The state’s appellate courts could give new trials to two Black men who claim prosecutors discriminated against potential jurors.
This story was published in partnership with The Intercept
Even before 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. “They said I was crazy,” Hamilton recalled. “They were like, ‘You know you don’t get paid?’ And I was like, ‘Oh yeah, I don’t care.’”
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 — even a Black judge — and thought that there could be more racial justice. “Maybe you aren’t judged so much by color here,” she thought. “Maybe because there are more minorities here, maybe things are a little more fair.”
By the time Hamilton was called for voir dire 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’t 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.
When asked by Wake County Assistant District Attorney Matt Lively what effect this negative experience would have on her ability to judge an officer’s credibility, Hamilton said, “I don’t think it would have an effect on me at all. Because just like people are good, there are bad.”
Lively said he thought that was a “good way to look at” 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 — “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,” she said — 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.
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’s strike of Hamilton didn’t go unnoticed by Holden’s 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.
Hamilton, unsure what was going on, was asked to wait outside the courtroom. Hambourger, believing racial bias was at the heart of Hamilton’s dismissal, challenged the strike under the 1986 U.S. Supreme Court decision Batson v. Kentucky, which North Carolina’s criminal legal system has had trouble complying with for more than 35 years.
In 1983, 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’s lawyer objected, claiming that his client’s rights to an impartial jury and equal protection under the law were violated, the trial judge denied the motion.
On appeal, the Kentucky Supreme Court affirmed the trial court’s decision, citing Swain v. Alabama, a 1965 U.S. Supreme Court decision requiring defendants to show that prosecutors systematically discriminated against potential Black jurors across cases — an incredibly high bar for proving purposeful discrimination. By the time Batson’s case made it to the U.S. Supreme Court in 1985, few had ever won relief under Swain.
But in the spring of 1986, the U.S. Supreme Court ruled that the prosecutor’s use of peremptory challenges at Batson’s 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 — but only if a judge found it to be purposeful.
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. “Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons,” Marshall wrote in his concurring opinion in Batson.
Indeed, while some states claim progress, racial bias across the jury selection process has continued to be discovered decades after Batson. A 2015 study 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, which could result in the reversal of hundreds of convictions; and in the past year, the Queens, New York, DA’s office vacated the convictions of three men based on evidence of racial discrimination during jury selection — the prosecutor had used handwritten notes reminding him to use his peremptory strikes to eliminate women and people of color. (Among his notes: “no Hispanics,” “get white jurors,” and “established whites.”)
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’s Batson record is particularly poor. In 2009, the state enacted the Racial Justice Act, 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’s Supreme Court found that the retroactive use of the repeal was unconstitutional and restored the law’s protections for people who filed claims before its repeal.
The necessity of the Racial Justice Act was demonstrated by a 2012 Michigan State University study of capital cases tried between 1990 and 2010, which found that prosecutors in North Carolina excluded Black jurors because of their race — 2.5 times more often than non-Black jurors.
A 2016 University of North Carolina Law Review study marking the 30th anniversary of Batson found that the state’s appellate courts had yet to find that a prosecutor who provided a race-neutral reason violated Batson in 114 cases involving nonwhite jurors. By contrast, Alabama appellate courts have found Batson violations 80 times.
“North Carolina is often billed as a racially moderate state compared to other southern states,” H. Timothy Lovelace Jr., a law professor at Duke University, said. “So in some ways it really is striking that state courts in North Carolina have historically been so reluctant to tackle the issue of jury discrimination.”
That could soon change. North Carolina’s Court of Appeals and Supreme Court are currently reconsidering Batson claims in the cases of two Black men from Forsyth County who have strong claims that prosecutors discriminated against Black jurors. If the appellate courts rule in their favor, the men will receive a new trial. The Batson claims in Holden’s case will be reheard in trial court and could return to the Court of Appeals.
David Weiss, an attorney in North Carolina who has represented people sentenced to death in appellate and post-conviction proceedings, said it was “embarrassing” that North Carolina appellate courts have yet to recognize discrimination against a Black juror. “There’s either two explanations for that. One, there’s no race discrimination in North Carolina, or two, our courts have been doing something wrong for decades. I think that question kind of answers itself.”
