Opinions In RJA Cases Shed Light On Failure To Protect Black Citizens’ Right To Serve On Juries

By David Weiss

On Sept. 25, 2020, the North Carolina Supreme Court ruled that Christina Walters, Quintel Augustine and Tilmon Golphin had been unlawfully returned to death row after receiving life sentences under the state’s Racial Justice Act (RJA).

In each of the three cases, NCAJ filed an amicus brief written by Bidish Sarma and Burton Craige. NCAJ’s brief addressed one of two grounds on which the Supreme Court granted relief: that it violated constitutional protections against double jeopardy to reimpose death sentences on Walters, Augustine, and Golphin after they had proven at prior hearings that they were entitled to life sentences under the RJA.

The North Carolina legislature passed the RJA in 2009. Subsequently, a statewide study showed that in capital trials prosecutors dismissed Black citizens at 2.5 times the rate they excluded whites. This disparity was driven entirely by race and could not be attributed to any other factor, such as death penalty views. The study also found that crimes with white victims were twice as likely to be punished with death.

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Second NCAJ Diversity and Inclusion Conference Covers Implicit Bias, Workplace Issues, Historic Racism

Chief Justice Cheri Beasley struck a hopeful note as the keynote speaker at Friday’s Second Annual NCAJ Diversity & Inclusion Conference, saying the unrest that has rocked the nation in recent months has also opened doors to more powerful and meaningful conversations about race and gender.

Chief Justice Cheri Beasley

“It’s been really important for all of us to seek a different kind of resolve for issues that we don’t want to talk about and that we don’t want to address,” she said. “I think it’s been really important that as we move through these issues, we come together. We really are a profession that through the history of this nation, regardless of what the challenges are, we’ve come together and we’ve led through these challenges. We’ve changed the course of history before, and I believe we can change the course of history now. I believe all of us have a desire to do better and be better, and I’m really excited about that.”

Beasley followed a slate of speakers who addressed issues of historical racism, implicit bias and workplace diversity and inclusion. North Carolina Central University School of Law Professor Irving Joyner kicked off the morning with a thorough and thoughtful overview of race and the law in North Carolina, drawing a bright line between Reconstruction era laws and the systemic inequities in North Carolina’s modern justice system. Jessica L. Whitney, Ph.D, who teaches at UNC-Wilmington and is an experienced diversity and inclusion instructor, outlined the dangers of professing that we live in a post-racial society. She offered practical advice for professionals to follow in being intentional in their diversity and inclusion efforts.

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NCAJ Supports State Bar’s Evaluation Of a Diversity & Inclusion CLE Requirement

NCAJ President David Henson has sent a letter to the chair of the N.C. State Bar’s Continuing Legal Education Board, George L. Jenkins Jr., providing notice of NCAJ’s support of the board’s effort to evaluate the inclusion of diversity and inclusion training as part of the annual continuing legal education requirement. Read the letter here.

At its Aug. 4 meeting, the State Bar Board of Continuing Legal Education’s Subcommittee on Bias and Diversity met to discuss potential changes to the annual MCLE requirements to include an hour covering topics related to bias and diversity. The subcommittee looked at requirements of other states and will begin drafting language for a potential rule change. The subcommittee will meet again in late August to finalize language and discuss procedural aspects of the rule with the goal to present their recommendation to the full CLE Board at the end of September 2020. If approved, the recommendation will go to the State Bar Council for consideration. The earliest implementation date for the rule change is January 1, 2022.  

This issue was raised at the inaugural NCAJ Diversity & Inclusion Conference last fall. NCAJ is forming an internal working group, led by Stewart Poisson as the Diversity Officer and Sonya Pfeiffer as the Legal Affairs VP, to explore the issue of the diversity and inclusion CLE requirement and the issue of adding anti-discrimination language to the State Bar’s Rules of Professional Responsibility, as described in an earlier blog post.

Please email Executive Director Kim Crouch by Wednesday, Aug. 12 if you are interested in serving on the internal working group or would like to suggest a member to serve.

