Thwarting Equality and Justice for All [Updated]
Updated June 7, 2013: The North Carolina General Assembly House voted on Wednesday, June 5 to repeal the Racial Justice Act on a 77 to 39 vote. The vote was split strictly along party lines, with no Democrats supporting repeal and only one Republican representative opposing repeal. The Senate passed an almost-identical bill in April 2013 but must now approve minor changes made by the House. Republican Governor Pat McCrory is widely expected to sign the bill, as well. Although the State has not performed an execution since 2006, executions are expected to resume upon the repeal’s ratification.
Updated June 20, 2013: As anticipated, Governor Pat McCrory signed S.B. 306, officially repealing the Racial Justice Act on June 19, 2013. McCrory noted that the implementation of the law was “seriously flawed,” as everyone on North Carolina’s death row, regardless of race, had appealed their sentence under the Act. The repeal applies retroactively to current appeals pending under the Act, which may implicate due process concerns and extend litigation. However, the repeal could also restart executions within the next several weeks.
North Carolinian Darryl Hunt was convicted twice for a murder he never committed. He refused plea bargains insistently pushed upon him by an overcrowded justice system, maintaining his innocence, even though the State could legally kill him were he found guilty. Despite the absence of any physical evidence tying him to the scene, Mr. Hunt was convicted of first-degree murder. The vote of one juror spared his life.
The victim of the crime was Deborah Sykes, a white, twenty-five-year-old editor at a Winston Salem newspaper. In the early hours of August 10, 1984, she was raped and murdered. A man, identifying himself as “Sammy Mitchell,” called 911 to report the attack. Police later discovered that the true caller was a man named Johnny Gray. While police were still under the impression that a “Sammy Mitchell” had called 911, they found the true Sammy Mitchell and also spoke with one of his best friends—Darryl Hunt. From that point on, Mr. Hunt was considered a suspect.
Neither the police nor the prosecution ever checked Murphy’s background, which would have revealed that their key witness against a black man was a former member of the Ku Klux Klan.
Police asked Mr. Gray—the man who intentionally misidentified himself to the 911 dispatcher—to identify the offender in a photo lineup. He first selected someone who was in jail on the day of the crime. After hearing that Darryl Hunt had been identified as a suspect, Mr. Gray also identified Mr. Hunt in a photo lineup. Despite telling the police otherwise, Mr. Gray knew Darryl Hunt.
Thomas Murphy, a man who would eventually become the State’s chief witness against Mr. Hunt, came forward and told police that he had seen Mrs. Sykes with a black man the morning of the crime. He tentatively identified Mr. Hunt in a photo lineup as the man he had seen. Neither the police nor the prosecution ever checked Mr. Murphy’s background, which would have revealed that their key witness against a black man was a former member of the Ku Klux Klan.
Mr. Hunt’s girlfriend, who had initially reinforced his alibi by informing police she was with him the night of the crime, was arrested on outstanding larceny charges after police named Mr. Hunt a suspect. During her interrogation, she changed her story and told police that Mr. Hunt had confessed to the crime. She recanted before trial, but the prosecutors still presented her statements to the jury.
No physical evidence connected nineteen-year-old Darryl Hunt to Deborah Sykes’s murder. A friendship with a man purposefully misidentified in a 911-call was the only connection Mr. Hunt had to the crime other than the dubious “eyewitness identifications.” Mr. Hunt testified on his own behalf that he did not know Deborah Sykes and had nothing to do with the crime.
The Forsyth County jury deliberated for three days and—for the first time— convicted Mr. Hunt of murder. However, not a single jury member voted for the death penalty during the sentencing phase because the jurors “had too many lingering doubts about Hunt’s guilt.”
He refused to plead guilty to a crime he did not commit, even if it meant he had to go back to prison.
The Supreme Court of North Carolina overturned (pdf) his first conviction in 1989 due to the prosecution’s exploitation of Mr. Hunt’s girlfriend’s recanted testimony in the 1985 trial. Prior to his second trial, Mr. Hunt was offered a plea bargain—if he pled guilty to the crime, he would be given credit for the five years he had already served and would be freed. But Mr. Hunt refused to plead guilty to a crime he did not commit, even if it meant he had to go back to prison.
