- Theresa Opeka / Carolina Journal
Death row inmate argues black jurors were excluded from his trial
The N.C. Supreme Court is weighing the case of a black Forsyth County man on death row who alleges that a training document nicknamed a “cheat sheet” was used to keep potential black jurors off the jury that heard his case.
Russell William Tucker, 56, was convicted in February 1996 of first-degree murder in the death of Maurice Travone Williams, 23.
Williams had just started his job on Dec. 8, 1994, as a security guard at a Kmart when he was shot in the chest by Tucker, who had stolen clothes from the store. Tucker also shot and barely missed William Mackey, an assistant loss prevention manager at the store, as he and Williams tried to stop him.
Tucker later opened fire on two officers in a marked patrol vehicle, injuring them. N.C. Department of Justice Senior Deputy Attorney General Danielle Elder told the court that Tucker admitted to the shooting and said he only stopped shooting when he ran out of bullets.
Tucker’s case was among four heard by the court on February 8 involving defendants convicted of murder. Attorneys for Tucker say that five potential black jurors were removed from the jury pool based on their race.
Tucker’s attorneys, Elizabeth Hambourger and Mark Pickett, filed a petition with the N.C. Supreme Court, asking justices to review a decision by Judge Stuart Albright of Forsyth Superior Court, who rejected Tucker’s recent appeal. They request a new trial based on the claim that new evidence has been found in a notebook proving that potential black jurors were dismissed based on their race.
Hambourger told the justices Wednesday that Tucker’s claim is unique because it is the only active case that she was aware of that used a handout titled “Batson Justifications: Articulating Juror Negatives” as a “cheat sheet” to get around having black jurors on a jury.
Words like “lack of eye contact” and “anti-prosecution tendencies” were reasons listed on the sheet.
Batson refers to a 1986 U.S. Supreme Court decision called Batson v. Kentucky, which prohibited racial discrimination in jury selection. There are a certain number of peremptory challenges that prosecutors and defense attorneys can use to remove a juror without giving a reason. But if criminal defense attorneys suspect that prosecutors are using race to eliminate potential jurors, they can challenge it based on the U.S. Supreme Court case by using a three-part test.
Finding evidence of discrimination, the accused side has to defend why it struck a potential juror off the list, and finally, the court decides if the decision was based on race, gender, or ethnicity, or if it was valid.
Hambourger said an assistant D.A. who prosecuted Tucker had read off reasons from the handout — for instance, a juror’s body language was inappropriate — to keep them off the jury.
Justice Phil Berger Jr. said there was nothing in the record where the prosecutor stated that he read directly from the handout.
Hambourger said he was correct because they didn’t have access to the prosecutor’s file in which the handout was located, letting the defense compare it to the transcript.
Court documents have been reported to show that two potential black jurors were dismissed because of their feelings about the death penalty. A third potential black juror was dismissed because she kept falling asleep and blamed her shift work.
Berger asked Hambourger if the female juror falling asleep was a relevant determination in step one of the tests from the Batson case for dismissal.
She mentioned that many white jurors also expressed reservations about the death penalty, and they were also struck from the jury pool.
“If anyone’s wondering why they were struck or not struck, there’s something there for anybody, right?” Hambourger said. “It’s a buffet because jurors are individual people that have their idiosyncrasies. Jury selection is never going to be about picking the 12 perfect people in the pool. It’s going to be about selecting people who have a variety of characteristics.”
She said the only way to determine the prosecutor’s intent to strike a juror from the jury pool is to go to step two of the Batson test and ask for the prosecutor’s true subjective reason for the strike.
Hambourger also mentioned that numerous white jurors said it would be a hardship to serve on the jury and who “were obviously trying hard to get out of jury service.”
Berger asked, “If we are going to do that comparative analysis, how many of those white jurors have fallen asleep?”
Hambourger replied, “I don’t know.”
Berger asked Hambourger if grouping everyone together as white or black jurors is causing the problem because they are not dealing with specifics and talking in generalities about everyone.
She replied no.
“I turn again to the United States Supreme Court, which has clearly said we cannot treat jurors as cookie cutters,” Hambourger said.
She continued to make her case for discrimination, pointing to the “cheat sheet,” also referred to as “Top Gun II” in this case, and how there were handwritten references on it that were discriminatory, like no New York people/rap music, which she said was an explicit reference to race and saying no rap music suggests they were looking to strike black jurors from the case.
Elder disputed that later in the hearing, saying that not only was the document not racially discriminatory on its face, there was no inquiry about rap music, and it didn’t come up during jury selection.
“In fact, the other materials in the prosecutor’s notes that were discovered clearly step through an intended line of inquiry that the prosecution was going to ask jurors about their involvement with the justice system and their knowledge of any of the parties,” she said. “Nothing about any of those obviously intended lines of inquiry were racially discriminatory on their face.”
Elder said Tucker had many opportunities to appeal the ruling over the years but failed to do so.
“What we’re talking about here today is whether or not the defendant should be afforded the opportunity to raise now what is procedurally barred and has been for quite some time based upon what he presented to the MAR court,” she said. “We asked that you affirm the lower court, and should this court determine that he has overcome the procedural bar it should remand to the lower court for further findings.”
“MAR court” refers to the court where Tucker pursued his “motion for appropriate relief.”
Elder continued by saying that Tucker claimed he should have a review of his case because there was a retrospective application of new law for Batson, which she said is false, and that there was newly discovered evidence to overcome the procedural bar, which she said is also false because he created the evidence using a series of statistical studies.
She also said a Michigan State University study that showed that one of the prosecutors in Tucker’s trial struck 62% of Black jurors and only 20% of white people in four of his cases was irrelevant in this case.
The Tucker case was one of four on the N.C. Supreme Court’s calendar Wednesday involving convicted murderers.
In State v. Jonathan Douglas Richardson, the Johnston County defendant challenges his death penalty conviction in the murder of a 4-year-old girl, Teghan Skiba, in 2010.
In State v. Antiwuan Tyrez Campbell, the Columbus County defendant argues that racial discrimination in jury selection tainted his trial. Campbell was convicted of shooting Wilbur Allen Davis Jr. to death in 2015 after an argument.
In State v. Cedric Theodis Hobbs Jr., the state Supreme Court is reviewing a convicted Cumberland County murderer’s case for a second time. Hobbs was convicted and sentenced to life in prison in the shooting death of Kyle Harris in 2010. Hobbs’ complaints about racial bias in jury selection prompted the state’s highest court to send the case back to a trial judge in 2020. After a new review at the trial court, the case is back before Supreme Court justices.
The N.C. Supreme Court should have decisions in the cases sometime later in the year.