An alleged “cheat sheet” for jury selection isn’t enough to prove discrimination, the N.C. Supreme Court ruled Friday in denying a new trial for Russell William Tucker.
Writing for the majority, Justice Phil Berger Jr. said it “defies logic and common sense” that Forsyth County prosecutors would use a training document to skirt the 1986 U.S. Supreme Court decision in Batson v. Kentucky, which prohibits the use of race in jury selection.
Berger also criticized a study from two Michigan State University law professors that showed Forsyth County prosecutors had removed Black potential jurors at more than twice the rate they did white people, calling the study “fatally flawed.”
More importantly, Berger said, the document, entitled “Batson Justifications: Articulating Juror Negatives,” and study are irrelevant because Tucker never got past the first of a three-step process to prove jury discrimination. Tucker’s claims are procedurally barred, Berger argued, because Tucker didn’t raise them in previous appeals.
Tucker’s attorneys said the training document wasn’t discovered until 2015, when they got ahold of files connected to a different case. But Berger was unmoved; he said Tucker, an inmate on death row, could have obtained the document through a public-records request or collected and analyzed similar data.
As we wrote in March, legal experts have been watching the Tucker case to see if the state appellate courts would continue enforcing the Batson decision. North Carolina has a bad track record: Of 114 cases decided on the merits between 1986 and 2016, none were overturned.
The state Supreme Court made some progress in more recent years, including giving lower courts guidance in 2020 on how to decide a jury discrimination claim and overturning a conviction based on a Batson violation in 2022.
But the state Supreme Court had a 4-3 Democratic majority then, and has since flipped to a 5-2 Republican majority. The court considered four cases with jury discrimination claims this year, including Tucker, and denied all of them.
Ian Mance, a staff attorney for Emancipate NC, pointed out that Berger’s ruling is the exact opposite of how the court viewed the training document in the case last year resulting in the overturned conviction. In that ruling, the Democratic majority referenced Tucker’s case and said that generalized body language and lack of eye contact justifications, as outlined in the training document, should be viewed with “significant suspicion.”
Mance said the Tucker case is a good illustration of the ideological shift on the court.
Emily Coward, director of the Inclusive Juries Project at Duke University School of Law, said the court has made it much harder for defendants to bring jury discrimination claims. The first part of the three-step process is not supposed to be an insurmountable hurdle but the court is making it so, she said.
In another case decided last week, Frank Chambers, a Rowan County man convicted, along with two other men, of murdering a sheriff’s deputy and his wife, had his claims dismissed by a superior court judge. Chambers claimed racism affected every aspect of his case, including jury selection.
Bill Kenerly, then Rowan County’s district attorney, and Assistant District Attorney Andriadne Symons prosecuted the case. Chambers’ attorneys later found prosecution notes identifying potential Black jurors by their race and gender, noting whether they opposed the death penalty, mentioning their hairstyles, and providing false information about criminal activity at an historically Black university where one of the Black jurors worked.
Kenerly testified at a May evidentiary hearing for six hours, in which he attempted to explain why he asked a potential Black juror whether other Black people would criticize her if she recommended the death penalty. He didn’t ask a similar question of potential white jurors.
Judge Richard Doughton, who presided over that hearing, denied Chambers’ jury discrimination claims in a 148-page ruling last Thursday. Doughton said his claims were procedurally barred, and the prosecution notes aren’t newly-discovered evidence. He also specifically found that Kenerly was a credible and experienced witness who was telling the truth when he said he never used race in jury selection.
Chambers’ attorneys plan to appeal to the state Supreme Court.
Holiday note: We are taking the next two weeks off to rest up for 2024. We will see you in the new year!
Decision Delayed
Garnell Hill didn’t even know he had a son until 2020, after he was already in foster care. While Hill has never been accused of abuse or neglect, he’s spent years trying to win custody. We first covered Hill’s story last week as part of an investigative series on the state child welfare system from The Assembly and WBTV.
Hill was back in court on Thursday, but an anticipated decision about whether his son would be put up for adoption was instead pushed to next year. Now, the boy appears likely to be moved to yet another foster home—his sixth in five years.
Reporter Jeffrey Billman and our colleagues at WBTV have the update.
Garnell Hill has never been accused of abusing or neglecting his son, but has spent years trying to get custody. On Thursday, a Durham judge punted an adoption decision until next year.
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‘A Serious Crime’
From a legal standpoint, the hearing last week had nothing to do with Elizabeth Grace Burton, the UNC-Chapel Hill student who died of a drug overdose last March.
But her death hung over the court proceedings, like a dark, heavy fog.
Patrick Rowland, 22, had been a philosophy major at Duke and was with Burton the night she died. While he was not charged in her death, he did plead guilty to charges of using a cellphone to facilitate the distribution of cocaine and marijuana. Probation officers recommended that he be sentenced to two years of probation.
But U.S. District Judge Catherine Eagles said that Rowland should have known that drugs he had helped distribute to Duke students might contain fentanyl, and that any of the students he sold to could have died.
“It’s a serious crime,” said Eagles, before handing down the sentence: three months in prison, one year of probation, and a $2,500 fine.
The mother of the UNC freshman who died after overdosing at Duke University spoke powerfully to a judge—and to the student who did drugs with her daughter.
Burton’s mother also testified at the hearing, clutching a framed photograph of her daughter, blonde and pretty.
“My daughter was given a death sentence,” said Lisa Burton. “I was given a life sentence.”
Have any suggestions for improving this newsletter or stories we should look into? Email us at courts@theassemblync.com.
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Presumption of Guilt
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