Landmark US Case to Expose Rampant Racial Bias Behind the Death Penalty

By Ed Pilkington, Guardian UK

25 August 19

Top capital lawyers head to North Carolina as judges consider the cases of four inmates who faced ‘bleached’ juries

he dark secret of America’s death penalty – the blatant and intentional racial bias that infects the system, distorting juries and throwing inordinate numbers of African Americans on to death row – will be laid bare next week in North Carolina.

Some of the country’s top capital lawyers will gather on Monday at the state supreme court in Raleigh. Over two days, they will present evidence that capital punishment is so deeply flawed and riddled with racial animus that it makes a mockery of basic principles of fairness and equal justice.

The court’s seven judges will be asked to address a simple question. Will they allow men and women to be condemned to die despite powerful evidence that prosecutors deployed racially discriminatory tactics to put them on death row?

“We are taking an unprecedented look at whether the courts will tolerate proven racial bias in the death penalty,” said one of the case’s leading lawyers, Cassandra Stubbs, director of the American Civil Liberties Union (ACLU) capital punishment project. “We’re talking about fundamental rights that go to the integrity of the courts and the entire criminal justice system.”

At the heart of the case are four inmates facing execution: three African American men and a Native American woman. Over the past seven years Marcus Robinson, Quintel Augustine, Tilmon Golphin and Christina Walters have been on an extraordinary judicial roller coaster that has seen them taken off death row on grounds that their sentences were racially compromised, only to be slapped back on to it following a partisan backlash by the Republican-controlled state legislature.

In all four cases, a review of their trials found racial bias had been an “overwhelming” feature of how death sentences were secured. In particular, the juries had been “bleached”.

Black potential jurors were systematically struck off – consciously and intentionally – at a rate far higher than their white equivalents. As a result, juries were produced that were almost exclusively, or in Augustine’s case entirely, white.

“A very stark and unmistakable picture of discrimination emerges with compelling evidence that it is not an accident, it is purposeful,” Stubbs said.

The evidence Stubbs referred to was uncovered by a commission set up under North Carolina’s Racial Justice Act (RJA), an exceptional measure introduced in 2009 following a spate of exonerations of innocent people held in some cases for decades on death row. That so many innocent people, most of them African American, had come close to being killed by the state alarmed local politicians to the extent that the then Democratic-controlled assembly decided to root out racial discrimination from the death penalty once and for all.

In a historic break with the past, the RJA established that anyone who could prove race was a significant factor behind their death sentences would be deemed ineligible for capital punishment.

That new protection unleashed one of the most thorough investigations into the practice of the death penalty in US history. What it uncovered shocked even lawyers working on RJA cases.

‘The more we looked, the more we found’

First up was Cassandra Stubbs’s client, Marcus Robinson. He had just turned 18 in 1994 when he and his black co-defendant carjacked a white teenager, Erik Tornblom, at a gas station in Fayetteville.

Robinson, as prosecutors privately admitted at the time, did not pull the trigger when Tornblom was shot and killed – his co-defendant did. Yet Robinson was still condemned to death, becoming the youngest person at the time on the state’s death row.

When Stubbs began analyzing Robinson’s trial she discovered that the jury had been grossly skewed along race lines. During jury selection, in which both defense and prosecution lawyers have the right to exclude potential jurors so long as they have legitimate reasons, the prosecutor John Dickson struck out five of 10 black people in the pool.

That 50% dismissal rate was almost four times the rate at which eligible white jurors were rejected: just 14%. A review of the record showed that Dickson asked demeaning questions of one black prospective juror, including whether the individual could read and had completed school – questions that were put to none of the white candidates.

“The more we looked, the more we found,” Stubbs told the Guardian. “These were explicit biases. It was overt racial discrimination.”

Investigations of the other three cases under the RJA spotlight threw up even more disturbing evidence.

At the trial of Augustine, who was charged with killing a police officer, they dug up handwritten notes in which the prosecutor had scrawled “thug” and “blk wino” against the name of two potential black jurors. By contrast, the same prosecutor described a white juror with alcohol issues as “drinks – country boy – ok”.

Another prospective black juror had “blk/high drug area” placed beside her name, a reference to her largely African American neighborhood.

At Golphin’s 1998 trial on charges that he and his brother killed two highway patrol officers, an African American man in the jury pool overheard a couple of potential white jurors talking about the defendant. One said Golphin “should have never made it out of the woods” – an apparent lament that officers had arrested the 19-year-old rather than summarily executing him on sight.

When the black potential juror reported what he had overheard, he was struck off the jury pool. The white pair were left alone and may well have sat on the final jury.

The cheat sheet

Other stunning evidence of race bias will be raised at Monday’s hearing. At the 1993 trial of a black defendant named Rayford Burke, the prosecutor described him to the all-white jury as a “big black bull”.

