A letter from CDPL Executive Director Gretchen M. Engel:

You may have already heard that, on Feb. 7, CDPL and its partners achieved a tremendous victory under North Carolina’s Racial Justice Act. (Read our press release.) Our client Hasson Bacote became the fifth person to prove that his death sentence was poisoned by racism. The ruling didn’t affect Mr. Bacote’s sentence because he had already received a commutation to life without parole from Gov. Cooper. Nevertheless, this ruling carries great significance in our work to end the death penalty.

Superior Court Judge Wayland Sermons didn’t just agree with us that racist jury strikes denied Black people a voice in capital juries, the same finding that Judge Gregory Weeks made more than a decade ago in the cases of four Cumberland County clients. Judge Sermons went further, finding that race affected who was sentenced to death. He wrote that, in Johnston County, “Black defendants like Mr. Bacote have faced a 100 percent chance of receiving a death sentence, while white defendants have a better than even chance of receiving a life sentence.” Judge Sermons called out Mr. Bacote’s prosecutor, Gregory Butler, who also prosecuted others who remain on death row, for routinely “denigrating Black defendants in thinly veiled racist terms.” Even after a judge warned him not to, Mr. Butler referred to Black defendants as “predators of the African plain.” He called another Black man a “piece of trash.” In Mr. Bacote’s case, he used the insult “thug,” and admitted at the hearing this spring that he knew this was a racially coded term. It was deeply gratifying to see a judge acknowledge this discrimination after decades of watching prosecutors face no consequences for using racist tropes against our clients.

Perhaps most importantly, Judge Sermons acknowledged that Mr. Bacote’s case “fit within a long history of racial discrimination.” As we litigate capital cases across North Carolina, it’s clear that most judges and prosecutors want to believe our modern death penalty system has no link to this state’s history of slavery, lynching, and segregation. Yet, as we revealed in our groundbreaking project Racist Roots, the modern death penalty is deeply entangled with white supremacy and remains a tool to enforce racial hierarchy. 

In his ruling, Judge Sermons reckoned with this truth and did not mince words. He acknowledged that the exclusion of Black people from juries is linked to their exclusion from voting rights. He described how historical practices of barring Black people from jury pools evolved into prosecutors’ modern practice of using peremptory strikes to disproportionately exclude Black citizens. He also clearly noted the link between racial terror and the death penalty. Judge Sermons wrote, “The historical evidence received by this Court reveals that racial intimidation and discrimination continued in Johnston County for many years, including right outside the courthouse doors. Into the early 2000s, Johnston County remained known as ‘Klan country.’ This reputation stemmed, in part, from the landscape itself: For years, the major entrances to towns such as Smithfield, Princeton, and Benson, were marked by a series of imposing billboards advertising the county as home to the Ku Klux Klan.” (Read the full order.) 

It’s hard to describe how stunning and heartening it was to see a judge acknowledge these deep truths about the death penalty. It was certainly emotional for Mr. Bacote, who lived under a racist death sentence for 15 years. We hope this ruling will encourage North Carolina’s leaders to take a close look at the cases of the 121 people who remain on North Carolina’s death row. Slowly but surely, we are accruing a mountain of evidence that the modern death penalty is not just descended from racism, but that it cannot escape its racist roots.

For more information contact: Gretchen M. Engel, gretchen@cdpl.org, (919) 682-3983

Raleigh, NC — Gov. Roy Cooper today joined a growing list of governors who have taken action to limit the use of the death penalty with an announcement of 15 grants of clemency for people on North Carolina’s death row. It is the largest grant of death row clemency in North Carolina’s history.

Those who will now serve life without parole sentences include 11 clients of the Center for Death Penalty Litigation. Their cases involve evidence of serious flaws including racial bias, questions of innocence, and the use of the death penalty in cases of severe mental illness, intellectual disability, or young people whose brains have not fully developed. Among them is Hasson Bacote, who earlier this year brought forward groundbreaking evidence of the link between North Carolina’s death penalty and its history of racial terror in a hearing under the North Carolina Racial Justice Act.

CDPL is a member of the Racial Justice Act litigation team and has been part of a two-year campaign calling on the governor for death row commutations.

“We are deeply gratified that Gov. Cooper took our request for capital commutations seriously,” said Gretchen Engel, executive director of the Center for Death Penalty Litigation. “It makes sense that governors are taking steps to prevent executions, given the hundreds of death row exonerations we’ve seen across the country and the overwhelming evidence of racism in capital trials.”

