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An All-White Jury Sent Rayford Burke to Death Row. Will North Carolina's Efforts to Make Amends Be Enough?
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=58878"><span class="small">Jacob Biba, The Intercept</span></a>   
Monday, 29 March 2021 13:05

Biba writes: "The murder weapon was never recovered, and no physical evidence tied Burke to the shooting, yet he was charged with murder."

Rayford Burke as a young man. (photo: Emily Baxter)
Rayford Burke as a young man. (photo: Emily Baxter)

An All-White Jury Sent Rayford Burke to Death Row. Will North Carolina's Efforts to Make Amends Be Enough?

By Jacob Biba, The Intercept

29 March 21

An All-White Jury Sent Rayford Burke to Death Row. Will North Carolina’s Efforts to Make Amends Be Enough?

n the early spring of 1993, an all-white jury in Statesville, North Carolina, sentenced Rayford Burke, a 35-year-old Black man, to death. Burke was the ninth man sent to death row in North Carolina that year — 23 more were to follow — and his fate was decided quickly. It took less than two hours for jurors to agree that Burke deserved to die.

Later that April Fools’ Day, a juror spoke to a reporter from the Charlotte Observer about the emotional toll the trial took. “This whole thing has scared us to death,” one jury member said. “Now that it’s all over, we think about the one he was acquitted for.”

Three years earlier, Burke had been charged with second-degree murder. He was acquitted the following year, despite testimony from Timothy Morrison, a witness who came forward claiming that he saw Burke with a shotgun outside the Busy Bee Lounge, where the shooting had occurred. Two months later, Morrison, working as a paid confidential informant, was shot to death in the kitchen of a reputed drug house. When police learned that Burke was at the scene, they turned to him as a suspect.

The murder weapon was never recovered, and no physical evidence tied Burke to the shooting, yet he was charged with murder. At trial, witnesses offered conflicting statements and testimony that contradicted one another and previous statements that they made immediately after Morrison’s death. To convince jurors that Burke killed Morrison as an act of revenge, prosecutors relied on now-disputed evidence suggesting that Burke threatened Morrison’s life in the weeks leading up to his murder.

Today, 137 people are on death row in North Carolina. Seventy-three are Black men, and like Burke, more than half were sent there between 1990 and 2000, a decade when North Carolina’s criminal justice system was rife with systemic racism. From racial bias in jury selection to outright racist tropes used by prosecutors to stoke fear — the juror who spoke to the Charlotte Observer admitted to waking up screaming from nightmares — the racial bias of the death penalty was so blatant and routine that state legislators in 2009 forced a reckoning with the state’s racist past by enacting the Racial Justice Act. The law, which was short-lived, gave death row prisoners the opportunity to have their sentences reduced to life in prison without parole if they could prove that race played a “significant factor” in their case. They could even present statistical evidence of racial bias from across the state and region in support of their claims.

Burke was among more than 100 people on death row who sought relief under the RJA. Passed by Democrats, the RJA was ultimately weakened, then repealed in 2013 by Republicans who believed that the law signified the end of capital punishment in the state — but not before four people had their sentences reduced. They were sent back to death row after the RJA’s repeal. Following a yearslong legal battle to get his RJA claim heard despite the law’s repeal, the North Carolina Supreme Court ruled last summer that Burke’s claims under the RJA could move forward. A few months later, the four people who had previously won relief under the RJA were once again resentenced to life in prison.

Burke’s case comes amid renewed efforts by North Carolina to address decades of racial bias in its criminal justice system, prompted by last summer’s racial justice uprising. It reveals the limitations of the state’s Racial Justice Act for someone like Burke, who nearly 30 years after his conviction maintains his innocence. While he’s pursuing an RJA claim, he said he’s not interested in the reduction of his sentence that could result from it. For Burke, relief would be nothing short of a new trial, which he may get if he can prove that prosecutors struck Black jurors on the basis of their race, in violation of the U.S. Supreme Court ruling in Batson v. Kentucky, a claim he filed as an amendment to his RJA claim.

As a result of the state Supreme Court’s ruling, Burke will receive evidentiary hearings on both his Batson claim and his original RJA claim. The outcome of his Batson claim could set a major precedent in the state, where the Supreme Court has never found that a prosecutor improperly removed a juror of color based on their race.

