{"id":379081,"date":"2021-11-08T12:00:57","date_gmt":"2021-11-08T12:00:57","guid":{"rendered":"https:\/\/theintercept.com\/?p=375768"},"modified":"2021-11-08T12:00:57","modified_gmt":"2021-11-08T12:00:57","slug":"north-carolina-appeals-courts-have-never-found-that-prosecutors-discriminated-against-black-jurors-two-cases-could-change-that","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2021\/11\/08\/north-carolina-appeals-courts-have-never-found-that-prosecutors-discriminated-against-black-jurors-two-cases-could-change-that\/","title":{"rendered":"North Carolina Appeals Courts Have Never Found That Prosecutors Discriminated Against Black Jurors. Two Cases Could Change That."},"content":{"rendered":"
E<\/span>ven before<\/u> Dorian Hamilton arrived at the Wake County Justice Center for jury duty on January 10, 2017, she told friends and family how much she wanted to serve. \u201cThey said I was crazy,\u201d Hamilton recalled. \u201cThey were like, \u2018You know you don\u2019t get paid?\u2019 And I was like, \u2018Oh yeah, I don\u2019t care.\u2019\u201d<\/p>\n Hamilton, who is Black, moved to North Carolina nearly 20 years ago. Early on, she recognized that the racial dynamics were different than in Long Island, where she grew up. There, she never came across a Black judge, police officer, or teacher, she said. But in North Carolina, she saw more people of color \u2014 even a Black judge \u2014 and thought that there could be more racial justice. \u201cMaybe you aren\u2019t judged so much by color here,\u201d she thought. \u201cMaybe because there are more minorities here, maybe things are a little more fair.\u201d<\/p>\n By the time Hamilton was called for voir dire<\/a> on the afternoon of January 24, she knew it was a high-profile capital case. Nathan Holden, a Black man, was accused of killing his in-laws and attempting to murder his former wife. Hamilton was told the trial could last several weeks, but she still sought to serve on the jury. She remembered being thoughtful in her answers to questions from the prosecutors, carefully avoiding saying anything that would give either side pause. She told prosecutors she owned a dance studio in Raleigh, worked part time as a realtor, and that serving on the jury wouldn\u2019t be a burden. She answered questions about her experiences with law enforcement, sharing that she once helped a police officer buy a home and also that an officer once pulled a gun on her for no good reason.<\/p>\n When asked by Wake County Assistant District Attorney Matt Lively what effect this negative experience would have on her ability to judge an officer\u2019s credibility, Hamilton said, \u201cI don’t think it would have an effect on me at all. Because just like people are good, there are bad.\u201d<\/p>\n Lively said he thought that was a \u201cgood way to look at\u201d the experience and then, according to court records, proceeded to question Hamilton for an hour. He asked about her views regarding the death penalty, police violence, custody disputes, gun ownership, mental health, and implicit bias. Hamilton expressed decidedly balanced opinions on these issues \u2014 “I do believe there are issues with police being overzealous sometimes, but if you see what they are dealing with, then sometimes it may be necessary,\u201d she said \u2014 but also said she was concerned that her fellow jurors might be biased against Holden because he is Black, wore dreadlocks, and was shackled when they saw him for the first time.<\/p>\n Lively then struck Hamilton from the jury, using what is known as a peremptory strike to dismiss her without cause. During jury selection in a criminal trial, potential jurors can be excused “for cause” when the judge finds that they cannot decide the case impartially. The defense and prosecution may also exercise a limited number of peremptory strikes to excuse jurors without offering a reason. Lively\u2019s strike of Hamilton didn\u2019t go unnoticed by Holden\u2019s attorneys Elizabeth Hambourger, from the Center for Death Penalty Litigation, and Jonathan Broun, from North Carolina Prisoner Legal Services. They had seen this happen before.<\/p>\n Hamilton, unsure what was going on, was asked to wait outside the courtroom. Hambourger, believing racial bias was at the heart of Hamilton\u2019s dismissal, challenged the strike under the 1986 U.S. Supreme Court decision Batson v. Kentucky<\/a>, which North Carolina\u2019s criminal legal system has had trouble complying with for more than 35 years.<\/p>\n I<\/span>n 1983,<\/u> an all-white jury in Kentucky convicted James Batson, a Black man, of second-degree burglary and receipt of stolen goods. During jury selection, the prosecutor used peremptory challenges to strike all four Black people eligible for jury duty. When Batson\u2019s lawyer objected, claiming that his client\u2019s rights to an impartial jury and equal protection under the law were violated, the trial judge denied the motion.<\/p>\n On appeal, the Kentucky Supreme Court affirmed the trial court\u2019s decision, citing Swain v. Alabama<\/a>, a 1965 U.S. Supreme Court decision requiring defendants to show that prosecutors systematically discriminated against potential Black jurors across cases \u2014 an incredibly high bar for proving purposeful discrimination. By the time Batson\u2019s case made it to the U.S. Supreme Court in 1985, few had ever won relief under Swain.<\/p>\n But in the spring of 1986, the U.S. Supreme Court ruled<\/a> that the prosecutor\u2019s use of peremptory challenges at Batson\u2019s trial violated his rights under the Sixth and Fourteenth Amendments, reversing his conviction and reaffirming the notion that discrimination against nonwhite jury candidates was unconstitutional \u2014 but only if a judge found it to be purposeful.<\/p>\n Since Batson, a three-step process for determining discriminatory intent requires prosecutors to justify each peremptory strike challenged by the defense with race-neutral reasons, a barrier Justice Thurgood Marshall predicted would be easy to overcome. \u201cAny prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons,\u201d Marshall wrote in his concurring opinion in Batson.<\/p>\n Indeed, while some states claim progress, racial bias across the jury selection process has continued to be discovered decades after Batson. A 2015 study<\/a> found that prosecutors in Caddo Parish, Louisiana, used peremptory strikes on Black potential jurors at three times the rate of non-Black jurors; Texas Monthly recently reported that a district clerk in Brazoria County used race to sort jury panels<\/a>, which could result <\/a>in the reversal of hundreds of convictions; and in the past year, the Queens, New York, DA\u2019s office vacated the convictions of three men based on evidence of racial discrimination during jury selection\u00a0\u2014 the\u00a0prosecutor had used handwritten notes<\/a> reminding him to use his peremptory strikes to eliminate women and people of color. (Among his notes<\/a>:\u00a0\u201cno Hispanics,\u201d \u201cget white jurors,\u201d and \u201cestablished whites.\u201d)<\/p>\n Still, trial courts around the country often fail to find Batson violations, and appellate courts often show their deference to those rulings. But North Carolina\u2019s Batson record is particularly poor. In 2009, the state enacted the Racial Justice Act<\/a>, intended to prevent the execution of people whose trials were tainted by racial bias in jury selection or other types of racial discrimination. It provided people on death row with the opportunity to challenge their sentence if they could prove that race played a significant role in their trial, and if they won relief, their death sentence would be commuted to life in prison without parole. Republicans, fearing an end to the state death penalty, repealed the Racial Justice Act in 2013 and attempted to apply the move retroactively. In June 2020, however, the state\u2019s Supreme Court found that the retroactive use of the repeal was unconstitutional<\/a> and restored the law\u2019s protections for people who filed claims before its repeal.<\/p>\n\u201cI don’t think it would have an effect on me at all. Because just like people are good, there are bad.\u201d<\/blockquote>\n