In August, lawyers with the American Civil Liberty Union’s Capital Punishment Project filed a nearly 300-page motion asking Wake County Superior Court Judge Paul Ridgeway to prohibit a jury-selection practice they said “stacks the deck” against their client, accused murderer Brandon Hill.
In capital trials, “death qualification” allows prosecutors to remove prospective jurors whose beliefs would prevent them from imposing a death sentence. The ACLU’s motion argued that this practice discriminates against African Americans, women, and Catholics—all groups that tend to oppose capital punishment—and creates juries that are “more likely to convict and more likely to impose death.”
Courts have rejected versions of this claim for decades. But Hill’s lawyers say declining support for the death penalty has made death-qualified juries less representative of their communities. They presented new evidence detailing how tossing prospective jurors skeptical of the death penalty has shaped juries in Wake County.
The ACLU’s motion included a study it commissioned of Wake County’s 11 most recent capital trials, which occurred between 2008 and 2019. It found that prosecutors used death qualification to eliminate 24 percent of Black prospective jurors, and 33 percent of Black women, compared with 11 percent of whites.
In trials, both sides can also remove some prospective jurors without explanation, as long as the removals aren’t based on race—a practice known as peremptory strikes. The study found that Wake prosecutors in capital cases used their strikes on Black prospective jurors at twice the rate of whites.
Between death-qualification exclusions and peremptory strikes, Wake prosecutors excluded 43 percent of eligible Black jurors.
It’s unclear when Ridgeway will rule on the ACLU’s motion, or when jury selection will take place for Hill’s trial, which appeals and a lawyer’s health issues have delayed.
Even with death qualification, 10 of the 11 Wake County juries in the ACLU’s study imposed life sentences, not death. That’s not unusual. Juries across the state have grown reluctant to hand down death sentences. In 1995, 34 people were sentenced to death in North Carolina, a high-water mark. Juries have only sentenced 10 people to death in the last decade.
The state hasn’t carried out an execution since 2006, and ongoing appeals mean it likely won’t for at least the next decade. Yet there are more than 140 pending capital cases in the state. Ten are scheduled for trial in 2023, according to the North Carolina Coalition for Alternatives to the Death Penalty.
Declaring a case capital gives prosecutors advantages. Faced with the threat of capital punishment, defendants might accept lengthy prison sentences even when prosecutors have weak cases.
Death-qualified juries are also significantly more inclined to convict defendants when compared to juries in noncapital murder trials, according to previously unreported data obtained by The Assembly. It’s been more than a decade since a capital trial in North Carolina ended in an acquittal.
“There have been numerous people who were convicted by death-qualified juries and some sentenced to death who later were exonerated,” Jonathan Broun, a senior staff attorney at North Carolina Prisoner Legal Services, told The Assembly in an email.
“Death qualification makes it easier for the state to convict people who are guilty. But it has also proven an effective way for prosecutors to convict the innocent as well.”
‘Substantially Impair’
Until 1968, prosecutors could disqualify a prospective juror in a capital case simply for expressing reservations about the death penalty. The Supreme Court’s ruling in Witherspoon v. Illinois established that only those who said they would “automatically” vote against a death sentence could be removed. Excluding more “stacked the deck against” the defendant, the court said.
But later decisions weakened that standard to allow the exclusion of jurors whose views “prevent or substantially impair” them from voting for death.
The most serious challenge to death qualification came in a 1986 case involving an Arkansas man convicted of capital murder who argued that the jury was unconstitutionally biased against him.
His lawyers presented studies showing that death-qualified juries were predisposed to convict. But the court’s conservative majority found there was “very little danger” that death qualification would “arbitrarily skew the composition of capital-case juries,” Justice William Rehnquist wrote.
The majority had dismissed the studies’ findings “with a glib nonchalance,” Justice Thurgood Marshall wrote in dissent.
“The State’s mere announcement that it intends to seek the death penalty … will, under today’s decision, give the prosecution license to impanel a jury especially likely to return that very verdict,” Marshall continued.