If the Batson claim does not result in a new trial in state court, however, he plans to withdraw his original RJA claim, he said. Doing so would force a judge to rule on a petition for a writ of habeas corpus that he filed in federal court in 2012, on the basis of potentially exculpatory evidence that his attorney discovered years after his conviction, which could result in a new trial. No date has been set for his evidentiary hearings, and because of the pandemic, the timeline is still uncertain. Burke, who tested positive for Covid-19 in February, is growing impatient.

Civil Rights Backlash

Burke, 63, came of age during the civil rights movement, which, paradoxically, gave rise to the white backlash that ultimately led to the resurgence of capital punishment in North Carolina. “The correlation with the civil rights movement and its aftermath is hard to ignore,” writes Seth Kotch in his book “Lethal State: A History of the Death Penalty in North Carolina.”

Kotch, an associate professor of American Studies at the University of North Carolina in Chapel Hill, describes the death penalty in his book as “a persistent avatar of white rage.” He said in an interview that North Carolina allowed the death penalty to languish during the 1960s and the civil rights movement, only to jump back full tilt when the Supreme Court effectively banned the death penalty in its 1972 ruling in Furman v. Georgia. “I think now, the death penalty is definitely a symbol of the racial bias in our criminal justice system, and as a symbol, it’s used by anti-death penalty activists to try to abolish it,” Kotch said. “But I think in the 1970s it was a symbol of racial bias in a way that was very appealing to segregationists and others who felt the federal government was interfering with their way of life. I do think that mass incarceration is the story of the ’90s, but only because it was new. And what was kind of consistent, both as a symbol and as a very real way of using crime as a tool of racial repression, was the death penalty.”

Though the death penalty has fallen in and out of favor in North Carolina since the 1930s, its use, according to Kotch, was always seen as “an appropriate way” of killing Black people who posed “a threat to white society.” And though today there’s a disproportionate population of Black male death row prisoners in North Carolina, the racial bias of the death penalty is even more obvious when one looks not at the race of those sentenced to death but at the race of the victim. Between 1980 and 2007, researchers found that a death sentence was three times more likely when the murder victim was white.

Frank Baumgartner, a political science professor at the University of North Carolina at Chapel Hill, finds that the likelihood of being sentenced to death increases if the victim is white, which presents a “statistical fluke” because homicides don’t typically cross racial lines. “So the white perpetrators suffer from the fact that their victims are white because having a white victim is a big indicator that you’re more likely to get the death penalty,” Baumgartner said. “And the Black perpetrators benefit from the fact that the vast majority of their victims are Black. And Black lives don’t matter as much with regards to the death penalty. However, when you cross racial lines, and the white person kills a Black person, there’s almost no chance whatsoever that they’ll get the death penalty. And when the Black person kills a white person, the chances go way up.”

Though Burke was convicted of killing Morrison, a Black man, Burke and his family believe that in many ways, his conviction and sentence were a continuation of the Busy Bee case, which involved a white victim. “I feel like he wasn’t tried for the murder of Tim Morrison,” Burke’s sister, Barbara Bowman, told the Charlotte Observer after the trial. “He was tried for the murder of Calvin Royal.”

Baumgartner said that location and history are also important factors: Controlling for population and homicide rate, the disparity among counties can be traced to the county’s history of Jim Crow-era lynchings and poverty rate as well as the percentage of the population in that county that is Black. “The racial dynamic is very damning in that it shows the death penalty is associated with a really ugly history of racism, institutional racism, and lynchings,” he said. In these counties, especially in the 1990s when death sentences surged, the “avatar of white rage” was unmasked even further.

Baumgartner finds that timing, too, is just as critical. In 1993, when Burke was convicted and sentenced to death, North Carolina sent 32 people to death row, a number that was topped only in 1995, when the state sentenced 34 people to death. “It was like a race to the top in terms of who could be tougher on crime across the political parties,” Baumgartner said. The term “superpredator” caught on, and states began mandating juvenile life without parole, he said. In North Carolina, sentencing reform in the 1990s proved to have a lasting impact, according to Baumgartner, because it created the punishment of life without the possibility of parole. At the same time that it reduced sentences for the lowest-level crimes, it increased sentences for higher-level crimes. The violent habitual felon laws, North Carolina’s version of the three strikes law, also took effect in 1994. Today in North Carolina, 80 percent of people serving life without parole as a violent habitual felon are Black.

