WS Chronicle

A decisive U.S. Supreme Court ruling last week regarding the unconstitutional elimination of black jurors by Georgia prosecutors from a capital case over 30 years ago has clear implications for numerous cases currently being considered in the North Carolina court system, say legal experts.

By a 7-1 decision (the dissenting vote coming from the High Court’s only black jurist, Associate Justice Clarence Thomas), the Supreme Court determined in the case of Timothy Tyrone Foster, a black defendant convicted by an all-white jury of killing a white woman, that prosecutors’ notes confirmed four prospective black jurors were deliberately kept off to ensure a conviction. Subsequent Georgia courts would not rule that this was racially motivated despite the written evidence.

Several recent North Carolina cases have shown similar prosecutors’ notes in capital cases involving black defendants to produce all-white juries, and observers believe the High Court ruling now strengthens arguments for those defendants seeking new trials, if not having their sentences commuted because of proven prosecutorial racial bias.

“In North Carolina, there has been a long and sordid history of racial discrimination in the selection of jurors,” says attorney Irving Joyner, law professor at North Carolina Central University School of Law in Durham and chairman of the N.C. NAACP Legal Redress Committee. “This discrimination has negatively impacted a large number of African-American defendants. The use of this discriminatory practice has been deeply engrained within the prosecutorial culture and has ruled the jury selection process. In the Foster decision, the U.S. Supreme Court loudly proclaimed that this practice violates the constitution and must cease. The sad thing is that Timothy Tyrone Foster spent 30 years in a Georgia prison before he could establish that this discrimination likely impacted the outcome of his trial.”

According to Ken Rose, senior attorney at The Center for Death Penalty Litigation in Durham, “Lawyers who specialize in the death penalty say the ruling will give many death-sentenced men and women new rights to bring forward evidence of racial discrimination in jury selection at their own trials. Such evidence is usually barred if it is not introduced during the initial trial.”

Attorney Rose continued, “The ruling will also compel North Carolina courts to more vigorously enforce laws that prohibit race discrimination in jury selection. The N.C. Supreme Court has heard more than 100 cases where prosecutors were accused of intentionally striking minority jurors, but it has never found a prosecutor’s explanation for striking a black juror to be a cover for race discrimination, despite compelling evidence that the practice of excluding black jurors is prevalent.”

In Georgia’s Foster case, prosecutors’ notes showed the letter “B” written next to the four black prospective jurors’ names to ensure that they would be dismissed during uncontested preemptory challenges.

In North Carolina, there has been much worse.

In Cumberland County, prosecutors wrote “blk wino” and “blk high drug neighborhood” next to the names of some prospective jurors in one case.

In a Forsyth County case, all of the prospective black jurors were kicked off a jury except one who had indicated he had attended a “multi-racial church” and went to “predominately white schools.”

In fact, ten pardons of innocence were granted by then N.C. Gov. Beverly Perdue in December 2012 in the infamous Wilmington Ten case because, similar to the Georgia injustice, prosecutors’ notes ultimately revealed that several black jurors were purposely kept off the Ten’s 1972 jury.

These and many other examples of North Carolina violations were cited in legal briefs contained in written arguments used in the Foster case.

Both attorneys Rose and Joyner say last week’s High Court decision strengthened the reason why North Carolina once instituted the 2009 Racial Justice Act, a law which ferreted out racial bias during jury selection in capital cases until the Republican-led N.C. General Assembly repealed it in 2013.

“When these practices have been challenged in the North Carolina Supreme Court, our justices have refused to overturn these suspect convictions,” says Prof. Joyner.  “The Foster decision should now encourage attorneys in this state to aggressively challenge prosecutors who discriminate against racial minorities during jury selection and hopefully will result in our courts becoming more respectful of the rights of racial minorities to serve on juries. 

Joyner added, “It is also revolting that the only dissenting vote cast in the Foster case belonged to [Justice] Clarence Thomas who felt that this decision will encourage other people who were victims of this type discrimination.