NORTH CAROLINA NORTH CAROLINA RACIAL JUSTICE ACT (RJA)RACIAL JUSTICE ACT (RJA)

The enterprise proposed by the RJA is a The enterprise proposed by the RJA is a difficult one. When our criminal justice difficult one. When our criminal justice system was formed, African Americans system was formed, African Americans were enslaved. Our system of justice is were enslaved. Our system of justice is still healing from the lingering effects of still healing from the lingering effects of slavery and Jim Crow. In emerging from slavery and Jim Crow. In emerging from this painful history, it is more comfortable this painful history, it is more comfortable to rest on the status quo and to be satisfied to rest on the status quo and to be satisfied with the progress already made. But the with the progress already made. But the RJA calls upon the justice system to do RJA calls upon the justice system to do more. The legislature has charged the more. The legislature has charged the Court with the challenge of continuing our Court with the challenge of continuing our progress away from the past.progress away from the past.

--Judge Weeks, December 13, 2012--Judge Weeks, December 13, 2012

““Lingering Effects”Lingering Effects”

Statement from a Juror:Statement from a Juror:

Bigotry influenced his decision to sentence Kenneth Rouse to death.

All-White JuriesAll-White Juries

RJA Time LineRJA Time Line

August 2009: RJA Signed into LawAugust 2009: RJA Signed into Law August 2010: Most of Death Row FilesAugust 2010: Most of Death Row Files January 2012: First RJA Hearing – January 2012: First RJA Hearing –

RobinsonRobinson April 2012: Robinson WinsApril 2012: Robinson Wins June 2012: Legislature Attempts RepealJune 2012: Legislature Attempts Repeal July 2012: RJA Significantly AmendedJuly 2012: RJA Significantly Amended October 2012: Second RJA Hearing – 3 ∆sOctober 2012: Second RJA Hearing – 3 ∆s December 2012: Defendants WinDecember 2012: Defendants Win

Racial Justice ActRacial Justice ActNo person shall be subject to or No person shall be subject to or given a sentence of death or shall given a sentence of death or shall be executed pursuant to any be executed pursuant to any judgment that was sought or judgment that was sought or obtained on the basis of race.obtained on the basis of race.

- - § 15A-2010§ 15A-2010

§ 15A-2011(a) – The Standard

A finding that race was the basis of the A finding that race was the basis of the decision to seek or impose a death decision to seek or impose a death sentence may be established if the sentence may be established if the court finds that race was a significant court finds that race was a significant factor in decisions to seek or impose factor in decisions to seek or impose the sentence of death in the county, the sentence of death in the county, the prosecutorial district, the prosecutorial district, the judicial the judicial divisiondivision, , or the Stateor the State at the time the at the time the death sentence was sought or imposed.death sentence was sought or imposed.

Three Kinds of Discrimination

1.1. Death sentences were sought or imposed Death sentences were sought or imposed significantly more frequently upon persons of significantly more frequently upon persons of one race than upon persons of another race. one race than upon persons of another race.

2.2. Death sentences were sought or imposed Death sentences were sought or imposed significantly more frequently as punishment significantly more frequently as punishment for capital offenses against persons of one for capital offenses against persons of one race than as punishment of capital offenses race than as punishment of capital offenses against persons of another raceagainst persons of another race. .

3.3. Race was a significant factor in decisions to Race was a significant factor in decisions to exercise peremptory challenges during jury exercise peremptory challenges during jury selection. selection.

§15A-2012(a)(3) – The Relief

If the court finds that race was a If the court finds that race was a significant factor in decisions to seek or significant factor in decisions to seek or impose the sentence of death in the impose the sentence of death in the county, the prosecutorial district, the county, the prosecutorial district, the judicial division, or the State at the time judicial division, or the State at the time the death sentence was sought or the death sentence was sought or imposed, the court shall order that a imposed, the court shall order that a death sentence not be sought, or that the death sentence not be sought, or that the death sentence imposed by the judgment death sentence imposed by the judgment shall be vacated and the shall be vacated and the defendant re-defendant re-sentenced to life imprisonment sentenced to life imprisonment without the possibility of parolewithout the possibility of parole..

