THIS week in the paper I'm writing about the commutation of Marcus Robinson's sentence from death to life without the possibility of parole. In 1991, Mr Robinson and an accomplice abducted Erik Tornblom, a 17-year-old high-school student who had stopped at a convenience store on his way home from work. At gunpoint, they forced him to drive to an open field. On the way he was begging for his life. They forced Tornblom to lie down in the field, where they shot him in the face with a sawed-off shotgun and took the money from his wallet: a grand total of $27. Mr Robinson was convicted and sentenced to die three years later.
I include the gory details of Mr Robinson's crime to make sure that readers understand that I am not writing this out of any sympathy for Mr Robinson. His crime was cruel, horrific and premeditated. He belongs in jail. But the commutation of Mr Robinson's sentence had nothing to do with his grisly crime, and everything to do with a long and shameful legacy of racial bias among prosecutors in North Carolina.
In 2009, that state became the second to pass a Racial Justice Act, which allows inmates to appeal their death sentences on racial-bias grounds, and holds that evidence of racial bias in capital sentencing is grounds for commuting that sentence. Proving racial bias under the Racial Justice Act requires proving one of three things: that in the jurisdiction in which the inmate was sentenced at the time of his sentencing, the death penalty was sought more often for members of one race than another; that it was sought more often as punishment for killing people of one race than another; or that race was "a significant factor" in jury selection—specifically, in how prosecutors exercised their peremptory challenges. (Peremptory challenges allow lawyers to strike prospective jury members without reason; the Supreme Court—the Rehnquist Court, no less—ruled in Batson v Kentucky in 1986 that while such challenges by law did not have to be explained, it violates the sixth and 14th amendments to use them in a racially discriminatory manner.) Unlike Kentucky, which passed its Racial Justice Act in 1998, inmates can use statistical evidence on their behalf; they do not need to prove active, intentional discrimination.
Shortly after North Carolina's Racial Justice Act became law, two professors at Michigan State's law school undertook a statistical study of jury selection and composition in North Carolina between 1990 and 2010 for trials of all defendants on death row. The study found that prosecutors at all levels struck 52.6% of black potential jurors, and 25.8% of all other potential jurors. The chance that this disparity resulted from race-neutral strikes is less than one in ten trillion. In cases involving black defendants, the average strike rate rose to 60% for black potential jurors and 23.1% for everyone else. The study observed similar disparities in the county, prosecutorial district and judicial division in which Mr Robinson was sentenced, as well as in his own trial. These disparities held firm even when controlled for other potentially mitigating factors. Against this evidence, as far as I can tell from Mr Weeks's ruling, the state offered little but quibbles, and on this evidence Mr Weeks found in Mr Robinson's favour. These are topline numbers; the study goes into far more detail.
But Mr Weeks's ruling went even further than just the numbers, much further. (Although it is 168 pages long, Mr Weeks writes extremely well, and not just for a lawyer. I read the ruling cover to cover in one sitting, like a thriller.) He explains why jury service is particularly important to black Americans, and how they have been systematically excluded for much of North Carolina's history. He also explains why prosecutors are reluctant to accept them on juries, particularly in capital cases ("African-Americans are perceived as less inclined toward the prosecution generally and the death penalty in particular than members of other groups"). But of course, black Americans have the same right/obligation to serve on a jury as anyone else, and a jury is supposed to be comprised of one's peers: of a broad slice of society.
A witness for the state argued that prosecutors tend to strike black jurors not because of their race, but because "African-Americans as a group disfavor the death penalty" and because "African-Americans as a group tend to be more concerned than other groups about fairness and inequality in the justice system." I will give you a moment to pick your jaw up off the floor and/or to stop conking yourself on the forehead. First of all, there is the bald-faced statement that the prosecution wants to exclude jurors concerned with fairness. Not jurors sympathetic to the defence, but jurors who are concerned with fairness! The prosecution in capital cases believes it cannot win before fair-minded jurors! Second, more mendaciously, excluding specific black jurors because of a perception of blacks generally is as close to a textbook case of racism as exists. I fear this post has gone on long enough, so I will not cite specific, incredible reasons prosecutors gave for striking black jurors, but if you want a good laugh/cry, read the last 48 pages of Mr Weeks's ruling.
Republican legislators in North Carolina already tried once to repeal the Racial Justice Act. They failed. Bev Perdue, the state's Democratic governor, vetoed their attempt. Ms Perdue is not long for office, and North Carolina may have a Republican governor soon enough. They will try again. Some have condemned the act as a backdoor method to end the death penalty, which of course it is not. It simply bans the racist application of the death penalty. In 2012, those two things should not be as synonymous as they have been.
