 9, ¶ 11 (“The North Carolina Batson Justifications handout is another example of . . . prosecutors [coming] up with ways to conceal racial bias”); Affidavit of Ibram X. Kendi, Ph.D., Exhibit 10, ¶ 8 (discussing the Batson handout and explaining that the “use of facially neutral language to justify racist stereotypes and policies is nothing new.”).
C. Re-examination of the trial record, in light of the new evidence, demonstrates that White’s prosecutor acted on the basis of race.
43. In light of the newly discovered evidence outlined above, this Court must reexamine White’s Batson claim on the merits. When considering the import of the newly discovered evidence, this Court is required to re-assess the trial record bearing on the Batson issue. See State v. Peterson, 228 N.C. App. 339, 346 (2013) (affirming grant of new trial based on newly discovered evidence, and in doing so, reviewing “the State’s entire theory of the case” and “other expert testimony” offered at trial).
44. The ultimate question under Batson is whether the moving party has proved, in light of all relevant circumstances, that a peremptory strike was motivated by purposeful discrimination. That standard is met when it is shown that “race was significant in determining who was challenged and who was not.” Waring, 364 N.C. at 480. If it is shown that it “was more likely than not that the challenge was improperly motivated,” a new trial is required. Johnson v. California, 545 U.S. 162, 170 (2005).
1. The prosecutor made explicitly race-based comments at trial that revealed racial motivation.
45. First, as Judge Timmons-Goodson and the Court of Appeals panel already found, the explicit race-based comment of White’s prosecutor, that he struck two black women because they were “[b]oth black females,” demonstrates that race
11 This superior court order was vacated on unrelated grounds in State v. Golphin, Walters, and Augustine, 368 N.C. 594 (2015). The order is available online at: https://www.aclu.org/legal-document/north-carolina-racial-justice-act-order- granting-motions-appropriate-relief
- 11 -
was a significant factor in the State’s selection of White’s jury. See White, 131 N.C. App. at 739-40.
46. Although not noted by the Court of Appeals, the prosecutor explicitly relied on race a second time. As the prosecutor was explaining his strike of Sonya Jeter, defense counsel interrupted to say, “I don’t think any of this is valid.” The prosecutor retorted, “You’ve taken off all the white males, for Christ sake.” Tp. 236.
47. These explicit references to race by the prosecutor provide substantial evidence that, at the very least, it is more likely than not that race was a significant factor in the State’s selection of White’s jury. See Foster v. Chatman, 136 S. Ct. 1737, 1753, 1755 (2016) (finding Batson violation based in part on prosecutor notes that discussed race explicitly); McCastle v. State, 276 Ga. App. 218, 219-20 (2005) (where the prosecutor pointed to the race of the black juror and his son, to the son’s interracial marriage, and to the fact that the defendant was also in an interracial marriage, the Georgia court was “hard-pressed to understand how the trial judge could have concluded that this explanation was racially neutral.”); State v. Harris, 820 So. 2d 471, 474-75 (La. 2002) (finding Batson violation based in part on prosecutor’s comment that he struck the black juror because he was “a single black male on the panel with no children,” and the prosecutor did not “want him relating to the defendant more so than he would the State’s part of the case.”).
48. In Walker v. Girdich, 410 F.3d 120, 123 (2d Cir. 2005), the prosecutor explained that he struck a black juror, in part, because, “one of the main things I had a problem with was that this is an individual who was a Black man with no kids and no family.” When an objection was raised, the State protested that the prosecutor’s statements “were merely descriptive” and not indicative of racial bias. The Second Circuit rejected this, reasoning that “the prosecutor’s words and phrasing adduce these characteristics as grounds for the peremptory challenge rather than as incidental description or as a predicate for inferring some permissible ground for excusing the juror. The challenge was therefore improper.” Id. at 124. Precisely the same is true here.
49. Likewise, the prosecutor’s admission that he was concerned about the racial balance of the jury demonstrates a consciousness that race was, impermissibly, a factor under consideration. See McCray v. State, 738 So. 2d 911, 913-14 (Ala. Crim. App. 1998) (finding Batson violation where the prosecutor responded to a Batson objection by explaining that he struck black jurors because he wished to avoid an all-black jury and thereby also avoid “discrimination against the white people.”).
- 12 -
50. Put simply, the prosecutor’s explicitly race-based comments prove, by a preponderance of the evidence, that race was significant in his strike decisions at White’s trial.
