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Were Black jurors struck because of race? Question looms over NC death penalty case

Prosecutor's handwritten notes
Legal filings
/
Courtesy Jacob Biba
Handwritten notes from jury selection in Frank Chambers' murder case, where the district attorney noted jurors' race before striking them from the final panel.

This story was produced in partnership with The Garrison Project, an independent, nonpartisan organization addressing the crisis of mass incarceration and policing.

Last year, Bill Kenerly was in a Superior courtroom in Salisbury explaining why he dismissed six Black jurors without cause in a capital murder trial in 1994.

During the evidentiary hearing, attorneys from the North Carolina Department of Justice and a legal team representing Frank Junior Chambers, a Black man on death row, questioned Kennerly. Testimony from Kennerly, who served as Rowan County district attorney from 1991 to 2010, could lead to a new trial for Chambers. His attorneys argued that race played an impermissible role in the selection of a predominantly white jury that convicted him and two other Black men in the murder of an elderly white couple. The jury handed down death sentences to Chambers and one of his co-defendants; a third defendant was sentenced to life.

For six hours, Kenerly explained his decisions during jury selection and why he used peremptory strikes — which allow both prosecutors and defense attorneys to excuse jurors without providing a reason — against six jurors, with a focus on two Black women, Lana Jones and Melody Hall. In one exchange, Kennerly admitted to writing a note referencing Hall that included the word “race” and that his note “directly related” to her exclusion from the jury.

Three people standing with arms around each other
Courtesy Gretchen Engel
Attorney Julian Wright, Frank Chambers and Gretchen Engel in May 2021, after the judge vacated Frank's death sentences.

Chambers’ attorneys believe Kenerly’s admission was strong evidence that he violated the 1986 U.S. Supreme Court ruling in Batson v. Kentucky, which bars using race as a reason for excluding jurors. But in December, a Superior Court judge rejected Chambers’ claims, ruling that they were procedurally barred and without merit.

“During the cross examination of Mr. Kennerly, there were times when I know my jaw was literally dropped because I could not believe the things that he was admitting — that he was thinking — about these two Black women,” Gretchen Engel, one of Chambers’ attorneys and the executive director of the Durham-based Center for Death Penalty Litigation said.

In March, Chambers asked the North Carolina Supreme Court to review his case. In a brief filed with the court, Engel and Charlotte attorney Julian Wright contend that the Superior Court ruling is wrong and that Kenerly violated Batson in numerous ways that warrant a new trial.

“The Batson claim in this case may well be the strongest this Court will ever see,” Chambers’ attorneys wrote. “Only by ignoring substantial evidence and clearly established United States Supreme Court precedent did the Superior Court deny relief.”

Rife with racism

North Carolina’s criminal justice system is rife with racism particularly in its application of the death penalty. People of color make up more than 60% of the state’s 136 death row prisoners, even though the state is more than 60% white. North Carolina DA’s offices have a long history of racism in death penalty cases: in a 2001 case, one prosecutor referred to three Black defendants as “predators of the African plain.”

The state’s 2009 Racial Justice Act was meant to give people on death row the chance to challenge their death sentences if they could prove racial bias played a significant role in their conviction or sentencing. But in 2013, the RJA was repealed.

In 2020, the North Carolina Supreme Court ruled that claims filed prior to the RJA’s repeal could proceed. But that process has been slow — only four people have obtained relief, and all were resentenced to life without parole.

In the last few years, the state has turned over more than 680,000 pieces of discovery to attorneys representing another Black man on death row, Hasson Bacote, on his RJA claim. The discovery includes prosecutors’ files — including jury selection notes — from around 500 capital cases dating back to 1980. In a 1993 Iredell County case, a prosecutor wrote that a potential juror “lives w/ a group of black & white trash.” In a juror questionnaire from a 1996 Mecklenburg County case, a prosecutor highlighted that the juror belonged to the NAACP and that the most recent book they read was Richard Wright’s Native Son. In a 2002 Cumberland County case, prosecutors flagged one potential juror as “blk. wino – drugs” and another as “thugs.”