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"African-Americans as a group disfavor the death penalty" and because "African-Americans as a group tend to be more concerned than other groups about fairness and inequality in the justice system."
I'm not going to forgive the moronic North Carolina and the way they phrased the argument, but I do recognize that the defense wants jurors who are sympathetic to the defendant and the prosecutors want jurors who are sympathetic to law and order. As a consequence, both sides use their peremptory challenges to strike jurors to tilt the bias to one side or the other.
Likewise, I don't think it is necessarily wrong to strike jurors who are squeamish about the death penalty. The defense wants a lenient jury, and the prosectors want a stern jury, and between the two sides you usually end up with a pretty balanced lot.
The real problem is that North Carolina was allegedly using race as a proxy for perceived bias. The optimal solution for such problems is to eliminate the peremptory challenge but broaden the basis for striking a juror for cause.
The last time I was called for jury service (a murder trial, incidentally), about 100 people were summoned. They came from all walks of life, and a majority probably would have been quite competent jurors. However, there were a bunch that were hopeless -- they had minimal education, could not fully understand the basic questions the judge was asking them in voire dire, and could barely articulate their answers. The prosecutor struck those jurors using peremptory challenges. Conversely, I found it interesting that the defense counsel was using her peremptory challenges to strike the more educated jurors. It was pretty obvious why the two sides were doing this -- the defendant was a man accused of shooting another man to death in a streetcorner drug dispute. The defense wanted jurors who would be more sympathetic, and highly educated professionals are light years away from sympathizing with such a defendant. Likewise, the prosector wasn't seeking to get sympathetic jurors; they wanted to avoid jurors who would be biased in favor of the defendant (because all it takes is one "no" vote to kill the prosecution). As a consequence, they were striking jurors who were unemployed, didn't finish high school, had relatives who had been arrested or incarcerated, etc. Needless to say, all of these factors fell predominantly on the African-Americans in the jury pool.
Was the prosecutor being racially biased in such a case? I don't think so; she was being careful about eliminating bias factors that were independent of any racial prejudice, even though race might correlate with those factors. What the system would benefit from is more transparency -- if a lawyer has to articulate why they believe a bias might be present, then you can be certain that the strike is not racially motivated. Peremptory challenges are hidden behind a veil, and as a consequence they raise suspicions (justified or not) of impropriety.
Incidentally, I was struck from the jury pool by the defense. No explanation was given, but I surmise it is because they knew I was a lawyer for a law enforcement agency. Was that racially biased? No -- even though I would have been impartial to the defendant, I understand that there was no reason for the defense to simply accept that on faith and they struck me for strategic reasons. Peremptory challenges, by their very nature, are assumptions about bias.
Lex, I'm curious about the history of peremptories. Do you know how they came into the system?
It is somewhat ironic, but the concept of peremptory challenges is a fundamental right under old English Common Law, and was intended to be a civil right to protect the accused.
The right to challenge a given number of jurors without showing cause is one of the most important of the rights secured to the accused. Lord Coke (a famous jurist and expounder of the Common Law) explained that "The end [i.e. the purpose] of challenge is to have an indifferent trial, and which is required by law; and to bar the party indicted of his lawful challenge is to bar him of a principal matter concerning his trial."
The accused could, if he chooses, peremptorily challenge "on his own dislike, without showing any cause;" he may exercise that right without reason or for no reason, arbitrarily and capriciously. The U.S. Supreme Court has further explained that "any system for the empaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned. And, therefore, he cannot be compelled to make a peremptory challenge until he has been brought face to face, in the presence of the court, with each proposed juror, and an opportunity given for such inspection and examination of him as is required for the due administration of justice."
Interestingly, peremptory challenges were traditionally used only in capital cases. Except in cases of treason and other capital offenses, no right to peremptory challenges existed in federal criminal trials until the Act of June 8, 1872, 17 Stat. 282, Rev. Stat. § 819, unless a rule of the particular federal court made applicable a provision of state law allowing peremptory challenges in noncapital cases.
Currently, the right to peremptory challenges is no longer considered as being mandatory: is in the nature of a statutory privilege, variable in the number of challenges allowed, which may be withheld altogether. The Supreme Court has noted that there is nothing in the Constitution which requires Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is all that is secured. The number of challenges is left to be regulated by the common law or the enactments of Congress. Individual states, of course, can set up their own regimes for having peremptory challenges.