New research published since then has shown that death-qualified jurors are more likely to be white, male, and espouse authoritarian beliefs, and that juries with five or more white men are significantly more likely to sentence Black defendants to death. Recent studies in South Carolina and Louisiana found that death qualification removed African Americans at twice the rate as whites.
The ACLU saw an opening to prove that death qualification is racially biased.
Its lawyers started in Duval County, Florida, where Dennis Glover, a Black man convicted of killing a white woman, was sentenced to die in 2015. Florida’s Supreme Court overturned his sentence in 2017. With a new sentencing trial approaching last February, Glover’s ACLU lawyers filed a motion to prohibit death qualification.
The motion included a first-of-its-kind study of jury selection in 12 recent capital trials in the county. Its findings mirrored what researchers later found in Wake: Death qualification removed 39 percent of Black potential jurors, but only 17 percent of white potential jurors. Add peremptory strikes, and 62 percent of prospective Black jurors were removed from the pool.
They didn’t get a chance to test it in court, as Duval prosecutors offered Glover a life sentence before the motion got a hearing.
Wake County became their next target.
“A lot of death sentences were being sought in Wake County for some reason, even though it’s not necessarily consistent with what seems to be the population there,” Brian Stull, the deputy director of the Capital Punishment Project, told The Assembly. “And a lot of Black men were facing the death penalty.”
Wake County District Attorney Lorrin Freeman inherited five capital cases when she took office in 2015. She declared another five cases capital in her first term, but none in her second. Eight of the 10 capital defendants—and four of the five on her watch—were Black men.
Only one case produced a death sentence: Seaga Gillard, Brandon Hill’s co-defendant.
‘Discrimination, Distrust, Disqualification’
Gillard was convicted of the 2016 murders of April Holland, a pregnant sex worker, and Dwayne Garvey, who is described in court documents as Holland’s “pimp and boyfriend.” Cameras at a Raleigh motel captured Gillard shooting Holland, and Hill shooting Garvey.
During Gillard’s trial, prosecutors connected Gillard and Hill to multiple rapes and robberies throughout the Triangle and accused Gillard of attempting to rape and rob Holland before shooting her. They charged both defendants with both murders under the felony murder rule, which makes deaths that occur during the commission of other major felonies capital murder, even without premeditation.
But Hill’s lawyers argued in a pre-trial appeal to the North Carolina Supreme Court that there’s no evidence that Hill attempted to rob Garvey, or that Gillard attempted to rape Holland. They said Hill shouldn’t be tried for felony murder unless prosecutors can prove otherwise, and jurors should have the option of convicting him of second-degree murder if they believe the shooting was not premeditated.
That appeal is pending. But Hill’s defense might hinge on finding a jury willing to look beyond a killing caught on video to parse the state’s case critically.
“He wants a fair trial in the guilt phase, and by disqualifying the jury, he’s not going to get a fair trial in the guilt phase,” Stull said. “He’s going to get a conviction-prone jury, and he’s going to get a less diverse jury that is less likely to stand up to false facts and less likely to deliberate vigorously.”
This concern isn’t without merit, records obtained by The Assembly indicate.
From 2010 to 2020, North Carolina juries returned guilty verdicts in 62 of 64 capital trials—58 for first-degree murder and four for second-degree murder—with one acquittal and one hung jury. (Earlier this year, a Warren County jury also deadlocked on a capital murder charge.)
By comparison, between fiscal years 2011 and 2021, prosecutors lost about 15 percent of nearly 600 noncapital murder trials that involved attorneys from the Office of Indigent Defense Services, which provides representation to defendants who can’t afford their own lawyers, including in most murder cases. In another 20 percent of those trials, juries found defendants guilty of lesser offenses than first-degree murder.
Wake County had even more disparate results. All 11 death-qualified juries in the ACLU’s study found defendants guilty of first-degree murder. Wake prosecutors lost five of 12 noncapital murder trials, as The Assembly has previously reported.
