NC v Robinson Brief of Amicus Curiae

    SUPREME COURT OF NORTH CAROLINA
'k’k'k’k-k'k-k-k’k’k'k’k'k-k-k'k'k'k'k’k-k-kic’k'k'k'k'k-k-k'k'k-k'k'k'kic'k-k’k'k'k’k'k'k-k'k'k'k'k'k-k

No. 411A94-6 DISTRICT TWELVE

STATE OF NORTH CAROLINA )
)

v. ) From Cumberland County
) 91 CRS 23143

MARCUS REYMOND ROBINSON )
)

•k’k 'k 'k 'k 'k i e - k 'k - k ’k - k ’k ' k ’k 'k - k 'k 'k 'k ’k ’k 'k -k 'k -k 'k -k -k -k 'k 'k ’k 'k -k -k -k -k -k j c 'k 'k 'k -k 'k ’k ' k ’k j c - k i e - k

No. 548A00-2 DISTRICT TWELVE

STATE OF NORTH CAROLINA )
)

v. ) From Cumberland Countv
) 98 CRS 34832, 35044

CHRISTINA SHEA WALTERS )
)

•k-k'k-k-k-k'k’k'k'k-k'k'k-k'k'k'k’k’k'k'k’kic-k'k-k'k'k'k'k'k'k'k'k’k’k'k'k'k'k'k'k-k'k'kic’k-k-k'k'k'k

No. 441A98-4 DISTRICT TWELVE

STATE OF NORTH CAROLINA )
)

v. ) From Cumberland County
) 97 CRS 47314, 47315, 47312

TILMON CHARLES GOLPHIN )
)

• k -k -k -k -k -k 'k ’k -k 'k -k -k -k 'k -k 'k 'k 'k -k 'k -k 'k -k 'k 'k -k 'k 'k 'k 'k -k -k ’k 'k -k 'k 'k -k -k 'k -k 'k 'k i c -k 'k -k 'k ’k i c 'k



Document electronically filed: 16 July 2018 - 04:43:09 PM



• k 'k ie -k -k 'k 'k 'k 'k 'k 'k ’k - k ’k ' k ’k 'k 'k - k 'k ’k ’k ’k ’k 'k 'k 'k 'k -k -k -k 'k -k 'k -k -k -k 'k ’k 'k 'k 'k 'k 'k 'k ’k - k - k ’k -k 'k

No. 130A03-2 DISTRICT TWELVE

STATE OF NORTH CAROLINA )
)

v. )
)

QUINTEL MARTINEZ AUGUSTINE )
)

From Cumberland Countv 
01 CRS 65079

'k-k-k’̂ 'k'kic'k'k'k'k'k'k'k'k'k'k’k-k’k-k'k'k'k'k'k-k-k'k-k’k-k-k-k-k'k'k’k-k'k'k’k'k'k-k-k'k'k'k’k’k'k

BRIEF OF AMICUS CURIAE
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF DEFEND ANTS-AP PELL ANTS
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INDEX

STATEMENT OF THE CASE AND FACTS..................2

STATEMENT OF INTEREST........................................ 2

INTRODUCTION............................................................ 4

ARGUMENT.................................................................... 6

I. This Court Must Not Allow Racial
Discrimination to Taint a Death Sentence........... 6

A. North Carolina Has a Long and Tragic
History of Racial Discrimination in Its 
Death Penalty System...................................7

B. This Court Should Not Let the Racial
Discrimination in Defendants-Appellants’ 
Cases Stand Unaddressed.......................... 13

II. The Integrity of North Carolina’s Judicial
System Is Contingent on Juries Free of
Racial Bias.............................................................20

A. This Court and the United States Supreme 
Court Have Long Recognized the 
Importance of Juries Untainted by Racial 
Bias...............................................................20

Ill

TABLE OF CASES AND AUTHORITIES.....................v



IV

B. A Death Sentence Tainted by Racial
Discrimination in Jury Selection Harms the 
Defendant and the Prospective Juror and 
Threatens the Integrity of the Entire
Judicial System........................................... 24

CONCLUSION..............................................................29

CERTIFICATE OF SERVICE...................................... 32



V

TABLE OF CASES AND AUTHORITIES 

CASES
Batson v. Kentucky,

476 U.S. 79 (1986)................................  3, 12-13, 25, 28
Cooper v. Seaboard Air Line R. Co.,

163 N.C. 150, 79 S.E. 418 (1913)..............................21
Duncan v. Louisiana,

391 U.S. 145 (1968).................................................... 21
Furman v. Georgia,

408 U.S. 238 (1972).......................................................8
Georgia v. McCollum,

505 U.S. 42 (1992).................................................  3, 28
J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 127 (1994).............................................  25, 28
Miller-El v. Cockrell,

537 U.S. 322 (2003).......................................................3
Miller-El v. Dretke,

545 U.S. 231 (2005)...............................................  3, 24
McCleskey v. Kemp,

481 U.S. 279 (1987).............................................passim
Neal v. Alabama,

612 So. 2d 1347 (Ala. Crim. App. 1992)...................27
Pena-Rodriguez v. Colorado,

137 S. Ct. 855 (2017)...........................................  22, 23
Peters v. Kiff,

407 U.S. 493 (1972).....................................................26
Powers v. Ohio,

499 U.S. 400 (1991)..................................21, 22, 24, 26
Rose v. Mitchell,

443 U.S. 545 (1979).................................................... 28



VI

CASES
Smith v. Hortler,

4 N.C. (Car. L. Rep.) 131 (1814)..........................20-21
Smith v. Texas,

311 U.S. 128 (1940).............................................  21, 22
State v. Cofield,

320 N.C. 297, 357 S.E.2d 622 (1987)............  23, 25-26
State v. Mettrick,

305 N.C. 383, 289 S.E.2d 354 (1982)........................ 22
State v. Moore,

329 N.C. 245, 404 S.E.2d 845 (1991).................  23, 28
State v. Peoples,

131 N.C. 784, 42 S.E. 814 (1902)........................ 23, 26
State v. Sanderson,

336 N.C. 1, 442 S.E.2d 33 (1994)..............................24
State v. Scott,

314 N.C. 309, 333 S.E.2d 296 (1985).................  21, 22
State v. Speller,

229 N.C. 67, 47 S.E.2d 537 (1948)............................ 11
Strauder v. West Virginia,

100 U.S. 303 (1880)........................................10, 23, 25
Swain v. Alabama,

380 U.S. 202 (1965)..........................................  3, 11-12
Taylor v. Louisiana,

419 U.S. 522 (1975)...................................................  21
Woodson v. North Carolina,

428 U.S. 280 (1976)....................................................3-4

STATUTES & CONSTITUTIONS
N.C.G.S. § 15A-1335......................................................30
N.C.G.S. §§ 15A-2010 et seq. (2009)............................... 5
N.C. Const. Art. I, § 26 ................................................ 23



