Just 45 minutes. That’s how long it took for an all-white jury in Forsyth County to send Russell William Tucker, a Black man, to death row in February 1996.
Tucker, 56, is one of four Forsyth County inmates all-white juries have sent to death row in the last 30 years, and one of 137 people on death row in North Carolina. Fifty-four percent are Black.
Race can’t be used to exclude people from a jury, under the 1986 U.S. Supreme Court decision in Batson v. Kentucky. But Tucker’s lawyers say prosecutors skirted that rule, using a list of non-racial reasons for striking Black jurors like body language and lack of eye contact.
Tucker’s attorneys allege prosecutors used the list, referred to as “Batson Justifications: Articulating Juror Negatives,” to strike every Black person in the jury pool. They struck only 20 percent of the white potential jurors.
Legal experts and his attorneys call Tucker’s case one of the most blatant examples of jury discrimination in recent North Carolina history—and it’s why it’s back before the N.C. Supreme Court as part of four cases involving claims of racial discrimination in jury selection.
The court heard arguments in all four cases on Feb. 8 and will issue separate decisions sometime later this year. Tucker’s attorneys have asked the court to overturn Tucker’s conviction and order a new trial, or send it to Forsyth County for a hearing.
If the court overturns the conviction, it will be only the second time a North Carolina appellate court has done so based on a claim of jury discrimination in nearly 37 years since the Batson decision. The first was last year, in the case of Christopher Clegg, a Wake County man convicted of armed robbery. In a 4-3 decision, the N.C. Supreme Court overturned his conviction, concluding that the prosecutor used race to exclude a Black juror. Clegg has already served his sentence and is out of prison.
Legal experts say prosecutors’ use of race in Tucker’s jury selection is even more apparent.
“It’s as clear as day that there was racial discrimination in Russell Tucker’s jury,” Brian Stull, deputy director for the ACLU’s Capital Punishment Project, told The Assembly.
It might not be enough to convince a state Supreme Court that has flipped to a 5-2 Republican majority this year.
State prosecutors say racism didn’t play any role in how Tucker’s jury was selected, and they argue that the existence of the “Batson Justifications” document is not proof that Forsyth prosecutors used race to exclude potential Black jurors.
During the Feb. 8 hearing, Chief Justice Paul Newby, who has publicly expressed doubt about the existence of racism in the criminal justice system, said little. But Justice Philip Berger Jr., one of the court’s Republicans and the son of Senate Leader Phil Berger, was skeptical of Tucker’s claims. He also wrote the dissenting opinion in the Clegg case last year, arguing that the court should defer to a trial judge in a better position to consider the evidence.
Berger accused the majority of cherry-picking facts to fit a particular narrative instead of considering the legitimate reasons why the Black juror was struck.
At the Feb. 8 hearing, Berger asked Elizabeth Hambourger, one of Tucker’s attorneys, what evidence she had that a prosecutor read from the “Batson Justifications” list.
Hambourger noted that the prosecutor used terms that appeared to match language from the list, like “inappropriate” and “justifications.” That didn’t satisfy Berger: “There’s nothing in the record where the prosecutor stated, ‘I read directly from this handout.”
Berger also pointed out that another of the potential Black jurors had been caught sleeping. The prosecutor didn’t strike the juror for sleeping but later used what is called a peremptory strike—which doesn’t require a reason—to remove her.
Hambourger argued that the only salient question is what the prosecutor’s stated non-racial reason was for getting rid of a potential juror when accused of racial discrimination.
Among the non-racial reasons prosecutors used for striking potential Black jurors included that they were not registered to vote. But they accepted non-registered potential white jurors, Hambourger said.
Berger returned to the potential Black juror who was caught sleeping. He asked whether prosecutors had found any potential white jurors sleeping. Hambourger said it wasn’t clear from the record.
“Isn’t that the problem with grouping everyone as white jurors or Black jurors, is that you’re not dealing with specifics, you’re dealing with generalities about a group?” Berger said.
There is no doubt about Tucker’s guilt. His attorney in the 1996 trial, Richard Ramsey, told the jury that his client had shot another man to death outside a Winston-Salem Kmart.
Tucker took the stand and admitted it as well, the Winston-Salem Journal reported at the time.
