DID PROSECUTORS USE A ‘CHEAT SHEET’ TO STRIKE BLACK JURORS IN NORTH CAROLINA DEATH PENALTY CASE?

By Jacob Biba, The AppealSep 04, 2018

A single training document uncovered in a prosecutor’s files could save Russell William Tucker’s life.

On Dec. 8, 1994, in Winston-Salem, North Carolina, a 28-year-old African American man named Russell William Tucker walked out of a Super Kmart shopping center wearing a coat and a pair of boots he had just stolen. According to court documents, he was followed into the parking lot by William Maki, an assistant loss-control manager, and another store employee, Travis Church. The store’s security guard, Maurice Travone Williams, trailed close behind. It was his first day on the job.

When Maki approached Tucker in the parking lot and asked for a receipt, Tucker pulled a semi-automatic handgun from his backpack and began firing at him. Tucker missed but quickly took aim at Williams who was running back toward the store alongside Church. He fired one fatal shot at the security guard, and then he ran. When a marked patrol car with two Winston-Salem Police Department officers approached soon after, Tucker slowed to a walk, turned and fired five shots into the cruiser, striking both officers. He then fled up an embankment into some nearby woods. He was caught within the hour.

The violent scene that unfolded in the parking lot lasted less than two minutes. Tucker was convicted and sentenced to death a little over a year later. But in the more than 20 years since his trial, Tucker’s case has been marred by a string of inappropriate, and sometimes illegal, moves—including outright sabotage by one of his own lawyers—that have provided ample grounds to challenge his death sentence. Yet, what ultimately saves Tucker’s life could be something as mundane as a single piece of paper: a training worksheet found in a prosecutor’s files.

A ‘cheat sheet’ for prosecutors

To understand the significance of that worksheet, it helps to know a little about jury selection. Prosecutors and defense attorneys generally have a lot of leeway when it comes to dismissing jurors. Many get struck for cause—a strong opposition to the death penalty often suffices in a capital case, as does an admission by a potential juror that he or she would definitely vote in favor of the death penalty if a defendant is found guilty of capital murder. But with peremptory strikes—of which attorneys are allotted a limited number—jurors can be dismissed without a stated reason, as long as race or gender aren’t determined to be factors.

Before 1986, when the United States Supreme Court ruled in Batson v. Kentucky that peremptory strikes based on race violated a defendant’s rights to equal protection under the 14th Amendment, potential jurors were frequently dismissed by prosecutors because they were Black, especially in cases involving Black defendants. Prosecutors may have believed, perhaps rightly, that all-white juries would increase the likelihood of conviction for the state.

In Forsyth County, where Tucker was tried, three out of seven Black men on death row, including Tucker, were sent there by all-white juries, while two were sentenced to death by juries with only one Black juror.

A Michigan State University legal study found that from 1990 to 2010, prosecutors from Forsyth County were more than twice as likely to strike Black jurors from capital cases. Another study conducted by Wake Forest University found the disparity in strikes of Black vs. white jurors was even wider when researchers analyzed data from all types of trials that occurred in 2011.

Batson should, in theory, change this by forcing prosecutors to openly justify each peremptory strike with a race-neutral reason if challenged. Yet, in practice, it has proved relatively ineffective because it’s not that difficult for prosecutors to come up with reasons that sound race-neutral. Since Batson, eligible Black potential jurors have been struck for stated reasons that border on the absurd: a pierced left ear, a hyphenated last name, or not seeking counseling after their car stereo was stolen.

Neither the North Carolina Supreme Court nor the Court of Appeals has ever ruled in favor of a defendant’s Batson claim, setting North Carolina apart from nearby and neighboring states Virginia, West Virginia, Maryland, and South Carolina.

Elizabeth Hambourger and Mark Pickett, staff attorneys with the Durham, North Carolina-based Center for Death Penalty Litigation, hope to change that. They say Tucker’s case offers clear evidence—not unlike a 2016 Supreme Court case in which a conviction was overturned—that after Batson, jurors were still being struck for being Black.

“This was a weakness in Batson that was predicted from the very beginning by Thurgood Marshall,” Pickett said, referring to the then-Supreme Court justice’s concurring opinion in the case. “He predicted exactly what happened in Mr. Tucker’s case and what’s happening in other cases.”

