RALEIGH, N.C. — More than 30 years after the U.S. Supreme Court ruled that prosecutors cannot remove jurors on account of their race, North Carolina remains the only state in the South whose courts have never reversed a conviction due to claims of racial bias in jury selection.
That could soon change, after the state Supreme Court heard arguments Wednesday in State v. Clegg, a case involving Christopher Anthony Clegg, a 26-year-old Black man who claims that a Wake County prosecutor removed two Black female jurors due to their race during his 2016 trial for armed robbery.
During jury selection at Clegg’s trial, prosecutors and defense lawyers had 22 potential jurors to choose from. With each side allowed a certain number of peremptory challenges, or the dismissal of a juror without a stated reason, prosecutors dismissed four members of the jury pool, according to court records.
Those jurors included Viola Jeffreys and Gwendolyn Aubrey, two Black women and the only African Americans present in the jury pool.
Since he was convicted in April 2016 and sentenced to between 66 and 92 months in prison, Clegg and his attorneys have continued to claim the prosecution’s dismissal of Jeffreys and Aubrey was racially motivated, and that his conviction should be reversed.
In the judicial system, that argument is referred to as a Batson challenge, named after the U.S. Supreme Court’s landmark 1986 ruling that removing potential jurors based on race is unconstitutional.
More than three decades later, North Carolina appellate courts haven’t reversed a single conviction due to intentional racial discrimination against a juror of color, according to a 2016 article in the North Carolina Law Review. By contrast, state appellate courts in Maryland, Virginia, West Virginia and South Carolina — the other jurisdictions accompanying North Carolina in the 4th Circuit of Appeals — have found at least one example of prosecutors striking a minority juror due to their race.
The prosecution’s stated reasoning for removing Jeffreys and Aubrey was under scrutiny on Wednesday, as Clegg’s attorney and an attorney representing North Carolina argued whether a prosecutor’s answers for why he wanted to strike the Black jurors showed intentional racial discrimination.
“What we’re trying to do is reduce the risk,” said Dylan Buffum, Clegg’s attorney. “We’re not talking about a certainty of racial discrimination, we’re just saying, ‘what is the risk that we’re willing to accept?’ And where there’s a substantial likelihood, the court is supposed to reject the strike and uphold the challenge.”
One indication that racial bias was a “motivating factor” in striking Aubrey as a juror was the fact that the prosecutor gave different reasons for why he did not want her to serve on the jury, Buffum said.
When asked for a reason, prosecutors pointed to Aubrey’s body language, her failure to make eye contact, and the fact that when she was asked if she could be a fair and impartial juror, she replied “I suppose.” They repeated those reasons when Aubrey’s dismissal was considered on appeal, court records show.
But that wasn’t what she was responding to. Aubrey said “I suppose” in response to whether she was confident that “you can focus on what’s going on here,” according to a transcript quoted in court records.
Asked for an explanation, the prosecutor said he mis-remembered and was concerned about her ability to focus on the trial, Buffum told justices Wednesday.
If he had stood by his original stated reason, that he was worried about her ability to be fair and impartial, “that would’ve been a stronger position,” Buffum said.
“But by shifting his explanation, and now taking the position, ‘actually, I was concerned about her focus,’ the prosecutor has revealed that he never really was concerned about her focus.”
Of the 12 jurors and one prospective alternate juror that were ultimately chosen at Clegg’s trial, 12 were white and one individual was biracial, according to court records.
Buffum noted that there were multiple jurors who said they had concerns about focusing on the trial due to their jobs, medical appointments, or having to arrange for child care, who were not excused.
“The prosecutor was only concerned about focus when it came to the African American woman on the panel, when it came to Ms. Aubrey,” he said.
When Clegg appealed his conviction in August 2017, the North Carolina Court of Appeals rejected his claim that there was racial bias in jury selection during his trial.
The appellate court made note of the “discrepancy” between the prosecution’s characterization of Aubrey’s answers during jury selection, and what the transcript showed, but still upheld Clegg’s conviction, ruling that prosecution concerns about Aubrey’s failure to make eye contact and her ability to be “fair and focused” were “race neutral” explanations for why she was dismissed.
Addressing Clegg’s argument that white jurors who said they might have a hard time focusing on the trial were allowed to serve, while Aubrey was not, the Court of Appeals said: “The State’s race-neutral basis for striking Aubrey was not solely due to her lack of confidence in her ability to focus, but also based on her body language and failure to make eye contact.”
During Wednesday’s arguments, Amy Irene, an attorney with the North Carolina Department of Justice, reiterated that the explanations prosecutors gave for removing Jeffreys and Aubrey were “facially valid, race-neutral reasons.”
Asked about the trial court’s rejection of Clegg’s original Batson challenge, Irene said the court, after considering all the facts and circumstances, “can’t conclude that purposeful discrimination occurred, or it cannot conclude that the defendant has met his burden of showing it’s more likely than not.”
Irene also argued that in offering different reasons for why he wanted to dismiss Aubrey, the prosecutor had “made an honest mistake.”
“Making a mistake is not the same thing as purposefully discriminating,” she said.
Clegg, now 26, served a little more than four years and four months in prison before being released on parole in August 2020, and completing it a year later, according to the North Carolina Department of Public Safety.
If the state Supreme Court rules in his favor and reverses his conviction, it’ll be “a powerful message that we do take race discrimination seriously,” said Gretchen Engel, executive director of the Durham-based Center for Death Penalty Litigation.
The fact that North Carolina hasn’t seen a single conviction reversed due to intentional racial discrimination in jury selection is “a real mark of infamy,” Engel said.
Over the years, Engel said there has been a “trickle-down effect” that influences trial judges, prosecutors, as well as defense attorneys, and creates an environment in which pursuing a Batson challenge is deemed not worth doing.
That has resulted in “a general tolerance of discrimination that is permitted when the appellate courts don’t take the leadership they could take,” she said.
Racial bias in jury selection doesn’t just deprive a defendant of their right to a fair trial; it also prevents members of a minority group from participating in democracy and exercising power in important cases, Engel said.
“Given that we live in a pluralistic society, our juries need to reflect that reality,” she said.