It was just after 10 p.m. on Dec. 8, 1994 when Tucker walked out of the store wearing a stolen coat and a pair of boots, court records said. Maurice Travone Williams, 23, was only a few hours into his first day as the store’s security guard..
Williams followed Assistant Loss Manager William Maki and another employee, Travis Church, out of the store. Maki confronted Tucker about the stolen items, asking for a receipt.
Tucker pulled out a .380-caliber semiautomatic pistol and fired at Maki from six feet away. The bullet barely missed, but left Maki with gunpowder burns on his face.
As Church and Williams ran back toward the store, Tucker switched the gun from his right hand to his left and fired again. The bullet went through both Williams’ lungs and his aorta.
Then Tucker ran 400 feet through the parking lot, where he encountered two Winston-Salem police officers in a patrol car. He fired five times, hitting Officer Steve E. Spencer in the arm. Officer Horace Bryant was struck in the side, but his bullet-proof vest prevented injury.
Winston-Salem police also linked Tucker to another murder through ballistics evidence—the fatal shooting of cab driver Richard Byron Wall in November 1994. Tucker pleaded guilty to Wall’s shooting and was sentenced to the maximum of 27 years in prison.
At the trial for the Kmart shootings, Tucker’s attorneys argued that he suffered from mental illness. Tucker himself testified that at the time of the shooting, he had brief periods of not being in control of himself.
His attorneys wanted to keep Tucker from getting the death penalty, and asked the jury to convict him of second-degree murder and sentence him to life in prison.
But the jury of six men and six women, all white, convicted Tucker of first-degree murder and recommended the death penalty.
He was scheduled for execution on Dec. 7, 2000, but the N.C. Supreme Court delayed his execution after Tucker’s attorney, David Smith, admitted he botched an appeal.
“I decided that Mr. Tucker deserved to die, and I would not do anything to prevent his execution,” Smith stated in an affidavit, as the Winston-Salem Journal reported.
Tucker never got a new execution date, as pending litigation has put North Carolina under an unofficial moratorium on the death penalty.
Now the composition of the jury that decided Tucker’s fate 27 years ago is before the state Supreme Court.
Tucker remains on death row at Central Prison in Raleigh. He said through his attorneys that he is hopeful the courts will recognize the racial discrimination in his trial and overturn his conviction.
“For years, there has been racial discrimination going on,” he said. “Sometimes it feels like courts don’t see it. I hope this court will be more empathetic to the disenfranchisement that’s going on.”
This isn’t the first time Tucker has alleged racism in his case. He previously filed a claim under the Racial Justice Act, a state law passed in 2009 allowing death-row inmates to challenge their sentences if they believed race was a significant factor. The act was repealed in 2013.
But Tucker didn’t know about the “Batson Justifications” document until nearly 20 years after his conviction.
It came out as part of litigation in another Forsyth County death-row case that involved Racial Justice Act claims. Hambourger, an attorney with the Center for Death Penalty Litigation in Durham, found the document tucked inside a prosecutor’s notebook behind a tab marked “jury selection.”
His lawyers filed a new appeal based in Forsyth Superior Court in October 2017, and then an amended one in 2019. Superior Court Judge Stuart Albright denied that appeal; among his stated reasons were that the “Batson Justifications” document was not racist, and that it did not constitute newly discovered evidence because Tucker’s attorneys could have discovered the document earlier.
Tucker’s lawyers petitioned the state Supreme Court to review Albright’s decision, which is how it came before the court last month. They argue prosecutors violated Tucker’s constitutional rights to a fair and impartial jury by excluding potential Black jurors.
“If a prosecutor is asked to give reasons, those should be very easy to give,” Hambourger told the state Supreme Court in the February hearing. “Those should be at the top of their heads. It should be exactly what they were thinking when they made this strike decision. They should not have to read those reasons off a piece of paper that was prepared by someone else presumably months or years before.”
Danielle Elder, a senior prosecutor with the N.C. Attorney General’s Office, argued to the N.C. Supreme Court that Tucker’s claims shouldn’t even be decided on their merits because he should have raised them in earlier appeals and failed to do so.
Even if the court considered the merits, Elder argued that they fall short—the existence of the “Batson Justifications” document is not evidence of racial discrimination.