Vll

Death Penalty Info. Ctr., Current Death Row 
Populations by Race (as of July 1, 2017), 
http s: //de athp e naltyinfo. org/r ace - de ath- 
row-inmates-executed-1976?scid=5&did=184 ... 8

Equal Justice Initiative, Illegal Racial 
Discrimination in Jury Selection: A Continuing

OTHER AUTHORITIES

Legacy (Aug. 2010).................................................26-27
James Forman, Jr., Juries and Race in the 

Nineteenth Century,
113 Yale L.J. 895 (Jan. 2004)............................... 22-23

Samuel R. Gross & Robert Mauro, Death and 
Discrimination: Racial Disparities in Capital 
Sentencing (1989)....................................................... 10

Seth Kotch & Robert P. Mosteller,
The Racial Justice Act and the Long Struggle 
with Race and the Death Penalty in 
North Carolina,
88 N.C. L. Rev. 2031 (Sept. 2010)..... 7, 8-9, 10-11, 15

Robert P. Mosteller, Responding to McCleskey and 
Batson: The North Carolina Racial Justice Act 
Confronts Racial Peremptory Challenges in 
Death Cases,
10 Ohio St. J. Crim. L. 103 (2012)...................... 11, 15

Barry Nakell & Kenneth A. Hardy,
The Arbitrariness of the Death Penalty (1987)....  9, 10

N.C. Office of State Budget & Mgmt., State 
Demographer, County Estimates, Population in 
North Carolina Counties by Race (as of July 1, 2016), 
https://files.nc.gov/ncosbm/demog/totalbyrace__ 
2016.html..................................................................... 8

https://files.nc.gov/ncosbm/demog/totalbyrace__


V lll

Barbara O’Brien & Catherine M. Grosso,
Confronting Race: How a Confluence of Social 
Movements Convinced North Carolina to Go 
Where the McCleskey Court Wouldn’t,
2011 Mich. St. L. Rev. 463 (2011)............................  15

Barbara O’Brien, et al., Untangling the Role of 
Race in Capital Charging and Sentencing in 
North Carolina, 1990-2009,
94 N.C. L. Rev. 1997 (Sept. 2016)........................9, 10

Opinion, Justice Powell’s New Wisdom,
N.Y. Times (June 11, 1994),
http s: // w w w. nytime s. com/1994/06/11/op inion/
justice-powell-s-new-wisdom.html...........................15

Lauren M. Ouziel, Legitimacy and Federal 
Criminal Enforcement Power,
123 Yale L.J. 2236 (May 2014)................................. 28

Daniel R. Pollitt & Brittany P. Warren,
Th irty Years of Disappointment:
North Carolina ’s Remarkable Appellate 
Batson Record,
94 N.C. L. Rev. 1957 (Sept. 2016)............................13

Michael L. Radelet & Glenn L. Pierce, Race and 
Death Sentencing in North Carolina, 1980-2007,
89 N.C. L. Rev. 2119 (Sept. 2011)........................9, 10

Isaac Unah, Empirical Analysis of Race and the 
Process of Capital Punishment in North Carolina, 
2011 Mich. St. L. Rev. 609 (2011)........................ 9, 10

Neil Vidmar, The North Carolina Racial Justice Act:
An Essay on Substantive & Procedural Fairness 
in Death Penalty Litigation,
97 Iowa L. Rev. 1969 (Oct. 2012)..............................26

OTHER AUTHORITIES



IX

OTHER AUTHORITIES
Ronald F. Wright, et al., The Jury Sunshine Project: 

Jury Selection Data as a Political Issue,
2018 Univ. 111. L. Rev. 4 (Sept. 7, 2017), 
https://ssrn.com/abstract=2994288..........................12

https://ssrn.com/abstract=2994288


SUPREME COURT OF NORTH CAROLINA
•k-k'k'k’k'k̂ -k'k-k'k'k-k’k'k'k'k'k-k'k’k-k'k'k'k'k'k-k'k'k'k-k'k’k’k'k'k'k'k’k-k'k'k'k’k’k'k’k-k-k-k-k

No. 411A94-6 DISTRICT TWELVE

STATE OF NORTH CAROLINA )
)

v. ) From Cumberland County
) 91 CRS 23143

MARCUS REYMOND ROBINSON )
)

****************************************************

No. 548A00-2 DISTRICT TWELVE

STATE OF NORTH CAROLINA )
)

v. ) From Cumberland County
) 98 CRS 34832, 35044

CHRISTINA SHEA WALTERS )
)

'k'k’k’k'k’k’k-k'k-k’k’k-k-k'k’kick'k'k’k’k’k’k'k'k’k'k̂ c'k'k'k'k-k'k'k-k’k-k-k’k-k-k-k-k'k’k'k'k-k'k-k

No. 441A98-4 DISTRICT TWELVE

STATE OF NORTH CAROLINA )
)

v. ) From Cumberland County
) 97 CRS 47314, 47315, 47312

TILMON CHARLES GOLPHIN )
)

‘k ' k ’k 'k 'k -k 'k -k -k 'k -k 'k 'k -k -k -k 'k 'k 'k -k 'k ’k ’k 'k 'k - k 'k ’k ’k -k 'k -k 'k 'k 'k 'k -k -k 'k 'k ic 'k 'k 'k -k 'k 'k -k -k 'k 'k



-2 -

•k-k'k'k'k'k'k'k'k'k-k'k-kic-k'k-k'k'k'k'k'k'k’k'k’k-k'k'k’k’k'k’k'k'k-k'k'k-k'k'k'k’k-k'k-k’k'k-k'k'k

No. 130A03-2 DISTRICT TWELVE

STATE OF NORTH CAROLINA )
)

v. ) From Cumberland County
) 01 CRS 65079

QUINTEL MARTINEZ AUGUSTINE )
)

'k 'k -k 'k ’k'k'Jc’k ’k -k ’k ’k -k 'k 'k ’k 'k 'k 'k 'k 'k -k 'k 'k 'k 'k 'k -k 'k 'k ic ’k ’k ic 'k 'k 'k 'k ’k-k 'k 'k -Jc 'kic'k ’k -k 'k -k -k 'k

BRIEF OF AMICUS CURIAE
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF DEFENDANTS-APPELLANTS
'k'k-k’k’k'k'k'k'k'k’k’k’k'k’k'k’k-k’k'k'k'k'k'k’k'kic’k-k'k-k-k-k’k̂ c’k-k’k’k-k'k'k'k'k'k'k'k-k-k'k-k-k

STATEMENT OF THE CASE AND FACTS

Amicus Curiae NAACP Legal Defense and Educational Fund, Inc.