 

NCAJ In Favor Of Adding Anti-Discrimination Language To State Bar RPC

NCAJ supports adding anti-discrimination language to the North Carolina State Bar’s Rules of Professional Responsibility, an issue the State Bar’s Ethics Committee addressed during a special meeting today.

The State Bar is considering adding anti-discrimination language in three contexts: as a change to the preamble, as adoption of Model Rule 8.4(d), and as a proposed comment to Rule 1.1 (Competency) on awareness of implicit bias and cultural competency.

During Thursday’s meeting, the committee voted 23-5 that a proposed change to the preamble be published for comment. State Bar Councilors will review that decision at their meeting tomorrow. As for a potential rule or comment to the rule change, the Ethics Committee suggested employing a subcommittee to study the issue of whether to amend Rule 8.4(d). After a unanimous vote to study a rule change, Ethics Committee Chair David Allen indicated that he will accept recommendations of Ethics Committee members to serve on the subcommittee. Regarding a potential comment to Rule 1.1, the Ethics Committee suggested employing a separate subcommittee to study the issue. The committee voted unanimously to move forward with appointing a subcommittee.

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Hobbs Decision a Good Start To Ending NC’s Legacy Of Race Discrimination In Jury Selection

By David C. Weiss

Last week, on May 1, the N.C. Supreme Court issued an important decision in State v. Hobbs, No. 263PA18, clarifying several aspects of North Carolina case law that have long been barriers to relief under Batson v. Kentucky, 476 U.S. 79 (1986), the landmark decision that established the modern framework for addressing race discrimination in jury selection.

The court granted review of the case after Hobbs pointed out in his petition for discretionary review that North Carolina has a serious, unaddressed problem of denying black citizens the right to serve on juries. Two different comprehensive, statewide studies have shown that black citizens are excluded from both capital and non-capital juries at twice the rate as white citizens. Another recent study revealed that North Carolina has the only appellate court system in the South that has never, in the three decades since Batson was decided, recognized an instance of discrimination against a juror of color.

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Part 2: The Educators

by Bradley Bannon, NCAJ President

By now, even if you haven’t seen it, it’s hard to imagine you haven’t at least heard of the movie “Black Panther.” In four months this year, it became the ninth highest grossing movie of all time. The fact that it’s a superhero movie was unremarkable. The fact that the superhero was an African man, whose three strongest and closest allies in the movie were all African women, each with different areas of skill and expertise, was unprecedented.

“Half the battle is getting that kind of imagery made,” Rafe Chisolm told SF Gate. “Lots of kids never see anyone who looks like them in that kind of light.” Chisolm made sure that lots of them did, by organizing screenings for them in their home town of Oakland, California—a key location in the plot of the movie.

I’d learned a similar lesson about imagery while working with Karonnie Truzy and Sarah Olson in their roles as Co-Chairs of NCAJ’s Diversity and Inclusion Task Force (DITF).

Karonnie, who also serves as the organization’s inaugural Diversity Officer and is receiving an Ebbie Award this year for his years of service to the NCAJ and its mission, told me about how he had to be contacted several times about becoming more involved in the organization before he finally agreed. Why the initial reluctance? Because he hadn’t really seen anyone else who looked like him in leadership, or behind the podium at the front of the rooms where most of our members regularly convene: our CLEs.

Sarah, who also serves as the Criminal Defense Section Chair this year and previously received an Ebbie herself, spoke more bluntly about the impact of imagery at that podium: “When you are a woman, and you attend CLEs where every single faculty member is a man, it raises real concerns about the role of women in the organization and how women are viewed by the organization.”

This makes perfect sense. It’s not as if our profession is devoid of women and people of color who are highly qualified to teach our CLE programs. So when you don’t see them at the podium, and when you are one of them, you may quite naturally wonder whether there’s much of a role for you in the organization and its CLE programming, beyond paying for admission of course. And the more you’re made to wonder that, the more likely you are to seek other professional communities and programs where you feel more welcome.