RJA Amendments RJA Amendments

““Statistical evidence alone is insufficient Statistical evidence alone is insufficient to establish that race was a significant to establish that race was a significant factor. factor. §15A-2012(e).

Defendant must show “race was a Defendant must show “race was a significant factor in decisions to seek or significant factor in decisions to seek or impose the death penalty impose the death penalty in the in the defendant’s case defendant’s case at the time the death at the time the death sentence was sought or imposed. sentence was sought or imposed. §15A-2012(a).

State of North State of North Carolina Carolina

vs.vs.Golphin, Walters Golphin, Walters

& Augustine& AugustineHearing begins October 1, Hearing begins October 1,

20122012

Goes for nine daysGoes for nine days

Tilmon GolphinTilmon Golphin

Convicted in 1998 of the murders of Cumberland County Deputy David Hathcock and NC Highway Patrol Sgt. Edward LoweryConvicted in 1998 of the murders of Cumberland County Deputy David Hathcock and NC Highway Patrol Sgt. Edward Lowery

Christina WaltersChristina Walters

Convicted in 2000 of the gang-Convicted in 2000 of the gang-initiation murders of Tracy initiation murders of Tracy Lambert and Susan Moore Lambert and Susan Moore

Quintel AugustineQuintel Augustine

Convicted in 2002 of the murder of Convicted in 2002 of the murder of Fayetteville Police Officer Roy Gene Fayetteville Police Officer Roy Gene

Turner, Jr.Turner, Jr.

The JudgeThe JudgeSenior Resident Superior Court Judge Gregory WeeksSenior Resident Superior Court Judge Gregory Weeks

The CommunityThe Community

IssuesIssues

Was race a significant factor in the Was race a significant factor in the prosecutors’ exercise of peremptory prosecutors’ exercise of peremptory challenges in:challenges in: North CarolinaNorth Carolina Cumberland CountyCumberland County Defendants’ CasesDefendants’ Cases

WitnessesWitnesses

Shelagh Kenney, Attorney for Augustine & Shelagh Kenney, Attorney for Augustine & WaltersWalters

Calvin Colyer, Prosecutor of Golphin & Calvin Colyer, Prosecutor of Golphin & AugustineAugustine

Margaret Russ, Prosecutor of all three ∆sMargaret Russ, Prosecutor of all three ∆s Barbara O’Brien – Jury Selection StudyBarbara O’Brien – Jury Selection Study George Woodworth – Statistics George Woodworth – Statistics Bryan Stevenson – History of discriminationBryan Stevenson – History of discrimination Transcript from Robinson HearingTranscript from Robinson Hearing

““Jury Strikes” NotesJury Strikes” Notes

““Jury Strikes” Notes Jury Strikes” Notes Cont’dCont’d

““Jury Strikes” Notes Jury Strikes” Notes Cont’dCont’d

Last Slide on “Jury Last Slide on “Jury Strikes” NotesStrikes” Notes

Other Prosecutor NotesOther Prosecutor Notes

State’s ResponseState’s Response

Prosecutors’ “race-neutral reasons” Prosecutors’ “race-neutral reasons” for excluding African-Americans for excluding African-Americans from juries:from juries:

•Race-ConsciousRace-Conscious•Racially-BiasedRacially-Biased•PreposterousPreposterous

Prosecution “Cheat Prosecution “Cheat Sheet”Sheet”

The Cheat Sheet in The Cheat Sheet in ActionAction

If you had any doubt . . .If you had any doubt . . .

The Racial The Racial Justice Act Study Justice Act Study – Jury Selection– Jury Selection

Catherine GrossoCatherine Grosso

Barbara O’BrienBarbara O’Brien

Michigan State University College Michigan State University College of Lawof Law

Probability of disparity occurring in race-neutral selection process

Paired-sample t-test: p = 0.000000000000000000000000000000019058525628312154

(Less than 1 in 10,000,000,000,000,000,000,000,000,000,000)

Strike Rate Ratio = 2.26 (56.0%÷24.8%)