(hereinafter “LDF”) adopts Defendants-Appellants’ Statement of the 

Case and Facts.1

STATEMENT OF INTEREST

LDF is the nation’s first and foremost civil rights law organization. 

Through litigation, advocacy, public education, organizing and outreach, 

LDF strives to secure equal justice under the law for all Americans, and

1 Pursuant to N.C. R. App. P. 28(i)(2), LDF states that no person or entity other 
than amicus curiae, its members, or its counsel, directly or indirectly wrote the brief 
or contributed money for its preparation.



-3 -

to break down barriers that prevent African Americans from realizing 

their full civil and human rights. Since its inception, LDF has sought to 

eliminate the arbitrary role of race on the administration of the criminal 

justice system by challenging laws, pohcies, and practices that have a 

disproportionate impact on African Americans and other communities of 

color.

LDF has long been committed to ensuring racial equality in jury 

selection, having served as counsel or amicus curiae in multiple cases 

before the United States Supreme Court on this issue. See, e.g., Miller- 

El v. Dretke, 545 U.S. 231 (2005); Miller-El v. Cockrell, 537 U.S. 322 

(2003); Georgia v. McCollum, 505 U.S. 42 (1992); Batson v. Kentucky, 476 

U.S. 79 (1986); Swain v. Alabama, 380 U.S. 202 (1965). Moreover, as 

counsel in McCleskey v. Kemp, 481 US. 279 (1987), LDF has a significant 

interest in the North Carolina Legislature’s response to the McCleskey 

decision by permitting statutory claims of racial discrimination based on 

statistical evidence.

LDF has also represented individuals who have been sentenced to 

death in North Carolina as part of its advocacy for a fair and just criminal 

justice system. For example, LDF was counsel in Woodson v. North



-4 -

Carolina, 428 U.S. 280 (1976), in which the United States Supreme Court 

invalidated North Carolina’s mandatory death penalty scheme as a 

violation of the Eighth and Fourteenth Amendments.

Given its mission, history, and expertise in opposing racial injustice 

generally—and in combating racial discrimination in the use of 

peremptory strikes and in the imposition of the death penalty 

specifically—LDF has a substantial interest in the issues raised in 

Defendants-Appellants’ cases.

INTRODUCTION

Since the early days of LDF’s existence—when Thurgood Marshall 

represented capitally charged and death-sentenced African-American 

individuals across the South—to the present day, LDF has been deeply 

concerned with the pernicious influence of race in the administration of 

the death penalty. That concern is certainly justified with respect to the 

death penalty in North Carolina. Throughout North Carolina’s history, 

its death penalty has had a deep and troubling association with racial 

discrimination. Multiple statistical studies—utilizing data across 

several decades—demonstrate the continuing effect of race in North 

Carolina’s death penalty, especially with respect to the race of the victim



and the race of prospective jurors.

Yet, despite this compelling evidence of systemic racial 

discrimination, the ability for capitally-charged and death-sentenced 

individuals to seek judicial relief has been largely truncated by the 

United States Supreme Court’s decision in McCleskey, which ruled that 

statistical evidence alone is insufficient to support an inference that 

decisionmakers acted with a discriminatory purpose. LDF represented 

Warren McCleskey in that case and continues to believe that it was 

wrongly decided.

But the North Carolina Legislature responded to the unduly 

restrictive holding in McCleskey by passing the North Carolina Racial 

Justice Act, N.C.G.S. §§ 15A-2010 et seq. (2009) (“RJA”), which provides 

statutory relief from the death penalty based on statistical evidence of 

racial discrimination. With this statutory mechanism, Defendants 

presented compelling evidence of racial bias in the prosecution’s use of 

peremptory challenges in Cumberland County, in the prosecutorial 

district and judicial divisions containing Cumberland County, and

- 5 -

throughout North Carolina.



-6 -

That prosecutors discriminated against African-American 

prospective jurors is clear from the record and led the Superior Court of 

Cumberland County to vacate Defendants’ death sentences. Knowing 

now that there is significant evidence of racial discrimination in 

Defendants’ cases, it is incumbent upon this Court to allow Defendants 

to seek and secure sentencing relief. Otherwise, this continuing stain of 

racial discrimination will undermine not only the legitimacy of 

Defendants’ death sentences, but also public confidence in the integrity 

of North Carolina’s judicial system as a whole. LDF urges this Court to 

grant Defendants’ requested relief, thereby making clear and 

unequivocal that the courts of North Carolina will not tolerate racial 

discrimination in jury selection and the administration of the death 

penalty.

ARGUMENT

I. This Court Must Not Allow Racial Discrimination to Taint a 
Death Sentence.

Throughout North Carolina’s history, racial discrimination has 

placed an unacceptable stain on its death penalty system. With the 

passage of the Racial Justice Act, Defendants were also able to establish 

that race was a significant factor in the prosecution’s use of peremptory



- 7-

challenges in Cumberland County, in the prosecutorial district and the 

judicial divisions containing Cumberland County, and across the State of 

North Carolina at the time of their capital trials. This Court, therefore, 

must permit Defendants to pursue relief from death sentences that are 

unquestionably tainted by this compelling evidence of racial bias.

A. North Carolina Has a Long and Tragic History of 
Racial Discrimination in Its Death Penalty System.

North Carolina’s death penalty has a long and tragic association 

with racial discrimination. African Americans—mostly slaves— 

comprised 71% of those executed from 1726 to 1865. Seth Kotch & Robert 

P. Hosteller, The Racial Justice Act and the Long Struggle with Race and 

the Death Penalty in North Carolina, 88 N.C. L. Rev. 2031, 2044-45 (Sept. 

2010) (hereinafter “Kotch, Racial Justice Act”). “[M]any slaveowners 

believed that these public executions served an important purpose in 

deterring misbehavior among the slave population at large.” Id, at 2047- 

48. This trend of primarily executing African Americans continued in 

North Carolina between the end of the Civil War and 1910, with African 

Americans making up 74% of the 160 people executed during that time 

even though they were, at most, 38% of the overall population. Id. at

2053.