Forsyth County, nestled in the northwest Piedmont, is a place rich with Moravian heritage and the land over which Reynolds Tobacco once reigned.
It’s also where the late Darryl Hunt, a Black man, spent nearly 20 years in prison for the rape and murder of a white woman before new DNA evidence led to a different man.
In the 1980s and 1990s, racial tension and violence engulfed Forsyth County. The organization North Carolinians Against Racist and Religious Violence recorded three Ku Klux Klan rallies, a cross burning, and three incidents involving either threats or violence in Forsyth County between 1980 and 1985, according to an amended motion Tucker filed in 2012 under the Racial Justice Act. The motion argued that the county’s long history of racism bled into his trial.
Amid this history of racial discrimination, Tucker’s attorneys said prosecutors came up with a way to exclude Black jurors in his case and others.
In July 1995, a little more than six months before Tucker’s trial, the N.C. Conference of District Attorneys hosted a training for prosecutors handling death penalty cases, billed as “Top Gun II.”
Prosecutors at the conference were handed the “Batson Justifications” document. Rob Lang, one of the prosecutors in Tucker’s case, was among those in attendance.
“Prosecutors were encouraged to paint Black jurors as exhibiting ‘resistance to authority,’ an ‘air of defiance,’ ‘lack of eye contact,’ and ‘anti-prosecution tendencies,’” Hambourger and Mark Pickett, another of Tucker’s attorneys, argue in their brief to the N.C. Supreme Court.
Among those removed as a potential juror in Tucker’s trial was Thomas Smalls, a married Black man with children who had lived in Forsyth County for years. When asked why, Lang cited Smalls’ body language and inappropriate responses to prosecutors’ questions. But later, Lang backed off from using the word “inappropriate.”
“I wouldn’t call them inappropriate responses, but middle-of-the-road responses,” he said, according to court documents.
Lang then said that another reason was that Smalls did not make eye contact.
Tucker’s attorneys said these justifications were drawn directly from the training document.
Lang said Smalls was responding in a way that made it appear he didn’t support the death penalty. But Tucker’s attorneys said that based on the transcript, Smalls made it clear he did, and had no problem imposing it when appropriate.
“We were able to drag some answers out of him but it was very difficult and his body language was absolutely horrible in our opinion,” Lang concluded.
Lang also alleged that Smalls “nodded off,” which Tucker’s attorneys said mirrors language in the document suggesting “obvious boredom may show anti-prosecution tendencies.”
At the same time, Lang accepted white jurors who made explicit comments about being uncomfortable with the death penalty, court documents show.
“I hope this court will be more empathetic to the disenfranchisement that’s going on.”
Russell Tucker
Wayne Mills, another Black potential juror, was also struck using language from the training document, Hambourger and Pickett argue.
Lang claimed Mills was “smiling inappropriately” and “appeared somewhat confused during the questioning.” Lang also said Mills’ answers were “monosyllabic,” and alleged Mills had not mentioned a prior criminal conviction—though he allowed a white juror to remain who also failed to disclose a criminal conviction.
Lang struck another Black juror, Debra Banner, because she was not registered to vote and did not have a “sufficient stake in the community.” Banner was married with children and had lived in Forsyth County her entire life. Hambourger and Pickett said those reasons were not based on the Batson document, but did indicate racial bias because Lang accepted white jurors with a similar background.
At the Feb. 8 hearing, Hambourger said it wasn’t just the training document—prosecutors had handwritten notes in their files that indicated they didn’t want any New Yorkers or people who liked rap music in the jury pool.
“I think a reference to rap music, particularly in the 1990s, is an explicit reference to race,” she told the state Supreme Court.
This wasn’t the first time Lang and David Spence, who also prosecuted Tucker, had excluded potential Black jurors at disproportionate rates.
Two years before Tucker’s trial, Lang prosecuted Robbie Lyons, a Winston-Salem man accused of killing a convenience store owner, for first-degree murder. In that case, he struck 62 percent of potential Black or Hispanic jurors; he struck 21 percent of the white jurors.
Lyons was convicted of first-degree murder and sentenced to death. He was executed in 2003.
