In a response brief Thursday, Hasson Jamaal Bacote urged the North Carolina Supreme Court to reject prosecutors' April 7 petition to review a trial court judge's order vacating his death sentence. Bacote argued there is no right to appeal under North Carolina's since-repealed Racial Justice Act, or RJA, the statute he relied on to mount his legal challenge.
Given that his death sentence was also commuted by the former North Carolina governor, Bacote said there is no right of direct appeal to the state Supreme Court.
"Because this case is no longer a capital case and thus no longer belongs in this court, and because the state has neither the right to appeal nor a persuasive case for certiorari, Mr. Bacote respectfully asks the court to deny the state's request," the brief said.
Bacote was convicted of first-degree murder in April 2009 for killing Anthony Surles, and the jury unanimously recommended a death sentence.
In 2010, while his appeal was pending in the Supreme Court, Bacote filed a motion under the RJA, which provided a pathway to people on death row to seek life without parole if they could prove that their cases were significantly sullied by racial prejudice. The law was repealed in 2013, but the North Carolina Supreme Court later said that courts were allowed to adjudicate claims that were already pending.
Bacote argued his prosecutors violated the law when they used peremptory strikes disproportionately against Black jurors. His was the first RJA case to make it to an evidentiary hearing, in February 2024.
Before there was a ruling in his case, however, outgoing Gov. Roy Cooper commuted Bacote's sentence to life in prison without the possibility of parole on Dec. 31.
Prosecutors sought to use Cooper's clemency to have Bacote's case thrown out, arguing it was moot. But Superior Court Judge Wayland J. Sermons Jr. rejected that request on Feb. 3. Four days later, Judge Sermons granted Bacote's motion for relief under the RJA, finding race had an outsized effect on jury selection in his trial.
In the state's petition for review of Judge Sermons' Feb. 3 and Feb. 7 orders, prosecutors returned to their mootness argument. They said the governor's act of clemency already granted the only relief available to Bacote under the statute: life without parole.
Bacote responded Thursday that the state lacks a right to appeal under the RJA. The only circumstances under which the state can appeal in a criminal case are laid out in North Carolina General Statute 15A-1445, and "appealing the grant of a motion for appropriate relief filed under the RJA is not on the list," Bacote said.
Prosecutors had couched their petition by arguing that if the state lacked a procedural right to appeal, the justices should use their discretionary authority to review Judge Sermons' decisions.
But "this avenue is also closed," Bacote said, arguing that only orders denying a motion for relief in post-conviction cases can be appealed under the appellate rules. In any event, he said the state had brought its appeal to the wrong court.
State law allows defendants given a death sentence to appeal directly to the North Carolina Supreme Court, letting them skip over the state Court of Appeals. But Bacote said he "is no longer under sentence of death" after Cooper commuted his sentence.
"Undersigned counsel are aware of no case in which this court has maintained jurisdiction of a capital appeal when the prisoner obtained vacatur of his death sentence while the case was pending on direct appeal," the brief said. "To the contrary, this court has consistently transferred no-longer-capital cases to the Court of Appeals."
Bacote also said the Supreme Court only grants post-conviction petitions in "extraordinary circumstances," such as an issue of justice or liberty or a threat of harm or waste of judicial resources if the justices don't intervene. He said there are no such circumstances in his case.
"Whether this court grants or denies the state's request for review will not change Hasson Bacote's life without parole sentence," the brief said. "The state has identified no justice or liberty issue that is at stake. Nor has it identified any harm, let alone a substantial one, that might befall the state."
Defense counsel and a spokesperson for the state Department of Justice did not immediately respond Friday to requests for comment.
The state is represented by Joan M. Cunningham, Jonathan Babb, Ben Szany, Nicholaos Vlahos, and Heidi M. Williams of the North Carolina Department of Justice.
Bacote is represented by Jay H. Ferguson of Thomas Ferguson & Beskind LLP, Cassandra Stubbs of the American Civil Liberties Union and Shelagh Kenney and Gretchen M. Engel of the Center for Death Penalty Litigation.
The case is North Carolina v. Hasson Jamaal Bacote, case number 360A09-2, in the North Carolina Supreme Court.
--Additional reporting by Marco Poggio. Editing by Brian Baresch.
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