In court, Wake County Assistant District Attorney Kathryn Pomeroy said these outcomes had nothing to do with juries’ makeup. “Prosecutors aren’t going to seek the death penalty if our case for first-degree murder isn’t incredibly strong,” she said.
Before Gillard’s trial, his lawyers asked Judge Ridgeway to prohibit death qualification. They pointed to a decade-old study—conducted by the Michigan State University academics who later studied death qualification in Wake County for the ACLU—showing that North Carolina prosecutors disproportionately used peremptory strikes against African Americans.
Ridgeway declined. Nearly a third of eligible prospective jurors in Gillard’s trial were excluded because of their beliefs about the death penalty, according to court records.
By detailing the effects of death qualification in Wake County in Hill’s motion, the ACLU hoped to change Ridgeway’s mind. In hearings this summer and last month, Hill’s lawyers presented the study within a larger narrative: “Discrimination causing distrust causing disqualification.”
Pomeroy argued in the November hearing that regardless of their race or religion, death-disqualified jurors are “treated no differently than any other members who can’t follow the law.”
But that’s a chicken-and-egg problem, Hill’s lawyers said. African Americans are skeptical about the death penalty because they’ve seen its application.
North Carolina has executed more than 800 people since 1726, when its first documented hanging occurred. More than 70 percent of them were Black. Today, 54 percent of the 137 people on death row are Black, according to the Department of Public Safety, though African Americans comprise 22 percent of the state’s population.
“We’re the ones that get stopped, that get frisked, that are targeted by every drug campaign,” ACLU attorney Henderson Hill (no relation to Brandon Hill), who is Black, told Ridgeway. “But our views about the death penalty, which grow out of 400 years of history, are somehow invalid.”
‘White People with Pocket Protectors’
Until the 1940s, state law mandated death sentences for murder, rape, burglary, and arson. That made death qualification logical: Anyone who could not impose the death penalty might acquit.
But the North Carolina Supreme Court maintained death qualification after the General Assembly allowed juries to grant mercy in capital cases. The legislature codified death qualification in 1977; the court upheld the practice again in 1986 and 2010.
Few expect the state Supreme Court to reverse its position, especially under the 5-2 Republican majority elected in November. Ridgeway also appears unlikely to rule the statute unconstitutional in Hill’s case.
During a November 18 hearing, the judge questioned the ACLU study’s methodology, criticizing it for classifying prospective jurors who were excused for hardship among those willing to impose death sentences.
“We have no way of knowing what [they] feel,” Ridgeway complained. “That to me is troubling about the reliability of the data.”
But that information is part of the study’s raw data, which was submitted as evidence (and provided to The Assembly). Of the nearly 600 people who obtained hardship excusals, only nine had indicated that they would not sentence someone to death.
Removing hardship excusals from the study’s calculations doesn’t alter its findings. Death qualification still excluded 33 percent of eligible Black jurors, compared with 18 percent of whites.
Even so, it’s unclear whether eliminating death qualification would affect the composition of capital juries.
“There’s all these different points in this system where we are weeding out Black jurors, jurors of color, jurors that have similar backgrounds to our clients,” said a defense attorney who has handled capital cases at the trial and appellate levels, speaking on background to avoid potential recriminations. “The truth is, they weren’t going to be on the jury anyway.”
The jury pool, drawn from registered voters and people with driver’s licenses, tends to be less diverse than the community at large. Lower-income people tend to move more often and don’t receive a jury summons. And hourly workers who can’t afford to take time off work to sit through a two-month capital trial or parents who can’t find childcare will be more likely to ask for hardship excusals.
Then come peremptory strikes. In the ACLU study, Wake prosecutors excluded 51 percent of eligible Black prospective jurors, including 57 percent of Black women.
“By the time you’re done, you’ve got 12 white people with pocket protectors,” the defense attorney said.
‘Death-Penalty DAs’
The U.S. Supreme Court temporarily halted the death penalty nationwide in 1972, ruling that states applied capital punishment arbitrarily. In response, North Carolina created a two-phase capital trial system, in which the same jury decides a defendant’s guilt and sentence, and resumed executions in 1984.
