Much about the U.S. Supreme Court is deeply opaque. It’s very hard – maybe impossible – to know which petitions the Justices will grant, what issues they care about, or how they will adjudicate any given case. One thing we do know is that several Republican-appointed Justices share the liberals’ deep concerns about protecting the constitutional right of Black citizens to serve on juries as enshrined in Batson v. Kentucky(1986). Chief Justice Roberts authored the Court’s decision in favor of Georgia Petitioner Timothy Foster’s Batson claim in 2016, and media reported that the Court appeared to be largely favorable to the defendant when it heard argument in the Mississippi Batson case of Curtis Flowers earlier this year. We covered Flowers v. Mississippi here. Justice Kavanaugh famously wrote about Batson when he was a law student. We can (mostly) all agree: Batson violations are a bad thing.
One notorious document often cited in Batson briefs and in media analysis is now at the heart of a North Carolina death row prisoner’s challenge in state court. The question is: will NC courts finally denounce their prosecutors’ Batson “cheat sheet” as so many others have?
Russell Tucker is an African American man who was convicted and sentenced to death by an all-white jury in Winston Salem, NC in 1996. His jury was all-white because prosecutors used five peremptory strikes to exclude potential African American jurors. Mr. Tucker’s attorneys raised a Batson claim at the time. The judge allowed the prosecution to proffer reasons – and also found no prima facie case. More than twenty years later, when 2009’s Racial Justice Act put North Carolina at the forefront of detecting and correcting racial discrimination in capital cases, attorneys for Mr. Tucker gained access to more prosecution files in the case. What did they find? Among other things, the infamous “Top Gun II” handout given to prosecutors in a statewide 1995 training course.
“Top Gun II,” aka “Batson Justifications: Articulating Juror Negatives” is a list of generalized reasons prosecutors can proffer if they are required by the trial court to provide a non-racial reason for a strike. Certainly, it goes without saying (but I’m saying it) that when a prosecutor strikes a potential juror, she has a reason and knows what it is – and doesn’t need to consult a training handout which has no specific information about the jurors she is questioning. Unless her reason is constitutionally prohibited.
“Top Gun II’s” entire existence, then, is explicitly about “justifying” prosecution strikes of jurors of color. It doesn’t help prosecutors choose juries. It doesn’t offer a suggested list of behaviors that may truly be disqualifying from service. It exists to be used in a specific moment in time – after a prosecutor has moved to strike a juror, and a defense attorney has asked the court to clarify that the strike was made free of racial consciousness – that is the moment the list was made for. “Top Gun II” is a tool to help prosecutors secure majority white or all-white juries in capital cases. Its purpose is to allow prosecutors to evade the constitutional right of all citizens, defendants and jurors alike, to participate in jury selection free of racial discrimination.
Let’s let “Top Gun II” speak for itself:
As a group of distinguished former prosecutors wrote of “Top Gun II” in their brief in support of Mr. Foster: “Relying on these kinds of lists, some prosecutors have entered into the habit of offering a smorgasbord of justifications when their strikes are challenged, rather than pointing to the one or two reasons that actually motivated their conduct—be they race-based, or not. Courts have held that this practice of offering a “laundry list” of strike justifications is evidence of race discrimination.”
And what a laundry list it is. In a powerful affidavit about the Top Gun II handout, Dr. Ibrahim X. Kendi of the American University explains how the list draws on “longstanding racist stereotypes that have been used to deny rights to Blacks for centuries.” Some of the themes from the handout he cites include “Blacks as Unintelligent,” “Blacks as Defiant or Hostile,” “Blacks not Making Eye Contact,” “Blacks as Physically Unattractive or Unclean,” among others.
When attorneys for Mr. Tucker found “Top Gun II” in the prosecutor’s files, they compared its specific language and ideas to the actual process of jury seating in Mr. Tucker’s capital trial. They found enough overlap to conclude it was very likely used in court.
In striking and describing African American juror Thomas Smalls, prosecutors used four verbatim words/phrases from “Top Gun II:” “justification,” “body language,” “responses which are inappropriate,” and failure to “make eye contact.” According to the prosecution, Wayne Mills was struck for seeming “confused” and providing “monosyllabic answers,” – despite many of the questions requiring “yes” or “no” responses. The prosecutor also cited Mr. Mills’ failure to vote as disqualifying, yet sat five white jurors who were also unregistered as voters. Lifelong local resident Debra Banning was not accepted due her “lack of stake of the community” as a home renter rather than owner and because her husband had only been at his job for four months. A white renter was accepted to the jury, as were two white jurors whose spouses were unemployed.
Winston Salem is in Forsyth County, which has a documented problem with unconstitutional disproportionate strikes of Black jurors. A recent Wake Forest University study showed that Forsyth County prosecutors are three times more likely to strike Black potential jurors than white – the highest disparity documented in the state. Mr. Tucker is one of four African-American men on NC’s death row from Forsyth County sentenced to death by all-white juries.
In a different defendant’s Racial Justice Act hearing, in 2011, attorney Bryan Stevenson presented expert testimony on the immense harm done to Black citizens and communities when prosecutors violate Batson. He specifically mentioned the “Top Gun II” handout. Eight years later, in Mr. Tucker’s case, Mr. Stevenson submitted a sworn affidavit, again strongly condemning the document. As he put it, “if a prosecutor … chooses to give reasons suggested by the handout, this is the very definition of pretext and strong evidence that her unspoken, subjective reasons were impermissibly race-conscious.”
The Racial Justice Act, which led to the discovery of “Top Gun II” in Mr. Tucker’s case, was chipped away at and ultimately repealed in 2013 by the North Carolina legislature’s Republican majority, the product of perhaps the most extreme gerrymandering in the nation. But Batson stands as the law of the land, a law that the highest Court has repeatedly shown a willingness to defend. The state court should find the clear evidence of Batson violations in Mr. Tucker’s case and order him a new trial and sentencing free of racial bias.
While he or she is at it, the state judge should join the rest of the nation in acknowledging that the very existence of this “cheat sheet” for NC prosecutors is an abomination and wholly incompatible with equal justice under law. May it never be used again.