In his second trial, an all-white jury in rural Catawba County found Mr. Hunt guilty based on the same eyewitness misidentifications and the testimony of two jailhouse snitches, who claimed that Mr. Hunt admitted guilt while in prison. For the second time, he was convicted of first-degree murder. This time, only one juror refused to sentence him to death, resulting in a life sentence for Mr. Hunt.
Darryl Hunt entered prison as a young, innocent 19-year-old and walked out a free man 18 years later, having aged far more than any 38-year-old body, mind, and spirit should.
In 1994, DNA testing revealed that Mr. Hunt’s DNA did not match the semen found on the victim’s body. Mr. Hunt believed the physical evidence would finally exonerate him after nine unjustified years in prison. But the prosecution crafted a new theory in which Mr. Hunt worked with “someone else” who raped the victim, and yet another theory in which he raped the victim, without ejaculating.
The judge found that the DNA did not prove Hunt’s innocence, stating that “[w]hile the state’s theory on rape and sexual offense is somewhat weakened by the DNA evidence, its case overall is not fatally flawed.”
Mr. Hunt entered prison as a young, innocent nineteen-year-old and walked out a free man eighteen years later, having aged far more than any thirty-eight-year-old body, mind, and spirit should.
The North Carolina Racial Justice Act
In 1986, the U.S. Supreme Court had the opportunity to address racial disparities in sentencing in the American criminal justice system in Batson v. Kentucky. The court held that a prosecutor’s peremptory challenge—the dismissal of a juror during jury selection without having to state a reason for dismissal—may not be used to exclude jurors based solely on their race. Despite the promise of the Batson decision, research across the nation, and specifically in North Carolina, shows that race continues to play a large role in jury selection, and, as a result, sentencing.
The U.S. Supreme Court was—once again—given the chance to address racial disparities in sentencing in the 1987 case of McCleskey v. Kemp. However, the Court avoided the issue, noting that if states were seeking or imposing the death penalty in a racially disparate manner, it is a matter for state legislators to address.
Catherine Grosso and Barbara O’Brien, professors at Michigan State University College of Law, conducted a study that documented racial disparities in the prosecutorial use of peremptory strikes in North Carolina death penalty cases. The pair also conducted a study of charging and sentencing based on the race of the victim, reviewing 5,775 North Carolina cases where defendants were eligible for the death penalty between 1990 and 2009.
In North Carolina cases with black defendants, the average strike rate is 59.9% against black potential jurors and 23.1% against other potential jurors.
The results (pdf) of the study show that qualified black potential jurors are struck from juries at more than twice the rate of white jurors. These disparities are even greater in cases involving black defendants. In such cases, the average strike rate is 59.9% against black prospective jurors while only 23.1% against other prospective jurors.
The charging and sentencing study (pdf) results show that defendants in North Carolina are significantly more likely to be charged and sentenced to death if at least one of the victims was white. To be exact, death eligible cases with at least one white victim were 2.59 times more likely to result in a death sentence than all other cases. Even after adjusting their analysis to account for the impact of non-racial factors that bear on charging and sentencing, the rate was 2.067 times higher than those faced by similarly situated defendants.
As of December 2012, there are 152 inmates currently on death row in North Carolina, ninety-seven of whom are identified as Black, Native American, or another racial minority. According to Gerda Stein of The Center for Death Penalty Litigation, all-white juries sentenced thirty-one of these defendants to death; and juries with one racial minority sentenced thirty-eight of these defendants to death.
“No person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race.”
The North Carolina General Assembly responded to Batson and McCleskey by enacting the North Carolina Racial Justice Act in 2009. The Act (pdf) created a state claim for relief for defendants currently on death row who could show that race was a significant factor in the exercise of peremptory challenges in their cases. Defendants who succeed in showing that race was a factor are entitled to a reduction in their sentence from death to life in prison without the possibility of parole. The Racial Justice Act (RJA) was a large first step forward in an effort to eliminate disparate treatment based upon race within North Carolina’s criminal justice system.
In April 2012, North Carolina Superior Court Judge Greg Weeks concluded that racial bias was a significant factor in Marcus Robinson’s death sentence, making him the first defendant whose life would be spared under the RJA. Judge Weeks found (pdf) that the prosecutors had relied on District Attorney Conference training materials to provide race-neutral reasons as a pretext for striking minority jurors.
