Actually, Cumberland County Senior Resident Presiding Judge Gregory A. Weeks' order was more of an indictment than an apology. In meticulous detail, he
explained why Robinson, who is black, deserved relief under the state's Racial Justice Act, a laudable legislative effort designed to vindicate the rights of
capital defendants whose trials are marked by racial bias. Weeks was convinced by the evidence that prosecutors had used peremptory challenges at
Robinson's 1994 murder trial to systematically remove blacks from his jury pool.
An apology. An indictment. And also a warning. Judge Weeks wrote: "In the first case to advance to an evidentiary hearing under the RJA, Robinson
introduced a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina. The
evidence, largely unrebutted by the State, requires relief in his case and should serve as a clear signal of the need for reform in capital jury
selection proceedings in the future."
A peremptory challenge occurs before a criminal trial when the prosecutor or defense
attorney unilaterally dismisses a potential juror from the pool without having to provide any factual or legal justification
for doing so. Rule 24 of the Federal Rules of Criminal Procedure, for example, states
that each side in federal capital case gets 20 peremptory challenges. It's a lower number for non-capital cases. In North Carolina today, as well as
when Robinson was tried, each side gets 14 peremptory challenges in a capital case.
For nearly a century of American history, there was no significant racial component to peremptory challenges because there were virtually no black or
other minority jurors. Scholars believe that blacks began serving on juries only in 1860. By the end of the bloodiest decade in American history, a
Reconstructionist Congress in 1869 gave blacks the right -- in the District of Columbia anyway -- to hold public office and serve on juries. (For an excellent look at this issue read this Yale Law Journal article by James Forman, Jr.)
What some prosecutors decided to do, almost as soon as blacks began to serve on juries, was to disqualify them from specific cases by using peremptory
challenges. Black jurors were peremptorily precluded from sitting in judgment on black defendants and black jurors were peremptorily precluded from
sitting in judgment on white defendants, especially those charged with killing or injuring black victims. More or less, and in some venues more often
than others, it was this way in America for decade upon decade.
Let's now jump ahead to Batson v. Kentucky, a 1986 United States
Supreme Court decision which made it easier -- but still not easy -- for black defendants to successfully challenge their convictions based upon
race-based peremptory challenges. Convicted defendants still had to produce evidence of bad intent on the part of prosecutors in a case-specific
context. Justice Thurgood Marshall, in a concurrence, wrote that "the inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the court to ban them entirely..." But the Batson Court ruled:
The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove
from the venire members of the defendant's race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection
practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant
circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race.
Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging
black jurors. The prosecutor may not rebut a prima facie showing by stating that he challenged the jurors on the assumption that they would be
partial to the defendant because of their shared race or by affirming his good faith in individual selections.
Nearly 20 years later, the Supreme Court upheld the essence of Batson in a contentious case out of Texas styled Miller-El v. Dretke. You can't understand the significance of Judge Weeks' ruling without reading Miller-El. The 6-3 majority opinion is a testament
to the scurrilousness of prosecutors and to the lumbering judicial response to systemic racial bias. Even in 2005, Miller-El reminds us, the
United States Supreme Court was publicly arguing with a lower federal court about whether a rigged capital trial warranted meaningful