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Did Prosecutors Use a ‘Cheat Sheet’ to Strike Black Jurors in North Carolina Death Penalty Case?

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

Illustration by Richard A. Chance

Did Prosecutors Use a ‘Cheat Sheet’ to Strike Black Jurors in North Carolina Death Penalty Case?

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.”

Illustration by Richard A. Chance

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.

They’re not exactly stereotypes, but they are racial code.Elizabeth Hambourger, attorney for Russell William Tucker

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 Batson worksheet. 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.”

You can't just treat it like a legal game of back and forth—how do I beat Batson?Mark Pickett, attorney for Russell William Tucker

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.

Illustration by Richard A. Chance

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.”

I was surrounded [by white people], but what could I do?Russell William Tucker, defendant

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.”

As National Prison Strike Continues, Incarcerated People Face Retaliation

Now in its second week, a strike staged by prisoners over poor conditions, low wages, and other issues is resulting in consequences, including harsh conduct reports and placements in solitary confinement.

A prisoner behind bars with his hands cuffed
Caspar Benson/Getty

As National Prison Strike Continues, Incarcerated People Face Retaliation

Now in its second week, a strike staged by prisoners over poor conditions, low wages, and other issues is resulting in consequences, including harsh conduct reports and placements in solitary confinement.

In April, Jailhouse Lawyers Speak, a group of people incarcerated in South Carolina that organizes for prisoners’ rights, called for a national prison strike to begin on Aug. 21. One of the strikers’ demands was for the rescission of the Prison Litigation Reform Act (PLRA), a 1996 federal law that makes it much more difficult for prisoners to file federal lawsuits regarding conditions of confinement or abuse by prison staff and therefore nearly halved such litigation in the six years after its passage. But before the strike even began, prisoners in several states, including Ohio, reported retaliation and repression because of it.

As this reporter wrote the day the strike started, Imam Siddique Abdullah Hasan was placed in solitary confinement on July 27 after receiving correspondence about the strike. Hasan’s conduct report stated the Ohio Department of Rehabilitation and Correction’s “STG Intelligence Unit have been monitoring communications and social media postings related to planning a nationwide prison strike from August 21 to September 9, 2018.” The report, written by a correction officer, used mail correspondence Hasan received about the strike and Hasan mentioning the national strike while speaking at public events (via the prison’s phones) as evidence of rule violations.

The report listed five rule violations: rioting or causing others to riot, engaging in or encouraging a group demonstration or work stoppage, conducting business operations with any person or entity outside the institution, use of telephone or mail in furtherance of any criminal activity, and violation of rules pertaining to receiving money from unapproved sources (a union wanted to pay Hasan $250 to speak to their members by phone). Central Ohio Incarcerated Workers Organizing Committee (IWOC) told The Appeal that Hasan engaged in a hunger strike to protest the conduct report from July 28 to Aug. 8.

On the same day Hasan ended his hunger strike, Greg Curry, another prisoner at Ohio State Penitentiary, reported that some prisoners in his unit decided to begin a work stoppage due to retaliation from guards. “Meanwhile, the low wage cops [are] harassing us, looking to create problems,” Curry wrote to his supporters via the blog Lucasville Amnesty. “So Enough prisoners that recognized this decided to start protest that include[s] refusing to work!” After a hearing on the conduct report, Hasan was moved to Extended Restrictive Housing Level 3 (where prisoners are held in their cells for 22 or more hours a day for at least 30 days) and had his phone privileges taken away for a year, according to Central Ohio IWOC.

Since the national prison strike began, Central Ohio IWOC announced that there are at least two prisoners on hunger strike at the Toledo Correctional Institution in Ohio: James Ward and David Easley. Ward and Easley are protesting abuse, communication restrictions, and lack of mental health treatment. The Ohio Department of Rehabilitation and Correction did not respond to a request for comment.

