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Cassy Stubbs |
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Ashley Burrell |
It was the only way to convince a state court judge that racial discrimination had tainted Hasson Bacote's trial in rural Johnston County, North Carolina, all those years ago.
On Feb. 7, a team of attorneys from the American Civil Liberties Union, the NAACP Legal Defense Fund and the Center for Death Penalty Litigation learned they had succeeded in that endeavor when Judge Wayland J. Sermons Jr. vacated Bacote's death sentence upon determining race bias had sullied the jury selection process.
The ruling was largely symbolic for Bacote, whose death sentence had already been commuted to life without parole by outgoing Gov. Roy Cooper on his last day in office in December.
Still, Judge Sermons' decision — and the statistical data that informed his reasoning — could be instrumental for more than 100 other individuals on death row in North Carolina who have challenged their sentences under the same state law as Bacote, the Racial Justice Act.
Enacted in 2009, the RJA carved out a legal pathway for prisoners on death row to instead seek life without parole if they could prove racial discrimination played a significant role in their cases. The law specifically expanded the available evidence to allow defendants to use statistical data to help prove that discrimination.
The RJA was repealed in 2013 after control of the state's General Assembly and governorship flipped from Democrats to Republicans, but not before four people in Cumberland County made it to evidentiary hearings in 2012 that resulted in the reversal of their death sentences, kicking off a lengthy and convoluted appeals process.
In 2020, the North Carolina Supreme Court reached a landmark decision in State v. Ramseur
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Cassy Stubbs, director of the ACLU Capital Punishment Project, and Ashley Burrell, senior counsel at the NAACP Legal Defense Fund, were among the team of attorneys that represented Bacote. In an interview with Law360, they reflect on what it took to win, some last-minute legal maneuvering and the shocking testimony that seemingly helped sway the judge.
This interview has been edited for length and clarity.
Bacote's was the first case selected for an evidentiary hearing after the state Supreme Court's 2020 ruling. Without a roadmap to follow, what was your strategy?
Stubbs: Part of what makes this story so complicated is that we did kind of have a roadmap because we did go to two evidentiary hearings in 2012…. [At that time] we knew that the state was going to the legislature trying to get the law repealed…. So we decided to forego the statewide discovery in order to get to a hearing for our clients because … we knew that the law was in jeopardy.
We got files from our clients on cases and files from Cumberland County, and we did use those. I think they were very powerful pictures of discrimination. But we didn't have them statewide. What Judge Sermons did was he ordered discovery statewide. I don't think anything like that has ever happened in any state under any law, where we got prosecutor notes from jury selection in case after case after case. That created both a unique opportunity and also a huge challenge.
Burrell: I think it was really telling once you started to look through the prosecutors' notes, just this level of race consciousness as they were selecting jurors — everything from always marking when there was a Black prospective juror and not seeing that in the reverse…. Then also seeing just very problematic language on some of these juror sheets that we showed during the hearing.
We had all this documentation so we also thought about: How do we present this? How do we show what this represents when you look at it as a whole? We really thought about what experts to use to demonstrate this. For instance, we had one expert, professor Sam Sommers, who talked a lot about implicit bias and how even if you think you're not racist there is this race consciousness that is there…. I think it was really important to show the judge what all this meant.
What were some of the biggest challenges to overcome?
Stubbs: One just general challenge is the hostility to statistics. We had a Cadillac study…. It was very exhaustive and meticulously done, and then we had literally the nation's leading statisticians come in and talk about the study design, talk about the findings. But even with that, there's just among Americans in general, and probably even more among judges, a real skepticism of statistics. When we talk with statisticians about this study they're just like, "Oh my gosh, this is astonishing, look at these levels." To them, this is a no-brainer: We win, we're done. But I think it was really important for us to think about really showing, almost creating a room of mirrors so that you could see from every direction the same picture.
Burrell: We really tried to show how all this converging evidence showed the exact same thing. … There's no other way to explain this away when you look at the statistics, and then you look at the history, and you look at the implicit bias. For example, one of our historians was professor Crystal Sanders, who was born and raised in Johnston County, where the hearing took place, where we showed that race was playing a significant role in both sentencing and jury selection. I think … having a historian from the area who could talk about how her ancestors were slaves in Johnston County and how she had experienced discrimination when she went to high school in that very county, being able to provide that through-line and that link, I think was really helpful in presenting our case.