More jaw-dropping still was how the courtroom was arranged by state officials at the 2010 trial of Andrew Ramseur for killing two white victims. Immediately behind the defense table, four rows of benches where the defendant’s family would normally have sat had been cordoned off with yellow crime-scene tape.

In full view of the all-white jury, Ramseur’s elderly grandparents were forced to sit in the proverbial “back of the bus” while the family of the white victims were allowed to locate themselves right behind the prosecution table.

Perhaps the most startling discovery of all was that North Carolina prosecutors were trained in how to get around constitutional prohibitions against selecting juries on race grounds.

The US supreme court has been crystal clear: jury “bleaching” is not allowed. In a 1986 ruling, Batson v Kennedy, the court ruled that jurors could not be dismissed on a racial basis – a valid cause had to be given. That unambiguous ban was reaffirmed just two months ago in the case of Curtis Flowers, a black man from Mississippi who was put on death row after the state prosecutor struck off five black potential jurors, leaving only one on the final jury.

The Flowers ruling was backed by seven of the nine justices. Underlining how little tolerance exists at the highest judicial levels for overt racial discrimination in jury selection, the Flowers opinion was written by Brett Kavanaugh, Donald Trump’s controversial pick, who denounced the Flowers prosecutor’s “relentless, determined effort to rid the jury of black individuals”.

None of this appears to have dissuaded some of North Carolina’s capital prosecutors from pursuing their objective of keeping death row populated with black prisoners. The court will hear that in 1995 a training scheme was set up for prosecutors statewide.

As part of the training, dubbed Top Gun II, attendees were given a handout titled “Batson Justifications: Articulating Juror Negatives”. The document was essentially a cheat sheet – it told prosecutors how they could skirt the clear prohibition on racial strikes by listing 10 “justifications” they could “articulate” to dismiss black people while disguising the race motive.

The list begins with this cod ground for dismissal: “Inappropriate dress – attire may show lack of respect for the system, immaturity or rebelliousness.” It is followed by “Physical appearance – tattoos, hair style, disheveled appearance may mean resistance to authority”.

Another “justification”: “Body language – arms folded, leaning away from questioner, obvious boredom may show anti-prosecution tendencies.”

Several of the state’s capital prosecutors sat through the training and there is evidence they went on to make use of it. The prosecutor in the Augustine case apparently quoted from the Top Gun cheat sheet as she was trying to justify to a judge in a separate trial why she had rejected a black juror.

‘Accept racial bias to keep the death penalty’

The evidence unleashed by the RJA investigation was so overpowering that it persuaded the North Carolina supreme court – the same panel that will host Monday’s hearing – to scrap the death sentences of Augustine, Golphin, Robinson and Walters in 2012. Their new punishment was far from soft: they would spend the rest of their natural lives behind bars.

Nonetheless, that was not harsh enough for the Republican-controlled state legislature voted in in 2012. They made it their business to overturn the RJA the following year, disregarding the overwhelming evidence of racial wrongdoing and dragging the four inmates without any further judicial review back on to death row.

For Stubbs of the ACLU, there is only one conclusion to draw: Republicans in North Carolina were more concerned with preserving capital punishment than with ensuring the integrity of the judicial system.

“They feared that breaking the link between the death penalty and race would remove too many people from death row,” she said, “so they decided they were willing to accept racial bias to keep the death penalty.”

Stubbs and her fellow lawyers are hoping that Monday’s hearing will once again take their four clients off death row. They are also hoping that the proceedings will put a spotlight on discrimination that remains rampant across the state.

The statistics tell the story. North Carolina is 34% non-white, yet about 63% of death row inmates are non-white. A similar disparity is shown in the statewide statistics on jury selection.

A Michigan State University study found that black potential jurors in capital cases were dismissed through pre-emptory strikes at more than twice the rate of whites.

Frank Baumgartner, professor of political science at the University of North Carolina at Chapel Hill and co-author of Deadly Justice, a recent statistical portrait of the death penalty, said that the same racial faultline runs across all the 29 states that still have the death penalty. His analysis has shown that it is impossible to understand the death penalty without taking on board its grotesque racial distortions.

Baumgartner studied the 1,394 executions that took place in the US from 1976 to 2014 and found that the number of executions carried out for every 10,000 homicides was 65 when the victim was white but only 14 when the victim was black. When gender was factored in the disparity grew even larger, with 123 executions where the victims were white females and only nine for black males.

“The death penalty is reserved for very special categories,” Baumgartner said. “You would expect that to be the most heinous offenders, people who torture their victims and so on. But it’s not like that – the one category that is vastly more likely to get a death sentence is when a black man kills a white woman. The parallels to slavery and southern history are clear in the statistics nationwide.”

He added that he hoped Monday’s hearing, which he will be attending, would give America pause.

“It’s such a visceral and powerful idea,” he said. “To expose the death penalty for what it is: an ugly symbol of racial hierarchy designed to preserve the southern way of life.”