Closing arguments scheduled in a landmark case that put the death penalty’s racism on display

SMITHFIELD, NC — On Wednesday, August 21 at 10 a.m. at the Johnston County Courthouse, closing arguments will be held in the case of Hasson Bacote, who is challenging racial bias in death penalty cases across North Carolina. Bacote, a Black man who has spent 15 years on North Carolina’s death row, presented evidence that prosecutors illegally excluded Black citizens from his jury, as well as the juries of North Carolina’s other 135 death row prisoners.

Now, a Johnston County judge must decide whether Bacote should be resentenced to life in prison without parole because race infected his death sentence.

“This case boils down to a simple question: Will death sentences tainted by discrimination be carried out in North Carolina?” said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation. “The evidence is very clear that the modern death penalty is still directly tied to our state’s history of racial terror, and that it continues to produce biased outcomes.”

Bacote’s is the lead case under the North Carolina Racial Justice Act, a 2009 law that allowed death-sentenced people to bring forward evidence that race affected their trials and sentences. His is the fifth case to be heard under the law, and more than 100 other death row prisoners have pending claims. Bacote is represented by the Center for Death Penalty Litigation, the ACLU Capital Punishment Project, the NAACP Legal Defense Fund, and Durham attorney Jay Ferguson.

In late February and early March, attorneys for Bacote presented extensive evidence of a race-conscious death penalty process. Statistical experts testified that, across North Carolina, potential Black jurors are more than twice as likely to be excluded from death penalty trials as similar white jurors. Jury selection notes from trials across the state revealed that prosecutors were keenly aware of race as they made their decisions about which jurors to exclude.

In Johnston County, where Bacote was tried, jury discrimination was compounded by other racial disparities. Bacote is one of eight black men tried capitally in Johnston since the 1970s. Every one of them received the death penalty; in contrast, only about half of white capital defendants received death sentences. Bacote is also one of just 11 people in the state sentenced to death without any evidence that he intended or planned the killing; all 11 are people of color. During his trial, the prosecutor disparaged him using the racially coded insult “thug.” The same prosecutor referred to other black defendants as “predators of the African plain” and a “piece of trash.”

Historians and social scientists spoke to the ways that North Carolina’s history of racial terror and Jim Crow segregation continue to echo in modern courtrooms. In Johnston County, this connection is especially clear. Billboards promoting the Ku Klux Klan stood at the entrances to the county until the mid-1970s, and Klan activity was documented there until the 1990s. Egregious incidents of racist policing have gone unaddressed. Still today, the county has never elected a Black county commissioner, and a sheriff who made openly racist statements in the News & Observer remains in office.

Closing arguments will be held on the second floor of the Johnston County Courthouse. They will also be livestreamed on WRAL.com. 

More on the case of Hasson Bacote:

Summary of Hasson Bacote Evidentiary Hearing

Hasson Bacote Case Profile

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

Smithfield, NC — The Racial Justice Act hearing of Hasson Bacote continues this week in Johnston County with groundbreaking evidence connecting the modern death penalty to North Carolina’s history of racial violence and discriminatory law enforcement. Expert witnesses will include historians, social scientists, and Bryan Stevenson, a capital defense attorney who founded the National Memorial for Peace and Justice and authored the book Just Mercy.

“It is hard to overstate the significance of what’s happening in Johnston County right now,” said CDPL Executive Director Gretchen M. Engel. “Typically, we look at death penalty cases one by one, focusing only on the facts of a single case. The Racial Justice Act has given us the rare chance to step back and see the full picture. When we do that, it is shockingly clear that our state’s history of racial violence did not simply disappear; it transformed into the modern death penalty.”

Bacote is represented by CDPL, the ACLU’s Capital Punishment Project, the NAACP’s Legal Defense Fund, and North Carolina attorney Jay Ferguson.

Bacote was convicted in Johnston County, where racism has been openly displayed. Billboards promoting the Ku Klux Klan stood at the entrances to the county until the mid-1970s, and Klan activity was documented in the county until the 1990s. Horrific incidents of racist policing have gone unaddressed. Still today, the county has never elected a Black county commissioner, and a sheriff who made openly racist statements in the News & Observer remains in office.

