Lawyers argue over alleged racial bias in jury selection in death row of black defendant

Lawyers for a black defendant challenging his 2009 death sentence argued Wednesday that North Carolina's documented history of racial discrimination and perceived implicit bias in jury selection support his claim that he should be sentenced to life in prison.

If this happens in the case of Hasson Bacote, who was sentenced to death by ten white and two black jurors for his role in a murder in Johnston County, more than 100 other death row inmates in the state could also expect a similar commutation.

White jurors “are being thrown out. Black jurors of the same background are being thrown out,” said Henderson Hill, senior staff attorney with the American Civil Liberties Union, during closing arguments at Bacote's trial hearing.

His case is the flagship case that tests the scope of North Carolina's 2009 Racial Justice Act, which allows people sentenced to death to seek a commutation if they can prove that racial bias played a role in their case.

The landmark law was repealed in 2013 by then-Governor Pat McCrory, who believed it created a “loophole to avoid the death penalty,” but the state Supreme Court ruled in favor of many inmates in 2020, allowing those who had already appealed their cases, like Bacote, to move forward.

In their closing argument, lawyers for the North Carolina Attorney General's Office disputed Bacote's legal team's analysis and historical context, saying it was irrelevant.

If the test under the Racial Justice Act is “whether racism existed in our state, then no hearing is required in this or any other case. But that is not the question before this court,” said Jonathan Babb, a prosecutor in the state Department of Justice. “The question is whether this death sentence in this case was imposed solely on the basis of race. The defendant has not shown that his sentence was imposed solely on the basis of race.”

Now Supreme Court Judge Wayland Sermons Jr. must weigh whether Bacote's request for re-sentencing is justified. Legal experts say doing so would set a precedent for other death row inmates seeking relief. Sermons said he would make a decision but did not give a timeline.

When the Racial Justice Act was first enacted, nearly every inmate on death row, including both black and white inmates, requested a review, according to the Associated Press. According to the state Division of Adult Corrections, there are currently 136 inmates on North Carolina's death row, of whom 75 are black, 51 are white and the remaining 10 are of another race.

North Carolina has not executed anyone since 2006, partly due to legal disputes and difficulties in obtaining the drugs needed for lethal injection.

The state is not the only one where allegations of biased jury selection have prompted a review of death penalty cases. In California, the Alameda County District Attorney's Office began re-examining cases this year after evidence emerged that prosecutors improperly excluded black and Jewish jurors from a 1995 trial.

During two weeks of testimony earlier this year in Bacote's hearing, his lawyers called several historians, social scientists, statisticians and others to show a history and pattern of discrimination in jury selection, both in Bacote's trial and in other proceedings in Johnston County, a majority-white suburban county of Raleigh that once featured prominent Ku Klux Klan billboards during the Jim Crow era. The state had also presented 680,000 pages of evidence, including its notes on jury selection in 176 capital trials between 1985 and 2011.

Ashley Burrell, senior counsel at the Legal Defense Fund, which also represents Bacote, explained in her closing argument how statistics demonstrate racial disparities in death penalty cases. In Johnston County, Burrell said, in the 17 capital crimes examined, all six black defendants were sentenced to death, while in the remaining 11 cases involving white defendants, more than half were spared the death penalty.

Burrell said the various statistics were not the only evidence presented, but also explained how black men have historically been referred to in derogatory and racist terms at court proceedings to “suggest dangerousness.” In Bacote's case, she said, a prosecutor referred to him as a “criminal, cold-hearted and unrepentant” during his closing argument at his capital trial.

Such language “misrepresents the superpredator myth,” Burrell said.