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N.C. appellate court to review Winston-Salem man's case alleging Forsyth prosecutors illegally removed Black jurors.

N.C. appellate court to review Winston-Salem man's case alleging Forsyth prosecutors illegally removed Black jurors.

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The N.C. Court of Appeals will hear an appeal from a Winston-Salem man who claims Forsyth County prosecutors intentionally and illegally removed two Black jurors from his murder trial, according to an order filed Thursday.

The case is unique in two ways. First, Henry Jerome White’s case remains the only one in North Carolina history where an appellate court ruled that race played a significant role in jury selection. The conviction was nonetheless upheld because courts, at the time, said race had to be the sole factor, not just a significant factor. Under today’s legal standard, a conviction can be overturned if race is proven to be a significant factor.

Secondly, the trial prosecutor, David Spence, said in court that he dismissed two jurors because they were both “Black females,” before offering several non-racial reasons during a hearing where Spence had to offer specific reasons for removing the jurors, according to court records.

On Thursday, the N.C. Court of Appeals granted a petition to review a decision by Forsyth Superior Court Judge Todd Burke to deny White’s motion for appropriate relief, or appeal, last year. Burke ruled that White’s appeal was procedurally barred, meaning that White could not raise claims of racial discrimination in jury selection because he had raised them in another appeal and had been denied.

White, 53, is serving a life sentence in prison for first-degree murder for the 1996 death of Carl Washburn. Prosecutors alleged at trial that White went into a Winston-Salem auto paint and repair shop on Feb. 17, 1996, with the intention to rob Washburn and then fired two gunshots. Prosecutors pushed for the death penalty, but a Forsyth County jury recommended life imprisonment.

Race is not supposed to be used in jury selection, according to a U.S. Supreme Court decision, Batson V. Kentucky. Prosecutors and criminal defense attorneys have a certain number of peremptory challenges, where they can remove a potential juror without giving a reason. But when challenged, a judge can allow a prosecutor to give non-racial reasons for why a juror was dismissed.

In White’s case, Spence said in court that he dismissed the two jurors because they were Black women. In 1998, the N.C. Court of Appeals ruled that “it was apparent that race was a predominant factor in (Spence’s) decision to strike” Sonya Jeter and Caryl Reynolds.

Elizabeth Hambourger, White’s attorney, had argued in court papers that the N.C. Court of Appeals could simply overturn White’s conviction and order a new trial without even hearing the case. She argued that the 1998 appellate court ruling that race was a predominant factor in White’s case is legally binding. There’s no new evidence to consider, she said.

Additionally, Zachary K. Dunn, an assistant attorney general, filed court papers Sept. 13 asking the appellate court to send White’s case back to Forsyth Superior Court for an evidentiary hearing.

“Although the trial court correctly found that the procedural bars...applied, the State concludes that under the unique factual and procedural circumstances presented, application of the bar in this specific case would result in a fundamental miscarriage of justice,” Dunn wrote.

He further said, “The State has considered its position carefully, and does not lightly request remand for a new hearing of an otherwise procedurally barred MAR (motion for appropriate relief) claim. However, significant uncertainty exists around whether the trial court applied the correct standard in ruling on Petitioner’s Batson claim.”

Hambourger has called this a rare concession for prosecutors.

“I’m disappointed that they are keeping Mr. White in prison for more time while we litigate, even when the state has agreed that there is a pretty fundamental injustice that happened in his case,” Hambourger said Friday.

Hambourger is an attorney in two other cases in which the Forsyth County District Attorney’s Office is accused of racial discrimination in jury selections. All three cases involve Spence and they also allege that prosecutors used a training document called “Batson Justifications: Articulating Juror Negatives.”

Hambourger and other attorneys representing the men convicted say that Forsyth County prosecutors used the training document to provide pre-packaged race-neutral reasons for why they got rid of potential Black jurors.

One of the cases — Russell William Tucker — is pending in the N.C. Supreme Court.

A three-judge panel will review Burke’s decision in White’s case. Attorneys on both sides will file written briefs in White’s case and the appellate court may hold oral arguments. It will likely be next year before the court issues a decision.




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