-8 -

In 1910, the State of North Carolina assumed responsibihty for 

executions, which ensued until 1961, when the last North Carolina 

prisoner was executed before the death penalty was ruled 

unconstitutional by the United States Supreme Court in Furman v. 

Georgia, 408 U.S. 238 (1972). Kotch, Racial Justice Act at 2039. During 

that time between 1910 and 1961, 283 of 362 (78%) individuals executed 

were African American. Id. At the same time, North Carolina’s African- 

American population ranged from only 32% in 1910 to 25% in 1960. Id. 

at 2056. Presently, 78 of the 152 (51%) individuals on North Carolina’s 

death row are African American2 although African Americans comprise 

only 22% of North Carolina’s general population.3

One of the most indelible legacies of slavery and Jim Crow on North 

Carolina’s death penalty is the persistent trend of executing people, 

especially African Americans, for crimes committed against white 

victims. The execution of African Americans accused of raping white 

women stands as a stark example: from the pre-Furman era of 1910 to

2 Death Penalty Info. Ctr., Current Death Row Populations by Race (as of
July 1, 2017), https://deathpenaltyinfo.org/race-death-row-inmates-executed-
1976?scid=5&did=184.

3 N.C. Office of State Budget & Mgmt., State Demographer, County Estimates, 
Population in North Carolina Counties by Race (as of July 1, 2016), 
https://files.nc.gov/ncosbm/demog/totalbyrace_2016.html.

https://deathpenaltyinfo.org/race-death-row-inmates-executed-
https://files.nc.gov/ncosbm/demog/totalbyrace_2016.html


-9 -

1961, 67 of 78 men executed for rape were African American, and the 

victim was confirmed to be white in 58 of those cases. Id. at 2066. 

Moreover, a study of North Carolina homicides from 1980 to 2007 found 

that “the odds of a death sentence for those suspected of killing Whites 

are approximately three times higher than the odds of a death sentence 

for those suspected of killing Blacks,” and the “race of the victim effect is 

largest for Black suspects suspected of killing White victims, who are five 

times more likely to be sentenced to death than Black suspects with 

Black victims.” Michael L. Radelet & Glenn L. Pierce, Race and Death 

Sentencing in North Carolina, 1980-2007, 89 N.C. L. Rev. 2119, 2120, 

2141 (Sept. 2011) (hereinafter “Radelet, Race and Death Sentencing’). 

Numerous other studies confirm the persistent influence of the victim’s 

race in the administration of the death penalty in North Carolina:

• Analysis of 1977-78 North Carolina data: Defendants of any race 
who killed a white victim were “six times more likely to be found 
guilty of first degree murder than defendants in cases with 
nonwhite victims.”4 “In addition, nonwhite defendants were

4 Isaac Unah, Empirical Analysis of Race and the Process of Capital 
Punishment in North Carolina, 2011 Mich. St. L. Rev. 609, 622 (2011) (hereinafter 
“Unah, Empirical Analysis’') (quoting Barry Nakell & Kenneth A. Hardy, The 
Arbitrariness of the Death Penalty 146-48 (1987)) (hereinafter “Nakell,
Arbitrariness”)', see also Radelet, Race and Death Sentencing, at 2134 (citation 
omitted); Barbara O’Brien, et al., Untangling the Role of Race in Capital Charging 
and Sentencing in North Carolina, 1990-2009, 94 N.C. L. Rev. 1997, 2005 (Sept. 2016) 
(hereinafter “O’Brien, “Untangling the Role”).



- 10-

more likely to receive the death penalty compared to whites.”5

• Analysis of 1977-80 North Carolina data: “Among [ ] homicides 
with additional felony circumstances present . . . 13.6% of those 
suspected of killing Whites were sentenced to death, compared 
to 4.3% of those suspected of killing Blacks.”6

• Analysis of 1993-97 North Carolina data: “When a nonwhite 
defendant kills a white victim, the death-sentencing rate is 5.1 
percent. However, when a nonwhite defendant kills a nonwhite 
victim, the death-sentencing rate is only 1.5 percent.”7

• Analysis of 1990-2009 North Carolina data: (1) “Cases in which 
the defendant killed at least one white victim were significantly 
more likely to receive a death sentence than cases in which the 
defendant killed only black victims”; (2) “Prosecutors were 
significantly less likely to bring cases in which black defendants 
killed only black victims to a capital trial than any other case”; 
(3) “Juries were significantly less likely to sentence defendants 
to death in cases where white defendants kills only black victims 
than any other case.”8

Equally troubling is the historic and longtime exclusion of African 

Americans from capital juries. This disturbing trend is rooted in the 

absolute bar to jury service for African Americans during the time of 

slavery. Kotch, Racial Justice Act, at 2072. Even after the United States 

Supreme Court ruled in Strauder v. West Virginia, 100 U.S. 303 (1880),

5 Unah, Empirical Analysis, at 622 (citing Nakell, Arbitrariness, at 94).
6 Radelet, Race and Death Sentencing, at 2135 (citing Samuel R. Gross & 

Robert Mauro, Death and Discrimination: Racial Disparities in Capital Sentencing 
89 (1989)).

7 Unah, Empirical Analysis, at 637.
8 O’Brien, Untangling the Role, at 2043.



-11 -

that the Fourteenth Amendment prohibited states from enacting laws 

that barred African Americans from serving on juries, North Carolina 

instituted statutory requirements to jury service during the first half of 

the twentieth century that effectively achieved the same result. For 

example, North Carolina statutes during that time required: 

“(1) payment of taxes for the preceding year; (2) good moral character; 

and (3) sufficient intelligence” for jury service, which gave wide discretion 

to exclude African Americans from juries. Kotch, Racial Justice Act, at 

2073. As an example, this Court noted in a 1948 decision that no African 

American was eligible for jury service, let alone seated, in an eastern 

North Carolina county where African Americans made up the majority of 

the population. State v. Speller, 229 N.C. 67, 68-70, 47 S.E.2d 537, 538- 

39 (1948), cited in Robert P. Mosteller, Responding to McCleskey and 

Batson.- The North Carolina Racial Justice Act Confronts Racial 

Peremptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103, 126 

n.109 (2012) (hereinafter “Mosteller, Responding to McCleskey and 

Batson”).