In four capital cases Spence tried between 1995 and 1997, 62 percent of Black jurors were struck and only 20 percent of white jurors were removed, Tucker’s lawyers argue. Those figures include Tucker’s case.
Only one of Spence’s four trials had more than one Black juror.
In one, that of Henry Jerome White in 1997, the N.C. Court of Appeals found that race played a role in jury selection after Spence admitted as much. He said he struck two jurors because they were “both black females” before launching into other non-racial reasons, the court said.
The court, however, did not overturn White’s conviction due to a legal standard at the time requiring that race be the sole factor. Recently, the N.C. Court of Appeals had agreed to review White’s case again, but Forsyth prosecutors filed a joint motion last year to overturn his first-degree murder conviction before the court could hear oral arguments, finding that White’s trial attorney gave poor legal representation. White pleaded guilty to second-degree murder and was soon released with time served.
According to a study by two Michigan State University law professors, Forsyth County prosecutors struck Black jurors at 2.25 times the rate of white jurors between 1990 and 2010. Another study from three Wake Forest law professors in 2011 found that Forsyth County prosecutors eliminated potential Black jurors from jury trials at three times the rate of white potential jurors—a rate higher than Durham, Charlotte, Raleigh, Greensboro, and Fayetteville.
In California and across the country, prosecutors have figured out ways to skirt the Batson decision, Elisabeth Semel, law professor and co-director of the Death Penalty Clinic at the University of California Berkeley School of Law, told The Assembly. And, Semel said, the courts have largely allowed prosecutors to get away with it.
Semel co-wrote a study, “Whitewashing The Jury Box,” showing that, among other things, California prosecutors routinely excluded Black jurors. The most common “non-racial” reasons prosecutors used were based on demeanor, a juror’s relationship with someone involved in the criminal justice system, or an expressed distrust of law enforcement, the study said.
Nationally, prosecutors are trained to find the ideal juror, Semel said. That juror is typically middle- to upper-middle class with a college degree, a professional job, and a family. They are conservative and have never had a bad experience with law enforcement, Semel said.
That leaves out large swaths of Black people, who have had disproportionately more negative experiences with law enforcement and who live in more heavily policed neighborhoods, she said.
Prosecutors are also trained to go with their gut instinct. That’s unconscious bias, and it can affect jury selection, Semel said.
“If you’re a white person, your gut instinct about a Black person is going to be negative,” Semel said.
Bryan Stevenson, founder and executive director of the Equal Justice Initiative, said in an affidavit in Tucker’s case that the juror exclusion list is part of a long tradition in which prosecutors have resisted efforts to curb racism in jury selection.
He cited an example from Philadelphia, where a district attorney recorded a training session teaching prosecutors how to question Black jurors so they could have non-racial reasons if challenged. He also pointed to policies included in training manuals for prosecutors in Dallas that were used to strike Black jurors.
The “Batson Justifications” training document is just another way to mask racist reasons for excluding Black jurors, Stevenson wrote.
Lang, who is now an assistant federal prosecutor, declined comment on a pending legal matter to The Assembly.
“Unlike other people who try their cases in the press, we cannot comment,” Lang said.
Pence, who is now an assistant district attorney in Carteret, Craven, and Pamlico counties, did not return a voice message left on his office phone. He has previously declined to comment.
In 1986, the late U.S. Supreme Court Justice Thurgood Marshall, wrote in Batson v. Kentucky that the court’s ruling would not eliminate jury discrimination.
He argued prosecutors would use peremptory challenges to exclude Black jurors and fabricate non-racial reasons to mask their intent.
“The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system,” Marshall wrote in the Batson decision.
Emily Coward, director of the Inclusive Juries Project at Duke University School of Law, said the Batson decision was supposed to serve as a “new framework that would actually allow courts to find jury discrimination.”
But North Carolina appellate courts have largely declined to enforce the Batson decision. A UNC study found that out of 114 cases decided on the merits, state appellate courts never overturned a conviction based on a claim of jury discrimination between 1986 and 2016.
That is until last year. That was the case of Christopher Clegg, the Wake County man whose conviction for armed robbery was overturned after the state Supreme Court ruled prosecutors used race to strike a potential Black juror.