Statewide Average Rates of State Strikes over Entire Study Period

Table 2

56.0%

24.8%

0%

10%

20%

30%

40%

50%

60%

Black Veniremembers Other Veniremembers

Statewide Average of Rates of State StrikesTables 6 - 9

56.4%57.2%54.7%57.4%

25.4%25.0%24.0%25.9%

0%

10%

20%

30%

40%

50%

60%

70%

1990-1994 (n=42) 1995-1999 (n=80) 2000-2004 (n=29) 2005-2010 (n=15)

Black VM Other VM

State Strikes by Counties

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Pe

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Black VM 67.67% 62.50% 50.00% 62.50% 54.73% 33.33% 72.12% 56.88% 50.00% 66.67%

Other VM 25.71% 13.33% 31.71% 27.03% 14.17% 26.32% 23.24% 30.64% 25.00% 28.21%

Strike Ratio 2.6 4.7 1.6 2.3 3.9 1.3 3.1 1.9 2.0 2.4

Alamance (n=1) Anson (n=1) Ashe (n=1) Beaufort (n=1) Bertie (n=2) Bladen (n=1) Brunswick (n=2) Buncombe (n=9) Cabarrus (n=1) Camden (n=1)

State Strikes by Counties

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Pe

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Black VM 42.11% 25.00% 58.33% 61.11% 52.69% 77.78% 54.17% 50.00% 54.17% 37.31%

Other VM 33.33% 33.87% 20.00% 20.43% 20.48% 31.33% 24.51% 17.86% 24.41% 31.74%

Strike Ratio 1.3 0.7 2.9 3.0 2.6 2.5 2.2 2.8 2.2 1.2

Caswell (n=1) Catawba (n=1) Columbus (n=1) Craven (n=3)Cumberland

(n=11)Davidson (n=3) Davie (n=4) Durham (n=1) Forsyth (n=13) Gaston (n=7)

State Strikes by Counties

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Pe

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Black VM 38.39% 45.58% 47.43% 42.97% 50.00% 36.36% 87.50% 52.38% 44.40% 88.89%

Other VM 20.87% 23.17% 9.02% 26.79% 23.81% 25.81% 27.18% 28.23% 28.57% 6.45%

Strike Ratio 1.8 2.0 5.3 1.6 2.1 1.4 3.2 1.9 1.6 13.8

Gates (n=2) Guilford (n=4) Halifax (n=2) Harnett (n=5) Hertford (n=1) Hoke (n=1) Iredell (n=2) Johnston (n=7) Lenoir (n=1) Martin (n=1)

State Strikes by Counties

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Pe

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Black VM 56.36% 33.33% 25.00% 30.00% 54.05% 41.67% 69.44% 66.67% 59.72% 0.00%

Other VM 27.04% 32.35% 32.98% 27.78% 27.79% 17.26% 18.63% 23.68% 18.26% 33.75%

Strike Ratio 2.1 1.0 0.8 1.1 1.9 2.4 3.7 2.8 3.3 0.0

Mecklenburg (n=5)

Montgomery (n=1)

Moore (n=2) Nash (n=1)New Hanover

(n=4)Northhampton

(n=2)Onslow (n=3) Pender (n=1) Pitt (n=3) Polk (n=2)

State Strikes by Counties

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Pe

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Black VM 77.38% 71.43% 56.00% 62.50% 44.44% 70.00% 73.94% 45.45% 100.00% 0.00%

Other VM 27.82% 20.00% 21.43% 25.68% 24.69% 30.63% 19.43% 36.36% 26.91% 31.71%

Strike Ratio 2.8 3.6 2.6 2.4 1.8 2.3 3.8 1.3 3.7 0.0

Randolph (n=7) Richmond (n=1) Robeson (n=5)Rockingham

(n=2)Rowan (n=3) Rutherford (n=3) Sampson (n=3) Scotland (n=1) Stanly (n=2) Stokes (n=1)

State Strikes by Counties

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Pe

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Black VM 100.00% 91.67% 61.50% 37.50% 63.92% 41.11%

Other VM 18.92% 27.01% 24.88% 18.18% 20.44% 13.93%

Strike Ratio 5.3 3.4 2.5 2.1 3.1 3.0

Surry (n=1) Union (n=3) Wake (n=10) Washington (n=1) Wayne (n=5) Wilson (n=3)

No Jury Strike Disparity=1.0

Statewide Strike Disparity (Table 1) = 2.0

[T]he Court finds compelling empirical evidence that race, not reservations about the death penalty, not connections to the criminal justice system, but race, drives prosecution decisions about which citizens may participate in one of the most important and visible aspects of democratic government.

