RJA hearing expert: Race is a factor in prosecutors’ decision to strike jurors

In poring over thousands of pages of court transcripts and prosecutors’ notes on jury selection in capital cases across North Carolina between 1985 and 2011, Barbara O’Brien developed an opinion on whether a person’s race played a role in prosecutors’ decision to strike them from serving on a jury.

“It is my opinion that race was a statistically significant factor,” O’Brien, a professor at Michigan State University College of Law, said in a Johnston County courtroom Tuesday.

O’Brien was the first witness called by attorneys for Hasson Bacote, a Black man on North Carolina’s death row who is challenging his death sentence via the Racial Justice Act. If his attorneys are successful, Bacote would be resentenced to life without parole — but first he must prove racial discrimination played a role in his death sentence.

Part of his attorneys’ argument involves racial discrimination in jury selection, alleging a link between that discrimination and the imposition of the death penalty in North Carolina.

In preparing for the evidentiary hearing, attorneys for the state turned over 680,000 pages of discovery, documents that include jury selection transcripts and prosecutors’ hand-written notes on jury selection in 176 capital cases between 1985 and 2011. Those cases are from all across North Carolina, not just in Johnston County, where jurors convicted Bacote in 2009.

Those documents informed O’Brien’s study, which she completed with Catherine M. Grosso, who is also a professor at MSU’s law school. The report found that prosecutors exercised peremptory challenges — dismissing a juror without a reason — at a significantly higher rate against Black prospective jurors than all other people in a jury pool. Prosecutors struck more than 50% of eligible Black prospective jurors, compared to only about 25% of all other eligible prospective jurors.

Also according to the study, Black prospective jurors were more than 2.5 times more likely to be struck from a jury pool statewide, four times more likely to be struck from a jury pool in Johnston County and 10 times more likely to be struck in cases tried by Assistant District Attorney Gregory C. Butler, who also prosecuted Bacote.

Marissa Jensen, special deputy attorney general for the North Carolina Department of Justice, asked O’Brien repeatedly about the study’s limited sample size. Jensen noted the data on Johnston County relied on just seven cases, and those involving Butler relied on just four cases, despite the fact that the prosecutor had tried more than a dozen capital cases over his career.

The study states that researchers examined jury selection for all of those who were on death row as of July 1, 2010, and those sentenced to death between then and April 9, 2011. In other words, it does not include data from cases where the death penalty was merely sought, just those where it was imposed. Jensen said that meant the sample size was a “small fraction” of all capital cases tried across North Carolina during that timeframe.

O’Brien said that sample size was “actually a pretty decent sample,” and that she didn’t think prosecutors would behave differently just because the outcome of the case was different.

“I have no reason to believe that when you started jury selection, and you’re trying to get a death penalty, that you’re going to behave differently in cases that end in life,” she said. “That’s why I don’t think it’s a problem to look only the cases that got death, because I don’t believe that the behavior of the prosecutor would be any different between life and death cases.”

As for relying on just four capital cases tried under Butler, O’Brien admitted it was always better to have more data, “But what looking at Mr. Butler in particular does is it shows that you have the statewide pattern, you have this local pattern, and it’s no different the way he does it; in fact, it may be more aggravated… this is showing the consistency with the overall pattern.”

O’Brien has served as an expert witness in other cases. Jensen noted that O’Brien had conducted a study for a South Carolina case that a judge ultimately deemed unreliable in part because she had omitted a case from the dataset. Doing that in this case in North Carolina would be significant, Jensen said, because each case’s omission would remove more than 100 prospective jurors from the overall dataset.

O’Brien said that South Carolina report did not deal with people on death row, as the North Carolina study does. She noted that it was much easier to figure out how many people are on North Carolina’s death row, as the prison system maintains a death row roster on its website. That makes it much easier to account for all the cases, since there is no similar database for people serving life sentences in North Carolina prisons.

“This is about as close as I can get to being 100% certain,” O’Brien said.

North Carolina hasn’t executed anyone since 2006, but there is widespread fear among advocates for the condemned that executions could resume under a different governor or after a state Supreme Court ruling that clears a path for the execution chamber to reopen.

As the lead case involving the Racial Justice Act, the outcome of Bacote’s case will set a precedent for how judges handle the remaining RJA claims of roughly 120 on North Carolina’s death row.

Click here to read Newsline’s coverage of the arguments attorneys are expected to make over the course of the hearing, which is expected to take at least a week. Superior Court Judge Wayland J. Sermons Jr. is hearing the case.