What was your state of mind by the time you got to last year's two-week evidentiary hearing? What went into planning and preparing for that?
Stubbs: The truth is that throughout this litigation there has always been a two-level fight. There has been the courtroom — the litigation itself, what the statute says, what the evidence says and testimony, the stuff that we, as lawyers, are trained in and expect. Then there's been a concerted effort through maneuvers to try to close the courthouse doors…. What happened about two weeks before our hearing was supposed to start is that [the state] filed an emergency writ in the North Carolina Supreme Court trying to stop the hearing. It was enormously time-consuming for us to respond to that and at the same time we're trying to get ready for this massive hearing…. Those are some of the things that have been very unexpected twists in this road.
Burrell: They say litigation is never predictable, and I think this was the perfect example…. Having to litigate the writ really sort of threw a wrench in things.
Can you describe what it was like in the courtroom during the evidentiary hearing? Were you able to gauge the judge's reactions to the testimony and evidence being presented?
Burrell: Having [the prosecutor in Bacote's case] look at the statistics showing that he was striking Black jurors at more than three times the rate compared to non-Black jurors or white jurors, and then when asked about it, never having an answer to how or why that was happening, saying that he doesn't see race. But then being asked about some of the language that he used in prosecuting cases. There was one case where he compared the two co-defendants as "beasts of the African plain." When he was admonished by the court, and then he began to give closing arguments again, he used that same language a second time. In our case, he called our client a thug, and he admitted on the stand that he knows that a thug is a term that has racial connotations. So things like that, I think, were pretty astonishing, and I think everyone in the courtroom really sort of listened to that testimony and couldn't help but be shocked by some of the things that were said.
Stubbs: There were so many pieces about Mr. Bacote's case that were so unfair, and I think some of that also came out through the testimony of [attorney] Bryan Stevenson …. There was a point when Bryan Stevenson was talking about the jury verdict form, where the jury had first come back with life without parole and then had scratched it out and 'death' is written because the judge sent them back to deliberate…. When Bryan Stevenson was describing that, the assistant attorney general stood up and said, "I think professor Stevenson is mistaken." And the judge said, "Yeah, you can't have a death verdict after you have a life verdict." I had to stand up and say, "Professor Stevenson is correct, this is in the transcript, and you can read it."
I think professor Sanders — I will remember her testimony for the rest of my life — and her talking about being a college student and having her professor stop the class to describe what it was like to drive through Johnston County and see the "Welcome to Klan country" billboards and to hear her personal family story and then her research — like life's work — all connect in this way. I think those moments influenced everyone in the courtroom and I think they influenced the judge for sure.
How does this ruling affect other pending RJA cases?
Stubbs: I expect that this ruling will have a lot to bear on the cases, for example, that the prosecutor Greg Butler tried. I think it will have a whole lot to bear on other Johnston County cases. I think those statewide discovery notes, all of that evidence, nobody has to go find that evidence again, it's there. But I would expect that everyone in Wake County, or everyone in Forsyth County, will be looking to do the kind of in-depth countywide analysis that was done here.
Burrell: We had a report by Dr. Sanders on the history of race in Johnston County and I think that report was so powerful, plus her testimony, and it was testimony specific to the county. I imagine that something like that can serve as a blueprint for other folks in other counties and will help in thinking through litigation moving forward.
Is there anything else noteworthy about this case and Judge Sermons' ruling?
Stubbs: If this is not enough proof, I don't know what proof looks like. It was such a powerful, powerful showing…. For Mr. Bacote, he was already sentenced to life because of the governor's actions, but this historical record, I think it's really powerful and much bigger than any single person's case.
Burrell: We just heard from so many folks in the community that were watching. I recall at one point when they learned that we were part of the team, someone thanking us for showing the history and telling the story of the community. I think that opportunity was so unique and powerful, and I think we told the story really well because if you sat in that courtroom for two weeks, at the end of it, it was so abundantly clear the role that race was playing in imposing the death penalty on Black people in Johnston County.
The case is State of North Carolina vs. Hasson Jamaal Bacote, case number 07CRS51499, in North Carolina Superior Court, District 11B.
--Editing by Orlando Lorenzo.
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