The problem in Tucker’s case stems from a training organized by the North Carolina Conference of District Attorneys called Top Gun II. Forsyth County attorney Rob Lang was one of several prosecutors in the state who attended the program, which was held the summer before jury selection in Tucker’s trial. During the training, prosecutors received a worksheet entitled “Batson Justifications: Articulating Juror Negatives,” which offered 10 explanations prosecutors could use if defense lawyers challenged a peremptory strike that they believed was based on race. The list included things like “inappropriate dress,” which may signal a “lack of respect for the system,” and “physical appearance,” said to indicate “resistance to authority.”

The worksheet went undiscovered in Lang’s files on the Tucker case for nearly 16 years after Tucker’s trial but surfaced in 2012 during discovery in the case of Errol Duke Moses, another Forsyth County man on death row.  Moses’s lawyers were given access to prosecutor files from a number of capital cases, including Tucker’s, as a result of the Racial Justice Act, a since-repealed law that gave prisoners on death row in North Carolina a chance to challenge their sentences if they could prove racial bias played a role in their convictions or sentencing.

But Hambourger and Pickett say the worksheet and other documents related to Tucker’s case weren’t shared with Tucker’s team until more than three years later, when they were appointed to represent him.

In October 2017, Hambourger and Pickett filed a motion for appropriate relief in Forsyth County Superior Court on behalf of Tucker based on the discovery of the Batson worksheet in Lang’s files. They argued that Lang unfairly dismissed five jurors because they were Black, and that the worksheet proves it. If their motion succeeds, it could lead to a whole new trial for Tucker—and potentially save his life.

Pickett and Hambourger refer to the handout as a “cheat sheet,” and Hambourger describes the justifications themselves as “thinly veiled dog-whistle-style code” for race.

“They’re not exactly stereotypes, but they are racial code,” she told The Appeal. “The fact that it says ‘Batson’ makes it very clear that it’s about race.”

No one but Lang knows exactly what was in his mind when he struck all the eligible Black potential jurors in the pool. But with each of those strikes came an objection from the defense citing Batson and a seemingly race-neutral response from Lang. When contacted by The Appeal, Lang, who currently serves as an assistant U.S. attorney for the Middle District of North Carolina, declined to comment citing the pending litigation.

For Pickett, the existence of the list is, in itself, troubling. “Regardless of what the reasons it gives are, the list is problematic,” Pickett said, “because the reason the prosecutor gives is supposed to be the actual race-neutral reason that’s in the prosecutor’s mind when he makes the strike.”

An all-white jury

Thomas Smalls, then 60, had lived in Forsyth County for four decades when he was called for jury duty on Tucker’s case. Married with four children and employed by R.J. Reynolds Tobacco Company, Smalls believed in capital punishment but, like many people, had reservations about it.

When pressed by Lang about whether he could actually impose the death penalty, court filings show Smalls was ambivalent—“I guess so,” “I don’t know,” and “I think so” were his responses—and Lang used one of his peremptory strikes to remove Smalls from the jury pool. The defense objected, and Lang offered a lengthy explanation in court that Pickett and Hambourger say seems to draw directly from the worksheet.

For instance, Lang argued, Smalls “put his head down and began talking to the floor. He did not ever make eye contact with me during the death penalty questions. … We were able to drag some answers out of him but he was very difficult and his body language was absolutely horrible in our opinion.”

That language mirrors the fourth and fifth justifications on the Batsonworksheet. The fourth mentions “attitude,” arguing that lack of eye contact with a prosecutor signals an “air of defiance.” The fifth justification references “body language,” just as Lang did, noting that it could convey “anti-prosecution tendencies.”

The worksheet isn’t the only piece of evidence Hambourger and Pickett cite in their claim. A handwritten list entitled “Batson” was found in a trial notebook belonging to the prosecution. It listed additional generic reasons that could be used to strike jurors, such as “lack of maturity,” “history of unemployment,” or “has criminal record.”

