Courts: Batson’s Back

The North Carolina Supreme Court may soon consider another case that will test enforcement of Batson v. Kentucky, the 1986 U.S. Supreme Court decision that prohibits the use of race in jury selection. 

Out of 114 cases decided on the merits between 1986 and 2016, none were overturned on jury discrimination claims. It wasn’t until 2022, that the court overturned a conviction based on a Batson violation for the first time, under a Democratic majority. 

But under the current 5-2 Republican majority, the court last year denied a new trial in State v. Russell William Tucker, a case legal experts had been watching closely. Writing for the majority, Justice Phil Berger Jr., one of five Republicans on the court, ruled that an “alleged cheat sheet” wasn’t enough to prove racial discrimination. The Tucker case was among four dealing with jury discrimination claims that the court considered last year; the court denied relief in the other three as well. 

Frank Chambers, however, believes his case will be stronger. In 1994, Chambers and two other men were convicted of murdering a sheriff’s deputy and his wife. Chambers claimed racism affected every aspect of his case, including jury selection. Racial tensions surged over a case in which three Black men were accused of killing a white couple, Chambers alleged. 

Superior Court Judge Richard L. Doughton rejected Chambers’ claims after a five-day evidentiary hearing in May 2023. His attorneys filed a petition March 28, asking the state Supreme Court to review the case. 

“The Batson claim in this case may well be the strongest this Court will ever see,” Gretchen Engel and Julian Wright, Chambers’ attorneys, write in the petition. 

Years after the trial, his post-conviction attorneys found prosecution notes identifying Black potential jurors by both 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 worked. 

Bill Kenerly, then Rowan County’s district attorney, also struck Black potential jurors for reasons that didn’t appear to apply to white jurors and were based on racist stereotypes, the petition alleges. For example, Kenerly struck Black jurors who expressed skepticism about the death penalty, but didn’t do the same for white jurors. 

Kenerly testified on behalf of state prosecutors at the May 2023 evidentiary hearing for six hours. The petition alleges that he admitted under cross-examination that the reasons he struck one Black woman—that she was single, physically attractive, and had an “unconventional” hairstyle—were race-based. He also said that he wrote a summary in his notes of his reasons, including using the word, “race” and the fact that she was Black. 

Doughton said Chambers failed to prove his discrimination claims, and the prosecution notes aren’t newly-discovered evidence–a contention Chambers’ attorneys hotly dispute. 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. 

Prosecutors with the N.C. Attorney General’s Office have asked for a 60-day extension to respond. 

—Michael Hewlett

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Judicial Oversight

Many in the legal community are closely watching a sexual discrimination lawsuit brought from a former assistant federal public defender in the Western District of North Carolina

Caryn Devins Strickland, a former employee of the federal defenders office, filed a lawsuit in 2020 alleging that judges and others in top positions in the U.S. 4th Circuit, which includes North Carolina, mishandled an investigation into her claims that a supervisor sexually harassed and discriminated against her when she worked in the Charlotte office.

Law publications have described her case as illustrative of the need for a Judiciary Accountability Act similar to laws adopted nearly 30 years ago to protect congressional and White House staff from workplace discrimination based on “race, color, religion, sex and national origin.”

Strickland has garnered filings in support of her from constitutional scholars, current and former law clerks, employees of federal public defender offices, and the Administrative Office of the U.S. Courts. 

Her case went to trial in December, and closing arguments were delivered in January. No ruling has been issued on the crux of her complaint, but some challenges to pre-trial and procedural rulings are currently before the 4th Circuit Court of Appeals—the same judicial body that she claims did not adequately or fairly investigate her harassment assertions. (The judges and officials named in her case have recused themselves.)

The defendants have disputed her allegations. “The Judiciary is firmly committed to providing all employees with a workplace free from discrimination, harassment, and retaliation, and has adopted comprehensive procedures to address and remedy allegations of workplace misconduct, including the allegations at issue here,” their attorneys wrote in one court file.

Unlike the executive branch and Congress, the federal judiciary has not been subject to Title VII of the 1964 Civil Rights Act, which would give the 30,000 employees in the federal court system more workplace protections. There has been a push in Congress to change that, which has led to pushback from U.S. Supreme Court Chief Justice John Roberts and others who say lawmaker intervention is not necessary.

Strickland has testified before Congress about her experience, telling lawmakers she’d had to resign in 2019 after a superior in her office “targeted” her with “unwelcome attention.” “Coworkers described him as ‘lustful,’ ‘fixated,’ ‘sexually attracted,’ and ‘wanting’ me in ‘not such a professional way.” Strickland testified. 

In one email Strickland shared, the superior wrote that he dealt in “pay-for-stay,” a message she considered “quid-pro-quo sexual harassment.” And even though coworkers knew about his behavior, she said, they did little to help. “I saw its leaders foster a workplace culture where discrimination, harassment, and retaliation were casually accepted,” Strickland said..

Strickland pursued remedies under the judiciary’s Employment Dispute Resolution Plan, but said it “failed to provide a fair process, meaningful review of my claim, or remedies to stop the harassment.”

Strickland had initially filed her lawsuit under the pseudonym “Jane Roe” to avoid the stigma of going up against powerful officials, but her name was exposed.

Officials in the federal defenders office and the Fourth Circuit judges she listed in her complaint have sought dismissal of the case, contending that they took prompt action to investigate the harassment allegations, that Strickland resigned before letting the investigation fully play out. “She instead filed suit in federal court against judicial officials involved in the complaint process (though not against her alleged harasser), arguing that the process did not satisfy the minimum standards of the Constitution,” their attorneys wrote.

—Anne Blythe

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Appealing to a Higher Power

The Freedom from Religion Foundation is challenging the constitutionality of the Winston-Salem/Forsyth County school board’s practice of starting meetings with Christian prayer, according to a recent letter to the board’s chair.

Chris Line, a staff attorney with the group, wrote in the April 25 letter that the prayers are “coercive, insensitive and intimidating,” he wrote, because they force nonreligious people to choose between openly not praying or “display deference to a religious sentiment in which they do not believe.” 

The nonprofit organization is based in Wisconsin and has more than 40,000 members across the country, including 900 in North Carolina. The Assembly previously wrote about its efforts to get the Wilkes County Board of Commissioners to rescind a proclamation calling upon residents to affirm “Christianity’s important influence in the foundation and life of our County, State and Nation.” (The board rescinded that proclamation last month.)

The group says the Triad school board is also running afoul of religious liberty. “Board members are free to pray privately or to worship on their own time in their own way,” Line wrote. Line specifically cited a prayer board member Susan Miller gave at an April 16 meeting. Miller did not respond to an email request for comment. Deanna Kaplan, the chair, said the school board is evaluating the letter, which was also sent to the board’s attorney, but hasn’t made any changes in response. 

“After our board has had an opportunity to review all of the information, we’re going to make a determination how best to proceed,” she said. She didn’t give a timeline, but said the board discussed it briefly during closed-door session at its meeting last week. 

Kaplan also emphasized that the purpose of the invocation was to set a tone for the meeting and is meant more for board members than the audience. 

Line said the Freedom from Religion Foundation got involved after a parent complained.

Kaplan said the school board received a similar letter about five years ago from a different organization, but didn’t change anything. Members have been careful just to use “God” in the invocation, she said, rather than any specific higher power. She said she hadn’t heard any complaints recently.

“We are an inclusive district and it is never our intent to make anyone feel uncomfortable because of different faiths or beliefs,” she said. 

— Michael Hewlett

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