In 1977, Johnston County was home to North Carolina’s first capital prosecution under the state’s modern death penalty statute. In that very first case, a judge found that Black people were illegally excluded from the grand jury that indicted the two Black defendants, who were on trial for the killings of two white men. The same problems persist today.

On Monday, Dr. Crystal Sanders, a Johnston County native and professor of African American studies at Emory University, will present a detailed county history (available here) that includes:

• The 1998 wrongful conviction of 16-year-old Terence Garner, which Johnston County officials refused to overturn even after another man confessed. Garner was finally freed in 2002, after a national outcry.
• The 1986 police killing of Ellis King Jr., a Black man who called police to report a theft. No officers were punished for shooting King in the back of the head while he was restrained face-down on his parents’ front lawn.
• Housing segregation enforced by threats, violence and cross burnings through at least the 1980s.
• Sustained Black voter suppression that has led to only a single Black person ever being elected to countywide office. 
• A history of lynchings attended by thousands of people, many of whom wielded power in the legal system until the modern day.

On Wednesday, Bryan Stevenson will testify about the links between modern jury discrimination and a history of excluding Black people from juries. Stevenson’s Equal Justice Initiative has documented how racially skewed juries lead to wrongful convictions and disproportionate sentences for people of color.

Other experts who will testify this week include Dr. Seth Kotch, a professor in UNC’s Department of American Studies who has documented the link between lynching and the death penalty, and Dr. Sam Sommers, a social psychologist at Tufts University who studies the effect of implicit bias on decision-making, including in jury selection.

Defense attorneys will also question Greg Butler, the prosecutor who tried Bacote. Statistical analysis found that Butler struck Black jurors from capital trials at more than ten times the rate of white jurors. He referred to Bacote as a “thug” and compared other Black defendants to “predators of the African plain.”

“When you take in the full scope of history, the question becomes obvious: How could we ever trust this system — which continues to be carried out almost exclusively by white authorities in places with stark records of racial terror — to fairly decide whether a Black man should live or die?” Engel said. “If we do not reckon with our history, North Carolina will continue to carry out racist death sentences.”

Testimony begins at 10 a.m. Monday and 9:30 on subsequent days in Courtroom 2 of the Johnston County Courthouse. It will also be livestreamed on WRAL.com.

FOR IMMEDIATE RELEASE
December 15, 2023

Statement from Center for Death Penalty Litigation board member & capital defense attorney Henderson Hill regarding today’s North Carolina Supreme Court decision in State v. Russell William Tucker:

“For most of its history, North Carolina has utterly failed to ensure that all citizens have the right to serve on juries, regardless of their race. It took until 2022 for our state supreme court to finally strike down a single criminal conviction due to the exclusion of Black jurors. That historic decision gave many of us hope that our state was finally ready to tackle the persistent problem of people of color being denied a voice in our courtrooms. However, it’s clear from today’s ruling that North Carolina’s highest court has gone backward once again. 

“Even in cases where a defendant faces execution, the court appears determined to blind itself to glaring evidence of racial discrimination in jury selection. Russell Tucker, a Black man, was sentenced to death by an all-white jury because prosecutors methodically and intentionally removed every potential Black juror. I am deeply disappointed that our supreme court has chosen to ignore the evidence and allow a racist death sentence to stand.”

Read the court’s decision here. Read more about Mr. Tucker’s case here.

FOR IMMEDIATE RELEASE
Feb. 6, 2023
For more information contact: Gretchen M. Engel, gretchen@cdpl.org, (919) 682-3983

RALEIGH, NC — On Feb. 8, the North Carolina Supreme Court will hear arguments in the case of Russell Tucker, a Black man who was sentenced to death in 1996 by an all-white jury in Forsyth County and remains on death row. His attorneys will present evidence that prosecutors excluded Black citizens from the jury because of their race, in violation of federal law.

