A Winston-Salem man is asking an appellate court to overturn his murder conviction, saying there is clear evidence that a prosecutor dismissed two Black jurors because of their race. The evidence? The prosecutor admitted it in court when challenged.
And an appellate court in 1998 found that the prosecutor illegally used race in jury selection. But the man’s conviction was not overturned because of a narrow interpretation of a U.S. Supreme Court decision prohibiting race discrimination in jury selection, the man’s attorney said. Race had to be the sole reason a juror was removed for his conviction to be overturned, but that rule has since changed, the attorney said. Now, it just has to be a significant factor.
Henry Jerome White, 53, is serving a life sentence for first-degree murder, and his attorney, Elizabeth Hambourger, filed a petition with the N.C. Court of Appeals on July 9, asking the appellate court to review White’s case. She is appealing a decision made by Judge Todd Burke of Forsyth Superior Court, who denied White’s appeal in August 2020.
White is Black.
“Mr. White is pretty unique,” Hambourger said in an interview Friday. “It’s the only case I’m aware of in North Carolina, where a prosecutor has admitted openly that they removed a juror because of their race. And the thing that makes it most remarkable is that even though the court heard that admission and the court of appeals (ruled) that race was the predominant factor in the strike of these two women, they still found that Mr. White’s conviction was lawful.”
In court filings, Hambourger said the court of appeals has a chance to rectify a wrong.
“If there were ever an appropriate case to reverse a conviction because of race discrimination in jury selection, this is the case,” she said in her petition.
Assistant District Attorney Penn Broyhill, who is defending White’s conviction, said he would not comment on a pending legal matter. The prosecutor who is alleged to have used race in removing the two black jurors is David Pence, who has repeatedly declined to comment. He is a prosecutor in Carteret, Craven and Pamlico counties.
Forsyth County prosecutors allege that White went into a Winston-Salem auto paint and repair shop on Feb. 17, 1996, with the intent to rob Carl Marshburn. Prosecutors allege that White fired two gunshots, and Marshburn was killed.
White’s cousin, Harry Beaufort testified he saw White go in the repair shop and then heard the gunfire. White denied he killed Marshburn and said it was Beaufort who planned the robbery. White said he had no idea that Beaufort was going to kill Marshburn. According to court documents, there was no forensic evidence and no other eyewitness testimony.
Prosecutors pursued the death penalty in a 1997 trial, but a Forsyth County jury recommended life in prison for White.
A 1986 U.S. Supreme Court ruling called Batson v. Kentucky says that prosecutors cannot use race to remove potential jurors. Prosecutors and criminal defense attorneys have a certain number of what are called peremptory challenges to remove jurors without giving a reason. If challenged based on the Batson case, a judge can hold a hearing during which a prosecutor can provide non-racial reasons why they removed a particular juror.
That’s what happened in White’s case. Pence had used peremptory challenges to remove two Black women — Sonya Jeter and Caryl Reynolds.
When White’s attorneys challenged Pence based on the Batson decision, a judge held a hearing. And when asked to give a reason for why he removed Jeter and Reynolds, Pence began by saying it was because they were both “black females.”
Then he gave several other non-racial reasons. Pence said both women, both 27 at the time, were too close in age to White, who was 28. Pence also said that Reynolds didn’t have a stake in the community because she was living with her mother, even though Reynolds had lived in Forsyth County all her life, Hambourger said in court documents.
Pence said he also struck Reynolds because she was single and mentioned that she had an “illegitimate child.” Hambourger said Pence assumed Reynolds was unmarried with a child without asking any questions about her relationship status.
Hambourger said Pence accepted other white jurors who lived with family members, were single and who had children outside of marriage. According to Hambourger, Pence struck four out of seven eligible Black jurors, or 57 percent, while he struck only 8 out of 34 eligible white jurors, or 24 percent. In other words, Forsyth County prosecutors removed Black jurors at a rate of more than twice that of white jurors. In the end, White had a jury with only two people of color, according to court documents.
In 2000, Forsyth County was about 25 percent Black, Hambourger said, citing U.S. Census figures.
When Pence began explaining why he struck Jeter, one of White’s attorneys interjected.
“I don’t think any of this is valid,” the attorney said.
Pence said, “You’ve taken off all the white males, for Christ’s sake.”
When talking about taking off another Black juror, Brenda Gwyn, one of White’s attorneys said, “I think we’re approaching a systematic exclusion.”
Pence replied, “How many white males have I let go? A lot.”
In 1998, the N.C. Court of Appeals ruled that “it is apparent that race was a predominant factor in (the prosecutor’s) decision to strike” Jeter and Reynolds, Hambourger said in court papers.
The Court further found the prosecutor’s comment “on its face, belies racial neutrality and manifests an intent to exclude these individual jurors based upon their membership in a distinct class.”
But the court upheld White’s decision because the rule was that race had to be the sole factor in order for it to be unconstitutional, Hambourger said. Pence gave several non-racial reasons for removing the two jurors, and because of that, the court found no error.
This is not the first time Pence or the Forsyth County District Attorney’s Office has been accused of racial discrimination in jury selection.
Hambourger represents two other Forsyth County men — Thomas Larry and Russell William Tucker — who are both on death row for murder. Hambourger has filed an appeal for Tucker with the N.C. Supreme Court. Larry has an appeal pending in Forsyth Superior Court.
All three cases not only involve Pence but also involve the alleged use of a training document called “Batson Justifications: Articulating Juror Negatives.”
Hambourger and other attorneys representing the men say this is newly discovered evidence. Tucker’s attorneys found the document in the files of another criminal defendant, Errol Moses, who had filed a claim under the now-repealed Racial Justice Act. That law allowed inmates to challenge their death sentences based on allegations of racial bias.
Hambourger has alleged in court papers that Forsyth County prosecutors used the training document in Tucker’s case and other cases to provide pre-packaged race-neutral reasons for why they got rid of potential Black jurors. She and other attorneys have additionally argued that those non-racial reasons are steeped in racial stereotypes about Black people.
Also cited in Tucker’s case is a study done by two Michigan State University law professors who say there is a pattern of racial discrimination in four Forsyth County cases. Spence was involved in all of those cases. In the four cases combined, Spence struck 63 percent of Black jurors but only 20 percent of non-Black jurors, according to court papers.
Hambourger also said a study done by Wake Forest University professors showed a pattern of racial discrimination in jury selection in cases that didn’t involve the death penalty. The study 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.
The N.C. Court of Appeals has been asked to wait on making a decision in the White case until the N.C. Supreme Court issues a decision in Tucker’s case. That’s because the issues are so similar, Hambourger said.
It will likely be months before a decision in either case is made.