Even though the United States prohibited the systemic exclusion of 

African Americans from juries, see Swain v. Alabama, 380 U.S. 202



- 12 -

(1965), and the discriminatory use of peremptory challenges against 

African Americans, see Batson v. Kentucky, 476 U.S. 79 (1986), African 

Americans are still disproportionately excluded from jury service, as 

demonstrated in Defendants’ cases. See infra Section I.B. Similarly, a 

recent study conducted by former prosecutors examined 2011 felony 

trials in North Carolina and found that prosecutors used peremptory 

challenges against African-American prospective jurors at twice the rate 

they excluded white prospective jurors. Ronald F. Wright, et al., The 

Jury Sunshine Project: Jury Selection Data as a Political Issue, 

2018 Univ. 111. L. Rev. 4, 26 (Sept. 7, 2017), https://ssrn.com/abstract= 

2994288 (available via SSRN).

In his concurrence in Batson, Justice Marshall emphasized how the 

“[mjisuse of the peremptory challenge to exclude black jurors has become 

both common and flagrant” because, inter alia, “[a]ny prosecutor can 

easily assert facially neutral reasons for striking a juror, and trial courts 

are ill equipped to second-guess those reasons.” Batson, 476 U.S. at 103, 

105 (Marshall, J., concurring). Additionally, “the conscious or 

unconscious racism” of prosecutors or judges may lead to differing 

perceptions of African American jurors, as compared to white jurors, and

https://ssrn.com/abstract=


- 13 -

the court’s ready acceptance of the prosecutor’s proposed explanation for 

the challenge. Id. at 106. The record of Batson rulings in this Court and 

the North Carolina Court of Appeals justifies Justice Marshall’s concerns 

about the difficulties of remedying the racially discriminatory use of 

peremptory challenges: the appellate courts of North Carolina have never 

ruled that a prosecutor intentionally discriminated against a juror of 

color since Batson was decided.9 Daniel R. Pollitt & Brittany P. Warren, 

Thirty Years of Disappointment: North Carolina ’s Remarkable Appellate 

Batson Record, 94 N.C. L. Rev. 1957, 1961-62 (Sept. 2016) (hereinafter, 

“Pollitt, Thirty Years of Disappointment”).

B. This Court Should Not Let the Racial Discrimination 
in Defendants-Appellants’ Cases Stand Unaddressed.

Despite the substantial amount of statistical evidence of racial 

discrimination in North Carolina’s death penalty, the United States

9 On three occasions, this Court found the trial court to have erred in finding 
no prima facie case of discrimination in the first of Batson’s three-step inquiry and 
conducted or ordered further review, but it has never reached an ultimate finding of 
intentional discrimination. Pollitt, Thirty Years of Disappointment, at 1961. The 
North Carolina Court of Appeals has found intentional discrimination in the 
peremptory challenges used against two white prospective jurors, and a prima facie 
case of discrimination— which did not lead to findings off intentional racial 
discrimination—in two other cases. Id. at 1961-63. However, no North Carolina 
appellate court has found that a peremptory challenge was used in an intentionally 
discriminatory manner against a prospective juror of color. A search for decisions 
issued by this Court and the North Carolina Court of Appeals after the publication of 
this study did not yield any state appellate decisions finding Batson violations.



- 14-

Supreme Court’s decision in McCleskey v. Kemp, 481 U.S. 279 (1987), has 

placed significant obstacles to remedying this discrimination. In a closely 

divided 5-4 decision, the majority in McCleskey acknowledged that there 

was “a discrepancy that appears to correlate with race” in terms of whom 

Georgia prosecutors decided to charge with capital crimes. Id. at 312. 

Nevertheless, the Court concluded that the stark statistics of racial 

disparities established in the case were not sufficient to prove a 

“discriminatory purpose,” as required by the Fourteenth Amendment, 

and characterized the racial disparities as “an inevitable part of our 

criminal justice system.” Id. at 295-99, 312. As Justice Blackmun 

commented in his dissent, the McCleskey Court “sanction[ed] the 

execution of a man despite his presentation of evidence that establishes 

a constitutionally intolerable level of racially based discrimination 

leading to the imposition of his death sentence.” Id. at 345 (Blackmun, 

J., dissenting).

LDF is the legal organization that represented Warren McCleskey 

before the United States Supreme Court and continues to beheve that 

the McCleskey decision was an incorrect interpretation of the Fourteenth 

Amendment, which has sharply limited the ability of victims of racial



- 15 -

discrimination in the criminal justice system, including capital 

defendants, to seek judicial redress. Indeed, Justice Powell, who wrote 

the majority opinion in McCleskey and cast the deciding vote, publicly 

stated in retirement that, in retrospect, he would have decided McCleskey 

differently. Opinion, Justice Powell's New Wisdom, N.Y. Times (June 11, 

1994), https://www.nytimes.com/1994/06/ll/opinion/justice-powell-s- 

new-wisdom.html.

However, in passing the RJA, the North Carolina Legislature 

specifically responded to the unjust constraints imposed by McCleskey on 

federal claims of racial discrimination by permitting state statutory 

claims of racial discrimination based on statistical evidence. See Barbara 

O’Brien & Catherine M. Grosso, Confronting Race: How a Confluence of 

Social Movements Convinced North Carolina to Go Where the McCleskey 

Court Wouldn't, 2011 Mich. St. L. Rev. 463, 463-64, 473-74 (2011); 

Mosteller, Responding to McCleskey and Batson at 116; Kotch, Racial 

Justice Act at 2111-13. With that opportunity provided by the RJA, 

Defendants have presented overwhelming statistical evidence of racial 

discrimination in the selection of juries in capital cases in Cumberland 

County (where they were sentenced to death), in the prosecutorial district

https://www.nytimes.com/1994/06/ll/opinion/justice-powell-s-new-wisdom.html
https://www.nytimes.com/1994/06/ll/opinion/justice-powell-s-new-wisdom.html


- 16 -

and judicial divisions containing Cumberland County, and across the 

entire state of North Carolina.

Defendant Marcus Robinson’s statistical evidence was comprised of 

an exhaustive study of jury selection that utilized: (1) “a complete, 

unadjusted study of race and strike decisions for 7,421 venire members 

drawn from the 173 proceedings for the inmates of North Carolina's 

death row in 2010”; (2) “a regression study of a 25% random sample 

drawn from the 7,421 venire member data set that analyzed whether 

alternative explanations impacted the relationship between race and 

strike decisions”; and (3) “a regression study of 100% of the venire 

members from the Cumberland County cases.” Order Granting Motion 

for Appropriate Relief p. 44, North Carolina v. Robinson, No. 91 CRS 

23143 (N.C. Super. Ct. Apr. 20, 2012) (hereinafter “Robinson Order”).

