Challenging discriminatory jury selection in capital cases.

Every American accused of a crime has the right to be judged by a jury of their peers. But if someone is facing the death penalty, that is not the case.

Prosecutors can use a jury selection procedure known as “death disqualification” to ensure that only jurors who believe in the death penalty serve on capital juries. As a result, Black jurors – especially Black women – and people of faith who object to the death penalty are excluded from capital juries.

This means people facing the death penalty are judged by a jury that doesn’t represent the viewpoints and demographics of a community. Capital juries are more white, more male and more likely to convict and impose death.

As Professors Carol and Jordan Steiker have pointed out, and as the ACLU and our allies at the Legal Defense Fund have argued for more than fifty years,  death disqualification creates a cycle of excluding Black people – who are more likely to oppose the death penalty because of its racist past and present –from capital juries, which then results in discriminatory outcomes for Black defendants.  

The ACLU is challenging the use of death disqualification in capital jury selection.

On August 16, 2022, the ACLU filed a motion to bar this practice on behalf of our client Brandon Hill, who faces the death penalty for capital charges in Wake County, North Carolina. (The ACLU has brought a similar challenge on behalf of our client, Dennis Glover, in Florida).

The motion is supported by a new study evaluating juror removals due to death disqualification and prosecutor peremptory strikes (when a prosecutor removes jurors without justification) in the last ten capital trials in Wake County, North Carolina.

The study shows that death disqualification excluded Black potential jurors at more than twice the rate of white jurors, and Black women at significantly higher rates. It also shows that Wake County prosecutors used peremptory strikes to remove Black prospective jurors more than twice as often as white, and Black women at the highest rate of all.

In total, with these two procedures, Wake County prosecutors in these ten cases rid the jury of over forty percent of Black potential jurors, while also disproportionately excluding people of faith and Catholics.

Read the expert report of Professor Seth Kotch concerning the intertwining North Carolina history of racism, executions and lynchings here.

View slides on North Carolina’s history of lynching and racist use of the death penalty here.

Read an expert report by Professor Timothy Lovelace, Jr., concerning the history of discrimination in jury selection here.

A hearing on the motion began on August 31 and September 1, 2022, at the Wake County Justice Center, 300 S Salisbury St, Raleigh, NC 27601, and will continue on September 12 and 13, 2022.

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