Shirley Burns lost one of her sons to murder in 2006. The following year, another son, Marcus Robinson, was scheduled to be executed.
North Carolina sent Robinson, who is Black, to death row in 1994 for fatally shooting Erik Tornblom. At the time of the crime, Robinson was 18 and Tornblom was 17.
But in February 2007, the state granted Robinson a stay. And in 2009, the state legislature passed the Racial Justice Act, which permitted death row prisoners to challenge their sentence by showing that “race was a significant factor in seeking or imposing the death penalty.”
Robinson’s attorneys argued three years later that Black jurors were unfairly excluded from his jury, which reflected a statewide pattern of discrimination. The court agreed, and sentenced him to life without parole.
“Marcus could see a life without parole sentence,” Burns told The Appeal. “But no sooner than he got it, it was taken away from him.”
In 2013, the legislature repealed the Racial Justice Act. Robinson was sent back to death row without a hearing. “You’re not only killing him, but you’re killing me, the mother,” said Burns. “It’s like a slow death.”
This week, Robinson will return to court, along with five other death row prisoners who filed claims under the act. Four of them, including Robinson, were sentenced to life without parole as a result of the act and then, after the law’s repeal, sent to death row. They are asking the North Carolina Supreme Court to either sentence them to life or grant them a hearing.
The exclusion of Black jurors is a pervasive problem in North Carolina, advocates say. In 1995, prosecutors were given a “cheat sheet” on how to dodge allegations of racial discrimination in jury selection, according to the defendants’ counsel. And studies have shown that, for decades, Black jurors in the state have been struck at rates higher than non-Black jurors. However, it appears little has been done to correct the injustices of the past or prevent the continued exclusion of Black jurors, advocates say.
“Those prosecutors go on to train the generation behind them,” said Cassandra Stubbs, co-counsel for Robinson and director of the ACLU Capital Punishment Project. “It’s just like this passed down playbook of discrimination.”
The U.S. Supreme Court ruled in 1986 in Batson v. Kentucky that it is unconstitutional to discriminate against potential jurors because of their race. Despite the constitutional prohibition, Robinson’s counsel charge, discrimination continued in North Carolina courtrooms.
In 1995, the North Carolina Conference of District Attorneys held a statewide training in which attendees received a handout entitled “Batson Justifications: Articulating Juror Negatives.” The organization provided a copy of the document to The Appeal. Seventeen prosecutors attended the 1995 training, according to a list of attendees David Weiss, an attorney with The Center for Death Penalty Litigation and co-counsel for Robinson, shared with The Appeal.
The North Carolina Conference of District Attorneys turned over the handout during the discovery process for the Racial Justice Act claims, according to Weiss. The handout, according to motions filed on behalf of the defendants, instructed prosecutors on how to use seemingly “race-neutral” reasons to defend against Batson objections. “Attitude — air of defiance, lack of contact with Prosecutor, eye contact with defendant or defense attorney,” reads the handout. “Body language — arms folded, leaning away from questioner, obvious boredom may show anti-prosecution tendencies.”
The director of the district attorneys organization, Peg Dorer, defended its use. “It was a sheet of paper that listed appropriate reasons to strike a juror,” Dorer told The Appeal. “They have taken that and misrepresented that it was a cheat sheet on how to avoid Batson,” she said of the defense attorneys.
When asked if she thought there was an issue of Black people being unfairly excluded from juries in North Carolina, Dorer replied, “No, I don’t.”
“We teach the law and we teach appropriate application of the law,” she said. “We always have and we always will.”
That posture is precisely the problem, said Weiss. “They don’t think they need to adopt any training or do anything different,” he said. “You can’t possibly come to the conclusion after reviewing all of this that everything is fine.”
In a study of 173 North Carolina capital cases that occurred from 1990 to 2010, prosecutors used peremptory challenges to strike more than half of Black potential jurors, compared with about 25 percent of non-Black potential jurors. Researchers who studied more than 1,300 felony trials that occurred in 2011 found similar results: North Carolina prosecutors struck Black jurors at twice the rate of white jurors.
During Robinson’s trial in Cumberland County, the prosecutor, John Dickson, used peremptory strikes against five of the 10 potential Black jurors, compared with four of the 28 potential non-Black jurors, according to his attorneys. Dickson also asked one possible juror, a Black man, if he had graduated high school, if he had trouble reading, and if he repeated any grades in school, according to Robinson’s attorneys.
The Cumberland County district attorney’s office did not respond to requests for comment.
Prosecutors can take steps to avoid racial bias, Weiss said, but they aren’t the only ones who haven’t changed course. In the more than 30 years since the Supreme Court’s Batson ruling, North Carolina appellate courts have never substantiated a Batson violation when a prosecutor has articulated a reason for striking a Black juror.
“If the appellate courts are not looking at it closely, that sends the message to lower court actors that whatever they do goes and there’s not really going to be any oversight,” said Weiss.
Excluding Black jurors not only calls into question the sentence received, but the conviction itself, advocates say. Prosecutors have a duty to ensure that diverse juries are selected, said Miriam Krinsky, a former prosecutor and the executive director of Fair and Just Prosecution.
“Where juries don’t represent the diversity of our communities, that is not a system of justice that the prosecutors should stand behind,” said Krinsky. “This issue is just fundamental to the integrity and fairness of the justice system.”
In Durham County, the district attorney’s office does not track the racial makeup of juries, but a spokesperson told The Appeal in an email, “that is something we are working to implement.” And District Attorney Satana Deberry has held staff trainings on racial bias and the Batson ruling since January, when she took office.
“Our gut feelings are susceptible to all our prejudices and biases, just like any other decisions we make,” said Deberry. “The first step is training around this, acknowledging our gut feeling includes biases and how to work against those” when picking juries, she said.
While the trainings are intended to ensure diverse juries going forward, Deberry told The Appeal that she is also seeking to review past convictions through the creation of a “relief unit.” The unit, she said, would act as an “internal watchdog” for the office, and examine life without parole sentences for both juveniles and adults, life sentences for felony murder convictions, and claims of innocence.
“My predecessors would tell you they didn’t prosecute people because they were Black or brown or poor, but what I would say about that is they never even asked those questions,” said Deberry. “What we are trying to do is not just look at each individual case but look at it in a systemic way and understand, why are there so many Black and brown people here?”