-- Judge Weeks, December 13, 2012

Strike Rate Ratios when Venire Members with Potential Explanatory Variables Removed from Equation

2.1 2.02.1 2.1 2.1

0.0

0.5

1.0

1.5

2.0

2.5

3.0

Death PenaltyReservations

Unemployed VM VM or CloseOther Accused

of Crime

VM knew a TrialParticipant

VM with AnyOne of These

Characteristics

wqawqa

In the 1998 Cumberland County case of State v. Golphin, the prosecutor struck African-American venire member Freda Frink in part because Frink had “mixed emotions” about the death penalty. The transcript reveals that Frink stated she would follow the law and consider both possible punishments. Moreover, the prosecutor accepted non-black venire member Alice Stephenson, who expressed conflicting emotions about the death penalty. Stephenson used the same “mixed emotions” phrase Frink had used to describe her feelings about the death penalty.

-- Judge Weeks, December 13, 2012

In the 2000 Cumberland County case of State v. Walters, the prosecutor struck African-American venire members Ellen Gardner and John Reeves in part because they both had family members who were charged or convicted of crimes. Gardner’s brother had been convicted of gun and drug charges and received five years on house arrest. Reeves’ grandson had a pending theft offense in Fayetteville. Gardner and Reeves said nothing about these pending charges would affect their ability to serve as jurors. Significantly, the State accepted non-black venire member Amelia Smith, whose brother was in jail for a first-degree murder charge at the time of the jury selection proceeding.

-- Judge Weeks, December 13, 2012

In the 1995 Cumberland County case of State v. Meyer, the prosecutor struck African-American venire member Randy Mouton because he “had financial concerns about serving as a juror and losing money because his child support payments had increased.” The State passed non-black venire member Terry Miller who stated he could not give total attention to the case because of his work for the military and dire situation in the Middle East.

-- Judge Weeks, December 13, 2012

Burmeister & WrightBurmeister & WrightThe documentary and testimonial The documentary and testimonial evidence of former Cumberland County evidence of former Cumberland County prosecutors showed that race was a prosecutors showed that race was a critical part of their jury selection critical part of their jury selection strategy. While typically Cumberland strategy. While typically Cumberland County prosecutors disproportionately County prosecutors disproportionately struck African-American venire members struck African-American venire members in capital cases, in two special cases, in capital cases, in two special cases, when they believed it was to their tactical when they believed it was to their tactical advantage to seat African-American advantage to seat African-American jurors, they did so.jurors, they did so.

-- Judge Weeks, December 13, 2012-- Judge Weeks, December 13, 2012

White Soldiers Held in Killing Of 2 BlacksAPPublished: December 09, 1995

Investigators charged a third Fort Bragg soldier today in the slaying of a black couple who, the police say, were gunned down on a downtown street by white soldiers looking for blacks to harass.

Remember Cumberland Remember Cumberland Strike Rate? Strike Rate?

Average of 2.6, higher than Average of 2.6, higher than statewide averagestatewide average

In Golphin 2.0, Walters 3.55, In Golphin 2.0, Walters 3.55, Augustine 3.7Augustine 3.7

No case below 1.0No case below 1.0

Burmeister & WrightBurmeister & Wright

On the basis of statistics alone, On the basis of statistics alone, BurmeisterBurmeister and and WrightWright are complete are complete anomalies.anomalies.

-- Judge Weeks, December 13, 2012-- Judge Weeks, December 13, 2012

Burmeister: .5 – State struck nine whites Burmeister: .5 – State struck nine whites and one blackand one black

Wright: incalculable – State struck 10 Wright: incalculable – State struck 10 whites and no blackswhites and no blacks

Maybe all the black jurors were Maybe all the black jurors were pro-death penalty and had no pro-death penalty and had no

connections to crime . . .connections to crime . . .

WRONGWRONG

NCBA Award WinnersNCBA Award Winners