Bacote’s case is considered the lead RJA case, and if he gets a favorable ruling, it could signal relief for others on death row.

Chambers’ death sentence was vacated because of a 2019 federal court ruling related to juror misconduct in his case raised by his co-defendant Barnes. A new sentencing hearing will be conducted once Chambers’ claim under Batson is resolved.

His attorneys could ask for a hearing related to his intellectual disability to take death off the table. Chambers lifetime IQ scores have been measured as low as 63. In the 2002 U.S. Supreme Court case Atkins v. Virginia, the court ruled that executions of intellectually disabled people are prohibited by the Eighth Amendment.

If Chambers is successful in his Batson claim, he would receive a new trial. But in the nearly 40 years since Batson, North Carolina appeals courts have overturned only one conviction, in State v. Clegg, after finding that a prosecutor intentionally discriminated against a juror because of their race.

Leading up to the 2022 decision in Clegg, there was optimism among criminal justice reformers that North Carolina was about to provide relief in cases tainted by racial bias in jury selection. The state’s appellate courts remanded a series of cases back to trial court for evidentiary hearings to determine whether or not prosecutors violated Batson.

Following a 2018 evidentiary hearing in Clegg, the trial court ruled that the exclusion of a Black woman from the jury didn’t result from “purposeful discrimination,” even though the judge rejected the race-neutral reasons the prosecutor gave. When the case returned to the state Supreme Court, a majority of justices ruled otherwise, writing that the judge held Clegg to an “improperly high burden of proof.”

In a concurring opinion, Justice Anita Earls wrote that “when racial bias infects jury selection, it is an affront to individual dignity and removes important voices from the justice system.”

Emily Coward, director of the Inclusive Juries Project at the Duke University School of Law, said that trial judges are put in an uncomfortable position of having to effectively label a prosecutor a racist if they find Batson violations.

“They're the ones observing credibility,” she said. “But they're also the ones under the most pressure in the courtroom and interpersonally and in their role as judges in these communities to not issue this finding that people perceive as very damning.”

The ‘racial situation’

In the fall of 1992, Chambers, William Leroy Barnes and Robert Lewis Blakney arrived at the Salisbury home of B.P. Tutterow and his wife Ruby, shot and killed the couple and stole cash, jewelry and two revolvers. A fingerprint and a cigarette butt with Chambers’ DNA on it tied him to the scene, according to court records. Earlier that day, Chambers was released from the Rowan County Jail, where Tutterow worked as a part-time cook and as a deputy sheriff. According to court records, Tutterow gave Chambers cash to buy food and cigarettes while in jail.

In January 1993, the Christian Knights of the Ku Klux Klan marched Main Street in Salisbury and gathered at the courthouse to protest the killings. The Grand Klokan told a reporter the group was also protesting the Martin Luther King, Jr. holiday. One Klanswoman wore a t-shirt underneath her white robe that depicted King in crosshairs.

Questions of race permeated jury selection in the Chambers trial a year later. Defense attorneys asked potential white jurors if the “racial situation” — Black men charged with killing a white couple — would pose a problem if they didn’t find the defendants guilty.

When Kenerly questioned Hall about whether she would face criticism from her Black friends, she admitted she would, but said it wouldn’t be an issue, much like a white architect did when questioned by the defense. When further questioned by the judge, Hall remained steadfast in her answer.

Kenerly struck her anyway.

When attorneys for Chambers challenged the strike, the judge found no prima facie case, or proof of an “inference of discrimination” behind the strike, the first requirement in a three-step process to determine a Batson violation. But the judge suggested Kenerly provide his reasoning for striking Hall for the record in case questions about it arose on appeal.

Kenerly cited a list of seemingly race-neutral reasons for his strike of Hall — including that her hairstyle indicated a “nonconformist or non-traditional approach to her life” and she was “less stable in her life-style and potentially less responsible” because she was single.