According to MSU College of Law Professors O’Brien and Grosso, “The RJA is innovative in that it allows for the use of statistical evidence to uncover racial bias even when the bias is hidden or driven by psychological processes other than simple animus.” However, the 2012 amendments to the RJA require the defendant to satisfy a higher burden; he or she must prove race discrimination through more than statistical evidence alone, a nearly insurmountable task in a much more race-conscious era. Discriminatory intent is rarely, if ever, discoverable.
Surprisingly, the next set of RJA cases proved that contention wrong. Three weeks after Robinson was resentenced and soon after the Act was amended, the court reviewed RJA motions of three more defendants: Tilmon Golphin, Christina Walters, and Quintel Augustine. Golphin and Augustine are African-American; Golphin was tried by an overwhelmingly white jury and Augustine was tried by an all-white jury. Walters is a Native American female member of the Lumbee tribe. Judge Weeks granted RJA relief (pdf) to each of the defendants, the only individuals other than Robinson to so far be afforded such relief.
Statistical evidence demonstrated clear racial discrimination in jury selection in each individual case. 2 Moreover, in Augustine’s case specifically, the prosecutor’s jury strike notes (pdf) exposed strong discriminatory intent. One example, of many, was a note beside a black potential juror named Michelle Gore, who voted regularly and was not opposed to the death penalty, of her neighborhood, “Longwood,” an almost entirely black community, which he noted as a “high crime area.” When defense counsel questioned the strike—since the prosecution had struck every black juror at the point—the prosecutor cited her body language and ‘monosyllabic ‘answers, verbatim reasoning from a Batson prosecutor training “cheat sheet (pdf).” Judge Weeks wrote in his order granting relief that he was especially troubled by the fact that Ms. Gore was “condemned simply for living in a predominantly black area perceived to be undesirable,” rather than on the basis of her own conduct.
In another handwritten note, the prosecutor wrote, “blk wino – drugs” beside the name of Clifton Gore, a black man with no prior drug or alcohol offenses. Within the same page, he wrote, “drinks – country boy – OK” beside the name of prospective white juror Ronald Kirk. The prosecutor classified a black prospective juror as a “thug” and deemed a white prospective juror, with a similar criminal record, a “ne’er do well.”
Judge Weeks classified the prosecutor’s notes as “irrefutable evidence that race, and racial stereotypes, played a role in the jury selection process in Augustine’s case.”
There are two arguments RJA opponents generally cite to support the RJA’s repeal.
Since its inception, this powerful piece of legislation has been broken down by the North Carolina General Assembly amendment in 2012 and will be repealed altogether if the House passes Senate Bill 306 in the 2013-2014 session.
There are two arguments RJA opponents generally cite to support the RJA’s repeal. First, the statistical data is too inconclusive to be instructive or trustworthy. The North Carolina Republican Senate Caucus described the RJA as “a law allowing judges to use arbitrary statistics and random data to decide whether a death row inmate was sentenced because of his or her race.” As a result, any conclusions drawn from such evidence should not be considered a legitimate factor in determining discrimination.
RJA opponents maintain that either (1) reasonable inferences cannot be drawn from the raw numbers; or (2) that the jury selection process is so complex and multifaceted as to make useful data and conclusions about race impossible. In short, statistics could never account for all the factors involved in jury selection and could not entirely isolate race from among them. However, the MSU College of Law study upon which the RJA was based did not rely on “raw numbers” for its conclusions. Rather, Professors O’Brien and Grosso carefully and meticulously coded and controlled for variables other than race, such as criminal background, views on the death penalty, employment, and marital and socioeconomic status, which were potentially relevant to jury selection. The analysis revealed that race still played a substantial role in the exercise of peremptory challenges. Furthermore, the 2012 RJA amendments safeguard against relying solely on statistical evidence.
Opponents argue that the Act is an obstructionist measure intended to create or maintain a de facto moratorium on the death penalty.
Second, RJA opponents argue that the Act is actually just an obstructionist measure intended to create or maintain a de facto moratorium on the death penalty in North Carolina and “has nothing to do with race or justice.” This is despite the fact that a claim under the RJA would only extend the delay for three months to account for a hearing. If no discrimination is proven, the defendant is back to his or her previous circumstances on death row.