Having reviewed this evidence, as well as the evidence presented 

by the State, the Superior Court of Cumberland County made the 

following findings, among many, in a meticulous and comprehensive 167- 

page opinion in Mr. Robinson’s case:

• “[Pjrosecutors statewide struck 52.6% of eligible black venire 
members, compared to only 25.7% of all other ehgible venire 
members. . . . The probability of this disparity occurring in a 
race-neutral jury selection process is less than one in ten



- 17-

trillion.” Id. p. 58.

• “Of the 166 cases statewide that included at least one black 
venire member, prosecutors struck an average of 56.0% of 
eligible black venire members, compared to only 24.8% of all 
other eligible venire members. . . . The probabibty of this 
disparity occurring in a race-neutral jury selection process is less 
than one in 10,000,000,000,000,000,000,000,000,000,000.” Id. 
p. 59.

• “The statewide disparity in strike rates has been consistent over 
time, whether viewed over the entire study period, in four five- 
year periods, or two ten-year periods.” Id.

• In the “Fourth Judicial Division as constituted since January 1, 
2000,” which includes Cumberland County, “prosecutors struck 
an average of 62.4% of eligible black venire members, compared 
to only 21.9% of all other eligible venire members. . . . The 
probability of this disparity occurring in a race-neutral jury 
selection process is less than one in 1,000.” Id. p. 65.

• In the “former Second Judicial Division as constituted from 
January 1, 1990 through December 21, 1999,” when it contained 
Cumberland County, “prosecutors struck an average of 51.5% of 
eligible black venire members, compared to only 25.1% of all 
other eligible venire members. . . . The probability of this 
disparity occurring in a race-neutral jury selection process is less 
than one in 100,000,000,000.” Id.

• In “Cumberland County (and Prosecutorial District 12) from 
January 1, 1990 through July 1, 2010, . . . prosecutors struck an 
average of 52.7% of eligible black venire members, compared to 
only 20.5% of all other eligible venire members. . . . The 
probability of this disparity occurring in a race-neutral jury 
selection process is less than one in 1,000.” Id. pp. 65-66.

• “After fully controlling for the 12 non-racial variables” that are 
“highly predictive for prosecutorial strike decisions,” such as 
reservations about the death penalty and having been accused of 
a crime, “the race of the venire member is still statistically



- 18-

significant withp-value of <0.001 and an odds ratio of 2.48 . . . . 
The probability of observing a racial disparity of this magnitude 
in a race-neutral jury selection process is 1.34 in 1,000,000. . . . 
There is a 95% chance that the odds of a black venire member 
being struck by the State, after controlling for non-racial 
variables, is between 1.71 and 3.58 times higher than the odds 
of other venire members being struck.” Id. p. 78.

• “After fully controlling for eight variables,” which are highly 
predictive for prosecutorial strike decisions specific to the 
Cumberland County data set, “the race of the venire member is 
still statistically significant with a p-value of <0.01 and an odds 
ratio of 2.57 . . .  . There is a 95% chance that the odds of a black 
venire member being struck by the State in Cumberland County, 
after controlling for non-racial variables, is between 1.50 and 
4.40 times higher than the odds of other venire members being 
struck.” Id. p. 82.

The Superior Court of Cumberland County made similar findings in the 

case of Defendants Tilmon Golphin, Christina Walters, and Quintel 

Augustine. Order Granting Motions for Appropriate Relief pp. 136-201, 

North Carolina v. Golphin, et al., Nos. 97 CRS 47314-15, 98 CRS 34832, 

35044, 01 CRS 65079 (N.C. Super. Ct. Dec. 13, 2012) (hereinafter 

“Golphin Order”). The Superior Court accordingly vacated Defendants’ 

death sentences and resentenced them to fife without parole. Robinson 

Order p. 167; Golphin Order p. 210.

The statistical evidence in Defendants’ cases reveals the type of 

racial discrimination that continues to exist beyond the protection of the 

Fourteenth Amendment due to the McCleskey decision, and the type of



- 19 -

discrimination that the RJA was designed to redress. Especially when 

considered in the context of the other evidence of discrimination 

presented by Defendants—such as the history of racial discrimination in 

jury selection, the role of unconscious bias in jury selection, and 

individual case examples of jury discrimination, see Robinson Order 

pp. 112-19, 132-155; Golphin Order pp. 87-97, 112-136—this Court 

simply cannot ignore the inevitable conclusion from the statistical 

analyses in these cases. That conclusion is that African Americans are 

routinely and systematically excluded from capital juries because of their 

race in Cumberland County, in the prosecutorial district and judicial 

divisions containing Cumberland County, and across North Carolina. 

That bell cannot be unrung, and to foreclose the possibility of sentencing 

relief to Defendants at this juncture would be wholly unjust and 

undermine the legitimacy and credibility of North Carolina’s judicial 

system. Indeed, it would be a tragedy for the members of this Court to 

one day have the same regret as Justice Powell by letting stand, 

untouched, a death sentence infected by such compelling evidence of

racial bias.



-20-

II. The Integrity of North Carolina’s Judicial System Is
Contingent on Juries Free of Racial Bias.

This Court, as well as the United States Supreme Court, has 

consistently recognized the crucial role that a jury plays to ensure public 

confidence in our judicial system. Ignoring the compelling evidence of 

jury discrimination in Defendants’ cases, therefore, not only harms 

Defendants and the unlawfully struck jurors, but also undermines the 

integrity of the judicial process itself. The substantial evidence of racial 

discrimination in the selection of Defendants’ juries erodes public 

confidence in North Carolina’s judicial system and must be remedied by 

this Court.

A. This Court and the United States Supreme Court Have 
Long Recognized the Importance of Juries Untainted 
by Racial Bias.

The importance of ensuring that Defendants be tried by a 

legitimately convened jury—for them personally, but also to the 

community at large—cannot be overstated. Over two centuries ago, this 

Court noted that North Carolina’s “courts of justice should be so 

organized as to afford full assurance to every suitor, that his cause shall 

be patiently investigated, and impartially decided.” Smith v. Hortler, 4 

N.C. (Car. L. Rep.) 131, 131 (1814) (holding that a defendant could not



- 2 1 -

receive a fair trial because of potential jury-pool biases); see also Duncan 

v. Louisiana, 391 U.S. 145, 153 (1968) (noting that the jury is 

“fundamental to our system of justice”). The jury “spreads amongst all 

classes a respect for the decisions of the law” and “makes all feel that 

they have duties to fulfill towards society, and that they take a part in its 

government[.]” Cooper v. Seaboard Air Line R. Co., 163 N.C. 150, 150, 79 

S.E. 418, 419 (1913) (citation omitted); see also Powers v. Ohio, 499 U.S. 