In recent years, NCAJ leadership has recognized shifting sands in our population, profession, and organization. In 2015-2016, NCAJ President Chris Nichols highlighted the need to attract Millennials, who by that time had already surpassed Baby Boomers in the workforce. In 2016-2017, President Bill Powers recognized the need to focus more intentionally on diversity in our membership and leadership. This year, I have built on both of those initiatives by developing a more formal organizational framework to connect with the state’s law schools and students.

NCAJ’s effort to reach Millennials and tap into the law school pipeline is no more designed to exclude or devalue our members of other generations (like me) than its effort to strengthen diversity and see more women and people of color behind CLE podiums is designed to exclude or devalue members of any other categorical group (like me). Quite the contrary, it’s all designed to recognize an undeniable truth: there is strength in numbers.

The pragmatic side of that truth is that NCAJ must expand and cultivate a broad membership base to survive and successfully pursue our mission in an evolving profession. The aspirational side of that truth is what we recognized when we adopted our Diversity Statement last year. And both sides are served by putting people behind the podium in our CLEs who are not only qualified, but reflect all members of our profession and organization.

That is why, after publication for comment, the Board of Governors adopted a Diversity Plan last fall that included an initial goal of developing and implementing a Speaker Diversity Program. Working with DITF membership and leadership, as well as Education Committee members and Vice President Meghann Burke, NCAJ Executive Director Kim Crouch and Education Director Alex Rogers developed an infrastructure of member tools and staff support to assist CLE planners in achieving more speaker diversity.

We now have a Speaker Diversity Database, and our staff will be working with members to build that database over the months and years to come into a powerful resource for helping program planners identify qualified presenters. We have created a checklist for planners, highlighting the speaker diversity goal. We have begun to collect and analyze data on a quarterly basis about the extent to which we achieve the goal and the factors involved in that success. We are working more closely with Section and Division Chairs to identify speakers at the Section levels. Membership Vice President Sonya Pfeiffer has been working with Membership and Development Director Amy Page Smith to establish and renew our connections to affiliate organizations and affinity bars.

These institutionalized efforts are long overdue. NCAJ did not suddenly begin to value the worth and dignity of all of our clients and members when we adopted the Diversity Statement and crafted the Diversity Plan last year. We just became more intentional about weaving that valuation into the fabric of our entire organization. In terms of institutionalizing the efforts, we are either shoulder-to-shoulder with or trailing other professional organizations. This point was brought home to me in March, when, in my capacity as NCAJ President, I accepted an invitation from Dayatra Matthews, the first African-American female President of the North Carolina Association of Defense Attorneys, to attend NCADA’s first day-long program focused on identifying and addressing white privilege and implicit bias, two loaded terms I wrote about coming to terms with myself in this space last week. Fortunately, nothing but good can come from our institutionalized efforts, and everything about them is who we are and need to be.

Specifically regarding the Speaker Diversity Program, we have recognized the reality that the educators at our CLE programs are not just teaching attendees about the substance of their presentations, but about the substance of who we are and who we value as an organization. Because #WeAreNCAJ, we value everyone who shares our mission—from our clients, to our members, to our leaders, to our educators. Since that’s the substance of who we are, it should certainly be the imagery we project.

And, of course, #WakandaForever.

An Historic Effort and Righteous Results

When a post comes across the [email] listserv announcing a case-related win of any kind, it feels good to every criminal defense lawyer who is swinging the battle ax day in and day out.  We celebrate with congratulatory replies and if we see that winning attorney in court we high five her.  A win for one is a win for all, and the shared revelry helps each of us keep up the fight.

Over the past several years, many criminal defense section members have quietly secured big wins for federal inmates who were sent to prison during the War of Drugs from the 1980s to the 2000s.  That War, as we all now know, is uniquely responsible for our current reality of mass incarceration.  Former President Obama announced an unprecedented clemency initiative in 2014, focusing on those convicted of drug-related crimes who received crushing mandatory-minimum sentences.

In response to Obama’s initiative, several national bar associations organized and created the nationwide Clemency Project in 2014.  The American Bar Association, the American Civil Liberties Union, Families Against Mandatory Minimums, the Federal and Community Public Defenders and the National Association of Criminal Defense Lawyers (NACDL) all took part in the project.  NCAJ is an affiliate of NACDL.

