The Docket: An Appeal to SCOTUS

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Russell William Tucker, a death-row inmate who alleges Forsyth County prosecutors illegally used a “cheat sheet” to strike all five Black potential jurors from his 1996 trial, is taking his case to the U.S. Supreme Court. 

This comes after the North Carolina Supreme Court wholly rejected his claims in a 5-2 ruling last December. Justice Phil Berger Jr., writing for the conservative majority, said it “defies logic and common sense” that Forsyth County prosecutors would use a “cheat sheet” to skirt the 1986 U.S. Supreme Court decision in Batson v. Kentucky, which prohibits the use of race in jury selection. 

As we wrote last year, legal experts had been watching the Tucker case to see if the state appellate courts would continue enforcing Batson. Of 114 North Carolina cases decided on the merits between the 1986 decision and 2016, none were overturned. It wasn’t until 2022 that the state Supreme Court overturned a conviction based on a Batson claim, when the court had a 4-3 Democratic majority. It has since flipped to a 5-2 Republican majority. 

Last year, the court considered four cases with jury discrimination claims, including Tucker, and denied all of them. 

Gretchen Engel, Tucker’s attorney and executive director of the Center for Death Penalty Litigation in Durham, filed the petition with the U.S. Supreme Court in May. Engel is also representing Frank Chambers, another death-row inmate who also claims jury discrimination tainted his trial and is appealing his case in the North Carolina Supreme Court. 

In her Tucker petition, Engel said that the state Supreme Court majority ignored overwhelming evidence of jury discrimination, including that in Forsyth County, prosecutors struck Black people at more than twice the rate they did other races. Engel also noted Justice Anita Earls, one of two Democrats on the court, wrote in her dissent that there was ample evidence that prosecutors read from a training document entitled “Batson Justifications: Articulating Juror Negatives” to justify their strikes of Black potential jurors.

Tucker’s post-conviction attorneys found the document 20 years after his conviction, tucked inside a prosecutor’s notebook under a tab marked “jury selection.” One of the prosecutors, Rob Lang, got the document when he attended a training hosted by the N.C. Conference of District Attorneys a little more than six months before Tucker’s trial. 

“Tried by an all-white jury in 1996, the case of this African American man exemplifies North Carolina’s resistance to fulfilling the promise of equal treatment in jury selection,” Engel wrote. 

The court will likely make a decision on whether to accept Tucker’s case in October. 

—Michael Hewlett

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Cross Examination

A new report from the Death Penalty Information Center outlines exactly how large a role elections play in the criminal justice system. Looking at North Carolina, Ohio, and Georgia, the study shows that elected supreme court justices are twice as likely to affirm death sentences when they’re facing re-election. And in the past, governors campaigning for another four years were more apt to grant clemency. 

North Carolina has not executed anyone in 18 years, but in that time the state Supreme Court has grown more polarized, particularly on criminal justice issues. The report focuses on how the Racial Justice Act, a law passed in 2009 and repealed in 2013, defined how elected judicial officials talked about the death penalty. That played out prominently in 2019, when then-Associate Justice Paul Newby, a staunch conservative, ran against then-Chief Justice Cheri Beasley for the top position. Newby won. 

Michael Hewlett spoke with Robin M. Maher, executive director of the Death Penalty Information Center and co-author of the report. 

This interview has been edited for length and clarity. 

What, in general, did this report conclude?

This report really explored two major ideas. One is that we wanted to identify the ways in which the electoral process…affect the decision-making of some of these critical decision makers in the death penalty system. That includes prosecutors, elected judges and elected governors. The second part … was to explore the ways in which public opinion and the changes we know that have occurred in public opinion about support for the death penalty have affected the electoral process. 

Why did you focus on these three states?

They were similar in a few different ways, including the size of their death row population. They were geographically a little bit diverse. They were also known as purple states or states that both had elected officials from both parties. 

What was your takeaway from North Carolina?

We looked especially at how the Racial Justice Act has been defining the death penalty issue at the Supreme Court in recent years and how it has played a pretty prominent role in several recent election cycles, both seen in the campaign rhetoric and in the attack ads of people that were running for re-election or for different positions on the court. We profiled one of those races with Chief Justice Cheri Beasley and the ways in which she was attacked for her views on racial bias and on the death penalty. 

How has declining support for the death penalty affected things? 

Twenty years ago, even 10 years ago, officials running for election in death penalty jurisdictions could not have criticized the use of the death penalty, or pledged to use it less, or even pledged to not use it at all. Now, we see a number of prominent examples where that has changed and that reflects the changing public opinion in the constituency. 

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A Promotion for N.C. Solicitor

When President Joe Biden nominated North Carolina Solicitor General Ryan Y. Park to serve on the U.S. Court of Appeals for the Fourth Circuit, the White House focused on highlights from his legal and educational resume.

Park has worked in the state attorney general’s office since 2017 and did a stint in private practice at Boies, Schiller & Flexner, a litigation firm with offices across the country and in London, Milan, and Rome.

He also worked in the U.S. State Department’s Office of the Legal Adviser and clerked for both Ruth Bader Ginsburg, who was nominated by Democrat Bill Clinton, and David H. Souter, who was nominated by Republican George H. W. Bush. He also clerked in the Southern District of New York and the U.S. Second Circuit Court of Appeals.

Park, who received his law degree from Harvard and his undergraduate degree from Amherst College, has offered insights on his career and home life in national publications.

He wrote in the New York Times about what it was like being “a second-generation immigrant overachiever” whose parents subscribed to “a near-religious devotion to education as the key to social mobility,” and his decision to raise his two daughters differently.

In The Atlantic, he wrote “What Ruth Bader Ginsburg Taught Me About Being A Stay-At-Home Dad,” as well as a tribute to the justice after her death in 2020.

Park has argued in front of the U.S. Supreme Court in the case Allen v. Cooper, in which a photographer sued Gov. Roy Cooper and the state for copyright infringement, and in the challenge to the UNC-Chapel Hill’s affirmative action policy.

On July 3, Biden nominated Park to fill the vacancy created after the retirement of James Wynn. The nomination drew praise from law enforcement organizations and the National Asian Pacific American Bar Association. Priya Purandare, executive director of the organization, praised Biden for nominating 41 Asian Americans and Native Hawaiian/Pacific Islanders to federal court positions with 36 confirmed—more than any president in history. 

North Carolina’s Republican U.S. Sens. Thom Tillis and Ted Budd were not as enthusiastic. “This nomination is a non-starter and the White House has already been informed they do not have the votes for confirmation,” the senators said in a joint statement. “While the White House has fallen short of engaging the advice and consent process in good faith for North Carolina’s judicial vacancies, we still hope to work together to find a consensus nominee who can earn bipartisan support and be confirmed.” 

Until recent years, nominees for appointment to the federal appellate court needed what was called a “blue slip,” or approval, from a home state senator to proceed. But that process has changed; now blue slip approval is only needed for U.S. District Court judge nominees .

If Park is confirmed, the Fourth Circuit appeals court would have eight active judges appointed by Democratic presidents and six active judges appointed by Republicans.

—Anne Blythe

Have any suggestions for improving this newsletter or stories we should look into? Email us at courts@theassemblync.com.

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