Some prisoners in Ohio have come to expect retaliation. The Appeal spoke by phone with a man in a minimum-security Ohio prison who asked to be identified only by his nickname, “Fridge.” “Intimidation, threats all of that is coming down the pipe, without a doubt, for even discussing [the strike],” he explained. Fridge also said Ohio prisoners are still reeling from a protest several years ago when they demonstrated against the state parole board’s inaction on parole, pardons, and commutations. Ohio’s parole rate declined from 48.5 percent in 2004 to 15.93 percent in 2017.  “Here in the state of Ohio, the parole board pretty much has complete autonomy and no oversight whatsoever,” Fridge told The Appeal. “The brothers were pretty much fed up because you know a lot of guys sitting around here rotting—30, 40 years. The brothers tried to make a statement by saying we ain’t participating [in parole hearings] … it was a desperate plea for help.” Those who participated in the parole hearing boycott were sent to the Southern Ohio Correctional Facility, a maximum security prison, according to Fridge.

Prior to the Aug. 21 strike, however, Ohio prisoners in IWOC released a set of 18 demands to the Ohio Department of Rehabilitation and Correction (ODRC). They called for ending long-term solitary confinement; paying prisoners no less than the minimum wage for their labor; the immediate release of all inmates sentenced before they were 18 years old; the release of “old-law” prisoners (meaning they were sentenced before 1996’s “Truth in Sentencing” law, which required judges to issue “flat sentences” for a specific number of years) who have completed their minimum sentence; reducing exorbitant commissary prices; allowing prisoners to participate in on-camera media interviews; and firing and criminally indicting correctional officers who physically abuse prisoners when they are restrained.

The demands also included rights for non-incarcerated citizens, including a demand that the minimum wage in Ohio be raised to $15 by 2020.  “Improving wages and working people’s lives on the outside,” the prisoners said, “is interconnected with prisoners’ struggle because such improvements will protect many people from either entering or re-entering the prison system.”

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‘We thought it was important to knock down doors’

Lewis Conway Jr., a formerly incarcerated activist running for Austin City Council, sits down with The Appeal.

Lewis Conway Jr. at a recent campaign rally
Matthew Bradford/Hank+Tank Photography

‘We thought it was important to knock down doors’

Lewis Conway Jr., a formerly incarcerated activist running for Austin City Council, sits down with The Appeal.

For Lewis Conway Jr., deciding to run for office was the easy part. The Austin native was a community activist looking for another way to make change. But until mid-August, the fate of his candidacy for City Council was uncertain. He had served eight years in prison and 12 on parole, and although his voting rights were restored, city officials questioned his eligibility. Only this month was he officially cleared for the November ballot.

Conway is chestnut-hued, husky, and 6 feet 6 inches tall. You can’t miss him. Yet, years before he entered the spotlight, he says, he felt like a “walking ghost.”

When he returned home from prison, he explains, his family and community didn’t “know how to deal with somebody they had a funeral for.” Now, years after settling into his purpose, he feels like he’s back from the dead and eager to connect with voters. “I don’t have time to make you feel good,” he said. “I got time to make you feel me.”

Conway, who is married and has three children, isn’t afraid to talk about his past. In 1992, he was convicted of voluntary manslaughter after he stabbed a man during a fight over drugs he said the man had stolen from him. Conway said it was self-defense. Politics were foreign terrain when he was released from prison in 2000, he says, and running for office definitely wasn’t part of his parole plan.

He did, however, want to find a job, but says it felt impossible to find one. “I realized that I was society’s worse perceived nightmare. I was a big, Black man that had been convicted of a violent crime, expecting to be treated normal.” Denied too many jobs to count, he created his own, working as a DJ, music and video director, and author.  Ultimately, he made his way into community organizing. In 2016, as political director of the Second Chance Democrats, he helped pass Austin’s Fair Chance Hiring ordinance, which prohibits most employers from asking about or considering a job applicant’s criminal background before making an offer.

The first time someone suggested he run for office, Conway, a self-described democratic socialist, was skeptical. “I’m an organizer,” he remembers thinking. “I fight politicians.” Still, in 2017, he decided to join the race to replace departing incumbent City Council member Ora Houston. He quickly learned that according to Texas election code, a convicted felon cannot run for office unless he or she has been pardoned or “released from the resulting disabilities” of the conviction.

Although Conway’s campaign was slowed by the indecision over whether he could run, the Working Families Party endorsed him in early August. He also hopes to secure the endorsement of the Democratic Socialists of America.  

Conway recently spoke with The Appeal about criminal justice reform, disenfranchisement, and being radical about change.

This interview has been lightly edited for length and clarity.

The Appeal: There were a lot of questions about whether you were legally allowed to run.

Conway: The language is purposefully ambiguous to give the impression that someone can’t run.

