Use this landmark ruling to end racial bias in North Carolina courts


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The North Carolina Supreme Court overturned the robbery conviction of a black defendant on February 11, 2022, ruling that prosecutors had racially discriminated in jury selection.  It was the first time the state's highest court has overturned a conviction on this basis.

The North Carolina Supreme Court overturned the robbery conviction of a black defendant on February 11, 2022, ruling that prosecutors had racially discriminated in jury selection. It was the first time the state’s highest court has overturned a conviction on this basis.


Last month, the North Carolina Supreme Court overturned the conviction of Christopher Clegg because an assistant Wake County prosecutor engaged in racial discrimination during jury selection. It was a historic moment.

Although studies show that prosecutors are much more likely to remove black citizens from juries, Clegg’s case is the first time our state’s Supreme Court has overturned a conviction on this basis.

Since then, many people have asked me what this decision meant. Will it lead to real change? Or is it just symbolic acknowledgment of a long-standing problem, soon to be eclipsed by an unsolvable status quo?

The answer will depend on the reaction of our trial judges, prosecutors and defense attorneys. But I hope the Clegg decision will not only force change, but also serve as an opportunity for reflection and growth within our justice system.

Racial discrimination is built into the American jury. All-white juries were a given during Jim Crow, with disastrous results for black defendants and black victims. After the civil rights movement made explicit racism taboo, prosecutors turned to the peremptory strike to eliminate black citizens from juries. Peremptories traditionally give attorneys the ability to disbar any number of jurors for any reason or no reason at all. In Batson v. 1986 Kentucky, the United States Supreme Court ruled that the reason could not be a juror’s race.

But until the Clegg NC Courts of Appeals accepted any reason a prosecutor could find to justify excluding jurors of color, no matter how ridiculous or unfounded. By overturning Clegg’s conviction, our state’s highest court sent the strongest message an appellate court could send. Trial prosecutors and judges should heed this or risk more convictions being overturned.

This will require a real change in the culture of courthouses. Because there was no application of Batson, discrimination has plagued our trial courts. Prosecutors have acted with impunity and defense attorneys have given up on protesting judicial inaction.

As the Clegg majority acknowledged, “a trial judge may be rightly reluctant to suggest that a prosecutor has engaged in racial discrimination when that prosecutor is standing right in front of her.” Talking about race is difficult; shout even louder at racism. And those in power in our state’s courtrooms have too often treated an accusation of discrimination as worse than the evil of racism itself.

For too long, the justice system has fought harder to defend its own than to protect black citizens excluded from a fundamental democratic right and black defendants sent to prison, even to death row, by racially racialized juries. biased.

Fortunately, change is possible. Elected district attorneys can confront their historical pattern of racial exclusion and train their staff to avoid it; they can track jury selection decisions from their offices and make that data available to the public. Defense lawyers can speak out when they see discrimination.

Trial judges must take their job of holding prosecutors accountable seriously; Governor Roy Cooper’s Task Force for Racial Equity in Criminal Justice is creating suggested jury selection practices for judges that might help. And voters can demand action from district attorneys and judges, who are, after all, elected officials, while pushing for statewide reforms like those several other states have passed.

The legacy of jury discrimination will continue unless those in power stop it. In his Clegg dissent, Judge Phil Berger Jr. dismissed the Wake County jury’s long history of discrimination as irrelevant, hopefully suggesting that “attitudes have changed.” But it should be obvious by now that the racial disparities born out of our nation’s history won’t magically disappear if we just sit back and hope.

As Frederick Douglass said, “Power concedes nothing without demand.”

The North Carolina Supreme Court’s decision in Clegg is a request. Those who wield power in our courthouses should take heed.

Elizabeth Hamburger is a senior attorney at the Center for Death Penalty Litigation. She represented Christopher Clegg at a stage of his case in lower court.

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