North Carolina hasn’t executed anyone since 2006, and won’t for the foreseeable future. But new data The Assembly obtained shows that having capital punishment on the books still gives prosecutors more conviction-prone juries.
by Jeffrey Billman December 13, 2022 July 24, 2024
In August, lawyers with the American Civil Liberty Union’s Capital Punishment Project filed a nearly 300-page motion asking Wake County Superior Court Judge Paul Ridgeway to prohibit a jury-selection practice they said “stacks the deck” against their client, accused murderer Brandon Hill.
In capital trials, “death qualification” allows prosecutors to remove prospective jurors whose beliefs would prevent them from imposing a death sentence. The ACLU’s motion argued that this practice discriminates against African Americans, women, and Catholics—all groups that tend to oppose capital punishment—and creates juries that are “more likely to convict and more likely to impose death.”
Courts have rejected versions of this claim for decades. But Hill’s lawyers say declining support for the death penalty has made death-qualified juries less representative of their communities. They presented new evidence detailing how tossing prospective jurors skeptical of the death penalty has shaped juries in Wake County.
The ACLU’s motion included a study it commissioned of Wake County’s 11 most recent capital trials, which occurred between 2008 and 2019. It found that prosecutors used death qualification to eliminate 24 percent of Black prospective jurors, and 33 percent of Black women, compared with 11 percent of whites.
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In trials, both sides can also remove some prospective jurors without explanation, as long as the removals aren’t based on race—a practice known as peremptory strikes. The study found that Wake prosecutors in capital cases used their strikes on Black prospective jurors at twice the rate of whites.
Between death-qualification exclusions and peremptory strikes, Wake prosecutors excluded 43 percent of eligible Black jurors.
It’s unclear when Ridgeway will rule on the ACLU’s motion, or when jury selection will take place for Hill’s trial, which appeals and a lawyer’s health issues have delayed.
Even with death qualification, 10 of the 11 Wake County juries in the ACLU’s study imposed life sentences, not death. That’s not unusual. Juries across the state have grown reluctant to hand down death sentences. In 1995, 34 people were sentenced to death in North Carolina, a high-water mark. Juries have only sentenced 10 people to death in the last decade.
The state hasn’t carried out an execution since 2006, and ongoing appeals mean it likely won’t for at least the next decade. Yet there are more than 140 pending capital cases in the state. Ten are scheduled for trial in 2023, according to the North Carolina Coalition for Alternatives to the Death Penalty.
Declaring a case capital gives prosecutors advantages. Faced with the threat of capital punishment, defendants might accept lengthy prison sentences even when prosecutors have weak cases.
Death-qualified juries are also significantly more inclined to convict defendants when compared to juries in noncapital murder trials, according to previously unreported data obtained by The Assembly. It’s been more than a decade since a capital trial in North Carolina ended in an acquittal.
“There have been numerous people who were convicted by death-qualified juries and some sentenced to death who later were exonerated,” Jonathan Broun, a senior staff attorney at North Carolina Prisoner Legal Services, told The Assembly in an email.
“Death qualification makes it easier for the state to convict people who are guilty. But it has also proven an effective way for prosecutors to convict the innocent as well.”
Until 1968, prosecutors could disqualify a prospective juror in a capital case simply for expressing reservations about the death penalty. The Supreme Court’s ruling in Witherspoon v. Illinois established that only those who said they would “automatically” vote against a death sentence could be removed. Excluding more “stacked the deck against” the defendant, the court said.
But later decisions weakened that standard to allow the exclusion of jurors whose views “prevent or substantially impair” them from voting for death.
The most serious challenge to death qualification came in a 1986 case involving an Arkansas man convicted of capital murder who argued that the jury was unconstitutionally biased against him.
His lawyers presented studies showing that death-qualified juries were predisposed to convict. But the court’s conservative majority found there was “very little danger” that death qualification would “arbitrarily skew the composition of capital-case juries,” Justice William Rehnquist wrote.
The majority had dismissed the studies’ findings “with a glib nonchalance,” Justice Thurgood Marshall wrote in dissent.
“The State’s mere announcement that it intends to seek the death penalty … will, under today’s decision, give the prosecution license to impanel a jury especially likely to return that very verdict,” Marshall continued.
New research published since then has shown that death-qualified jurors are more likely to be white, male, and espouse authoritarian beliefs, and that juries with five or more white men are significantly more likely to sentence Black defendants to death. Recent studies in South Carolina and Louisiana found that death qualification removed African Americans at twice the rate as whites.
The ACLU saw an opening to prove that death qualification is racially biased.
Its lawyers started in Duval County, Florida, where Dennis Glover, a Black man convicted of killing a white woman, was sentenced to die in 2015. Florida’s Supreme Court overturned his sentence in 2017. With a new sentencing trial approaching last February, Glover’s ACLU lawyers filed a motion to prohibit death qualification.