Calling America a “nation of second chances,” Obama commuted a total of 1,715 sentences by the time he left office.  NCAJ Criminal Defense section members Raymond Tarlton and Elliot Abrams, with the help of the Office of the Federal Public Defender in the Eastern District, successfully reduced the sentences of 6 people.

In one of Abrams’ cases, his client, Tony Taylor, had been sentenced to life in prison for a crack cocaine possession conviction.  Obama’s commutation reduced the sentence to 293 months.  While still an oppressive sentence, Taylor will see freedom in another 10 years.  “I never thought I’d get to see my daughter as a free man; now I will,” Taylor told Abrams.

Section member Jamie Lau, the supervising attorney at Duke’s Wrongful Conviction Clinic, took on several cases so that law students could assist in the clemency initiative.  One heart-swelling success was the case of James Burns, who in 2005 was sentenced to 235 months in prison for selling small amounts of crack cocaine.  Burns headed to federal prison with a release date of 2024.  He was a model prisoner, well-liked by fellow inmates and prison staff.  When his clemency petition was granted, Burns’ prison case manager told Lau that “Mr. Obama has picked himself a deserving one.”  Burns new release date is March 4, 2017.

Dozens of section members worked on petitions for clemency, many of which were not granted.  Even in the cases not granted, however, our members connected with federal inmates and established a relationship that showed, quite simply, that those behind bars are not forgotten.  While not a “win” in the traditional sense, a much-needed extension of compassion still provided hope and emotional sustenance for both the inmate and the attorney who reviewed the case.

The Clemency Project is now closed, but represented the best of what we can be as lawyers:  a diverse group of volunteers from the nation’s bar who together screened the cases of more than 36,000 federal prisoners who asked for assistance.  In total, the Project submitted 2,600 petitions, 705 which were granted.  Obama reinvigorated clemency, and our section members were a part of an extraordinary coalition who embraced Obama’s initiative that yielded results worth celebrating.

 Sonya Pfeiffer, VP of Membership and Chair of the NCAJ Criminal Defense Section, is a partner at Rudolf Widenhouse www.RudolfWidenhouse.com.  

New Resource for Miller Cases

Earlier this year, the Supreme Court of the United States issued its opinion in Montgomery v. Louisiana, 193 L. Ed. 2d 599, 622 (2016), which made the holding of Miller v. Alabama, 183 L. Ed. 2d 407, 424 (2012), retroactive. Miller, of course, held that mandatory life without parole sentences for juvenile defendants violate the Eighth Amendment ban on cruel and unusual punishment. However, Miller also laid the groundwork for the Court’s determination in Montgomery that a discretionary life without parole sentence also violates the Eighth Amendment “for a child whose crime reflects ‘unfortunate yet transient immaturity.’” Montgomery, 193 L. Ed. 2d at 619 (quoting Miller, 567 U.S. at ___, 183 L. Ed. 2d at 424).

The decisions in Miller and Montgomery have already affected North Carolina and will continue to influence juvenile delinquency and criminal cases in this state for years to come. Soon after the decision in Miller was issued, the North Carolina General Assembly enacted a statutory scheme for sentencing juvenile defendants convicted of first-degree murder. Under the new statutory scheme, trial judges retain the ability to impose discretionary life without parole sentences for those defendants. North Carolina is also one of only two states in which 16- and 17-year-olds charged with crimes are prosecuted in adult criminal court. Under a separate law, cases in which a juvenile court judge finds probable cause to believe that a 13-, 14-, and 15-year-old committed first-degree murder are also automatically transferred to adult criminal court. In light of the Supreme Court’s ruling that Miller is retroactive, as well as unique aspects of North Carolina law that funnel juveniles to superior court, there will be many cases across the state that will result in sentencing hearings to determine whether defendants who were juveniles at the time of a murder should receive sentences of life in prison with or without parole.