2. The prosecutor’s race-neutral reasons for striking black jurors Jeter and Reynolds do not withstand close scrutiny.12
51. In addition to the prosecutor’s explicit racial comments, the race- neutral reasons he provided for striking black jurors Sonya Jeter and Caryl Reynolds also betray a reliance on race to select White’s jury, because those reasons do not withstand close scrutiny.
52. First, the prosecutor’s reliance on age when striking Jeter and Reynolds reveals discrimination. Although the prosecutor claimed he was concerned Jeter and Reynolds were too close in age to White, who was 28 at the time of the crime, the State accepted numerous white jurors who were of similar age. See Juror Questionnaires, Exhibit 3, p. 28 (Aaron Berrier, 24); id. at p. 33 (Lonnie Watkins, 32); id. at p. 34 (Jeffery Bullock, 34); id. at p. 53 (Donna Wilt, 36); id. at p. 4 (Jason Walker, 23).13 The prosecutor’s reliance on a reason readily accepted in white jurors is strong evidence of discrimination. See Foster, 136 S. Ct. at 1750 (finding Batson violation in part because some explanations, “while not explicitly contradicted by the record, are difficult to credit because the State willingly accepted white jurors with the same traits that supposedly rendered [the person of color] an unattractive juror.”).
53. Turning to juror Reynolds, the prosecutor claimed he struck her, in part, because she was “living with her mother, doesn’t have a stake in the community.” Tp. 236. But nothing could have been further from the truth. Reynolds told the prosecutor she had lived in Forsyth County her entire life. Tp. 227. It is difficult to imagine who would have a stronger stake in their community than a
12 The discussion here does not address every reason the prosecutor gave for striking Jeter and Reynolds, which can be found at Tp. 236 and White, 131 N.C. App. at 739- 40. That is not required to sustain a Batson objection. See Foster, 136 S. Ct. at 1754 (finding purposeful discrimination after debunking only four of eleven reasons given).
13 The transcript indicates the State passed these jurors at the following transcript pages: Tpp. 411-14 (Berrier); Tpp. 254-55 (Watkins); Tpp. 254-55 (Bullock); Tpp. 142-45 (Wilt); Tpp. 321-24 (Walker).
- 13 -
lifelong resident. The prosecutor’s reliance on this false reason is strong evidence of racial intent. It is compounded by the fact that the State accepted multiple white jurors who had only lived in Forsyth County for short periods of time. See Tp. 489 (Tommy Gunn, six years); Tp. 245 (Lonnie Watkins, two years); Tp. 392 (Theodore Morgan, three years); Tp. 318 (Judith Williams, four-and-a-half years). Similarly, the State accepted two white jurors who, like Reynolds, did not own a home and lived with relatives. See Tp. 113 (Donna Rothrock, lived with grandfather); Tp. 323 (Thomas Quick, lived with mother).
54. Moreover, the assumption by White’s prosecutor that Reynolds lacked a stake in the community, without actually questioning her on that subject, shows that the prosecutor was acting on an impermissible, racial stereotype. See J.E.B. Alabama ex rel. TB, 511 U.S. 127, 128 (1994) (“potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state- sponsored group stereotypes rooted in, and reflective of, historical prejudice.”); Affidavit of Ibram X. Kendi, Ph.D., Exhibit 10, ¶¶ 20-22 (historian explaining that the “stake in the community” justification “echoes the way that Blacks have historically been viewed as ‘other,’ and not true citizens” and “is also linked to the stereotype of Blacks as lazy”).
55. The prosecutor next claimed he struck Reynolds because she was single. Tp. 236. But again, the prosecutor accepted three white jurors who were also single. Tpp. 494 (David Cruise); Tp. 111 (Donna Rothrock); Juror Questionnaires, Exhibit 3, p. 49 (Larry Carroll).
56. The prosecutor also based his strike on the fact that Reynolds had “an illegitimate child.” Tp. 236. However, it is not at all clear why this should form the basis for removing a person from jury service, and indeed, it is recognized that this reason, “having a child outside of marriage,” has historically “been associated with improper discrimination in jury selection . . . .” Washington State Court General Rule 37(h), Exhibit 11; see also State v. Sanders (transcript of 1995 Transylvania County trial where the prosecutor questioned a black juror about having a child out of wedlock, and the trial court sustained an objection that the questioning was race- based), Exhibit 12; Bogan v. State, 811 So. 2d 286, 288 (Miss. Ct. App. 2001) (where the prosecutor provided as one basis for a strike that the black juror may have had illegitimate children, remanding Batson claim, and explaining that “[d]iscrimination is seldom expressed in direct terms. It is instead generally expressed insidiously . . . . [and] our trial courts have the obligation to ensure that peremptory jury challenges are not used to cloak unlawful discriminatory intent”).