Paul Hogle, a Campbell Law student who has extensively researched the RJA, summarized the cruel prioritization these legislators have established: “The interest society has in adjudicating our most critical criminal matters—capital cases—fairly and honestly, even in the face of evidence of proven institutional unfairness, are outweighed by a purported need for urgency in effectuating the ultimate punishment.”
Darryl Hunt’s Story: “Never let bitterness and hatred stay in your heart.”
Do not be misled: Darryl Hunt’s exoneration was not tied to the Racial Justice Act. The RJA only applies to defendants on death row, and the only remedy to those defendants is a sentence reduction to life without parole. Mr. Hunt’s case would not have been eligible for review under the RJA since one juror refused to sentence him to death. However, his story is representative of racial tensions that still exist today in North Carolina’s criminal justice system, from law enforcement investigations to jury selection and sentencing.
The prosecutor in Mr. Hunt’s case had specific questions that he used for only the black prospective jurors during selection: “If it came out in the evidence that the victim of this crime was a young white female, the defendant being a black male, would that interfere with your verdict in the case?”; “If you decided this defendant was guilty of first-degree murder, and if you returned a verdict at the second phase of the trial which involved the death penalty, would it be hard for you to go back and live in the community you live in?”; “You could withstand any pressure or intimidation from your community?”; “And you could live with your verdict?”
In a county where 25 percent of the population was black, the jury in the trial of a black man—charged with raping and murdering a white woman—included one black juror.
Both sides questioned sixty-six prospective jurors to fill the twelve seats on the jury. Of the sixty-six, eleven were black. The prosecutor used five of his seven peremptory strikes to exclude four black women and a black man. He excluded five other black jurors for cause, either because they were opposed to capital punishment or had some connection to the case. In a county where twenty-five percent of the population was black, the jury in the trial of a black man—charged with raping and murdering a white woman—included only one black juror.
Mr. Hunt’s case was “reopened” after a Winston-Salem Journal reporter—ironically, the same career field as the victim Deborah Sykes—began an investigative journalism piece on his case. The six-month investigation into the police tactics, as well as the prosecution’s reliance on biased jury selection and questionable witnesses that led to both of Mr. Hunt’s convictions, spurred a larger investigation and the filing of a clemency petition with the Governor of North Carolina.
In December of 2003, Mr. Hunt’s attorneys—still fighting for his justice nearly twenty years later—again requested to have the DNA profile from the crime scene run through the state database. The results matched a man incarcerated for another murder. The DNA was that of Willard E. Brown, who subsequently confessed and pled guilty to the murder of Deborah Sykes.
After more than 18 years in prison, the truth finally set Darryl Hunt free.
After more than eighteen years in prison, the truth finally set Darryl Hunt free. On February 6, 2004, Superior Court Judge Anderson Cromer vacated his murder conviction with prejudice. Then-Governor Mike Easley filed a State’s Pardon of Innocence in April 2004.
Mr. Hunt has not spent time dwelling on the past, or holding grudges against those who took steps to wrongfully convict him. Rather, he founded the Darryl Hunt Project for Freedom and Justice, which is fittingly housed adjacent to Forsyth Superior Court in downtown Winston-Salem. Mr. Hunt was awarded an honorary doctorate degree from Duke University in 2012 for his work “advocat[ing] for change in the justice system so innocent people won’t spend time incarcerated.”
Dr. Hunt recently came to Campbell Law to discuss his experience with the North Carolina justice system in the Race, Justice, and American Law class. One of his powerful pieces of advice for the students, as soon-to-be lawyers, was to treat their clients as humans, and as their equal. By his own lawyers visiting him, calling him, and sending him cards, he was able to endure his time in prison and maintain hope that he would one day be free.
As for Dr. Hunt’s personal advice to the class, regardless of the circumstances you face, “never let bitterness and hatred stay in your heart.”
[Thank you to Campbell Law students Anitra Brown, Paul Hogle, and Jamie Richardson for their research contributions, as well as Professor Geeta Kapur for inspiring her students in the inaugural Race, Justice, and American Law class at Campbell Law. The author wishes to pay tribute to Dr. Darryl Hunt’s unrelenting spirit and thank him for sharing his painful story with such strength.]