When I saw it as part of the election code, I was like, “That’s crazy, that’s crazy. I’m not falling for that. I’m not.” And so, I don’t see anything here that says my disabilities aren’t resolved. As a matter of fact, what disability are you talking about? Are you talking about the fact that I can’t get housing? That I can’t get employment? Are you talking about the fact that I go into a place of business and I’m automatically stared at?

The Constitution said I could run for Congress, the Constitution said I could run for president, the Constitution said I could run for Senate.

You got to be crazy as hell to tell me I can’t run for City Council.

Conway files paperwork to run for City Council in Austin.
Credit: Gabriel C. Pérez/KUT

You’re part of a wave of democratic socialists running for office nationwide, including Cynthia Nixon and Alexandria Ocasio-Cortez. What does that affiliation mean to you?

What it means to me is democratically deciding how our budget is disseminated. Democratically deciding how our community receives services and what monies are being spent to provide those services. Democratically determining, in the community, what participatory democracy looks like.

I think too often leadership from elected officials has been top-down as opposed to bottom-up. And so, we started our campaign with a people’s assembly where we made ourselves available to folks and we wanted to hear what people had to say about their conditions. Because we believe people are experts in their own conditions.

When I began this race, even though it was a nonpartisan race, Austin is a partisan town. The state is Republican but Austin is Democrat. And I have seen what the Democrats have done to Black folks over the last 45 years of my life in Austin, so I wasn’t comfortable calling myself a Democrat.

So, coming into it, I was familiar with Black Marxism, I was familiar with Chokwe [Antar] Lumumba’s campaign in Jackson, Mississippi. And Lumumba’s campaign about [trying to make Jackson] the most radical city on the planet is what I built my campaign after. So, I knew that socialism was going to be the only way that I was going to get the kind of ideas that Black folks needed to embrace in order for us to realize the best conditions in our lives.

You have a lot of work to do on that front. I’ve read, for instance, that Black people in Austin are seven times more likely to be arrested for low-level marijuana arrests than their white counterparts. Is that something you’d tackle in office?

Absolutely. We [Grassroots Leadership] were the organization that led on the “Freedom City” Resolutions. … In 2015, we put out a Travis County racist-jailing report that showed … Black folks are being arrested at a higher rate and were being jailed for a longer time period than white people are.

So, even with the juvenile curfew, the juvenile curfew was one of the ordinances that the incumbent voted to keep in place [though she later reversed her stance]. And that juvenile curfew, of course, targeted brown and Black kids in parts of town that are historically populated by people of color. And so, the school-to-[prison] pipeline process in Austin is well-entrenched in our public schools. And it’s definitely well-entrenched in the policy that governs how elected officials interact.

You mentioned the Freedom City resolutions. Those restrict police questioning of immigrants and aim to cut down on nonviolent arrests, which tend to disproportionately affect Black and Latinx residents. How much will they help?

There’s always a lot of political will spent in passing these types of ordinances, but there’s little political will spent on the implementations.  I think it’s important for us to realize they are just resolutions; they are not policy or best practices. And we need to really be adamant about making sure that the stakeholders who are involved in this process, that we are working closely with law enforcement and making sure we’re giving folks alternatives besides arrest and incarceration.

Conway speaks at the Fight Toxic Prisons Convergence in Denton, Texas in 2017.
Credit: Jordan Mazurek

Supporters say you’ve served your time for the offense, while some, including the mother of the man you killed, argue that you don’t deserve this opportunity. How do you plan to earn the trust of your constituents?  

As an organizer, we practice transformational justice. And that means that’s a two-way street. That means I have to hold a space for people to feel how they feel. And I have to hold a space for people that I have harmed to hold me accountable.  

So, when the victim’s mother came out and said what she said, I didn’t do a public apology. I reached out to her pastor, I reached out to the reporter, and I opened up a space for her to hold me accountable. Not for me to apologize, but for her to hold me accountable.  

Just like it’s an opportunity for me to advance the cause for more than 4 million Texans with criminal justice involvement. It’s also an opportunity for us as a community to advance the cause of healing.

I don’t ask for any special consideration. I ask the people to judge me based upon my merit. What have I done at City Hall? What have I done at the State Capitol? What have I done on behalf of people who have backgrounds [in the criminal justice system], for people who’ve been in mental health institutions, right?

