N.C. Supreme Court denies retrial for Black man facing death sentence from all-white jury

On Feb. 21, 1996, an all-white jury of six men and six women sentenced Russell William Tucker, a Black man, to death for the murder of a Kmart security guard.

Tucker’s execution was scheduled for Dec. 7, 2000, but was delayed after his attorney admitted that he sabotaged Tucker’s appeal because he believed Tucker deserved to die. 

In December, Tucker challenged the state’s decision on his original case, alleging non-white prospective jurors were struck out disproportionately. The N.C. Supreme Court voted not to retry Tucker in a 5-1 decision on Dec. 15.

The dissenting vote came from Democratic Justice Anita Earls, the only Black justice on the Court.

According to her opinion, prosecutors struck out Black eligible jurors based on a legal education handout. The handout, “Batson Justifications: Articulating Juror Negatives,” listed acceptable reasons an attorney could reject potential jurors. Kristin Collins, the director of public information at the Center for Death Penalty Litigation, said the handout was a training sheet jury selectors were given to provide a list of excuses they could use when ruling out Black jurors. The list included reasons such as inappropriate dress, attitude and physical appearance.

A comparison between prosecutor Robert Lang’s justifications and the justifications provided in the handout suggests that Lang read from the handout when striking out jurors, according to Earls’ dissenting opinion.

“They were using this list of fabricated excuses, almost word for word," Collins said.

In Tucker’s case, prosecutors struck out 100 percent of the eligible prospective Black jurors and 20 percent of the eligible prospective white jurors.

Disproportionate impacts

In 1986, the U.S. Supreme Court found in Batson v. Kentucky that racially discriminating against potential jurors was a violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Since the Batson ruling, only once has a North Carolina court overturned a sentencing decision based on the validity of a juror selection, on the grounds that a juror was excluded based on ethnicity, race or sex.

According to a study conducted by Michigan State University, 20 percent of death row convictions in the state between 1990 and 2009 were sentenced by all-white juries, and another 25 percent were sentenced by juries with only one person of color. The study also found that Black prospective jury members were struck out of eligibility at 2.5 times the rate of other jurors.

As of January 2023, the state of North Carolina had one of the highest populations of prisoners on death row in the United States — over 60 percent of whom are not white.

“We know that a lack of racial diversity on the jury tends to over-convict and also convict people who are innocent,” Noel Nickle, the executive director of the N.C. Coalition for Alternatives to the Death Penalty, said. 

She said Tucker was not afforded the same justice that a white defendant would have been afforded with an all-white jury. 

“Finding someone guilty in a criminal case and sentencing them to a life sentence or even death penalty is drastic, and you want to make sure that you are doing it right and fairly, especially in a state that has a history of not necessarily being fair to defendants of color,” Erika Wilson, a UNC School of Law professor and the director of the Critical Race Lawyering Civil Rights Clinic, said.

Nickle said the state supreme court's decision in Tucker's case is more clear evidence that the court system cannot be trusted to prevent racist death penalty sentences.

Some activists have called on Gov. Roy Cooper to commute all of the state’s death sentences before the end of his term.

“Black people are denied a voice in capital juries, and it's something that's systemic," Collins said.

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