“The exclusion of Black people from juries is a long-standing problem in North Carolina stretching back to the days of Jim Crow,” said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation, which represents Mr. Tucker. “But rarely is the evidence so clear as in Mr. Tucker’s case. The prosecutor cited vague and nonsensical justifications to remove one Black citizen after another from the jury, belittling them in open court and denying them the right to serve in a life-and-death trial.”

Mr. Tucker’s is one of four cases to be heard in the state Supreme Court Wednesday, all of which involve evidence that citizens were excluded from juries based on race. The U.S. Supreme Court ruled in the 1986 case Batson v. Kentucky that it is unconstitutional to remove a juror because of race. However, the law has gone largely unenforced in North Carolina. Until 2022, a North Carolina conviction had never been overturned because of discrimination against a juror of color.

The lack of enforcement allowed prosecutors to strike Black and Brown jurors with impunity. About half of the 137 people on North Carolina’s death row were convicted by juries that were all white or had only a single person of color.

In Mr. Tucker’s case, the prosecutor removed all five Black citizens from the jury pool. When questioned about the strikes, he cited vague reasons such as the jurors’ body language or failure to make eye contact. He said one juror was “monosyllabic” because he responded to yes-no questions with only a single word. 

He said that a Black working mother who had lived her whole life in Forsyth County had no “stake in the community” because she rented her home, wasn’t registered to vote, and her spouse 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.

Mr. Tucker’s attorneys later discovered that many of these reasons were taken directly from a handout given to prosecutors during a training session. This handout provided a list of excuses prosecutors could draw from to disguise their race-based jury strikes.

Juries lacking racial diversity have been shown to convict more easily and sentence more people to death, sometimes in cases where the defendants are innocent. In 1997, Alfred Rivera was tried capitally by the same Forsyth County prosecutor who tried Mr. Tucker’s case. Two years after being sentenced to death, Mr. Rivera was exonerated and freed. Mr. Rivera, who is Latino, said that during jury selection for his trial, he watched the prosecutor work to remove people of color, especially young men. 

“The prosecutor used every excuse to get rid of people who might understand and relate to me,” Rivera said. “I ended up with a jury that couldn’t see me as a person. To them, I was just a ‘usual suspect’ and it was easy to believe I was guilty. Because I didn’t have a jury of my peers, I spent two years on death row for a crime I didn’t commit.”

Rev. James Baker of Clayton, a leader in the Johnston County branch of the NAACP, said he is troubled at the evidence that Black people continue to be excluded from juries. “Black people deserve to have their voices heard, both in the ballot box and in the courtroom,” Baker said. “Discrimination on juries is yet another way that the death penalty’s legacy of white supremacy continues today. As Dr. King said, ‘Hate cannot drive out hate; only love can do that.’”

For Immediate Release: February 11, 2022
For More Information Contact: Elizabeth Hambourger, CDPL Senior Attorney, 919-412-2542

Raleigh, NC — On Friday, the North Carolina Supreme Court made history by invalidating a criminal conviction because the Wake County prosecutor illegally excluded a qualified Black citizen from the jury. It marks the first time that North Carolina’s appellate courts have ever overturned a case because of discrimination against a juror of color.

Until today, North Carolina was the only southern state whose appellate courts had never enforced the law on behalf of a Black citizen who was denied the right to serve on a jury.

“Discrimination against Black jurors has been rampant in North Carolina, but until now, our courts have refused to deal with the problem,” said Elizabeth Hambourger, a senior attorney at the Center for Death Penalty Litigation, who argued the case in the lower court and assisted with the appeal. “We are so relieved to see our state’s highest court finally acknowledge this important violation of civil rights.”

The court overturned the case of Christopher Clegg, who was convicted of armed robbery in Wake County in 2016, but the facts of the crime played no role in the ruling. Instead, the case hinged on the prosecutor’s decision to illegally remove a Black woman from the jury because of her race.

During the trial, when the prosecutor was questioned about his reasons for striking the woman, he told the judge that he did not like the juror’s “body language” and that she said she “supposed” she could be fair, indicating that she was unsure. The trial judge accepted the prosecutor’s reasons and allowed the prosecutor to dismiss the woman from the jury.