To help attorneys prepare for these hearings, a working group of attorneys from the Office of the Juvenile Defender, the Office of the Capital Defender, the Office of the Appellate Defender, and North Carolina Prisoner Legal Services has developed a handout entitled, “Strategies for Litigating Miller Cases.” The handout provides advice for obtaining mitigating evidence, a description of the research that influenced Miller and Montgomery, a discussion of constitutional arguments against life without parole sentences, and much more. The handout also provides hyperlinks to sample motions and other resources that will aid attorneys as they defend their clients in these cases.

If you are retained or appointed to handle a retroactive sentencing hearing or a case involving a new first-degree murder charge against a juvenile client, please be sure to review the handout, which is available on the Appellate Defender website. In addition, if you are interested in joining a listserv about Miller issues, please send an email to David Andrews, Assistant Appellate Defender, at David.W.Andrews@nccourts.org. The listserv will enable attorneys in the working group to post new appellate court decisions on Miller issues and provide a forum for questions on Miller cases. Finally, please stay tuned for announcements on training events for Miller cases. Over the next several months, the working group will develop presentations on Miller issues and will work to share those presentations to attorneys across the state.

David Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services.  OAD staff attorneys represent indigent clients in criminal, juvenile delinquency, and involuntary commitment appeals to the Court of Appeals of North Carolina and the Supreme Court of North Carolina.

Do Black People Commit MORE Crime?

“Mass incarceration disproportionately affects racial minorities.”   North Carolina Advocates for Justice Board of Governors [full text]

 The Numbers.

Nearly 7 million people are in prison, in jail or under supervision in the United States. It is estimated that we spend more than $70 billion per year on them. That is a ratio of 7:70 or 1:10. For every 1 million prisoners, this country spends $10 billion on them. Contrast that with Charlotte, NC in Mecklenburg County – a county with a population of 1 million people and a county budget less than $2 billion.

In comparison, it costs $8 billion more to put people in small concrete cells to rot, than it does to operate the nation’s second largest and vibrant banking town! But the criminal justice system is not sustainable. Did you know that it is expected to go bankrupt by 2050? That’s not that far away.

Still, of these 7 million people, African Americans make up a disproportionate majority. Here in North Carolina, 57% of the prison population is African American, although they make up only 22% of the state’s population. It got me thinking “why are there so many black people in prison?”

A recent online anonymous post read like this: “if you don’t want to go to prison, then don’t commit crime.” It must follow then that if black people are overrepresented in the system, then ipso facto, blacks must be committing more crime. But I wonder if America really believes this?

A Question Amongst Friends.

A few months ago, I was at lunch with a group of white friends. One of them asked me as a public defender if my clients were mostly black. She continued “because when I turn on the TV and watch the news, all I see are the faces of young black males. No matter the crime, it’s always a black face.” Others agreed with her. The collective thought was that black males are in prison because they commit more crime. I guess America does believe it.

But over time, I began to wonder if this was just flawed circular reasoning. Do high prison numbers mean more crime and vice versa? Ultimately, I wondered “do black people commit more crime?”

Well, before I answer this question, I wonder if you will take a journey with me down “inquiring minds want to know” lane.  I need to answer first, what is crime? Second, who commits it more? Third, is this the reason black people are overrepresented in the system?

What is crime?

Something does not become a crime simply because you get caught. Rather, crime is doing an illegal act, whether you get caught or not. Smoking marijuana is a crime. Drinking and driving with a BAC of 0.08 or higher is a crime. Taking paper clips and pens from work for personal use is a crime. The list of crimes goes on. Let me ask you, have ever done something illegal?

Who commits it?

Picture a drug dealer. Go ahead. What does he look like? Are his clothes baggy? Skin complexion light or dark? Is the person you pictured a black male?  Most people say “yes.” Let me ask you another question. If you have ever used drugs, who gave you those drugs? Most people say it came from someone white.

As a college professor, I ask my class of predominantly white students to raise their hands if they have ever used drugs, gotten into fights, used alcohol before the age of 21, threatened to harm another, or touched someone inappropriately/sexually?  Sad to say, every hand is raised.

Are we naïve enough to believe that crime somehow stops when these folks enter the workforce? Unfortunately, drug abuse, domestic violence and employee-related thefts occur every day. But this is no surprise to you – you know this is happening. And isn’t corporate America predominantly white?

