NORTH CAROLINA RACIAL JUSTICE ACT (RJA)

The enterprise proposed by the RJA is a difficult one. When our criminal justice system was formed, African Americans were enslaved. Our system of justice is still healing from the lingering effects of slavery and Jim Crow. In emerging from this painful history, it is more comfortable to rest on the status quo and to be satisfied with the progress already made. But the RJA calls upon the justice system to do more. The legislature has charged the Court with the challenge of continuing our progress away from the past. --Judge Weeks, December 13, 2012

“Lingering Effects”

Statement from a Juror: Bigotry influenced his decision to sentence Kenneth Rouse to death.

All-White Juries

RJA Time Line August 2009: RJA Signed into Law August 2009: RJA Signed into Law August 2010: Most of Death Row Files August 2010: Most of Death Row Files January 2012: First RJA Hearing – Robinson January 2012: First RJA Hearing – Robinson April 2012: Robinson Wins April 2012: Robinson Wins June 2012: Legislature Attempts Repeal June 2012: Legislature Attempts Repeal July 2012: RJA Significantly Amended July 2012: RJA Significantly Amended October 2012: Second RJA Hearing – 3 ∆s October 2012: Second RJA Hearing – 3 ∆s December 2012: Defendants Win December 2012: Defendants Win

Racial Justice Act No person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race. - § 15A-2010

§ 15A-2011(a) – The Standard A finding that race was the basis of the decision to seek or impose a death sentence may be established if the court finds 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. A finding that race was the basis of the decision to seek or impose a death sentence may be established if the court finds 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.

Three Kinds of Discrimination 1. Death sentences were sought or imposed significantly more frequently upon persons of one race than upon persons of another race. 2. Death sentences were sought or imposed significantly more frequently as punishment for capital offenses against persons of one race than as punishment of capital offenses against persons of another race. 3. Race was a significant factor in decisions to exercise peremptory challenges during jury selection.

§15A-2012(a)(3) – The Relief If the court finds 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, the court shall order that a death sentence not be sought, or that the death sentence imposed by the judgment shall be vacated and the defendant re- sentenced to life imprisonment without the possibility of parole. If the court finds 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, the court shall order that a death sentence not be sought, or that the death sentence imposed by the judgment shall be vacated and the defendant re- sentenced to life imprisonment without the possibility of parole.

RJA Amendments “Statistical evidence alone is insufficient to establish that race was a significant factor. “Statistical evidence alone is insufficient to establish that race was a significant factor. §15A- 2012(e). Defendant must show “race was a significant factor in decisions to seek or impose the death penalty in the defendant’s case at the time the death sentence was sought or imposed. Defendant must show “race was a significant factor in decisions to seek or impose the death penalty in the defendant’s case at the time the death sentence was sought or imposed. §15A- 2012(a).

State of North Carolina vs. Golphin, Walters & Augustine Hearing begins October 1, 2012 Goes for nine days

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

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

Quintel Augustine Convicted in 2002 of the murder of Fayetteville Police Officer Roy Gene Turner, Jr.

The Judge Senior Resident Superior Court Judge Gregory Weeks

The Community

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

Witnesses Shelagh Kenney, Attorney for Augustine & Walters Shelagh Kenney, Attorney for Augustine & Walters Calvin Colyer, Prosecutor of Golphin & Augustine Calvin Colyer, Prosecutor of Golphin & Augustine Margaret Russ, Prosecutor of all three ∆s Margaret Russ, Prosecutor of all three ∆s Barbara O’Brien – Jury Selection Study Barbara O’Brien – Jury Selection Study George Woodworth – Statistics George Woodworth – Statistics Bryan Stevenson – History of discrimination Bryan Stevenson – History of discrimination Transcript from Robinson Hearing Transcript from Robinson Hearing

“Jury Strikes” Notes

“Jury Strikes” Notes Cont’d

Last Slide on “Jury Strikes” Notes

Other Prosecutor Notes

State’s Response Prosecutors’ “race-neutral reasons” for excluding African-Americans from juries: Race-Conscious Race-Conscious Racially-Biased Racially-Biased Preposterous Preposterous

Prosecution “Cheat Sheet”

The Cheat Sheet in Action

If you had any doubt...

The Racial Justice Act Study – Jury Selection Catherine Grosso Barbara O’Brien Michigan State University College of Law

Probability of disparity occurring in race-neutral selection process Paired-sample t-test: p = (Less than 1 in 10,000,000,000,000,000,000,000,000,000,000) Strike Rate Ratio = 2.26 (56.0%÷24.8%)

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

wqa

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 & Wright The documentary and testimonial evidence of former Cumberland County prosecutors showed that race was a critical part of their jury selection strategy. While typically Cumberland County prosecutors disproportionately struck African- American venire members in capital cases, in two special cases, when they believed it was to their tactical advantage to seat African-American jurors, they did so. -- Judge Weeks, December 13, 2012

White Soldiers Held in Killing Of 2 Blacks AP Published: 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 Strike Rate? Average of 2.6, higher than statewide average Average of 2.6, higher than statewide average In Golphin 2.0, Walters 3.55, Augustine 3.7 In Golphin 2.0, Walters 3.55, Augustine 3.7 No case below 1.0 No case below 1.0

Burmeister & Wright On the basis of statistics alone, Burmeister and Wright are complete anomalies. -- Judge Weeks, December 13, 2012 Burmeister:.5 – State struck nine whites and one black Wright: incalculable – State struck 10 whites and no blacks

Maybe all the black jurors were pro-death penalty and had no connections to crime... WRONG

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