Every Democratic governor in a state with the death penalty has now taken at least some executive action to prevent executions, whether by imposing a moratorium, granting commutations, or supporting legislation. Republican governors in Tennessee and Ohio have also halted executions. (See a state-by-state overview of the death penalty here.)

“I’m deeply grateful that North Carolina has now been added to the list, given that we have one of the largest death rows in the nation and some of the most glaring evidence of racism in capital sentencing that’s ever been presented in a courtroom,” said Jay Ferguson, a lead attorney on Mr. Bacote’s case and a member of CDPL’s board of directors. “In light of the sweeping evidence of race discrimination that we brought forward under the Racial Justice Act, North Carolina must never allow another execution.”

A Gallup poll released in November found U.S. death penalty support at a 40-year low, with a majority of Millenials and Gen Z now opposing it. In North Carolina this year, there were three capital trials but no new death sentences because prosecutors seek the death penalty much less frequently and most juries vote for life even in the most severe cases.

“People are realizing what those of us who work in this system have known for decades,” Engel said. “The death penalty is a deeply unjust and ineffective system that plays no role in keeping communities safe. I hope our elected officials will follow Gov. Cooper’s lead and continue to move North Carolina toward more effective and humane responses to crime.”

North Carolina’s death row remains the fifth largest nation with 121 people awaiting execution. Attorneys at CDPL represent about half of them.

At CDPL, we believe that the past informs the present. That’s why we took on our ambitious Racist Roots project in 2020. It’s also the reason that we are now a sponsor of the Booker T. Spicely Committee.

You might have heard of the committee at the end of last year, when it successfully lobbied for a historic marker in recognition of Pfc. Spicely, a Black soldier who was shot to death by a Durham bus driver in 1944 because he resisted giving up his seat to a group of white soldiers.

In addition to shining light on a forgotten hero, the marker is also the first in NC to use the phrase “Jim Crow.” We hope it will not be the last, considering how fundamental Jim Crow was to North Carolina’s history and politics – as well as its death penalty.

On July 8, 1944, Pfc. Spicely was on his way to Camp Butner for Army training. Wearing his uniform, he was sitting in the next to last row when a group of white soldiers got on the bus and the driver told him to move to the last row. This was years before Rosa Parks’ protest that set off a bus boycott, but Spicely was part of a national civil rights movement called the Double V campaign, which encouraged soldiers to protest segregation and fight for democracy both at home and abroad.

Spicely protested that he was “just as good to stop a bullet” as a white soldier and then said, “I thought I was fighting this war for democracy.” Spicely ultimately changed seats, but when he got off the bus in Durham, the bus driver shot him twice in the chest with many witnesses watching. One bullet went through his dog tags. Spicely died from his injuries after being refused treatment at the whites-only Watts Hospital. By the time he made it to Duke Hospital, which treated Black people, it was too late to save him.

CDPL’s Of Counsel Attorney James Williams, who leads the Spicely Committee, summed it up eloquently: “Here’s this soldier in uniform who’s supporting this country’s war efforts, and he asks these reasonable and sensible questions. Am I not wearing the same uniform as those white soldiers? Do I not run the risk of stopping a bullet just like those white soldiers? Why are you treating us like this?”

The injustice was compounded when the bus driver went to trial for Spicely’s killing. An all-white jury deliberated just 28 minutes before acquitting him – a good reminder of why CDPL continues to fight against the exclusion of Black and Brown people from capital juries.

In addition to the marker, the committee helped to establish an annual scholarship in Pfc. Spicely’s name at NC Central University. It will also mark the 80th anniversary of Spicely’s death by presenting a one-act play about his life. CDPL will continue to stand behind the committee’s efforts to remember and right the injustices of the past.

On Wednesday, in the middle of a historic Racial Justice Act hearing in Johnston County, CDPL Executive Director Gretchen Engel snuck away to Philadelphia. Her reason? The exoneration of a client who spent nearly 30 years on Pennsylvania’s death row.

Here she is with Danny Gwynn, along with other supporters and members of the legal team.

Mr. Gwynn was wrongfully sentenced to death in 1995 for an act of arson that killed one person. District Attorney Larry Krasner agreed to Mr. Gwynn’s release and acknowledged that prosecutors had relied on a false confession that was inconsistent with the facts of the crime. They also suppressed evidence of another suspect, who they now believe set the deadly fire.

