WINSTON-SALEM — Two national experts allege in court papers that Forsyth County prosecutors used a training document in a murder case more than 20 years ago that is steeped in racist stereotypes and is specifically designed to exclude black people from juries.
Russell William Tucker, 52, is currently serving time on death row after a jury convicted him in February 1996 of first-degree murder in the death of Maurice Travone Williams.
Williams was a security guard at a Kmart store. Tucker is accused of shooting Williams in the chest on Dec. 8, 1994, after Tucker walked out of the Kmart store in clothing Williams believed Tucker had stolen. According to testimony, Tucker also fired at another security guard and missed and fired five times into a police car as he ran away. One officer was wounded.
His attorneys filed an amended motion for appropriate relief Tuesday in Forsyth Superior Court that includes affidavits from two experts to bolster Tucker’s claims that prosecutors used the training document to keep black people off the jury for his murder trial. Attorneys for the N.C. Attorney General’s Office have denied those allegations in court papers. They say that the trial record clearly shows that race was not a factor in jury selection and the training document was simply used to remind prosecutors across the state that they cannot use race. Forsyth County District Attorney Jim O’Neill has previously declined to comment because the case is pending. The two prosecutors who tried the case — David Spence and Robert Lang — have also declined to comment. Lang is now an Assistant U.S. Attorney and Spence is a prosecutor in Carteret, Craven and Pamlico counties.
One of the experts is Bryan Stevenson, executive director of the Equal Justice Initiative and a law professor at New York University School of Law. He also worked to create the National Lynching Memorial in Montgomery, Ala. The other expert is Ibram X. Kendi, a historian and the director of the Antiracist Research and Policy Center at American University in Washington, D.C. He is the author of “Stamped from the Beginning: The Definitive History of Racist Ideas in America,” which has won numerous awards.
The document in question is entitled, “Batson Justifications: Articulating Juror Negatives.” “Batson” refers to a 1986 U.S. Supreme Court decision that said prosecutors can’t get rid of potential jurors solely because of race. The ruling involved the use of what are known as peremptory challenges, where prosecutors and criminal defense attorneys can remove potential jurors without giving a reason, but criminal defense attorneys can object if they believe prosecutors are using race in removing jurors. If a judge asks, prosecutors can give a non-racial reason for removing the juror.
Tucker’s attorneys, Elizabeth Hambourger and Mark Pickett, argue Forsyth County prosecutors David Spence and Robert Lang pulled language from the document when they gave reasons in court for why they removed five potential black jurors. Words and phrases such as “inappropriate,” “monosyllabic,” “body language,” or a juror having “no stake in the community” came directly from the “Batson” doument and were used as justifications for getting rid of black jurors, they have argued. Hambourger and Pickett found the document due to litigation surrounding the now-repealed Racial Justice Act that allowed death-row inmates to challenge their death sentences if they believed racial bias played a role in their case.
In their affidavits, Stevenson and Kendi argue that the document clearly shows prosecutors used it to hide racial bias, not avoid it. Stevenson said the document was created out of a 1995 training session for North Carolina prosecutors called Top Gun II and he first reviewed the document in 2011 to prepare for his testimony in a hearing involving another death-row inmate. Lang attended that training session, according to court papers.
The document, Stevenson said, has to be understood as part of a long history of excluding black Americans from jury service. And even after the 1986 U.S. Supreme Court decision, prosecutors nationally continued to use peremptory strikes to keep black people off juries and simply gave non-racial reasons when challenged on it, he argued.
“The North Carolina Batson Justifications handout is another example of the common prosecutorial response to Batson: prosecutors came up with ways to conceal racial bias, and avoid findings of Batson violations, by developing ‘reasons’ that would likely be deemed race-neutral, and therefore, acceptable to reviewing courts,” Stevenson said in court papers.
Kendi said in his affidavit that the language in the training document is steeped in racist stereotypes about black people.
Throughout American history, “race-neutral” language has been used to circumvent the 14th Amendment’s guarantee of equal protection, Kendi said. For example, literacy tests, poll taxes and grandfather clauses never mentioned race but “were clearly designed with discriminatory intent in mind,” he said.
Kendi argued that a number of phrases, such as “confused,” “rebellious,” “lack of eye contact with prosecutor,” and others in the training document can be traced to a history of racist stereotypes.
An example is eye contact, he said.
“Under slavery and Jim Crow Black people were constrained not only by laws but also by a social code,” he writes. “African Americans were supposed to bow their heads and lower their eyes, and not make eye contact with Whites, especially Whites they did not know and White authority figures.”
Kendi said the document shows how that social code can be used against potential black jurors. If they make eye contact, black people are considered aggressive or “insufficiently deferential,” Kendi argues. And if they don’t make eye contact, prosecutors may conclude that potential black jurors are “dishonest, evasive or unfriendly,” according to Kendi’s affidavit.
In an earlier filing, Danielle Marquis Elder, a senior state prosecutor with the N.C. Attorney’s Office, has argued that Lang provided reasons not in the document for why he removed certain black jurors, including that one juror had fallen asleep. Another black juror gave consistently vague answers on whether he supported the death penalty, she argued.
No hearing has been set for the case.