Johnston County hearing could revive controversial Racial Justice Act claims in NC

A North Carolina county famous for some residents’ history of Ku Klux Klan support shouldn’t be allowed to sentence a Black man to death in a murder case, a group of civil right advocates said Wednesday, arguing that past indications of racism in the courtroom hurt his right to a fair trial.

The case, which will go before a Johnston County court next week, extends beyond just one man. It could have implications for the approximately 120 people on North Carolina’s death row who have claimed their trials and sentencing were racially biased.

The focus is the Racial Justice Act, a law Democrats passed in 2009 when their party controlled the state legislature. It followed the exoneration of multiple innocent people from prison due to wrongful convictions, which came to light in the early 2000s due to advances in DNA technology. The law was the first of its kind in the country when it passed. It allowed inmates to appeal based solely on the argument that racism — perhaps in the form of an all-white jury, or via explicitly racist comments made by state prosecutors — had improperly swayed their original trials.

The first round of cases came up in 2012, when four Black inmates successfully had their death sentences reduced to life in prison after proving that racism had swayed their juries to treat them more harshly.

Republicans flipped control of the state legislature in 2011 and quickly began trying to repeal the Racial Justice Act. Then-Gov. Bev Perdue, a Democrat, vetoed those bills in 2011 and 2012. In 2013, a new Republican governor, Pat McCrory, signed the repeal into law. It banned future inmates from claiming that racism played a role in their sentencing. It also applied retroactively, stopping all the appeals that were already underway.

That retroactive piece of the repeal was ruled unconstitutional by the North Carolina Supreme Court in 2020 — in a party-line ruling by the Democratic majority on the court at the time. The ruling allowed death row inmates who had already begun making Racial Justice Act claims to resume their efforts.

One of those inmates is Hasson Bacote, a Raleigh man sentenced to death for his role in a 2007 Johnston County robbery that ended in a teenager being shot dead. Bacote’s advocates say that in similar cases involving the so-called felony-murder rule, the death penalty is usually off the table. But an almost-all-white Johnston County jury sentenced Bacote, who is Black, to death.

He has been appealing that decision, and his attorneys say new statistical evidence they hope to submit in the case about systemic racism in state courts could revive dozens of similar appeals, following the 2020 state Supreme Court ruling that allowed them to carry on.

Bacote’s lawyers plan to make first-of-their-kind legal arguments, they said Wednesday, showing hard statistical evidence for racism throughout the judicial process, both in Johnston County and in North Carolina as a whole.

“It’s going to affect everyone who filed under the Racial Justice Act in North Carolina,” said Cassy Stubbs, the top anti-death-penalty lawyer for the American Civil Liberties Union.

“The death penalty should no longer, in North Carolina, be stained by this legacy of race discrimination and Jim Crow,” Hill said.

Johnston County District Attorney Susan Doyle didn't immediately respond to a request for comment left with her staff Wednesday. But the North Carolina Conference of District Attorneys is fighting the efforts to let Bacote and others cite the statistical evidence about racism in the justice system that they want the case to revolve around.

The pro-prosecutor advocacy group wrote in a recent court filing that the study in question shouldn't be allowed in as evidence because it "lacks relevance and has no probative value as to the question of whether there was racial animus in jury selection."

The partisan divide around the question of whether to address racism in death penalty cases could come into focus later this year, when North Carolinians vote on multiple offices that are key to future debates over the death penalty. One of the state Supreme Court’s seven seats is up for grabs, as is every seat in the state legislature. Voters will also be choosing a new governor and a new attorney general, as well as many prosecutors and trial court judges.

Asked about how this year’s political races could play into this case, Hill said Wednesday that if voters want to see change, they need to vote for it.

“What the hearing will demonstrate is that this old problem is not going to cure itself,” Hill said. “It’s going to require active conduct. Participation by the courts, change by prosecuting attorneys. And racial justice is a good framework for enlisting public support for this need.”

Hill is working on the Bacote case with fellow civil rights attorney James Ferguson; both used to work at North Carolina’s first racially integrated law firm, Ferguson, Stein & Chambers. Adam Stein, who was the firm’s white partner, is the father of North Carolina Attorney General Josh Stein — a Democrat who is leaving that role to run for governor, seeking to replace Democratic Gov. Roy Cooper, who is term-limited.

But while Stein remains the state’s attorney general, he remains in charge of defending appeals in criminal justice cases — and is therefore fighting Bacote’s case. His office questions the validity of the evidence the civil rights attorneys want to present.

"Racial discrimination in jury selection is abhorrent in all respects and has no place in the criminal justice system," Stein's office wrote in opposing Bacote's appeal. "Nevertheless, like all claims, a claim of racial discrimination cannot be presumed based on the mere assertion of a defendant; it must be proved by sound and probative evidence."

Stein’s challenger in the 2024 Democratic primary is former state Supreme Court Justice Michael Morgan, who signed onto the 2020 rulings that resurrected the Racial Justice Act for defendants like Bacote. He’s not happy with the DOJ’s efforts under Stein to fight the case.

“It's shameful that my primary opponent AG Stein is trying to keep a convicted Black defendant from getting his long-awaited day in court before early voting begins,” Morgan wrote on social media.

He added that “Stein doesn't want Black voters to know his (Stein's) argument in this high-profile case, which is that the defendant did not experience racial discrimination, despite the NC Supreme Court's Racial Justice Act ruling.”

Neither Stein’s campaign nor the Department of Justice responded to the criticisms levied by Morgan.

Stein has previously served as co-chair of the state’s Task Force on Racial Equity, which Cooper created to propose criminal justice reforms following the 2020 Black Lives Matter protests.