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A North Carolina trial could change jury selection in death penalty trials

MICHEL MARTIN, HOST:

For decades, courts have automatically disqualified opponents of capital punishment from serving on juries in death penalty trials. This has been accepted law and practice. But the outcome of an upcoming murder trial in North Carolina could change that. Ahead of jury selection in the case, attorneys for the American Civil Liberties Union have argued that removing jurors based on their unwillingness to impose the death penalty is racist and prevents defendants from having access to a fair trial. They'll make the same argument this fall in a sentencing hearing in a Florida case. We're joined now by ACLU senior counsel Henderson Hill, who is working on both cases, to tell us more about this. Mr. Hill, welcome. Thank you so much for being with us.

HENDERSON HILL: Thank you, Michel. I'm glad to be with you. I think this is an important conversation.

MARTIN: You and your co-counsel have argued that this process is racist. What about it is specifically racist? I mean that there are Black people who support the death penalty - we know this - but there are white people, or non-Black people, who oppose it. Why is it specifically racist as opposed to, say, discriminatory on religious grounds or something of that sort?

HILL: Jurors are excluded if it is determined that they cannot support the death penalty, that their views towards police or prosecutors is skeptical. It is clear - every social science study shows that there's greater skepticism in the African American community towards police, prosecuting authorities and courts. That skepticism grows out of a history of discrimination. And that's why exclusions of African Americans are two or three times as high as that of their white neighbors.

MARTIN: Do you have some data or research that indicates this?

HILL: There have been scores of studies by peer-reviewed social scientists that show both the impact on the conviction - the first stage - creating conviction-prone jurors, jurors who do not deliberate as candidly. If you have a diverse jury, you actually consider the evidence more carefully. You consider the viewpoints of the other jurors. This is borne out by literally scores of studies. If you exclude those people with scruples against the death penalty, what's left are people who are, in fact, in Thurgood Marshall's words, organized to return a death sentence, and, in fact, organized to return a conviction because the process of death qualification leads to the selection of jurors who are death-prone. So it's a twofer. It both creates a jury that is prone to convict, and it also creates a jury that is really organized to return a death sentence in response.

MARTIN: Is it your contention also that Black potential jurors are - I don't know how to describe this - but in some ways discriminated against, regardless of their views on the death penalty? They're more likely to be struck from juries because of a presumption of opposition to the death penalty, whether it's true or not, that they're more likely to be struck than white jurors. Is that part of your contention as well?

HILL: That is a consistent theme - study after study, across states, across times. It shows. In fact, there's a study in non-capital cases that show that same theme. But, yes, and what we've presented is the justification that African Americans are distrustful of police, of government, of authorities. That sort of grows out of the notion that the history of discrimination leads to skepticism in the Black community. That skepticism leads to disqualification to sit in the jury box. And so what you have is this vicious circle of the history of discrimination leading to greater skepticism in the Black community. That skepticism leads to disqualification for jury service. It's a vicious circle that we have not been able to get out of.

MARTIN: But what would you say to those who would argue that, A, there are Black potential jurors who do support the death penalty, therefore they are death qualified - No. 1 - and No. 2, that it's - forgive me for using this terminology because - when human life is at stake - but it's common sense that if one of the options is to impose a certain penalty, if you are automatically opposed to it, then you cannot really serve fairly? How would you answer that?

HILL: Well, on two points. On the first point, yes, obviously, the African American community is not monolithic. And of course there are Black citizens that approve of the death penalty, are supporters of the death penalty. That's unquestioned. What we're talking about is the incidents in which African Americans are excluded. Black women are excluded, in Wake County, 31% of the time compared to 12% of everybody else. That rate of exclusion silences a particular viewpoint, a particular voice that needs to be part of this sort of important community discussion.

MARTIN: So your motion comes before two trials, one of them in the case of Brandon Hill, who's been charged in the killing of two people - a pregnant woman and her boyfriend. What drew you to this case?

HILL: Well, frankly, the fact that North Carolina's largest county, Wake County, is one of the few counties in the state that is still vigorously prosecuting capital cases. That brought our attention. The fact that in 10 out of 11 cases, the death sentence is rejected in favor of life. Why not give it to the community and let a fair cross-section of Wake County decide this important matter of civic policy?

MARTIN: What's the outcome you're working toward? Like, what would it look like?

HILL: What you need is to have the full viewpoint of the community expressed. You know, we had the testimony of a Catholic deacon who spoke on behalf of the tens of thousands of Catholics in Wake County and the state of North Carolina. And to think that their viewpoint is disvalued, their ability to share their views in a jury room is not valued, that hurts them to the quick, in much the same way that African Americans who have been excluded from the jury box for over a hundred and fifty years feel shunned. And, you know, it's that practice of letting the state have an undue hand, undue authority in selecting the citizen judges. That's what we're trying to change.

MARTIN: That was Henderson Hill, senior counsel at the ACLU. Henderson Hill, thanks so much for joining us to talk about this.

HILL: Thank you, Michel. So important this conversation. Appreciate it.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Michel Martin is the weekend host of All Things Considered, where she draws on her deep reporting and interviewing experience to dig in to the week's news. Outside the studio, she has also hosted "Michel Martin: Going There," an ambitious live event series in collaboration with Member Stations.