400, 406 (1991) (“One of [the jury’s] greatest benefits is in the security it 

gives the people that they . . . being part of the judicial system of the 

country can prevent its arbitrary use or abuse.”) (citation omitted). And 

by employing the community’s “commonsense judgment,” the jury acts as 

a “hedge against the overzealous or mistaken prosecutor” or “perhaps 

overconditioned or biased response of a judge.” Taylor v. Louisiana, 419 

U.S. 522, 530 (1975) (citation omitted).

To achieve its goals, the jury must be a “body truly representative 

of the community.” State v. Scott, 314 N.C. 309, 311-12, 333 S.E.2d 296, 

297-98 (1985) (quoting Smith v. Texas, 311 U.S. 128, 130 (1940)). 

Restricting the privilege of passing judgment to a subset of the 

community engenders doubts regarding the validity of those judgments.



- 22 -

See Powers, 499 U.S. at 407 (emphasizing that public confidence in the 

legitimacy of the jury is essential to help ensure the “continued 

acceptance of the laws by all of the people”) (citation omitted); State v. 

Mettrick, 305 N.C. 383, 385, 289 S.E.2d 354, 356 (1982) (“[T]he 

appearance of a fair trial before an impartial jury is as important as the 

fact of such a trial.”).

Because representative juries are the foundation of public 

confidence in our courts, eliminating racial discrimination takes on 

particular urgency in the context of jury selection. See Pena-Rodriguez 

v. Colorado, 137 S. Ct. 855, 868 (2017); Scott, 314 N.C. at 311-12, 333 

S.E.2d at 297-98 (holding that the jury must be free of racial 

discrimination to ensure it is a “body truly representative of the 

community”) (quoting Smith, 311 U.S. at 130). In fact, the centrality of 

the jury trial to a functioning democracy led the Reconstruction 

Republicans to place special emphasis on purging the racism from 

Southern juries. See James Forman, Jr., Juries and Race in the 

Nineteenth Century, 113 Yale L.J. 895, 897, 923-25 (Jan. 2004); see also 

id. at 926 (“An increasing number of Republicans saw the disabilities that 

prevented blacks from serving on state juries as the central impediment



- 23 -

to justice for blacks in the South.”).

Similarly, North Carolina revised its Constitution to expressly 

prohibit jury discrimination: “No person shall be excluded from jury 

service on account of sex, race, color, religion, or national origin.” N.C. 

Const. Art. I, § 26. This Court has called this a “declaration]” by the 

“people of North Carolina . . . that they will not tolerate the corruption of 

their juries by racism, sexism and similar forms of irrational prejudice.” 

State v. Moore, 329 N.C. 245, 247, 404 S.E.2d 845, 847 (1991) (quoting 

State v. Cofield, 320 N.C. 297, 302, 357 S.E.2d 622, 625 (1987)); see also 

State v. Peoples, 131 N.C. 784, 784, 42 S.E. 814, 815 (1902) (recognizing 

that excluding African Americans from juries is an “assertion of their 

inferiority, and a stimulant to . . . race prejudice”) (quoting Strauder, 100 

U.S. at 303).

The United States Supreme Court has likewise repeatedly 

recognized that racial discrimination must be eliminated from jury 

discrimination. As the Court explained just last year, after the Civil War, 

“racial discrimination in the jury system posed a particular threat both 

to the promise of the [Fourteenth] Amendment and to the integrity of the 

jury trial.” Pen a-Rodriguez, 137 S. Ct. at 867. Thus, the United States



- 2 4 -

Supreme Court has repeatedly held that racial exclusion of jurors is 

unconstitutional. See id. (collecting cases). These cases reiterate that 

racism undermines the core promise of a jury trial by destroying the “fact 

and the perception” that the jury system is truly a “check against the 

wrongful exercise of power by the State and its prosecutors.” Powers, 499 

U.S. at 411 (citation omitted). Indeed, “prosecutors drawing racial lines 

in picking juries establish state-sponsored group stereotypes rooted in, 

and reflective of, historical prejudice[.]” Miller-El v. Dretke, 545 U.S. 231, 

237-38 (2005) (citation and quotation marks omitted).

In sum, prosecutors “may strike hard blows” but not “foul ones,” 

and must “refrain from improper methods calculated to produce a 

wrongful conviction” no less than they may “use every legitimate means 

to bring about a just one.” State v. Sanderson, 336 N.C. 1, 8, 442 S.E.2d 

33, 38 (1994) (citation and internal quotation marks omitted). Racial 

discrimination in peremptory strikes violate both that principle and 

venerable precedent.

B. A Death Sentence Tainted by Racial Discrimination in 
Jury Selection Harms the Defendant and the 
Prospective Juror and Threatens the Integrity of the 
Entire Judicial System.

When, as here, there is evidence of racial discrimination in jury



- 25 -

selection, the defendant is deprived of his fundamental right to the 

considered judgment of a representative jury as a check against the 

exercise of arbitrary or biased state power. See Batson, 476 U.S. at 86- 

87 (citing Strauder, 100 U.S. at 309) (explaining that a jury of one’s peers 

helps “secure the defendant’s right under the Fourteenth Amendment to 

protection of life and liberty against race or color prejudice”). Moreover, 

a racially discriminatory peremptory strike creates a significant risk 

“that the prejudice that motivated the discriminatory selection of the jury 

will infect the entire proceedings.” J.E.B. v. Alabama ex rel. T.B., 511 

U.S. 127, 140 (1994).

Unhindered racially biased peremptory challenges place “the 

courts’ imprimatur on attitudes that historically” have denied African 

Americans full citizenship and “entangles the courts in a web of prejudice 

and stigmatization.” Cofield, 320 N.C. at 303, 357 S.E.2d at 625-26. That 

is because racial discrimination in jury selection undermines the 

“integrity of the judicial system.” Id. at 304, 357 S.E.2d at 626; see also 

id. at 301, 357 S.E.2d at 625 (“This Court has long recognized the wrong 

inherent in jury proceedings tainted by racial discrimination.”). This 

Court has appreciated this reality for over one hundred years. See id, at



- 26 -

301, 357 S.E.2d at 625 (examining Peoples, 131 N.C. at 790, 42 S.E. at 

816 (1902)).

Social science confirms the depth of the harm to the defendant. 