While most of CDPL’s clients are in North Carolina, every once in a while our attorneys take an out-of-state case. Death row exonerations are always a cause for celebration, but it’s also tragic that CDPL has now had four clients exonerated after being sentenced to death. Stunningly, Mr. Gwynn is the second CDPL client who spent three decades awaiting execution before his innocence was finally recognized. (The first was Henry McCollum.)

A death penalty system that leaves innocent people at risk of execution is clearly unfit to exist, and we continue to find it amazing that people survive decades of wrongful imprisonment with their spirits intact. As Gretchen says, “Danny is an incredibly resilient person. His art work, which you can view here, has been sustaining for him and a gift to everyone who sees it.” On Wednesday night, Gretchen was by his side as he walked out of prison and reunited with his family.

In one week, we’ve seen the starkest proof imaginable that the death penalty is racist and error-prone — the very opposite of justice. And we’re not done yet. The Racial Justice Act hearing in the case of Hasson Bacote continues next week. On Monday, we’ll have several historians who will expose the death penalty’s clear links to racial terror, and on Wednesday we expect Bryan Stevenson to testify about the longstanding exclusion of Black people from juries. It will be livestreamed on WRAL.com or you can join us in Courtroom 2 on the second floor of the Johnston County Courthouse. Court begins at 10 a.m. Monday and 9:30 a.m. the rest of the week.

For now, enjoy the sight of Danny Gwynn taking his first steps outside of prison.

Usually, CDPL prefers to write about its successes. But today, we’re sharing another part of the reality of capital defense work. This is a heartfelt letter written by CDPL’s executive director, Gretchen Engel, just after receiving the news that her client, Frank Chambers, had lost his most recent appeal.

Dear Friends,

I wanted to send you a different letter today. I wanted to tell you that CDPL client Frank Chambers won a new trial after nearly 30 years on North Carolina’s death row. I wanted to tell you that, at long last, a court recognized the exceedingly clear evidence that Black people were systematically and intentionally excluded from Mr. Chambers’ jury. Instead, I have to tell you that a judge looked at that evidence and chose to ignore it. Once again, I am confronted with the hard truth that North Carolina’s courts are often unwilling and unable to address racism in death penalty cases. 

At Mr. Chambers’ 1994 trial, prosecutors used peremptory strikes to exclude six out of nine Black citizens who appeared for jury service. They subjected prospective Black jurors to racist questions, such as whether they would be criticized by their “Black friends” if they voted to convict a person of their own race. And in their private notes, prosecutors made clear that race mattered by labeling the race and gender of Black potential jurors. Here are just a few examples:

There were no comparable notes about white potential jurors.  In the end, only one Black person served on Mr. Chambers’ jury.

As his lawyer, I am devastated on two levels. First, that this blatant discrimination happened to begin with. Second, that all these years later, a court has said it makes no difference whether Black citizens are denied their constitutional right to serve on a jury. It makes no difference whether my Black client got a fair trial and jury of his peers. Even when there is overwhelming evidence of racial discrimination, the state should be allowed to carry out the most extreme sentence imaginable.

The only thing that gives me hope today is Frank himself. Just after receiving the news that he had lost, he tried to comfort and encourage his legal team. Frank has lived half his life on death row. He told us he was not giving up and neither should we.

So that’s the message I’m going to leave you with today. Our clients on death row face overwhelming odds, yet they go on believing that justice is possible. As long as CDPL is here, we will continue fighting for them. Today was a hard day, but we are not giving up.

Sincerely,
Gretchen M. Engel

Russell Tucker was a Black man facing the death penalty in the South in the “tough-on-crime” 1990s. He deserved the chance to be tried by a jury of his peers — people who might have had similar life experiences and been able to see him as something other than a one-dimensional “monster.” However, a Forsyth County prosecutor stole that chance at justice, which is supposed to be guaranteed by law. 

The prosecutor came up with reason after reason why Black people could not remain on the jury. They were “monosyllabic.” They “didn’t make eye contact.” They “lacked a stake in the community.” One by one, the court allowed the prosecutor to send all the Black jurors home. Russell Tucker ended up with an all-white jury that did exactly as the prosecution asked: They deemed a young Black man unworthy of life.

Mr. Tucker, who has been on North Carolina’s death row since 1996, is represented by CDPL Senior Attorney Elizabeth Hambourger, along with co-counsel Tom Maher. On Feb. 8, Ms. Hambourger will argue before the North Carolina Supreme Court that racism illegally shaped Mr. Tucker’s jury. Details about how to attend or watch the arguments are here.

The issue before the court is not whether Mr. Tucker committed a terrible crime; he has admitted to killing a security guard outside a Kmart during a desperate and drug-fueled time in his life. Instead, the issue is whether our state will allow brazen racism in death penalty trials.

The racism we’re talking about doesn’t just affect people on trial for their lives, though all-white juries have been shown to convict more easily, even when defendants are innocent, and to sentence more people to death. Jury discrimination also deprives citizens of their Constitutional right to wield power in our democratic system.

In Mr. Tucker’s case, one working mother showed up for jury service only to be told in open court that she had no “stake in the community.” She’d lived her entire life in Forsyth County and was raising her children there, but the prosecutor pointed out that she rented her home, was not registered to vote, and her husband had been at his job “for only four months.” The judge allowed this strike, even though the prosecutor accepted a white juror who was also a renter, five white jurors who were not registered to vote, and two white jurors whose spouses were unemployed.

The state’s message was so clear they could’ve written it on a billboard: Black people don’t deserve a voice in our community.

The exclusion of Black jurors is not just a problem in Mr. Tucker’s case. It’s a statewide phenomenon in both capital and noncapital cases. It’s a particularly strong tradition in Forsyth County, where a recent Wake Forest University study found that prosecutors were three times more likely to strike African Americans than white jurors. Mr. Tucker is one of four people sent to death row by all-white Forsyth County juries.

The very same prosecutor who struck all the Black jurors in Mr. Tucker’s case also tried Henry White for his life. Mr. White was recently released from prison after his lawyers presented evidence that jurors were excluded because of their race.

This discrimination is not an accident. Prosecutors are trained for it.

Years after Mr. Tucker’s trial, his defense team found out the trial prosecutor had attended a training seminar where prosecutors were given a list of excuses they could draw from when they were asked to explain their exclusion of Black jurors. The list was full of dubious reasons including being disheveled, evasive, rebellious, or having an “air of defiance.” 

These reasons were not just vague, subjective, and designed to disguise the prosecutors’ true motives; they were also rooted in racism. Bryan Stevenson described them as “derogatory labels applied to African Americans who did not show adequate deference to the prevailing racial order.”

At Mr. Tucker’s trial, the prosecutor read verbatim from this list when striking Black jurors. He accused one man of having “absolutely horrible” body language. He accused another of being “confused” and “monosyllabic” because he answered a list of yes-no questions with yes-no answers. Imagine showing up to court to do your civic duty and being talked about this way in public.

On Feb. 8, our state’s highest court has a chance to stop the degradation of Black citizens, which continues in our courtrooms today. The court must send a strong message that all North Carolinians have an equal right to a voice in our courtrooms. 

Earlier this month, Marcus Robinson was found dead in his cell at Scotland Correctional Institution. The prison ruled it a suicide. He was 49 and had spent his entire adult life, as well as a good chunk of his childhood, in prison. His death didn’t make the news. But for those who worked on Marcus’ case for decades, it was a tragic reminder of our criminal punishment system’s failure to create even a semblance of justice.

Marcus grew up with many loving relatives and a strong, supportive mother, but an abusive father inflicted trauma from a young age. Yet, a racist system treated him like an incorrigible monster rather than a child in need of healing. He ended up in juvenile prison, a cruel system reserved almost exclusively for Black children, which makes people more likely to be incarcerated as adults. 

Marcus was barely 18 years old when he played a role in a robbery that left 17-year-old Erik Tornblom dead. At his 1994 trial for Tornblom’s murder, Marcus was portrayed as a cold-blooded Black man on the hunt for a white victim. Prosecutors intentionally removed Black jurors who might have been more likely to see Marcus as human. Marcus soon became the youngest person on death row, and a new cycle of trauma began.

In 2007, Marcus was 12 hours away from execution before litigation over the state’s lethal injection protocol led to a stay. He’d already had his veins examined in preparation for the fatal injection, and already said goodbye to his family in what he thought was their final visit.

A few years later, Marcus’ case became the first to be tried under the North Carolina Racial Justice Act. In 2012, Judge Gregory Weeks ruled that prosecutors intentionally and systematically removed Black citizens from Marcus’ jury. Judge Weeks said Marcus had also proven that such discrimination was happening in capital cases across North Carolina.

