Juries in the United States are not just 12 people selected at random. Instead, both the prosecution and the defense get their own tools to construct a jury that best suits their interests. One of the best-known is the peremptory strike. Without stating a reason, prosecutors and defense attorneys can send specific jurors home; the number of people they can exclude depends on the state. The only other limit on this comes from the Supreme Court, which ruled in Batson v. Kentucky (1986) that neither side can strike jurors on the basis of race or gender.
However, only one side has a strategic advantage to gain by striking more jurors of color: prosecutors. Experiments have shown that all-white juries are more likely to vote to convict. That tracks with the experiences of people of color in the justice system, which is disproportionately weaponized against them.
North Carolina’s experience with prosecutorial racism in jury selection is striking in that its highest court refused to acknowledge it until recently, making it an outlier. Until 2020, when the North Carolina Supreme Court decided the case of Cedric Hobbs, Jr., it had never ruled in recognition of a Batson violation.
The state supreme court ruled that prosecutors in Wake County impermissibly struck two Black women from a jury on the basis of race.
The Hobbs case seems to have opened the door. On February 11, the state supreme court ruled in State v. Clegg that prosecutors in Wake County impermissibly struck two Black women from a jury on the basis of race. They were two of only three prospective jurors of color out of a jury pool of 22 people. One prosecutor claimed the women were stricken “based on their body language and … their failure to look at me when I was trying to communicate with them.” This and similar justifications were rejected by the court.
In 2014, Christopher A. Clegg, a Black man, was accused of armed robbery. Charges were filed that April by interim Wake County District Attorney Ned Mangum, but the case was not tried until 2016, after Lorrin Freeman, the current DA, had taken office. Mangum, a Republican, had previously served as a local judge, and he returned to that post after finishing out long-term DA Colon Willoughby’s term and not running in the subsequent election.
Clegg was ultimately convicted, and already served his entire sentence of prison and parole, but the new ruling means his conviction was overturned. The DA’s office now gets to decide whether it will formally dismiss charges or insist on a new trial. Statistically speaking, it is highly unlikely that any prosecutors will be disciplined for their misconduct in the case.
Freeman, a Democrat, campaigned on helping to start Teen Court as an assistant DA under Willoughby, as well as her experience as the Wake County clerk of court.
But the Clegg ruling isn’t the first incidence of prosecutorial misconduct under DA Freeman. Assistant District Attorney Colleen Janssen was found in 2016 to have withheld evidence in the 2014 armed robbery trial of two Black men, Barshiri Sandy and Henry Surpris. Freeman defended Janssen, stating that Jannsen was a “hard hitting prosecutor,” and that she was not convinced that Janssen had “ill intent.” She did place Janssen on paid leave, however, and Janssen subsequently resigned, prompting the DA to say “we appreciate her commitment to serving the people of this county over the last 10 years in hundreds of cases, and it is by the arc of this career that her work will be remembered.”
According to the National Registry of Exonerations, a project of University of California-Irvine, University of Michigan Law School, and Michigan State University College of Law, both Sandy Surpris, whose charges ended up being dismissed, are factually innocent.
Freeman has also resisted changes to other ways prosecutors try to win at all costs. In 2017, when state lawmakers were again debating moves to abolish capital punishment, she told WUNC that “You know, as soon as a prosecutor is to say we’ve decided we wouldn’t pursue capital cases then there will be a case that the community and justice cries out for the imposition of the most serious punishment under the law.” But, like many other prosecutors, she also uses the death penalty to squeeze first-degree murder plea deals, carrying natural life sentences, out of the accused.
The professors argued that the Batson rule should be expanded to “ensnare more than the unapologetically bigoted or painfully unimaginative attorney.”
For years, law professors and defense attorneys alike have been speaking out about how the Batson rule is not even that protective of the right of people of color to serve on juries. In 2011, Professors Jeffrey Bellin and Junichi P. Semitsu published an article in Cornell Law Review arguing that the Batson rule should be expanded to “ensnare more than the unapologetically bigoted or painfully unimaginative attorney.”
Either of those descriptors is unbecoming for the top prosecutor’s office in North Carolina’s largest county by population.
This May, Freeman faces her first competitive primary election since she was first elected in 2014. The election was originally scheduled for March, but the date was pushed back by an order of the state supreme court. Damon Chetson, a fellow Democrat, is running against Freeman as a reformer.
Chetson is campaigning on what he sees to be flaws with the way Freeman does business. He has pledged to no longer seek the death penalty if elected, and to stop prosecuting nonviolent misdemeanors like cannabis possession. He also wishes to hire more Black people at the office, stating that “This is a county that is 25 percent African American and to not have people in the DA’s office reflect the diversity is really appalling.”
On that last point, Freeman claimed that she wants to address the problem, but also that Black prosecutors in her office keep leaving for better-paying jobs. Her office did not respond to Filter‘s request for comment by publication time.
Photograph by Patrick Feller via Flickr/Creative Commons 2.0