Key Question Before State Supreme Court: Will NC tolerate race discrimination in jury selection?

September 27, 2021   |   David Weiss

David Weiss is co-counsel on an amicus brief that was filed in support of the defendant, Christopher Clegg, and on behalf of Common Cause and Democracy North Carolina. NCAJ member Elizabeth Hambourger of the Center for Death Penalty Litigation and Paul S. Ryan are also co-counsel for amici.

The racial justice protests last summer have spurred some important institutional changes in North Carolina. Governor Cooper, for example, appointed a statewide commission to promote racial equity in the criminal justice system. Several of the commission’s recommendations have already been adopted, including recent bipartisan legislation. The state supreme court was also moved to action. Last year, for the first time, the court issued an opinion that explicitly acknowledged North Carolina’s history of excluding Black citizens from jury service.

Next week, on Oct. 6, the court will hear arguments in a case that presents another opportunity for progress toward a more racially-equitable legal system. The case, State v. Clegg, gives the court a chance to end North Carolina’s inexcusable status as the only state in the South whose appellate courts have never found race discrimination against a juror of color.

In Clegg, the prosecutor moved to strike a qualified Black juror. When the defense objected that race was a factor, the prosecutor gave several reasons for the strike: the juror’s “body language” and the fact that she would not “look at” the prosecutor, as well as the juror’s statement that she “supposed” she could be fair. The judge eventually found that these reasons were invalid. There was no support for the vague claim about the juror’s body language and eye contact. And the other reason was just not accurate: the juror never expressed any hesitation about being fair. Yet, even after finding that the prosecutor had failed to offer a single, valid “race-neutral” reason for the strike, the trial judge still found that race was not a factor in the juror’s removal.

 In short, the juror in Clegg was fully qualified to serve and responsibly reported for service. The prosecutor questioned her but could not identify any legitimate reason why she could not serve. But the prosecutor struck her anyway, and the trial judge allowed it. Thus, the question in Clegg is whether a North Carolina prosecutor should be permitted to bar a Black citizen from jury service even when the prosecutor can’t point to any valid reason for keeping that person off the jury. Of course, the answer is no.

The legal context makes this answer even more clear. The law in North Carolina is that a prosecutor’s peremptory strike is not allowed when race is a significant factor. To prove that race was a factor, the defendant need only make this showing by a preponderance of the evidence, meaning, the risk that race was a factor need only tip just over the 50% mark for the peremptory strike to be disallowed. It should not be difficult for the court to find this threshold satisfied in Clegg, where the prosecutor could not point to a single valid reason for excluding the juror.

Our state supreme court has every reason to apply this law and reverse Mr. Clegg’s conviction. Although the court last year finally, and admirably, acknowledged the state’s history of race discrimination in jury selection, it still has never actually enforced the law and reversed a conviction because of it. This failure has had predictable results. Rigorous studies have proven over and over that prosecutors—freed from any concern that their trials might be reversed on appeal—exclude Black citizens from jury service in North Carolina at far greater rates than whites.

This cannot stand. For one thing, it is an ongoing and unchecked violation of the constitutional rights of thousands of Black citizens across the state. This discrimination by prosecutors also deprives our legal system of the invaluable experiences and perspectives of people of color. The exclusion of diverse jurors also increases the risk of wrongful convictions. In order to have the truly fair and equitable justice system that we all want, we must ensure that all people are welcome to participate in it.

For too long, North Carolina’s appellate courts have shied away from enforcing the constitutional ban on racial bias in jury selection. Not just the courts, but all of our government institutions have resisted addressing racial bias unless it presents itself in the extreme. Sometimes it seems the courts are waiting for a prosecutor to openly admit that racism drives his jury strike decisions. But we know today that racial bias is, most of the time, much more subtle. Yet it is no less damaging in its less obvious forms.

The court faces a simple choice in Clegg. Deny relief, as it has done in every other jury discrimination case in its history, and lower court judges and lawyers will continue giving this foundational constitutional right little thought or attention. Prosecutors will continue barring Black citizens from jury service without consequence. Or, the court could grant relief as the law demands. In doing so, the court would signal that our state will no longer tolerate this form of racial discrimination. On Oct. 6, when the case is argued, we may find out which path our state supreme court prefers.


About the Author

David Weiss