It was a historic victory that brought to light decades of racism in death penalty trials, and Marcus was resentenced to life without parole. But even that victory was snatched away when the N.C. Supreme Court overturned it on a technicality and sent Marcus back to death row. Marcus and his legal team had to fight until 2020 to finally get his life sentence restored.

Attorney David Weiss remembers going to the prison to tell Marcus the news that he would never be executed: “Marcus said he was excited, grateful, thankful, and elated. He rattled off this string of adjectives. In retrospect, I wonder how happy he really was to be serving a life without parole sentence, whether he was saying that more for our benefit. Life in prison was really hard for Marcus.”

At his funeral, his mother, the Rev. Shirley Burns, sang a beautiful hymn. She had also sung it at the funerals of her two other sons. One of them was murdered in 2006 and police never solved the crime. Friends and family talked about a side of Marcus that never made the headlines. He was one of several talented singers in his family. He was loyal and protective, mischievous and funny.

We’d like to imagine a different life for Marcus, one where he wasn’t born into a racist society that too often sees Black children’s lives as disposable. One where he was shown kindness and compassion as a child, rather than imprisoned.

“Marcus was smart, witty, and sarcastic,” Weiss remembers. “He liked to cross-examine me about his case, or about a current event. He’d ask me hard questions until he felt like he caught me in a contradiction or an awkward moment. Then he’d flash that wide smile and start laughing. Not at all in a mean-spirited way. I think he enjoyed debating and questioning. Maybe in another life he’d have been a lawyer.”

Read Marcus’ obituary here. Donate to help his family with funeral expenses here.

Reposted from NCCADP.org

Henry White, center, with his family and attorneys David Weiss and Elizabeth Hambourger, moments after his release from prison

By Elizabeth Hambourger

Yesterday, my client Henry White went home to his family after 25 years in prison. It was one of the most heartwarming moments I’ve experienced as a lawyer, with all sides — including the family of Carl Marshburn, the murder victim in the case — agreeing that Mr. White should be released.

In a quarter century of incarceration, his sole disciplinary infraction was for having an unauthorized slice of cake. Even the district attorney gave his blessing to overturn Mr. White’s original sentence of life without parole, which allowed him to plead guilty to second-degree murder and be released immediately because he had already served enough time.

This rare outcome was the result of decades of work to bring to light evidence of racism in selecting Mr. White’s jury. During Mr. White’s 1997 death penalty trial, the prosecutor excluded two Black women from the jury and then admitted in open court that he removed them because of their race and gender, among other reasons…

Under the law, jurors cannot be removed on the basis of race or gender. Still, our courts at the time refused to act. The trial court allowed the jurors’ removal, and the Court of Appeals said that even though race was the “predominant” motivation for the jurors’ exclusion, it had to uphold Mr. White’s conviction because race was not the “sole reason” for their removal.

Any level of race discrimination is unacceptable, especially given our state’s history of all-white juries and racist death sentences. Prosecutors should not be able to get away with it simply by offering some token non-racial justifications. Yet, for decades North Carolina’s courts have refused to enforce the law against jury discrimination. Only recently have they begun to take on the problem.

A few years ago, my office, the Center for Death Penalty Litigation, decided to try again to convince a court to overturn Mr. White’s conviction based on the prosecutor’s admitted jury discrimination. Remarkably, the Attorney General’s office, which usually opposes these types of appeals, agreed that the claim should be heard.

When the Court of Appeals said it would take another look at the case, the Forsyth County District Attorney started to negotiate. Mr. White withdrew the jury discrimination claim, and in exchange the prosecution agreed to relief based on another problem with Mr. White’s trial: His defense attorney, who has since been disbarred, told the jury Mr. White was guilty without Mr. White’s consent. Mr. White has always maintained that he did not shoot Mr. Marshburn, but he admits he was involved in the crime.

Yesterday, as I watched the families of Mr. White and Mr. Marshburn embrace with relief, I was reminded that this case could have ended very differently. Back in 1997, prosecutors sought the death penalty for Mr. White. Thankfully, the jury chose life; otherwise he may not have lived to see this day.

Many other people were executed without ever getting a chance to prove that Black citizens were wrongfully excluded from their juries. It’s clear now that race discrimination on juries is a widespread problem, and many executions were based on unfair trials.

In those cases, the errors can never be corrected. And no one will ever get to experience the kind of redemption and healing I witnessed in a courtroom this week.