Similar justifications for striking Black jurors were later memorialized in a training document to help prosecutors circumvent Batson challenges. In 2012, after defense attorneys discovered the document— called “Batson Justifications: Articulating Juror Negatives” — its use by prosecutors bolstered other claims of racial bias during jury selection in North Carolina. One case involving the document may be argued before the U.S. Supreme Court, if the court accepts it.

In a 2012 interview with the ACLU, Hall said “I felt like I was struck from the jury because I was an African-American.”

Kenerly said he struck Jones because she attended school with one of the state’s witnesses and had no prior knowledge of the case. He said she didn’t have a stable lifestyle even though she worked at a local HBCU in Salisbury and as a part-time radio announcer in Greensboro.

The judge determined that Kennerly’s reasons for striking Hall and Jones weren’t discriminatory, a common finding by trial judges at the time, and still today.

Seeking relief

In their petition for review, Chambers’ attorneys argued that the Superior Court failed to consider Kenerly’s pattern of juror strikes, his racially disparate questioning, the racial tension surrounding the trial and jury selection notes that reveal a focus on race.

During the evidentiary hearing, Kenerly admitted that a juror like Jones with no knowledge of the case is a good juror and that a 22-year-old hypothetical juror with a college degree and two jobs indicated stability.

In its jury charts, the prosecution also used labels for Black men and women and notes about their hairstyles, like “BOX HAIR CUT” and “cornrows.”

“Most significantly, in his jury selection notes and hearing testimony, the prosecutor admitted he considered race in framing his questions of a black potential juror and in deciding to strike her,” Chambers’ attorneys wrote.

On June 19, the state filed its response to Chambers’ petition. They argued that the Superior Court’s ruling is not in error and that Chambers’ claims are procedurally barred, and if even they weren’t, they are without merit. The state said Kenerly did not strike anyone because of their race.

A spokesperson for the state Attorney General’s office declined to comment, citing the ongoing case. Kenerly also declined to comment.

Timeliness is a central issue of Chambers’ claim. The state claims jury selection notes were available to Chambers’ post-conviction counsel as early as 1999, even though one of its former members, R. Marshall Bickett, a former prosecutor, criminal defense attorney and now a Rowan County district court judge, testified they weren’t provided to him. The judge in the evidentiary hearing agreed with the state, essentially discrediting — or at the very least, not taking into account — Bickett’s testimony, Engel said.

“For one judge to do that to another judge was surprising to me,” Engel said, noting the court could have “split the baby” and ruled that the claims weren’t procedurally barred but without merit.

Bickett also testified about how difficult it was to seat Black jurors when he worked as a defense attorney in Rowan County “because they were routinely taken off in peremptory challenges and they were avoided” by the prosecution.

It’s unclear when the state Supreme Court will rule on the Chambers’ petition for review. If the court declines to hear the case, the U.S. Supreme Court will be the only pathway for Chambers to get a new trial.

Since its 1986 ruling, the U.S. Supreme Court found prosecutors violated Batson in four cases, from the use of racially disparate questioning and strikes to discovery of jury selection notes with a focus on race.

“In this case, you have all of that and more,” Engel said. “It just really is a case that cries out for relief and has cried out for relief since 1994 when the jury selection happened.”

While Coward of Duke’s Inclusive Juries Project described Batson as a “massive failure in most ways” in North Carolina and in many jurisdictions around the country, it still provides some semblance of equal protection under the law. Coward said that in other areas of the criminal justice system where racial disparities exist, like traffic stops and selective prosecution, there’s been no such attempt to enforce equal protection.

During the 2023 evidentiary hearing for Chambers, Engel and Wright hoped to “put the trial on trial” and demonstrate that it was tainted by racism. To do that, Wright said, “we need to only look at the walls of this very courtroom here today and gaze upon all the portraits of white men, particularly older white, including slave owners, confederate officers, strict segregationists and outright racists honored here in the courtroom.”

When the Superior Court denied his claim in December, Engel remembered that Chambers said “All those pictures are still up there in the courtroom and nothing’s changed.”

Jacob Biba is a freelance journalist in Asheville. His work has appeared in The Assembly, The News & Observer, The Intercept, The New Republic, and others.