Tucker’s lawyers had also hoped to review the prosecution’s copies of juror questionnaires and the notes prosecutors may have made on them. But at the urging of Lang’s co-counsel David Spence, and with consent from Tucker’s trial attorneys, those copies were collected and destroyed, according to Hambourger and Pickett’s motion. Spence, who now serves as an assistant district attorney in eastern North Carolina, declined to comment, saying the North Carolina State Bar Association’s Rules of Professional Conduct prohibit him from doing so.

Smalls wasn’t the only Black potential juror Hambourger and Pickett say was unfairly struck from the jury pool. Debra Banner, then 39, was also cut. Because Banner wasn’t registered to vote and because she rented her home as opposed to owning it, Lang questioned her “stake in the community.” He cited that as a reason for her dismissal, yet he accepted more than one white juror who wasn’t registered to vote, and a white renter, according to Pickett and Hambourger’s motion.

“To me that’s really offensive,” Hambourger said. “It seems clearly based on race to suggest that this hardworking mother who lived her whole life in the community doesn’t have a stake in the community because she doesn’t make enough money to buy her own home.”

Lang also cited Banner’s job—as a nursing assistant at Forsyth Memorial Hospital—as a reason for striking her. “It has been an experience that those who save lives are often hesitant to make a recommendation for death,” he told the court. According to Hambourger and Pickett’s motion, Banner “expressed no doubt or hesitation in response to Lang’s death penalty questions.”

But he accepted Brenton Sharpe, a white pharmacist who worked with cancer patients, also a profession that saves lives. Sharpe, like Smalls, wasn’t sure he could apply the death penalty, but the prosecution did not dismiss him as they did Smalls. “They were willing to take a white man that expressed doubt over the death penalty than any African American juror,” Hambourger said.

As Justice Marshall had predicted, Batson never evolved into an ethical guide that would encourage prosecutors to confront their own racial bias in jury selection. Instead, the decision just became another obstacle, one easily circumvented

“You can’t just treat it like a legal game of back and forth—how do I beat Batson?” Pickett said.  He notes that the damage inflicted by such questionable strikes goes beyond this particular case. “It’s an injustice not just to Mr. Tucker but to the Black community in Forsyth County to be systematically excluded from jury service in these cases,” Pickett told The Appeal.

A spokesperson from the North Carolina attorney general’s office declined to comment, citing the pending litigation.

But in a response to Tucker’s motion, which the state filed in May, Senior Deputy Attorney General Danielle Marquis Elder and Special Deputy Attorney General Jonathan Babb outlined several procedural issues that the attorney general’s office believed should bar the litigation from further review, stating, for instance, that the worksheet was previously available to Tucker during appeal and post-conviction proceedings, which Tucker’s lawyers deny.

Elder and Babb also argue that the Batson worksheet isn’t real evidence of racial discrimination in jury selection.

“Far from establishing any sort of intent to discriminate on the basis of race, this document establishes that the prosecutors in Tucker’s case were aware of Batson’s prohibition and that all peremptory challenges should appropriately be based on non-racial reasons,” they wrote in response to the motion.

Rather than proving discrimination, the office contends, the worksheet only shows that prosecutors received training in regard to Batson before Tucker’s trial, and that Smalls’s dismissal was because of his hesitancy regarding the death penalty, not his race. Banner’s dismissal, the response claims, was based on evidence that she didn’t want to serve on the jury and said it would be a hardship. The prosecution also claims both she and Smalls fell asleep during jury selection, though according to Hambourger and Pickett’s motion, the trial court made no finding that they did. Regardless, Hambourger argues, the fact that some of the reasons Lang offered may be legitimate doesn’t discount the others that are less credible and seem to have relied on race.

In their reply to the state’s response filed in July, Hambourger and Pickett argued that the Batson worksheet puts Lang’s justifications into proper context.

“The existence of the document in the prosecutor’s file and the prosecutor’s use on the record of words and phrases obviously taken directly from the document show that the prosecutor did not have valid race-neutral reasons for his strikes,” they wrote. “If he did, he would not have needed to refer to a list of prefabricated reasons prepared by someone else.”