So, I think that’s a fair question, and my immediate response is, you know, “When do we allow people the space not to be the same person that they were 27 years ago?”

As of July 15 campaign finance filings, you’d raised less in campaign donations than your opponents. Why do you think that is and how important is it?

I couldn’t raise the money because there was this cloud of doubt of if I would even be eligible to run. From July to July, it has been a question about if I can run or not. They wait for the last day of filing to say, “OK, he’s officially on the ballot, right.” I announced my candidacy December 4, 2017. So, for nine months I’ve been having to campaign, and the first question people ask me is, “Are they going to let you run?”

So, that has been the tenor and the tone of the coverage and our campaign. This is the first time we’re actually able to campaign without the miasma of doubt hanging over our heads.

The people who have donated to our campaign up to this point really believed in us, really believed in the power of transformation, really believe in the power of another chance. I don’t like to use that second-chance language because some folks need a third and fourth chance. We need another chance.

Austin is a gentrifying city and I’ve heard your campaign volunteers are racially diverse. How are you mobilizing different types of people?

There are more white people [than Black people] in Black Lives Matter T-shirts in Austin. … Some Black folks look at civil rights issues in Austin like the status quo, like, this is how it’s always been. Many have been conditioned in Austin since the 1928 master plan, [which segregated the city] almost a hundred years ago, that politics wasn’t and isn’t a significant factor in our lives as Black folk. The reason why I have a coalition of white folks going to doors for me is because the establishment Black folks won’t embrace me, have not embraced me.

Black college kids love me, the white college kids love me, the white old ladies love me. … We have built a multicultural coalition … made up of folks who have fought for criminal justice, who are directly impacted by criminal justice. But also honestly believe that they want a change in their leadership and they believe in diversity in leadership.

Conway holds regular meet-and-greets at an Austin coffee house to reach students and people without access to the internet.
Courtesy of Conway campaign

We’re seeing various forms of activism around criminal justice, most recently the nationwide prison strike. What do you think are the most crucial steps to dismantling mass incarceration and the prison industrial complex?

The top thing that we have to do is rescind the 13th Amendment. The 13th Amendment, of course, as we know, allows for the enslavement of folks who are incarcerated. For me, as an abolitionist, it goes beyond free slave labor. It speaks to everything that encompasses the definition of slave: loss of identity, no human or civil rights.

When we look at the way our economy is built upon law enforcement, you know, we’ve got local police, we got school police, we got state police, we got federal police, we got secret police, we got secret police that watch the secret police. We got judges, we got lawyers, we got courtrooms, we got prisons. So, our whole economy is built on a law enforcement modality.

In order for us to address the criminal justice system, we have to rethink our business model.

Addressing mass incarceration is going to require us to address re-entry, is going to require us to address alternatives to incarceration, it’s going to require us to address housing, employment. And then there’s the whole sentencing component, right. We have to address federal sentencing laws, we have to address local sentencing laws, stop keeping people in jail because they can’t pay bond.

The prison industrial complex, you have to kind of see it like the music industry before CDs came in, when we still had albums. You had people that pressed up the albums, you had people who recorded the albums, you had people that shipped the albums, you had people that made the album covers. See, there was a whole industry of putting out a piece of music. Well, there’s a whole industry around disenfranchisement of a person. Until you look at it like an industry, as opposed to these single pieces, we’re going to always be having this conversation of mass incarceration.

Any fears in taking on this race?

My only fear is the impact on [two of] my children, you know. There’s a lot of stuff they were too young to know about and now it’s starting to come out in the press. I think that’s my only fear, that they find out I gave up custody and don’t know why.

There have been some vague allegations floated against you regarding that child custody dispute with your ex-girlfriend. What can you tell us about that?   

A decade ago, I was involved in an ugly court battle, like Austin court battles get, and some untrue allegations were made that were false then and are false now. And those allegations were devastating to my family, the relationship with my children. And for me, it’s about all of the other fathers that may not have the same platform to defend themselves.

How hopeful are you about your chances of winning?

Not only are we going to win, but we counted wins along the way. … We felt like it was important to change the narrative, and count that as a win. We thought it was important to knock down doors, we thought that was a win. But most of all, we feel that if the people of Austin elect someone with our background, that is not only a win for District 1, it’s a win for Austin, and it’s a win for Texas and ultimately that translates into a win for America.

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