The motion included a first-of-its-kind study of jury selection in 12 recent capital trials in the county. Its findings mirrored what researchers later found in Wake: Death qualification removed 39 percent of Black potential jurors, but only 17 percent of white potential jurors. Add peremptory strikes, and 62 percent of prospective Black jurors were removed from the pool.
They didn’t get a chance to test it in court, as Duval prosecutors offered Glover a life sentence before the motion got a hearing.
Wake County became their next target.
“A lot of death sentences were being sought in Wake County for some reason, even though it’s not necessarily consistent with what seems to be the population there,” Brian Stull, the deputy director of the Capital Punishment Project, told The Assembly. “And a lot of Black men were facing the death penalty.”
Wake County District Attorney Lorrin Freeman inherited five capital cases when she took office in 2015. She declared another five cases capital in her first term, but none in her second. Eight of the 10 capital defendants—and four of the five on her watch—were Black men.
Only one case produced a death sentence: Seaga Gillard, Brandon Hill’s co-defendant.
Gillard was convicted of the 2016 murders of April Holland, a pregnant sex worker, and Dwayne Garvey, who is described in court documents as Holland’s “pimp and boyfriend.” Cameras at a Raleigh motel captured Gillard shooting Holland, and Hill shooting Garvey.
During Gillard’s trial, prosecutors connected Gillard and Hill to multiple rapes and robberies throughout the Triangle and accused Gillard of attempting to rape and rob Holland before shooting her. They charged both defendants with both murders under the felony murder rule, which makes deaths that occur during the commission of other major felonies capital murder, even without premeditation.
But Hill’s lawyers argued in a pre-trial appeal to the North Carolina Supreme Court that there’s no evidence that Hill attempted to rob Garvey, or that Gillard attempted to rape Holland. They said Hill shouldn’t be tried for felony murder unless prosecutors can prove otherwise, and jurors should have the option of convicting him of second-degree murder if they believe the shooting was not premeditated.
That appeal is pending. But Hill’s defense might hinge on finding a jury willing to look beyond a killing caught on video to parse the state’s case critically.
“He wants a fair trial in the guilt phase, and by disqualifying the jury, he’s not going to get a fair trial in the guilt phase,” Stull said. “He’s going to get a conviction-prone jury, and he’s going to get a less diverse jury that is less likely to stand up to false facts and less likely to deliberate vigorously.”
This concern isn’t without merit, records obtained by The Assembly indicate.
From 2010 to 2020, North Carolina juries returned guilty verdicts in 62 of 64 capital trials—58 for first-degree murder and four for second-degree murder—with one acquittal and one hung jury. (Earlier this year, a Warren County jury also deadlocked on a capital murder charge.)
By comparison, between fiscal years 2011 and 2021, prosecutors lost about 15 percent of nearly 600 noncapital murder trials that involved attorneys from the Office of Indigent Defense Services, which provides representation to defendants who can’t afford their own lawyers, including in most murder cases. In another 20 percent of those trials, juries found defendants guilty of lesser offenses than first-degree murder.
Wake County had even more disparate results. All 11 death-qualified juries in the ACLU’s study found defendants guilty of first-degree murder. Wake prosecutors lost five of 12 noncapital murder trials, as The Assembly has previously reported.
In court, Wake County Assistant District Attorney Kathryn Pomeroy said these outcomes had nothing to do with juries’ makeup. “Prosecutors aren’t going to seek the death penalty if our case for first-degree murder isn’t incredibly strong,” she said.
Before Gillard’s trial, his lawyers asked Judge Ridgeway to prohibit death qualification. They pointed to a decade-old study—conducted by the Michigan State University academics who later studied death qualification in Wake County for the ACLU—showing that North Carolina prosecutors disproportionately used peremptory strikes against African Americans.
Ridgeway declined. Nearly a third of eligible prospective jurors in Gillard’s trial were excluded because of their beliefs about the death penalty, according to court records.
By detailing the effects of death qualification in Wake County in Hill’s motion, the ACLU hoped to change Ridgeway’s mind. In hearings this summer and last month, Hill’s lawyers presented the study within a larger narrative: “Discrimination causing distrust causing disqualification.”
Pomeroy argued in the November hearing that regardless of their race or religion, death-disqualified jurors are “treated no differently than any other members who can’t follow the law.”
But that’s a chicken-and-egg problem, Hill’s lawyers said. African Americans are skeptical about the death penalty because they’ve seen its application.
North Carolina has executed more than 800 people since 1726, when its first documented hanging occurred. More than 70 percent of them were Black. Today, 54 percent of the 137 people on death row are Black, according to the Department of Public Safety, though African Americans comprise 22 percent of the state’s population.
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