A botched defense

Tucker could easily have been executed long before Hambourger and Pickett were appointed to represent him. He was scheduled to die on Dec. 7, 2000, almost six years to the day after Williams’s murder. But a little over a week before, the North Carolina Supreme Court granted a stay of execution. That’s because Tucker’s court-appointed attorney David B. Smith, who was representing him alongside another attorney in post-conviction proceedings, admitted in an affidavit that he intentionally sabotaged his client’s case by missing an appeals deadline.

“I decided that Mr. Tucker deserved to die, and I would not do anything to prevent his execution,” explained Smith in an affidavit at the time. ”I shared with my therapist my feelings and the consequences of my inaction, but I could not bring myself to act in a professional and responsible manner.”

Smith, who still practices law, declined to comment on the case.

It was “pretty stunning,” Hambourger recalled. “I’ve never heard of another case, not in North Carolina, where a lawyer actually was working against his client’s interest—was actually trying to get his client killed,” she told The Appeal.

But that’s not the only way in which Tucker’s case has been mishandled, argue Hambourger and Pickett, who were appointed in 2015 after a 2012 U.S. Supreme Court ruling in Martinez v. Ryan gave state prisoners the opportunity to file motions related to the ineffectiveness of their post-conviction counsel.

Beyond Smith’s well-known deception, Tucker’s new lawyers discovered major holes in their client’s defense. Though Tucker was examined, at the request of his trial attorneys, by a clinical psychologist who testified that Tucker was suffering from a psychotic disorder and not competent to stand trial, very little of his background or mental health history, which would have supported this claim, made it to the jury before his conviction or during his appeal. And while Tucker showed signs of mental illness during court proceedings, including frequent outbursts so severe that he was physically restrained, a psychiatrist who testified on the state’s behalf concluded he was faking his symptoms. Without additional mitigating evidence from the defense, the court declared Tucker competent to stand trial.

Hambourger and Pickett wanted to dig deeper. In 2016, they hired a mitigation specialist to investigate allegations of severe abuse Tucker suffered at the hands of his adopted family in Queens, New York, and the effect that abuse had on his mental health. They had Tucker’s adoption records fully unsealed and identified his birth mother, who moved back to her hometown of Laurinburg, North Carolina, after her son’s adoption. Hambourger and Pickett traveled to Laurinburg and convinced her family to sign off on releasing her medical records, which showed that she had been treated for schizophrenia.

“Psychotic disorders are inheritable,” Hambourger said. “And what are the chances that this guy who never knew his birth mother, knew nothing about her, is faking mental illness and then it just happens that we go down and talk to his mother’s Laurinburg relatives and find out that she had schizophrenia. What are the chances?”

Having this information could have made a huge difference to the jury that heard Tucker’s case, Pickett said, arguing that his original trial lawyers did Tucker a disservice by not requesting his adoption records to learn more about his biological family, according to motions filed in state and federal courts. “It’s not like they sought the records and were denied, and we just filed a better motion or got lucky in front of a judge or something,” Pickett said. “They just never did it.”

One of Tucker’s trial attorneys, Richard Ramsey, died in 2015. When reached by The Appeal, the other, Thomas Taylor, had difficulty recalling specifics of the case and whether he and his co-counsel pursued Tucker’s adoption records.

“We followed pretty much anything we knew,” Taylor said. “I would be surprised if we didn’t pursue every course of action.”

No new evidentiary hearing has been granted on these claims of ineffective counsel. Meanwhile, Pickett and Hambourger await news of whether they will be granted an evidentiary hearing regarding the “cheat sheet.”

North Carolina hasn’t executed any prisoners since 2006 and Tucker himself remains hopeful that he’ll receive a new trial or sentencing hearing.

In phone calls with The Appeal, and in statements released through his attorneys, he said he believes the outcome of his case would have been different if the jury had heard more evidence related to his childhood and mental health issues. He also believes the racial makeup of the jury played a role.

“I was surrounded [by white people], but what could I do?” he said. “To me it’s an unjust and unfair thing because they wouldn’t understand my situation and my upbringing. … They can only hear what was presented to them without really … knowing who I was or what I was about.”

Hambourger acknowledges that it’s hard to know what a diverse jury would have done in this case, but says that’s exactly the point. “I think it would have been important for people who looked like Mr. Tucker to be judging his worth,” she said. “Maybe they would have seen his life story differently.”

 

Published by: The AppealSep 04, 2018