But in 2001, a series of death penalty reforms started rolling out, ranging from open discovery rights and prosecutorial discretion to the creation of the Office of Indigent Defense Services and a life without parole option. These reforms effectively reduced the number of people sentenced to death in the 2000s until today. But these reforms weren’t retroactive and did not directly address the racial bias of the criminal justice system. Today, concerns about lethal injection protocols and racial bias have led to a suspension of executions. North Carolina hasn’t executed anyone since 2006, yet death sentences, however sparingly, are still being sought after by prosecutors and handed down by juries.

Whitewashed Juries

When Burke walked into Jesse Wilson’s home on January 23, 1992, he recalled catching a glance of a few men smoking crack in the kitchen. In the living room, a woman lounged in a raggedy chair, drinking from a bottle of liquor. Burke poured some for himself, took a sip, and then heard a scuffle in the kitchen, he said in an interview. A man then rushed into the living room and said, “Look out — he’s got a gun,” before the first shot was fired. “We were in a crack house,” Burke said. “You don’t stand around anywhere when there’s shooting going on, much less a crack house. So I turned and I ran, too.” When he reached the front door, he bumped into Wilson, who was standing in the doorway. Burke slipped outside. Two more shots were fired. Burke ran to his girlfriend’s car and hopped into the passenger seat, and the couple sped away.

He did not see Morrison that day, he said. At the time, Burke was pursuing a civil lawsuit seeking $20.5 million from the city of Statesville and $500,000 from each of the Statesville Police Department officers who investigated the Busy Bee case. He said in an interview that if he had seen Morrison, he would have sought a statement from him to bolster his case.

Wilson and two other men — Burke’s cousin and another man with severe memory impairment from a prior head injury — testified against Burke at trial. Burke’s cousin and the third man said that Burke and Morrison fought in the kitchen and that Burke pulled a small-caliber gun out of his pocket and shot Morrison. But witnesses for the defense disputed that testimony. Peggy Ramseur, who, just like Morrison, had testified against Burke in the Busy Bee case, told the court that she spent time with Wilson following Morrison’s death and that Wilson admitted to her that he did not see the shooting take place. She also testified that she had spent time with Burke after the Busy Bee trial and sensed no ill will from him as a result of her testimony against him. Another witness also testified that Wilson didn’t know what happened, and Burke and two other witnesses testified that the shooting occurred nearly two hours earlier than reported. These inconsistencies didn’t faze the jury.

In death penalty cases, juries are already stacked in favor of the prosecutors: If you’re against the death penalty, you won’t be seated on a jury. And if you’re a person of color, the odds that you would land on a jury were especially low in the 1990s, despite the Supreme Court’s ruling in Batson. Researchers from Michigan State University, looking at jury strikes between 1990 and 2010, found that prosecutors in Iredell County, where Burke was tried, were three times more likely to strike Black jurors from capital cases. Today, nearly half of all prisoners on death row were sent there by all-white juries or juries with only one person of color.

Burke faced an all-white jury even though more than one-third of Statesville’s population in the 1990s was Black. For prosecutors, that was not a problem. Prosecutor Deborah Brown told jurors, “When we picked you to sit on this jury, we picked you as representatives of this whole community. And you come from all different parts of this community. And as you sit here, you are the voice and you are the conscience of this community.”

The prosecutors went on to stoke white fear. Throughout the course of Burke’s trial, they alluded to other violent acts he was accused of, including the Busy Bee shooting, for which he was acquitted, and an assault charge and conviction for shooting a woman in the leg, which he maintains he did not do. Prosecutors even referred to him as a “big black bull” — a description that a defense witness gave of Burke earlier in the trial — during closing arguments. “Fear, dehumanizing, racializing, and portraying a person as a bull or a predator or as an animal, that’s what it was all about,” said Baumgartner.

Gretchen Engel, executive director of the Center for Death Penalty Litigation in Durham, North Carolina, and one of Burke’s post-conviction attorneys, said the use of that animal imagery paired with evidence of threats that Burke purportedly made toward Morrison fueled the fear even further. “If you looked at the trial record, you see the state really going through acrobatics to really find a witness that they can get to testify about that,” said Engel. Prosecutors attempted to call two witnesses to testify that Morrison was scared of Burke, but the judge wouldn’t allow it. They were, however, able to call two officers from the Statesville Police Department and the county’s victim-witness coordinator to testify to threats that Burke and his family allegedly made against Morrison through the victim’s girlfriend and uncle. “And it ends up being like triple hearsay,” said Engel. “And it’s all about making this ‘big black bull’ seem threatening and fearsome, and it’s really playing to longstanding tropes about African Americans.”

