A group of former prosecutors brought together by The Constitution Project at POGO has submitted an amicus brief to the North Carolina Supreme Court asking the Court to provide a remedy for the government’s racially discriminatory conduct in four cases, including that of Marcus Robinson.
Mr. Robinson was convicted of robbery and murder and sentenced to death in North Carolina in 1994. Many years after his conviction, North Carolina passed a unique piece of legislation: the Racial Justice Act. The Racial Justice Act allowed those sentenced to death to challenge the legality of their sentence if they could prove that systemic racial discrimination was the reason a death sentence was sought or imposed in their geographic area. Typically, a defendant would have to show clear evidence of racial discrimination in his or her individual case, which is a very high burden to clear, so the Racial Justice Act made it more feasible that a defendant could meet the burden of proof necessary to demonstrate discrimination.
One way racial discrimination manifests itself in capital cases is during jury selection. When prosecutors (and defense attorneys) select jurors for a trial, they slowly eliminate prospective jurors from the jury pool. There are two methods through which a prospective juror can be stricken from that pool: “for cause” or as the result of a “peremptory challenge.” For the former, attorneys involved in the jury selection process may appeal to the judge to have someone removed from the jury pool because the prospective juror cannot adequately carry out the required duties. For example, a juror might be struck for cause because the defendant is a relative and it’s unlikely the juror would be impartial. Peremptory challenges, on the other hand, do not require any justification from attorneys and need not be approved by a judge. These can be useful if an attorney senses, for example, that a prospective juror is lying—something the attorney cannot prove—and might jeopardize the case. This process can become unconstitutionally tainted when attorneys use peremptory challenges to obscure their motives and eliminate jurors based on race.
A study by the Michigan State University College of Law detailed a persistent and consistent pattern of discrimination in North Carolina. For over 20 years, state prosecutors had removed more than twice the number of black jurors as non-black jurors in capital cases; and in cases involving a black defendant, prosecutors had eliminated nearly three times the number of black jurors as non-black jurors. In Mr. Robinson’s case, the prosecutor struck 50 percent of all black jurors and only 14.4 percent of non-black jurors. In the end, there were only two black jurors on Mr. Robinson’s jury, resulting in a jury that was not representative of the general population: the jury was only 16.7 percent black while, in 2016, North Carolina was 21.2 percent black and Mr. Robinson’s county was 36.5 percent black.
Equipped with these facts, Mr. Robinson became the first condemned prisoner to file a claim under the Racial Justice Act. After a thirteen-day hearing, which included seven expert witness and 170 exhibits, the court that heard Mr. Robinson’s Racial Justice Act appeal found that “race was a significant factor at the time of Mr. Robinson’s trial under the [Racial Justice Act] statute” and that Mr. Robinson successfully met the burden of proof to demonstrate racial discrimination. Accordingly, as mandated under the Act, the court removed Mr. Robinson from death row and resentenced him to life in prison without the possibility of parole.
Almost exactly one year after this decision was handed down, however, the North Carolina General Assembly repealed the Racial Justice Act and the State asked that Mr. Robinson have his death sentence reinstated. Mr. Robinson has had to fight for the State to recognize, despite the repeal of the Racial Justice Act, that the discrimination he experienced was and remains unconstitutional and unacceptable.
The prosecutors who wrote the brief filed last week believe that remedying this documented discrimination is necessary, not only because it harms individual people, but also because it undermines democracy and acts as a direct affront to the ethical codes they, and their colleagues in North Carolina, swore to uphold. The amicus brief quotes a famous case on this topic, Batson v. Kentucky, explaining that “selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.” Democratic institutions hold up only insofar as the people behind them feel those institutions are worthy of their support, attention, and respect. The brief explains that courts, particularly prosecutors as agents of those courts, have “a solemn duty to prevent this harm and ensure that justice is done in all cases.”
The courts have, however, said that Mr. Robinson can no longer make claims under the Racial Justice Act, have refused to address his constitutional claims, citing procedural barriers, and have withheld the opportunity for Mr. Robinson to address these wrongs. The amicus brief points out that “denying access to the courts delivers another blow to defendants’ Constitutional rights.” Oversight of prosecutorial actions is the sole provenance of the courts. Thus, not only has Mr. Robinson been the subject of prosecutorial neglect, but he will also have “no mechanism for reviewing and remedying” that neglect if the Court fails to step in.
Simply, the State asks that one forget that Mr. Robinson was the victim of racial discrimination at the time of his trial and the courts have decided to relinquish their duty as oversight bodies and let the State run roughshod over Mr. Robinson’s constitutional rights. The signers of the amicus brief believe that “When prosecutors permit or engage in race discrimination during jury selection, they abandon their duty to the Constitution and delegitimize the justice system.” For this reason, they stand against these injustices.