However, neither of the prosecutor’s reasons held up to scrutiny. There was no support for the vague claim about the juror’s body language or failure to make eye contact, which is a frequent excuse that prosecutors make for their removal of Black jurors. And he was simply incorrect about the juror being unsure about her own fairness. In truth, she said she “supposed” she could set aside her other responsibilities and serve on the jury. Meanwhile, a white juror who was questioned at the same time as the Black juror said that he would be distracted by his busy job, yet the prosecutor accepted him.

“Until today, it seems North Carolina’s courts have been waiting for a prosecutor to openly say: ‘I don’t want Black people on this jury,’ before enforcing the law,” said James Williams, a member of the National Consortium On Racial And Ethnic Fairness In The Courts and the retired public defender for Orange and Chatham Counties. “But that’s not how racism operates anymore. It’s rarely spoken aloud, yet it has devastating effects. It’s absolutely shameful how many Black people in North Carolina have been convicted by all-white juries.”

The opinion was authored by Justice Robin Hudson, who was joined by the Court’s three other Democratic justices. Justice Anita Earls wrote a concurring opinion, arguing the prosecutor discriminated against not just one, but two Black women jurors. Justice Phillip Berger, Jr., dissented, joined by the two other Republicans on the court. 

Mr.Clegg has already served his time and been released.  

Jury service is, along with voting, one of the few ways that citizens participate directly in democracy. It gives ordinary people a voice in the criminal punishment system and is an established civil right. Studies show that diverse juries deliberate more thoroughly and are less likely to convict innocent people.

Yet, courts across the country have been trying and failing to stamp out jury discrimination since 1965, when the Civil Rights Movement made it possible for Black people to finally begin serving on juries in the South. Even a 1987 U.S. Supreme Court ruling that explicitly outlawed the race-based exclusion of jurors has had little effect.

“North Carolina has a particularly atrocious record of enforcement, but discrimination against Black jurors is a problem nationwide, including in the most serious death penalty cases,” Hambourger said. “If we are ever to have a fair system, our courts must continue to say, over and over, that they will not allow convictions in cases where jurors of color have been excluded. I hope today’s decision is just the beginning for North Carolina.”

For Immediate Release: October 4, 2021
For More Information Contact: Gretchen Engel, CDPL Executive Director, 919-682-3983

Raleigh, NC — North Carolina is the only southern state whose appellate courts have never once enforced the law prohibiting race discrimination against jurors of color. But that could be about to change. On Oct. 6, the N.C. Supreme Court will hear arguments in State v. Clegg, a case that offers the opportunity to address the unfair exclusion of Black citizens from jury service.

The case involves Christopher Clegg, who was convicted of armed robbery in 2016, but it’s not the facts of the crime that are at issue. Clegg has already finished serving his sentence. Instead, the case hinges on whether the prosecutor illegally removed a Black woman from the jury because of her race.

“This case is a key test for our Supreme Court,” said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation, which works to end jury discrimination. “It’s a constitutional right to serve on a jury and to have a voice in the criminal justice system. Yet, people of color are still being systematically excluded from juries. Given what we know today about the corrosive effects of racism on the criminal justice system, we should be welcoming rather than excluding the voices of jurors of color.”

The U.S. Supreme Court ruled in 1987, in Batson v. Kentucky, that it is illegal to exclude qualified citizens from juries based on race. Yet, studies show that in North Carolina, prosecutors continue to strike qualified Black jurors at more than twice the rate of whites. And the state’s high court has yet to enforce the simple rule laid out in Batson.

“Courts across the South, in states like Mississippi and Alabama, have found discrimination against jurors of color on multiple occasions,” said Jin Hee Lee, the senior deputy director of litigation at the NAACP Legal Defense & Educational Fund, Inc., and a member of CDPL’s board of directors. “There is simply no excuse for North Carolina to remain an outlier in its complete failure to protect jurors of color against discriminatory strikes. It is imperative for the North Carolina Supreme Court to take this opportunity to turn the tide and send a strong message that discrimination will no longer be tolerated.”