All in all, the original purpose was to allow defendants the ability to influence the make up of their jury, but the prosecution is also allowed some challenges to guard against reverse bias. Typically the defendant is granted more peremptory challenges than the prosecution (for example, I believe the current federal statute provides that in capital cases, the defense gets 20 challenges and the prosecution 6, and in all other felony cases the defense gets 10 and the prosecution 6).
I don't think peremptory challenges are bad, per se. I just recognize that because they don't have to be justified, there is always a cloud hanging over them. As a consequence, I think all challenges should be for-cause only, so long as the basis for cause is allowed to be relatively broad (I think if you are too stupid to understand a judge's voire dire questions, for example, you should be struck without any apologies).
As a brief follow up, jurors are always able to be struck for cause, if a bias is evident. However, a lot of times there may be jurors who fall into the "shades of grey" category: a lawyer may suspect the possibility of bias, but cannot clearly show it. The purpose of a peremptory challenge was to allow the lawyers to strike such jurors, in situations where the judge was unwilling to agree to strike the juror for cause.
Thanks. Glad you're here. That is interesting and it is ironic. Do I remember right that this was an issue with Byron De La Beckwith's original trial?
Lex,
Thanks for the clear, concise explanation.
Hmm. I think my response to you got deleted along with the double-post.
To answer your question: sort of. Mississippi at the time restricted jury service to registered voters, and Mississippi made concerted efforts to prevent African-Americans from registering to vote (in fact, that was the main mission of Medgar Evers before he was murdered). As a consequence, De La Beckwith's first two trials were all-white juries. There was some jury screening that was alleged (and proven), but that was not the primary issue. I find it moderately comforting that 2 all-white juries were at least hung juries, and didn't flat out acquit De La Beckwith (at least some jurors must have felt he was guilty).
He was convicted many years later in a third trial based on new evidence, and the jury was mixed (8 African-Americans, 4 whites). The new evidence was primarily the testimony of a prison guard who overheard De La Beckwith bragging about killing Evers (De La Beckwith was in a Louisiana prison for begin caught with a bomb in his car, which he allegedly was going to use to bomb a B'Nai B'rith facility -- he was a nasty, nasty human).
Well, it's good that Americans are willing to solve their racial, exclusionist, discrimination related problems. Not the same could be said about Europe. Us is going forward, Europe is going backwards. In Europe, if you're an African-American who is visiting or willing to move to any European country, you risk to be harassed by the predominant population, who will shun you or watch you suspiciously, etc, and by the police (always cheked out, papers asked very often), you can be beaten by skinheads and neonazzies, anf many, many other inconvenients...you can defuse somehow the situation if you're holding an American passport, sudenly things change, at least with the authorities, but if you're an African citizen, beware.
The creep shot a teenager in the face and was clearly racist - hopefully the republican govenor can strike the from the statute book and send this piece of dirt to the chair
Some have condemned the act as a backdoor method to end the death penalty, which of course it is not. It simply bans the racist application of the death penalty.
Which racial application, we must conclude from the evidence, is the whole point of the exercise.
If there was a problem with the jury selection, that should go towards Robinson's conviction, not the punishment.
That's a damn good point. In this specific case, it seems he would have been found guilty of a very heinous crime regardless. But it's a good point.
No. In a criminal trial, first comes the innocent/guilty question - did the defendant really do what the prosecution says they did? If the defendant is found guilty, then comes sentencing. This is also under control of the jury (within boundaries set by the criminal statutes).
Is that the case in North Carolina? Different states do vary in terms of who decides on sentencing.
Regardless, you can't simultaneously claim jury bias in sentencing, but impartiality in convicting. Furthermore, if you throw out the conviction because of jury bias, the punishment goes with it, so it shouldn't matter who decided on the latter.
If he was contesting his conviction on the merits, the judge would ostensibly order a new trial, he would very likely get convicted and very possibly sentenced to death AGAIN. It is likely that it was his own lawyers that requested the modification to the sentence, and not a retrial.
Oh, I don't doubt that at all. I just don't find that line of reasoning particularly compelling. If there's a problem with the jury, then the proper thing to do is what you suggest and retry him. Not to try and find some "compromise" where he's still convicted but faces a lesser punishment.
Not to mention that it seems a waste of time and money to revisit the sentence of a convicted murderer whose guilt is neither in doubt, nor being challenged.