In court papers filed this month, prosecutors say a Forsyth County man cannot use alleged patterns of racial discrimination to prove that race played a role in his conviction for killing a Winston-Salem Kmart security guard in the 1990s.

Prosecutors reject the idea that race played any role in jury selection in Russell William Tucker‘s trial and argue that any allegation of racial discrimination in any other Forsyth County murder trial has no relevance in Tucker’s case.

Tucker, 53, is on death row after a Forsyth County jury convicted him in February 1996 of first-degree murder in the shooting death of Maurice Travone Williams. Williams was a security guard at the former Kmart store on University Parkway. At trial, prosecutors allege that Tucker shot Williams in the chest on Dec. 8, 1994, after Tucker walked out of the store in clothing Williams believed Tucker had stolen.

At issue in his latest appeal in Forsyth Superior Court is the use of peremptory strikes, which prosecutors and criminal defense attorneys can use to remove potential jurors without giving a reason. But prosecutors are prohibited by a 1986 U.S. Supreme Court ruling from using race in making those decisions, and if challenged, prosecutors need to give a non-racial reason for removing a juror. Tucker’s attorneys, Elizabeth Hambourger and Mark Pickett, have argued that Forsyth County prosecutors Robert Lang and David Spence skirted that prohibition by using a training document to come up with pre-packaged non-racial reasons when challenged on excluding black people from the jury in Tucker’s case.

Tucker’s attorneys also argue that Lang and Spence used similar strategies in other murder cases that they handled and that statistics show Forsyth County prosecutors removed black people from juries at a higher rate than they did white people. They have cited a Michigan State University study that said from 1990 to 2010, Forsyth County prosecutors removed potential black jurors at a rate 2.25 times higher than they got rid of other jurors in death penalty cases. A recent study by three law professors at Wake Forest University found that in 2011, Forsyth County prosecutors struck potential black jurors from all types of jury trials at three times the rate they struck white potential jurors, a rate higher than Durham, Charlotte, Raleigh, Greensboro and Fayetteville.

Prosecutors: No evidence of racial bias

Danielle Marquis Elder and Jonathan Babb, prosecutors for the N.C. Attorney General’s Office, filed a written answer June 19 to an amended appeal in Tucker’s case. They argue that Tucker’s attorneys never provided any sufficient evidence that race played a role in jury selection at Tucker’s trial. They also argue that no pattern of racial discrimination has been proven and is not relevant to Tucker’s case. In many of those other cases, trial and appellate courts rejected the allegations of racial discrimination and those issues cannot be raised in Tucker’s appeal.

“Even if this court were to consider various strikes from various cases tried in Forsyth County, Tucker has nonetheless failed to show that the prosecutors in his case were motivated in substantial part by discriminatory intent in exercising these three peremptory challenges,” Elder and Babb said.

They point to one of the cases that Tucker’s attorneys cite as a pattern of alleged racial discrimination — Robbie Lyons, who was executed in 2003 for killing a store clerk. Lyons’ trial took place, Elder and Babb argue, before prosecutors went to a training where the document entitled “Batson Justifications: Articulating Juror Negatives” was first presented. The document’s name comes partially from the 1986 U.S. Supreme Court decision, Batson V. Kentucky, which prohibited the use of race in jury selection.

Hambourger and Pickett said Spence and Lang pulled language from the document to justify removing black people from juries.

The document used language based on racist stereotypes and that the prosecutors accepted white people with traits similar to those used to reject black jurors. For example, in the Lyons’ case, Lang rejected a black woman because she was a nurse but accepted three white nurses and one white doctor.

The N.C. Court of Appeals found that Spence discriminated against potential black jurors in the case of Henry Jerome White, who is serving a life sentence for killing a Winston-Salem man during a robbery. That wasn’t enough to overturn White’s conviction because at the time, criminal defendants had to prove that prosecutors excluded black people from juries solely on the basis of race. Since then, the law has changed.

Spence mentioned the fact that two women he had struck were “black females,” but Elder and Babb said while they didn’t want to re-litigate the Court of Appeals decision, it was possible that Spence was merely acknowledging the race and gender of the women, rather than proof that Spence was discriminating against the women.

Attorneys disappointed

In an interview Tuesday, Hambourger said she was disappointed with state prosecutors’ arguments, especially in light of recent protests over racial injustice and the killing of black people by police. History and context are necessary in considering a claim of racial discrimination in jury selection, she said.

“There is a real tendency in society to look narrowly at racial questions,” she said. “If you look simply at George Floyd (the 46-year-old Black man who died after former Minneapolis police officer Derek Chauvin placed his knee on Floyd’s neck for nearly nine minutes), this is one tragic incident. When you combine that with Mike Brown, Tamir Rice ... and many people we don’t name, you see a pattern. Attempts to narrow it down and say ‘We’re not going to look at context’... it’s a tactic to deny the existence of racism.”

“I’m bothered that they’re making that argument today after what we’ve seen in this country in the last month or so,” Hambourger said.

A hearing on Tucker’s appeal has not been set.

mhewlett@wsjournal.com

336-727-7326

@mhewlettWSJ

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