In Clegg, the prosecutor moved to strike a qualified Black juror. When the defense objected, saying there was no reason for the strike other than the juror’s race, the prosecutor had a chance to give “race-neutral” reasons for his strike. The prosecutor said he did not like the juror’s “body language” and that she said she “supposed” she could be fair, indicating that she was unsure.

The trial judge accepted the prosecutor’s reasons and allowed the prosecutor to dismiss the woman  from the jury. However, neither of the prosecutor’s reasons held up to scrutiny. There was no support for the vague claim about the juror’s body language or failure to make eye contact, which is a frequent excuse that prosecutors make for their strikes of Black jurors.

The prosecutor was simply incorrect about the juror being unsure about her own fairness. In truth, she said she “supposed” she could set aside her other responsibilities and serve on the jury. Meanwhile, a white juror who was questioned at the same time as the Black juror said that he would be distracted by his busy job, yet the prosecutor accepted him.

“Often, it seems like our courts are waiting for prosecutors to make openly racist statements in court before enforcing the law,” Engel said. “But this kind of discrimination operates much more subtly. If the courts accept flimsy excuses for excluding Black jurors, they’re allowing discrimination. In this case, the prosecutor didn’t provide a single valid reason for his strike. That’s unacceptable.”

Oral arguments will be held in the N.C. Supreme Court at 10:45 a.m. on Wednesday, October 6. Watch here.

For Immediate Release: May 19, 2021
For More Information Contact: Gretchen Engel, Executive Director, 919-682-3983

Raleigh, NC — On Thursday, May 20, North Carolina will hold the first hearing under the Racial Justice Act since the state Supreme Court decided in June that people on North Carolina’s death row are entitled to present evidence of racism in their trials despite the legislature’s repeal of the RJA.

Hassan Bacote, one of 137 death row prisoners in North Carolina, will have a hearing in Wake County Superior Court at 10 a.m. Thursday. His case is from Johnston County. The hearing will center around his requests for the state’s jury selection notes, training records and other documents. The state has also requested information about the statistical analyses Bacote relied on.

In other cases, these records have shown that prosecutors wrote disparaging notes about jurors of color like “blk wino” or “blk, high drug” and that they attended training sessions designed to help them evade laws prohibiting race discrimination in jury selection. At these sessions, prosecutors were taught to give vague excuses for their exclusion of Black jurors, including body language or failure to make eye contact.

Bacote has already submitted evidence that Johnston County prosecutors at his 2010 trial excluded qualified Black jurors at more than three times the rate of white jurors. Statewide, a study found that Black jurors are struck at twice the rate of whites, meaning the discrimination in Bacote’s case was even more pronounced than the state average.

“Hassan Bacote is a Black man who was sentenced to death for a crime he committed as a teenager in a county known for Ku Klux Klan activity,” said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation. “We already know that the state made a great effort to keep Black people off his jury. We look forward to digging even deeper into the evidence to see how racism affected this case.”

Bacote’s case could set a precedent for how Racial Justice Act cases are handled going forward. The 2009 law allowed death-sentenced people to present evidence of race discrimination and, if they proved that race affected their sentences, be resentenced to life without parole. However, the RJA was repealed in 2013 after the first four death row prisoners won their cases. In the years since, all claims were on hold while the courts determined whether they were still valid after the repeal.

In June, the N.C. Supreme Court forcefully affirmed that all existing Racial Justice Act claims should be heard in court. Justice Anita Earls wrote that racial discrimination in criminal cases “undermines the integrity of our judicial system and extends to society as a whole.”

“We are thrilled that this litigation is beginning to move forward,” Engel said. “It’s critical that our courts examine the striking evidence of discrimination in death penalty trials, and that no one is executed based on a judgment tainted by racism.”

The hearing will be held at 10:00 am at the Wake County Courthouse, Courtroom 704, the Honorable Wayland J. Sermons Jr. presiding.