Over the next 22 years, the state put 43 people to death, 13 of them Black.
Marcus Robinson was supposed to be next. But he won a stay the day before his scheduled execution in January 2007 after the North Carolina Medical Board declared that physicians’ participation in executions—which was required in the state’s protocols—violated medical ethics.
The death chamber has sat idle ever since, as legal battles over the state’s lethal injection process and application of the Racial Justice Act have played out in court.
At the earliest, another execution won’t occur for five to 10 years, said Paul Stam, a Wake County lawyer and former state House Republican leader.
Some death penalty opponents believe the status quo serves both parties’ interests. Democrats like Governor Roy Cooper can tell swing voters they support the death penalty without carrying out executions, while Republicans can rally their base with complaints about “activist judges.”
This year, Republican ads accused former Chief Justice Cheri Beasley, Justice Sam Ervin IV, and Judge Lucy Inman of being soft on violent criminals. The three Democrats lost their races for U.S. Senate and state Supreme Court, respectively.
But other advocates wonder how long the stalemate can last.
“We have seen executions resumed in other states,” said Noel Nickle, executive director of the North Carolina Coalition for Alternatives to the Death Penalty (NCCADP). “The only way we can protect people from execution, some of whom are innocent, is to no longer have death row.”
According to the National Registry of Exonerations, eight people who were sentenced to death in North Carolina since 1976 have been cleared. Six of them were Black. At least seven more exonerees—all Black—accepted a plea bargain to avoid death sentences.
On December 10, the NCCADP launched a campaign to ask Gov. Cooper to commute the sentences of those on death row before he leaves office at the end of 2024. In response, Cooper press secretary Sam Chan told The Assembly in an email that the governor and his team “carefully review all applications for clemency.”
Regardless of the courts or Cooper, North Carolina’s death penalty will likely wither on its own, says Brandon Garrett, the director of the Wilson Center for Science and Justice at Duke University.
Both nationally and in North Carolina, the number of death sentences has fallen over the last two decades. Garrett attributes this decline to the rising popularity of life-without-parole sentences, which North Carolina introduced in 1994, and better legal representation for capital defendants, which North Carolina facilitated by creating the Indigent Defense Services Commission in 2000.
As prosecutors obtained fewer death sentences, Garrett says, some began to question the wisdom of spending hundreds of thousands of dollars on capital trials.
Indeed, seven counties’ district attorney’s offices—Wake, Robeson, Cumberland, Mecklenburg, Iredell, Lee, and Forsyth—accounted for most of North Carolina’s capital trials between 2010 and 2020.
“You don’t have death-penalty states anymore,” Garrett said. “We have a handful of death-penalty counties, really meaning a handful of death-penalty DAs. There are very few counties where prosecutors are still pursuing these capital sentences. It’s expensive, time-consuming, and unclear what the benefits are.”
Wake County District Attorney Lorrin Freeman is one of them, at least for now.
Freeman wrote in an email that the death penalty “remains the maximum punishment under state law and as such is appropriate for consideration in the most heinous cases.” She declined to comment on the ACLU’s death-qualification motion.
Brandon Hill is the only Wake County defendant currently facing a possible death sentence—and the only one whose fate will likely be decided by a jury explicitly willing to send him to death row.
Statistically, he’s more likely to serve life without parole. But with a death-qualified jury, a first-degree murder conviction is a near certainty.
Perhaps that’s the appropriate verdict. As Pomeroy, the assistant district attorney, exclaimed during the November hearing, “This defendant was caught on video gunning down an unarmed man!”
But Stull, the ACLU attorney, counters that an airtight case shouldn’t rely on a practice that racially distorts juries.
“When you know that is the likely outcome, and you do it anyways, that’s discriminatory,” Stull said. “What is particularly striking in Wake County is that they’re creating this huge risk of excluding Black jurors for the benefit of the possibility of a death sentence that they don’t seem to get anyways.”
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.
Heidi Perez-Moreno contributed reporting.