Coward noted two other cases with alleged Batson violations that the Supreme Court sent back to trial courts. While neither case was decided on the merits, she said the state Supreme Court showed it was willing to demand judges “show their work” and not summarily dismiss claims of racial discrimination.
One of those cases—involving Cedric Hobbs, a Cumberland County man convicted of armed robbery and murder—was back before the N.C. Supreme Court on Feb. 8. Hobbs is now appealing the trial court’s decision to again deny his claims of jury discrimination.
For the most part, North Carolina courts have failed to recognize racial discrimination against potential Black jurors, Coward said. “We’ve had numerous studies that were showing racialized strikes were the norm. It was a persistent pattern across counties.”
About half of all death-row inmates in North Carolina were sent there by juries that were either all-white or had only one juror of color, the Center for Death Penalty Litigation has said.
Tucker’s case is troubling, Coward said.
“We should be very concerned whether or not Batson is working if you can get around Batson by reading from a document,” she said.
State prosecutors firmly deny racism was at play in Tucker’s jury selection.
Kimberly Spahos, executive director of the N.C. Conference of District Attorneys, said in an emailed statement to The Assembly that there “is no systematic effort on behalf of North Carolina prosecutors to exclude individuals from jury service based on any improper or constitutionally protected class including race, sex, color, religion, or national origin.”
“We should be very concerned whether or not Batson is working if you can get around Batson by reading from a document.”
Emily Coward, director of the Inclusive Juries Project at Duke University School of Law
Spahos said the organization does not train prosecutors “to subvert the system or encourage unethical practices in jury selection,” and that the justifications “have been repeatedly taken out of context.”
The list, she said, was “never intended to be used as a catalyst for prosecutors to exclude individuals from jury service based on race or any other protected class.”
“This document simply provides a list of what courts at the time had deemed appropriate, constitutionally neutral reasons to exclude jurors in specific cases. There is nothing unethical about teaching prosecutors the law and how to apply it fairly and in a just manner.”
Spahos did not respond to questions from The Assembly on whether the “Batson Justifications” document is still being used in prosecutor training.
No one can say how many times prosecutors may have used the “Batson Justifications” document. Tucker’s attorneys allege in court papers that Lang and Spence used reasons similar to ones in the document in two cases—Robbie Lyons and Henry White—and suggest the possibility that the document was either in circulation much earlier than the 1995 training or that Forsyth prosecutors originated the document and then later distributed it statewide.
Gregory Weeks, a now-retired Cumberland County superior court judge, presided over the first evidentiary hearings in the Racial Justice Act in 2012 and concluded that a prosecutor used the list in at least four murder trials in Cumberland County.
He also ruled that prosecutor Margaret Russ likely lied when she testified she never attended the 1995 Top Gun II training. Records show she did attend.
Weeks ruled that racial discrimination affected the trials of four people—Marcus Robinson, Christina Walters, Quintel Augustine and Tilmon Golphin—and commuted their sentences to life. But the state Supreme Court overturned the ruling on procedural grounds, including that Weeks failed to give prosecutors enough time to prepare.
Spahos said the district attorney’s conference has “never encouraged prosecutors to eliminate people of color or any other protected class from juries. We educate prosecutors on the current state of the law, encourage them to seek justice, and always follow the highest level of professionalism. It is my experience that prosecutors in our state consistently seek to ensure the fair administration of justice.”
Hambourger is waiting to see what the state Supreme Court will do in Tucker’s case. As an attorney with the Center for Death Penalty Litigation, she has represented a number of people who have claimed jury discrimination.
Each time, state prosecutors work to uphold the conviction, she said. She has never heard prosecutors explain why there remain such stark racial disparities in jury selections—Black jurors struck at more than twice the rate of white jurors.
“It’s either race discrimination or Black people make worse jurors,” she said. “They spend all of this time fighting Tucker’s claims and never spend any time wondering if they should do something about jury discrimination.”
Michael Hewlett is a staff reporter at The Assembly. He was previously the legal affairs reporter at the Winston-Salem Journal. You can reach him at michael@theassemblync.com.
Jeffrey Billman reports on politics and the law for The Assembly. He is the former editor-in-chief of INDY Week in Durham. Email him at jeffrey@theassemblync.com.