First Racial Justice Act claim since landmark 2020 ruling is heard in state court

Judge Wayland J. Sermons, Jr. heard Hasson Bacote’s Racial Justice Act claim in Wake County Superior Court on May 20, 2021.

The first case re-evaluating the role of racial bias in the death penalty began last week in Wake County, the result of a landmark 2020 state Supreme Court decision.

Hasson Bacote was convicted of murdering Anthony Surles, an 18-year-old high schooler in Johnston County in 2007, WRAL reported. A jury sentenced Bacote to death in 2009.

That same year, the General Assembly passed the Racial Justice Act, which then-Gov. Bev Perdue signed into law. The RJA allowed individuals on death row to seek sentences of life without parole if they could prove racial bias or discrimination was a significant factor in the decision to seek or impose the death penalty in their case.

After the RJA’s enactment, lawmakers gave those sentenced to death one year to submit their petitions. More than 100 did so, and four petitioners had their death sentences commuted to life without parole, according to Gretchen Engel, director of the Center for Death Penalty Litigation.

In 2013, however, state lawmakers repealed the Racial Justice Act. Soon thereafter, the commuted death sentences for the four were reinstated, and other petitioners were denied the RJA hearings they had sought.

Bacote’s attorneys submitted evidence at his original trial that Johnston County prosecutors excluded qualified Black jurors at more than three times the rate of white jurors, according to the Center for Death Penalty Litigation, which represents Bacote and many other petitioners.

However, because of the RJA repeal, Bacote’s claims of racial bias were not heard.

As Policy Watch has reported, the state Supreme Court in a 6-1 decision, ruled last year that it was unconstitutional to deny hearings to those — such as Bacote — who had filed claims before the law was repealed. Associate Justice Anita Earls wrote in the case State v. Ramseur that applying the repeal retroactively was unconstitutional. State Supreme Court Chief Justice Paul Newby was the lone dissenter in that decision.

The state Supreme Court later reaffirmed the re-sentencing of life without parole for one of the four Cumberland County petitioners who originally won their RJA cases.

Lower courts can now reevaluate defendants’ claims of racial bias in sentencing, as long as those claims were filed before the Racial Justice Act was repealed in 2013.

Bacote’s case is the first to be re-evaluated since the Supreme Court’s ruling.

There are 137 people on death row in North Carolina.

Center for Death Penalty Litigation director Gretchen Engel.

“The Racial Justice Act is really a unique law, and there aren’t very many states that have the courage to enact something like the Racial Justice Act that’s really going to take a hard look at our criminal punishment system in our most serious cases and deal with the history of racism and the death penalty, so we’re going to be doing that now,” Engel said.

The Thursday hearing, held in Wake County, was presided over by Judge Wayland J. Sermons Jr., who first heard Bacote’s RJA petition about a decade ago. Bacote was not present.

Bacote’s RJA petition relied on an analysis of demographics of defendants, victims and jurors from 1990 to 2009 in 1,500 North Carolina cases. The study was conducted by Michigan State University researchers, who had testified at previous RJA hearings. The researchers found that in capital cases, qualified Black jurors were eliminated from consideration more than twice as often as white jurors.

Jonathan Babb, a Special Deputy Attorney General representing the state, asked the defense counsel to disclose more information about the underlying data and biographies of the researchers. The judge granted part of the request. Both the state and the defense team are expected to call expert witnesses to testify on the validity and relevance of the MSU study.

The defense team, including lawyers with the ACLU and the Center for Death Penalty Litigation, requested that the state examine records of racial bias in trials dating to 1980, the beginning of the modern-day death penalty in North Carolina. Judge Sermons approved the request. Now the state Department of Justice must gather evidence involving training for district attorneys and communications concerning the race of jurors for the past 40-plus years.

Despite Babb’s objection, he also directed the Attorney General’s office to collect information about the racial makeup of all prosecutors and staff in state district attorney’s offices.

Babb said he could not comment on Bacote’s case.

In an interview, Henderson Hill of the ACLU, who is one of Bacote’s lawyers, said the defense team is seeking the information because many prosecutors had an immense influence in their offices that extended beyond long tenures. Hill cited former Robeson County District Attorney Joe Freeman Britt, who gained prominence as a “tough on crime” prosecutor. “If you went to a Joe Freeman Britt training, what he said influenced lawyers and the state prosecutors in the state for 20, 30 years,” Hill said.

Judge Sermons did not hear factual arguments. He said he wanted to be as fair and neutral as possible before the next evidentiary hearing, where he will reexamine the jury selection notes, training records and other documents, likely in the original jurisdiction of Johnston County. Before that, there will be a hearing to check in on the status of records in 90 days.

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