In 1994, Russell Tucker walked out of a Super Kmart shopping center in Winston-Salem wearing a coat and a pair of boots he had just stolen, according to prosecutors. When store employees approached Tucker in the parking lot, Tucker shot at them, killing the store’s security guard. Tucker ran but was soon met by two police officers in a patrol car. He fired five more shots, wounding both. He fled into some nearby woods and was caught within the hour.
In 1996, an all-white jury in Winston-Salem sentenced Tucker, who is Black, to death.
One of the prosecutors on Tucker’s case, Forsyth County Assistant District Attorney Rob Lang, had previously been trained on how to get around Batson challenges.
At “Top Gun II,” a program sponsored by the North Carolina Conference of District Attorneys, Lang received a worksheet titled “Batson Justifications: Articulating Juror Negatives” that provided 10 explanations prosecutors could use if a peremptory strike was challenged under Batson. Among them: “inappropriate dress,” defined as “attire may show lack of respect for the system, immaturity or rebelliousness”; “body language” (“arms folded, leaning away from questioner, obvious boredom may show anti-prosecution tendencies”); and “attitude” (“air of defiance, lack of eye contact with Prosecutor, eye contact with defendant or defense attorney”).
The worksheet was not discovered until 2012, when lawyers for Errol Duke Moses, another Forsyth County man on death row, were given access to prosecutor files from a number of capital cases, including Tucker’s. In 2019, the New York Times editorial board cited the worksheet when it wrote that North Carolina “has long had one of the most racially biased criminal-justice systems in the country.”
Weiss, the North Carolina attorney, saw that the Batson worksheet was problematic early on, proof of prosecutors trying to “game the system.” But he later realized that it had even more troubling connotations: The justifications themselves were inherently racist.
“The idea that Black citizens who’ve reported for jury service are not sufficiently deferential to white prosecutors or are not making eye contact or don’t look right to the prosecutor really have — you might say echoes, but in some ways — very direct parallels to earlier eras of very explicit racism when Black people were really expected to show deference to white people,” Weiss said.
Now the worksheet is at the center of Tucker’s Batson claim in front of the North Carolina Supreme Court, which he brought under the Racial Justice Act. His attorneys from the Center for Death Penalty Litigation, Hambourger and Mark Pickett, claim the worksheet proves that Lang and his co-counsel David Spence intentionally struck Black jurors in his case. In a brief filed with the North Carolina Supreme Court in July, they challenged the prosecution’s response to the Batson objections raised at trial. “They claimed they struck Black jurors for being unregistered to vote, but accepted numerous white jurors who were likewise not registered,” Hambourger and Pickett wrote of the trial prosecutors. “They offered absurd reasons for striking Black jurors, for example, complaining that a Black juror was ‘monosyllabic’ when answering mostly yes-or-no questions.”
The state argues that Tucker’s claim is without merit and should be procedurally barred, even while conceding that there are problems with the Batson worksheet. The worksheet on its own is not proof of racial bias, argued North Carolina Attorney General Josh Stein in a September court filing.
Lang, Spence, and a spokesperson for the North Carolina attorney general’s office declined to comment, citing pending litigation. Oral arguments will likely be held in 2022.
“If prosecutors across the state happen to be coming up with reasons for striking overwhelmingly more Black jurors than white jurors, even if there’s no hatred in their individual hearts when they do this, obviously there is a structural cause for that,” Pickett said. “There’s no way this could just be happening by chance, that across all these trials, Black people keep getting removed at a much higher rate. It’s a huge problem, and it’s not just a problem for defendants. It’s a tremendous problem that prosecutors across the state seem to be sending the message to Black North Carolina citizens, and other nonwhite North Carolina citizens, that they are less qualified to sit on these very serious cases.”
In September, prosecutors with the North Carolina attorney general’s office conceded that Batson claims from Henry White, a Black man serving a life sentence for shooting and killing a man during a robbery at a paint and body shop in Winston-Salem in 1996, should be reheard.
Like Tucker, he was prosecuted by Spence, who sought the death penalty even though there were no eyewitnesses and no physical evidence tying White to the murder. White was sentenced to life without parole but still maintains that his cousin, who testified against him, is responsible for the murder.
According to court documents, Spence struck two Black women during jury selection and admitted in court that race was a factor in his decision. “Both Black females, both 27 years old,” Spence told the court when his strikes were challenged by the defense.
To overcome Batson, Spence recited a litany of seemingly race-neutral reasons for striking the two jurors, including the fact that one lived with her mother and that they both worked in health care. “State thinks that people who want to save lives don’t want to take lives,” Spence added.
The trial judge overruled a challenge to the strikes from defense attorneys, and the jurors were dismissed. The next year, however, an appeals court found that race did play a predominant factor in the exclusion of the two Black jurors, the first and only time the court has done so. Still, it wasn’t “based solely on race,” the court ruled, and the strikes — and the subsequent conviction — were found lawful. In the 35 years following Batson, this is the closest North Carolina’s appeals courts have come to upholding a claim of race discrimination against a juror of color.
But in a brief filed in September, Stein, the attorney general, admitted that there was “significant uncertainty” surrounding whether the standard set forth in Batson was correctly met at trial and asked that his claims be remanded back to superior court. In late October, the Court of Appeals agreed to rehear White’s claims.
White said he’s hopeful that the potential remand will lead to his release. “I’ve been in here for 25 and half years for a murder I didn’t commit,” White said. “And the person that committed the murder is still out there on the street — never did one day for it. I’m ready to come home. I’ve missed all my kids’ young life and teenage life, and all of them are grown.”Hambourger, who represents both Tucker and White, said she’s grateful for the state’s response in White’s case — she only wishes it would have taken the same step in Tucker’s. “They want to kill Mr. Tucker.” Indeed, the last person to be executed in North Carolina — Samuel Flippen, who died by lethal injection in 2006 — was also prosecuted in Forsyth County. Flippen was sentenced to death for killing his 2-year-old stepdaughter; in June, attorneys for her biological father filed a motion in Forsyth Superior Court suggesting that she was killed by her mother.
To understand why North Carolina prosecutors have been so successful in their efforts to thwart Batson, Irving Joyner, a law professor at North Carolina Central University, suggests starting with judges, who he describes as “the front line of the Batson challenge.” Joyner, an attorney for the North Carolina State Conference of the NAACP, signed an amicus brief in support of Tucker’s claim in July.
Joyner said many judges are former prosecutors and place a lot of trust in them. “If innately in your belief system is that whatever they [prosecutors] do is all right, then you’re not going to find a Batson violation or a reason to question a prosecutor’s explanation of why a person of color or gender has been removed from the jury,” Joyner said. Some judges don’t even believe in Batson, he added.
There are also judges who don’t believe that racism exists in the criminal legal system. Judge Jefferson Griffin, elected to the North Carolina Court of Appeals in 2020, wrote in a September concurrence related to a traffic-stop case that “the law is color blind and applies equally to every citizen in the United States of America,” a rebuke to a post-George Floyd statement about racial bias from former North Carolina Supreme Court Chief Justice Cheri Beasley.
Joyner also said it’s also important to examine how prosecutors are trained, like in Top Gun II. “Prosecutors of old are training prosecutors anew,” Joyner said. “That is the standard, and those old practices prevail irrespective of a change at the top or a change in the suggested methodology for dealing with jury selection.”
Spence, who, according to the Michigan State University study, struck 62 percent of Black jurors across four capital cases compared to just 20 percent of white jurors, led a Batson training at a capital litigation seminar in 2011 — nearly 15 years after admitting to striking jurors because they were Black. According to a study conducted by the Jury Sunshine Project of felony trials in North Carolina that same year, “prosecutors in Forsyth County removed black jurors from the box three times more often than they removed white jurors.”