- 14 -
57. Even if the prosecutor did apply some puritanical litmus test to jury selection, it was not applied equally, for the State accepted white juror David Cruise, who had two children and was twice divorced. Tp. 494. The State accepted Larry Carroll, who had divorced. Juror Questionnaires, Exhibit 3, p. 49. The State also accepted Donna Wilt, who had two marriages and three children. Tp. 141. The prosecutor’s reliance on a classically-pretextual reason, in tandem with his acceptance of white jurors in similar circumstances, is strong evidence of discrimination.14
58. In sum, the evidence of discrimination in this case is myriad. There is statistical evidence. There is evidence, through the cheat sheet, of strategic training to avoid detection. There is evidence of baldly racial comments and race-based strategy. There is evidence that the prosecutor’s race-neutral comments, on close inspection, obscured unequal treatment of black jurors. The Court should hold an evidentiary hearing on this claim. See State v. McHone, 348 N.C. 254, 258 (1998) (holding that “an evidentiary hearing is required” on an MAR where “the motion presents assertions of fact which will entitle the defendant to . . . relief . . . if resolved in his favor”).
III. THE COURT MAY ALSO GRANT RELIEF PURSUANT TO A MORE PROTECTIVE FRAMEWORK FOR PREVENTING RACIAL BIAS IN JURY SELECTION.
59. In the event the Court finds it cannot grant relief pursuant to Batson, the Court should adopt a legal framework that provides more robust protection against race discrimination in jury selection.
60. First, the Court should apply the objective observer standard, set forth in Washington General Rule 37. See Exhibit 11.15 Unlike Batson, the objective observer standard does not require a showing of purposeful discrimination. Rather, the Court will sustain the objection if it “determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge . . . .” Rule 37(e). An “objective observer” is defined as one who “is aware that implicit,
14 The prosecutor also relied falsely on the “illegitimate child” rationale with respect to his strike of black juror Brenda Gwyn. When the prosecutor claimed he struck Gwyn in part because she had “two illegitimate kids,” the trial court immediately noted that was not true, because “[s]he said she had a husband.” Tp. 427.
15 This state court rule is also available online at: https://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=GR
- 15 -
institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors . . . .” Rule 37(f).
61. This Court may also apply the standard set forth in the now-repealed Racial Justice Act (RJA), attached as Exhibit 13. The RJA provided an important tool for rooting out racial bias by allowing challenges to death sentences to rest on statistical evidence alone, dispensing with the requirement of proving intentional discrimination, and permitting relief on a showing that race was a “significant factor” in the decision.
62. This Court may apply the Washington or RJA framework pursuant to its authority to enforce the state constitution, which provides broader protection than the U.S. Constitution. See N.C. Const. art. I, § 26 (“No person shall be excluded from jury service on account of sex, race, color, religion, or national origin.”); see also State v. Cofield, 320 N.C. 297 (1987); Jackson v. Housing Authority of City of High Point, 321 N.C. 584 (1988) (applying art. I, § 26 to afford protections independent of those provided by the U.S. Constitution).
63. Alternatively, the Court may apply the Washington or RJA framework pursuant to its inherent authority to bring about justice. See In re Superior Court Order, 315 N.C. 378, 380 (1986) (when “there is no statutory provision either authorizing or prohibiting [certain] orders . . . such authority exists in the inherent power of the court to act when the interests of justice so require.”) (citations omitted); In Re Paul, 84 N.C. App. 491, 499-500 (1987) (in the context of judicial discipline of attorneys, holding that a trial court has inherent power to protect the court and the public from “impropriety and to serve the administration of justice.”) (citations omitted).
64. It would be appropriate for the Court to adopt a framework more protective than Batson, because Batson enforcement in North Carolina, historically, has been inadequate. See Daniel R. Pollitt & Brittany P. Warren, Thirty Years of Disappointment: North Carolina’s Remarkable Appellate Batson Record, 94 N.C. L. REV. 1957, 1961-62 (2016); James E. Coleman Jr., The Persistence of Discrimination in Jury Selection: Lessons from North Carolina and Beyond, The Champion, Vol. XLII, No. 5 (2018).16 These articles explain that in the thirty-plus years since Batson, the appellate courts of North Carolina have reviewed more than 100 Batson claims, and have never once found that a prosecutor has discriminated against a
16 These authorities are both available online at: https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=4877&context=nclr, and https://www.nacdl.org/Article/June2018-ThePersistenceofDiscrimination
- 16 -