Prosecutors needed this evidence, Brown told the judge, citing how critical it was to prove motive and premeditation. “And they did need it for death,” said Engel. “That’s how they were going to get that all-white jury to kill him and convict him of first-degree murder.”

Patricia Bruce, who prosecuted Burke in both the Busy Bee and Morrison cases, died in 2019. Brown went on to become a district court judge in North Carolina and vacated her seat in November. She could not be reached for comment.

During Burke’s post-conviction appeals, his attorney discovered that trial prosecutors had withheld evidence that showed Burke had never communicated threats through the victim’s uncle. In an affidavit after trial, Morrison’s girlfriend also stated that no threats were made. She even said she was interviewed by four people from the district attorney’s office and police department before the trial and conveyed the same message. In 2011, a state court denied Burke’s motion for appropriate relief on this claim. Though the court accepted his allegations as true, they said the disclosure of this evidence wouldn’t have affected Burke’s trial or sentencing. This new evidence is now the basis of Burke’s petition for a writ of habeas corpus in a federal district court, which could lead to an evidentiary hearing and a new trial but is on hold until his claims under the RJA are resolved.

A Significant Factor

In June of 2020, just after the police killing of George Floyd in Minneapolis, Cheri Beasley, the then-chief justice of the North Carolina Supreme Court, addressed the protests that were sweeping the state. “In our courts, African Americans are more harshly treated, more severely punished, and more likely to be presumed guilty,” she said. “There are many ways to create change in the world, but one thing is apparent: The young people who are protesting every day have made clear that they do not intend to live in a world in which they are denied justice and equality like the generations before them.”

A few days later, North Carolina’s Supreme Court, in a series of decisions, ruled that the RJA’s retroactive repeal was unconstitutional and that Burke’s claim, along with the claim of another Black man on death row from Iredell County, Andrew Ramseur, could proceed. Ramseur was convicted of killing two white people in a Statesville gas station in 2007 and was sentenced to death in 2010. After the shooting, some white community members posted comments online calling for Ramseur to be lynched.

In her majority opinion in State v. Robinson, Beasley, who lost by 401 votes to Republican Paul Newby in the November election, documented North Carolina’s sordid history of race discrimination in jury selection and Batson’s failure to halt that trend. “Although the Supreme Court’s ruling in Batson and subsequent decisions sought to eliminate discrimination through the use of peremptory challenges, this Court has never held that a prosecutor intentionally discriminated against a juror of color,” Beasley wrote. “The RJA was the General Assembly’s recognition of Batson’s ineffectiveness in this state.”

Also over the summer, North Carolina Gov. Roy Cooper established the North Carolina Task Force for Racial Equity in Criminal Justice. The 24-member task force is poised to address the systemic racism that’s plagued the state’s criminal justice system for decades. In December, the task force released 124 recommendations for promoting racial equity in law enforcement agencies and the courts.

For Burke, however, all this is likely too late.

“It ain’t just about being white or Black, but I do believe, if I were a white man, I would have gotten a much better trial than what I received,” Burke said. “Particularly with the evidence I have now, I would have more than likely gotten a new trial by now and been at home by now.”

“But to the Dead, One Only Owes the Truth”

During closing arguments, Bruce, the prosecutor, referenced Voltaire: “One owes respect to the living. But to the dead, one owes only the truth.” Today, Burke’s focus is on getting a new trial to expose the truth before he’s dead.

Though Burke would prefer to get a new trial based on exculpatory evidence, he understands that a race-based claim may be his best, and only, shot. “Batson holds them accountable for the racial disparities during the jury selection process, but that doesn’t make them explain why they lied like they did,” Burke said.

If the Batson claim doesn’t prove fruitful in state court, he will turn to the federal courts to potentially give him a new trial under his habeas claim.

He knows the new evidence related to the hearsay threats doesn’t prove his innocence, but he’s confident it shows that prosecutors lied and conspired against him. “It doesn’t exonerate me in the sense that DNA would or some other trace evidence like that,” Burke said. “But it’s powerful enough to get the job done if I can get back in a courtroom. It’s powerful enough to bring out the truth.”

While the RJA’s attempt to address racial bias in the death penalty is unprecedented, it does fall short for someone like Burke, who maintains his innocence and is not interested in having his sentence commuted to life without parole. “I am a little bit concerned,” Baumgartner said, “about the idea of commuting the sentences of over a hundred people, and they simply go to general population with a punishment of death by casket, rather than death by lethal injection, and we forget about them.” your social media marketing partner