North Carolina | New Hearings on Reopened Death Penalty Cases Began Last Week. The Outcomes Could Effectively End North Carolina's Death Penalty.
Six people were inside, including 18-year-old Anthony Surles, a senior at Smithfield-Selma High School.
Surles was shot and killed.
Surles’ murder wasn’t premeditated, but based on Bacote’s already lengthy teenage criminal rap sheet, Bacote was sentenced to death by lethal injection in 2009.
More than a decade later, Bacote’s case is back in court, thanks to a 2020 ruling from the North Carolina Supreme Court mandating that petitions of more than 100 death row inmates be heard by the courts due to evidence of racial bias in jury selection under the state’s Racial Justice Act. Not only does Bacote’s life depend on the outcome, but so does the future of the death penalty in North Carolina.
“I don’t know that there’s a weaker case for the death penalty than Mr. Bacote,” says Gretchen Engel, executive director of The Center for Death Penalty Litigation. “This case, with all of the other evidence we have, [shows] that racism permeates the death penalty in our state and nationwide.”
North Carolina has not executed anyone since 2006.
In 2009, the state legislature passed the Racial Justice Act, banning the death penalty in cases where race was determined to be a factor in sentencing.
The law was retroactive for the 145 inmates on death row at the time; however, it was repealed in 2013 after Republicans seized control of the legislature.
A lengthy legal battle has been waged since, ending in the state Supreme Court’s 2020 ruling that all pending petitions under the act had the right to be heard for reevaluation.
Statistical evidence has shown that the state systematically discriminated against Black jurors, as upheld in death row inmate Marcus Robinson’s 2012 appeal against the state, which found that Black jurors were twice as likely to be excluded from selection. 20 % of inmates on North Carolina’s death row had been sentenced by an all-white jury, and about 1/4 of inmates had been convicted by a jury with only a single person of color, studies also showed. In cases with White victims, the defendant was nearly 3 times more likely to be sentenced to death.
The bias was flippant in some cases, with prosecutors shown to have written notes calling jurors “blk wino,” or “blk, high drug.” Training sessions taught prosecutors to be more discreet in their decision-making by giving vague excuses like “body language” or “lack of eye contact” to keep Black jurors from the bench.
Now, it will be the burden of the state to prove that race did not taint the jury selection in Bacote’s trial. According to Duke law professor James Coleman, the court’s decision regarding the statistical findings likely will impact the rest of the hearings.
“If the court finds that evidence shows that race was a factor in Johnston County, then that decision will likely apply to other cases in Johnson County because the state will have had an opportunity to defend it in this case, and it doesn’t get a chance to challenge an issue that has already lost,” Coleman told the INDY. “So some of the evidence found in an individual case might be binding for the state in subsequent cases.”
Bacote’s hearing began Friday when his legal team appeared before Superior Court Judge Wayland Sermons Jr. at the Wake County Courthouse to request documents from the state, including jury selection notes and training records. Should his appeal succeed, he will be re-sentenced to life without the possibility of parole.
Regardless of the outcome, it will likely be appealed to higher courts. The state Supreme Court currently has a liberal majority on the bench, but the case is unlikely to reach it until after the 2022 election.
The hearing came, coincidentally, the same week that a North Carolina jury awarded $75 million—the largest-ever payout in a case of wrongful conviction—to former death row inmates Henry McCollum and Leon Brown, who spent nearly 31 years in prison for the 1983 rape and murder of an 11-year-old girl found dead in a soybean field.
They were exonerated in 2014 after DNA evidence implicated Roscoe Artis, who was already serving life in prison at the time, for the murder.
The petitions slated to be heard under the Racial Justice Act will also be costly to the state, especially if, after the first few cases play out, Attorney General Josh Stein decides to continue trying each case individually.
“I would be interested in whether the Attorney General is considering looking at some of these early cases as test cases with the idea that after some number, when the evidence is clear, that he will stop defending these cases and go in and confess error,” Coleman says. “I don’t think he would have the courage to do that but if you were a private law firm representing a client in a series of cases like these [...] at some point, you would advise your client that it is a waste of time to continue to defend these cases based on the evidence.”
A spokesperson for Stein’s office declined to comment on the specifics of the cases.
“Our office will follow the law as enacted by the legislature and in accordance with applicable court rulings,” they wrote via email.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde