Russell William Tucker, 53, is on death row after a jury convicted him in February 1996 of first-degree murder in the death of Maurice Travone Williams, a security guard at a Kmart store on University Parkway in Winston-Salem. According to prosecutors, Tucker shot Williams in the chest on Dec. 8, 1994, after Tucker walked out of the Kmart store in clothing Williams believed Tucker had stolen.

In previous court filings, Tucker’s attorneys have argued that David Spence and Robert Lang, the prosecutors in Tucker’s trial, used a training document to create pre-packaged, race-neutral reasons in order to exclude black people from the jury. A 1986 U.S. Supreme Court decision called Batson V. Kentucky said prosecutors are not supposed to use race in getting rid of potential jurors. Prosecutors and criminal defense attorneys have a certain number of what are known as peremptory challenges, which they can use to remove a potential juror without giving a reason. But if a challenge is made based on the U.S. Supreme Court case, a judge can give a prosecutor a chance to give a non-racial reason for removing the juror.

In Tucker’s case, Lang and Spence pulled language from a document titled “Batson Justifications: Articulating Juror Negatives” to provide non-racial reasons to exclude black jurors, Tucker’s attorneys, Elizabeth Hambourger and Mark Pickett, have argued.

In court papers filed last week in Forsyth Superior Court, Hambourger and Pickett allege that Lang and Spence used similar strategies in at least two other murder cases — Robbie Lyons, who was executed in 2003 for killing a store clerk, and Henry Jerome White, who is serving a life sentence after being convicted of shooting a Winston-Salem man to death during a robbery at an auto paint and repair shop. Spence and Lang also gave other reasons, such as not having a stake in the community, being single or working in the health care industry, for why they excluded certain black and Hispanic jurors. But those same reasons didn’t prevent prosecutors from accepting white jurors, Hambourger and Pickett allege.

Attorneys for the N.C. Attorney General’s Office have argued in court papers that race was not a factor in jury selection in Tucker’s case and that the training document was meant only to remind prosecutors across North Carolina that they are not to use race. Further, they have argued that Tucker should have raised these issues in earlier appeals and that there were reasons not contained in the training document for why Lang removed certain black jurors, including that one potential juror had fallen asleep.

Forsyth County District Attorney Jim O’Neill, who is running in the Republican primary for attorney general, has previously declined to comment, saying the case is pending. Lang, an assistant U.S. attorney, and Spence, a prosecutor in Carteret, Craven and Pamlico counties, have declined to comment.

Two years before Tucker, Lang prosecuted Lyons. In that case, Lang struck five out of eight black and Hispanic people from serving on the jury, or 62 percent. He struck eight out of 38 white potential jurors, or 21 percent.

When Lyons’ attorneys objected, Lang gave non-racial reasons that Hambourger and Pickett say “mirror the suggestions offered by the Batson Justifications handout.” For example, Lang objected to a potential black juror’s body language, saying that she was “leaning away from the entire jury selection process,” Tucker’s attorneys said. That language is similar to what is found in the training document.

And the language is also based on “longstanding racist stereotypes,” Tucker’s attorneys argue. Ibram X. Kendi, a historian, said in an affidavit quoted in court papers that when Lang cited the potential juror’s body language, he was referencing a long history in which black people’s body language is stereotyped as being defiant or difficult.” Lang also said a Hispanic woman who was in the jury pool didn’t have sufficient stake in the community, which Hambourger and Pickett allege also has racist implications.

“While supposedly basing his strikes on various characteristics of the jurors of color, Lang accepted white venire members with the same traits,” they said in court papers. Even though Lang said he got rid of one black woman from the jury because she was a nurse, he accepted at least three white nurses and one white doctor.

Spence, Hambourger and Pickett argue, did the same thing, Hambourger and Pickett allege, in White’s case. White’s attorney, David Weiss, also argues the same thing in more detail in a motion for appropriate relief he filed in Forsyth Superior Court earlier this month.

The N.C. Court of Appeals found that Spence discriminated against potential black jurors in White’s case, Weiss said. That wasn’t enough to overturn White’s conviction because at the time, criminal defendants had to prove prosecutors excluded black people from juries solely due to race. Since then, there’s been a change in the law, according to the motion.

Spence appeared to lift language from the training document to give non-racial reasons for excluding potential black jurors. But those same reasons didn’t keep potential white jurors from serving. Those reasons included working in the health care industry, being single, not having sufficient stake in the community and appearing to be ambivalent in whether they could recommend the death penalty, the motion alleges.

In some cases, Tucker’s attorneys and White’s attorney argue, Lang and Spence mischaracterized the record. For example, in Tucker’s case, a black woman who Lang said he removed because of her answers on the death penalty was actually strongly supportive of the death penalty, Tucker’s attorney said.

In White’s case, Spence got rid of four out of seven eligible potential black jurors. He eliminated eight out of 34 potential white jurors.

The N.C. Supreme Court is currently considering two cases that deal with allegations of racial bias in jury selection.

Weiss also said in court papers that the 1986 U.S. Supreme Court ruling has been ineffective in North Carolina, noting that the appellate courts have never found a prosecutor racially discriminated against a potential juror.

“North Carolina is the only state in the American South whose appellate courts have never found Batson discrimination against a minority juror,” he said.

No hearing date has been set for either the Tucker or White case.