Would you believe me if I said that white people commit MORE crime than black people? Well, over the past 20 years, there has been a 130% increase in drug crimes committed by whites. Alternatively, there has been a 50% decrease in drug crimes committed by blacks. Statistics generally inform us that white people commit more crime overall.

Why are black people overrepresented in the system?

As logic would have it, my lunch buddies believed that more crime is the reason for high prison presence. But even though whites commit more crime, blacks are overrepresented in the system. So why are blacks sent to prison more than whites?

Back to the drug scenario, all communities are suffering from drugs and overdoses.  However, when whites started to get arrested at disproportionate numbers, the criminal system responded, rather quickly, by creating treatment programs and new laws as alternatives to incarceration and convictions. Consequently, my white clients were directed down the path of treatment while my black clients continued down the path of incarceration.

The result is inevitable. Don’t just take my word for it … look to your own community to see who is filling the treatment facilities and who is being incarcerated. We call white drug users “addicts” and black drug users “criminals.”  And addicts get treatment; criminals go to prison. That is our harsh reality.  But why, pray tell, are blacks mass incarcerated? Well, at least for now, we know it is not because they commit MORE crime.

Conclusion

We face a major problem, America. This is not just a black problem. It is an American problem. And we cannot incarcerate our way out of it.

 

Written by Toussaint C. Romain an Asst. Public Defender in Charlotte Mecklenburg County. He represents Habitual Felons, Robbery, Drug Sales, Breaking & Entering, Serious Assaults and more. Mr. Romain is also an Adjunct Professor at the University of North Carolina at Charlotte, teaching a constitutional law course. Mr. Romain volunteers and serves in several capacities in his community at various levels. To contact Mr. Romain email him at Toussaint.Romain@MecklenburgCountyNC.gov or call him directly at (704) 686–0969.

Symposium on Equal Rights on May 3 in Greensboro – Law Day 2013

In commemoration of the 150th anniversary of the issuance of the Emancipation Proclamation and the 50th anniversary of Rev. Dr. Martin Luther King Jr.’s ‘I Have a Dream’ speech, the American Bar Association chose Realizing the Dream: Equality for All as its 2013 Law Day theme. The members of the NC Advocates for Justice (NCAJ) legal association are dedicated to protecting the rights of all North Carolinians. On May 3, NCAJ will be hosting a full-day, free symposium on equal rights consistent with the ABA theme. This event is co-sponsored by the International Civil Rights Center and Museum in Greensboro and will be held at the museum.

The May 3 event entitled Realizing the Dream: The Elusive Quest for Equality and Fairness in America will provide an opportunity to explore the civil and human rights movements in America and their impact on promoting the ideal of equality for all. Presentations begin at 9:00 am, to be followed by an afternoon reception. Speakers to include:

Historian David Cecelski: “The Fire of Freedom: Abraham Galloway and the Slaves’ Civil War”
UNC Law Professor Gene Nichol: “Lincoln, King, and the Challenge of Equal Justice”
Attorney Anita Earls and Bob Hall: “Voting Rights Under Attack, Past and Present”
-Panel Discussion moderated by attorney Lewis Pitts; Panelists: Attorneys Keith Howard and Mark Dorosin, and Deena Hayes-Greene: “Causes, Consequences, and Elimination of the School to Prison Pipeline”
Attorney James E. Ferguson II: “Litigating Race in North Carolina – A Retrospective”
-Panel Discussion moderated by attorney Malcolm Hunter; Panelists: Judge Lou Trosch Jr., Judge Gregory Weeks, and Dr. Seth Kotch: “Racialized Mass Incarceration and It’s Impact on Equal Justice”
Reverend Dr. William J. Barber II: “Recovering a Noble Principle: Equal Protection Under the Law”
Attorney Karen Bethea- Shields (Galloway) and Historian Dr. Gena Rae McNeil: “State v. Joan Little – Defending Black Womanhood from Racialized Sexual Violence Through Advocacy and Activism”
For more information or to register for this event, please contact michelle@ncaj.com