Brendon Woods, the chief public defender of Alameda County, California, recognizes the pattern and practice inherent in jury discrimination. The state has an appellate record on Batson on par with North Carolina. So in late August, Woods took to Twitter and laid out a plan for making juries more diverse, some of which has already been accomplished in California through state legislation, like the end of a ban on people convicted of felonies from serving on juries and paying low-income jurors more to serve. In October, California Gov. Gavin Newsom signed into law legislation guaranteeing low-income jurors in San Francisco $100 a day for their service.
Another piece of key legislation, set to take effect for criminal trials in California in 2022, is A.B. 3070, which Woods describes as “a tremendous fix to Batson.” Modeled after a similar rule enacted in Washington state in 2018, the law prohibits the peremptory strike of a juror just because they had a negative experience with law enforcement. Perhaps no state has gone as far as Arizona, whose Supreme Court eliminated peremptory strikes altogether in August.
“Batson allowed prosecutors to remove Black people for a thousand reasons except saying, ‘I’m kicking you off because you’re Black,’” Woods said. “What was most insidious about it is that you’re removing Black people from being on a jury based on what I always call ‘the Black experience’ — removing Black people from juries because they don’t trust police officers or because they had a bad interaction with a police officer or because they believe police engage in racial profiling.”
Reflecting on his own experience as a Black man working in the criminal legal system, Woods added, “Would I be able to sit as a juror independent of me being a lawyer, based on my experiences? Probably not. There isn’t a prosecutor in the world that would keep me — just because I’ve had some negative experience with law enforcement. That’s just being Black, right?”
As soon as Hamilton stepped outside that Wake County courtroom in 2017, Hambourger challenged Lively’s strike under Batson.
When Lively responded with his race-neutral reasons, he first pointed to Hamilton’s negative experience with law enforcement and her acknowledgment that racial profiling exists. “You know, we never got to a place where she could be challenged for cause, but I think that her concerns give us a real legitimate doubt that she would actually be able to return that sentence if she were called upon by the evidence,” he said. Lively also cited Hamilton’s views on the death penalty along with the concerns she had about other jurors’ potential bias.
Judge Paul Ridgway quickly denied the defense’s Batson challenge, and Hamilton was dismissed. The whole process lasted 10 minutes.
Hamilton said she wanted to serve on the jury because she wanted to be part of the trial and believed that she would have been unbiased and honest in her service. To Hamilton, it didn’t matter that Holden was Black, or that she thought racial profiling existed, or that she had nuanced views on the death penalty, or that a police officer had pulled a gun on her for no reason.
“Yeah, you have negative experiences,” she said. “But that’s not going to cloud my judgement. I’m not going to just let him go free because we’re both Black.”
After closing arguments, the jury took just over a day to find Holden guilty of first-degree murder and only a few hours to sentence him to life instead of death. Holden was prosecuted in Wake County — where DA Lorrin Freeman has sought the death penalty at trial more than prosecutors in any other North Carolina county and where her prosecutors continue to seek death despite juries repeatedly returning life without parole sentences. Damon Chetson, who is running against Freeman in the Democratic primary in 2022, has said he will not seek the death penalty if he’s elected.
In December 2019, Holden appealed his conviction. Batson is at the heart of his appeal, citing the peremptory strikes of seven potential jurors who are female, Black, or both, like Hamilton. According to a 2021 affidavit prepared for another case Lively prosecuted this summer, he struck Black jurors in capital cases at 2.5 times the rate of non-Black jurors. The odds of that disparity occurring were 1 in 1000, signaling that race was likely the motivating factor for those strikes, the affidavit noted. Lively declined to comment, citing the pending litigation.
In December 2020, the North Carolina Court of Appeals remanded Holden’s case back to Superior Court, where another Batson hearing will be held. He will likely return to the Court of Appeals and then the North Carolina Supreme Court, where he may make history — if Tucker, White, or someone else doesn’t do it first. No hearing date has been set.
Hamilton was disappointed that the opportunity for her to serve on a jury was taken away. She also admits to feeling a little naive for thinking that the reason could have been for something other than her race. “It was just the fact that it was who I was,” she said, “that made it so they didn’t want me.”