Non-diverse juries are less deliberative, bring a narrower set of life 

experiences to bear, make more factual mistakes, and are less likely to 

consider the full body of evidence. See Neil Vidmar, The North Carolina 

Racial Justice Act: An Essay on Substantive & Procedural Fairness in 

Death Penalty Litigation, 97 Iowa L. Rev. 1969, 1972-75 (Oct. 2012) 

(collecting evidence and examples). And they are less able to prevent the 

insidious effects of explicit and implicit bias. Id. at 1975-80; see also 

Peters v. Kiff, 407 U.S. 493, 503 (1972) (stating that racial prejudice 

within the jury system “create[s] the appearance of bias in the decision 

of individual cases, and . . . increase[s] the risk of actual bias as well.”).

The harm to the illegally struck juror is just as consequential. Not 

only are the juror’s state and federal constitutional rights infringed, he 

or she “suffers a profound personal humiliation heightened by its public 

character.” Powers, 499 U.S. at 413-14. A report by the non-profit Equal 

Justice Initiative emphasizes the impact on individuals subjected to this 

humiliation. See Equal Justice Initiative, Illegal Racial Discrimination



- 2 7 -

in Jury Selection: A Continuing Legacy 28-34 (Aug. 2010)

(hereinafter “EJI Report”), https://eji.org/sites/default/files/illegal-racial- 

discrimination-in-jury-selection.pdf. Twenty years after being struck, 

one African-American juror “grew emotional” when he “recalled how the 

prosecutor’s racist actions made him feel unworthy.” Id. at 30.10 Another 

African-American juror, struck because he “had traffic tickets and 

expressed hesitation about the death penalty” (although white 

individuals with similar characteristics were not struck), was 

unsurprised “because that’s how the system is around here.” Id. at 29. 

These and other stories illustrate how racially biased peremptory 

challenges undermine African Americans’ confidence in the judicial 

system.

That skepticism among African-American prospective jurors about 

the integrity of the judicial process is connected to the overall harm to 

the entire community’s perception of justice. This Court has emphasized 

“that the judicial system of a democratic society must operate 

evenhandedly” and “be perceived to operate evenhandedly” if “it is to

10 His strike was recognized to be a Batson violation by the Court of Criminal 
Appeals of Alabama in 1992. Neal v. Alabama, 612 So. 2d 1347, 1349-50 (Ala. Crim. 
App. 1992); EJI Report at 30 & n.150.

https://eji.org/sites/default/files/illegal-racial-discrimination-in-jury-selection.pdf
https://eji.org/sites/default/files/illegal-racial-discrimination-in-jury-selection.pdf


- 2 8 -

command the respect and support of those subject to its jurisdiction.” 

Moore, 329 N.C. at 247, 404 S.E.2d at 847 (citation omitted); see also 

Georgia v. McCollum, 505 U.S. 42, 49-50 (1992) (concluding that bias in 

the jury system “undermine[s] the very foundation of our system of 

justice—our citizens’ confidence in it”); Batson, 476 U.S. at 87 

(recognizing that jury discrimination “undermine[s] public confidence in 

the fairness of our system of justice”) (citation omitted); Rose v. Mitchell, 

443 U.S. 545, 556 (1979) (observing “injury to the jury system, to the law 

as an institution, to the community at large, and to the democratic ideal 

reflected in the processes of our courts”) (citation omitted). In short, jury 

discrimination causes the belief that “the deck has been stacked in favor 

of one side.” 511 U.S. at 140 (internal citation and quotation

marks omitted); see also Lauren M. Ouziel, Legitimacy and Federal 

Criminal Enforcement Power, 123 Yale L.J. 2236, 2269-70 (May 2014) 

(citing research showing “that people’s perceptions of an authority’s 

legitimacy are influenced most by their perceptions of the fairness of the 

process and procedures by which it enforces the law”).

For the African-American citizens of North Carolina—indeed, for 

all citizens of this State—to have confidence in the rule of law, racial



- 29 -

discrimination in jury selection must be eliminated. Given the 

constraints from the McCleskey decision, it is crucial for Defendants to be 

able to use statistical evidence to show how their individual cases reflect 

a pattern of systemic and widespread racial discrimination in jury 

selection to fully address the harm suffered by capital defendants, the 

'illegally struck jurors, and the larger community. This is precisely why 

the North Carolina Legislature passed the RJA. If this Court were to 

foreclose Defendants from seeking appropriate remedies—through the 

RJA or other relevant state statutory or federal constitutional claims—it 

would place a devastating judicial imprimatur on the racial 

discrimination that has been established in these cases.

CONCLUSION

Over three decades ago, the United States Supreme Court was 

presented with compelling statistical evidence of racial discrimination in 

the McCleskey case. Justice Powell, who cast the deciding vote against 

remedying the discrimination, came to regret his decision, but the 

devastating consequences are felt to this day. LDF respectfully urges the 

members of this Court to avoid Justice Powell’s mistake, but instead 

leave a legacy of unequivocal condemnation of racial discrimination in



- 3 0 -

North Carolina’s judicial processes, especially with the life-or-death 

consequences of a capital case. Thus, for the foregoing reasons, LDF 

respectfully requests this Court to provide all appropriate rehef under 

the RJA, N.C.G.S. § 15A-1335, and/or the United States Constitution, as 

argued by Defendants-Appellants in the appeals at issue.

Respectfully submitted, this the 16th day of July, 2018.

NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.

By: /s/ Carlos E. Mahoney
Carlos E. Mahoney 
N.C. State Bar No. 26509 
Glenn, Mills, Fisher & Mahoney, P.A.
P.O. Drawer 3865
Durham, North Carolina 27702
c.m.ahoncn<̂ g.m.fm-.l.aw.com.
Local Counsel for NAACP Legal Defense 
and Educational Fund, Inc.



- 31 -

N.C. R. App. P. 33(b) Certification:

I certify that all of the attorneys listed below have authorized me 
to list their names on this document as if they had personally signed it.

By: /s/ Jin Hee Lee
Jin Hee Lee*
NY State Bar No. 3961158 
40 Rector Street, 5th Floor 
New York, NY 10006 
(212) 965-2200
i.lee%.iaacKldf.org
Counsel for NAACP Legal Defense and 
Educational Fund, Inc.

By: /si W. Kerrel Murray
W. Kerrel Murray*
DC Bar No. 1048468
1444 I Street NW, 10th Floor
Washington, DC 20005
(202) 682-1300
KMhrra^naacnidf'.org
Counsel for NAACP Legal Defense and
Educational Fund, Inc.

*Motion for Admission Pro Hac Vice Pending



- 32 -

CERTIFICATE OF SERVICE

I hereby certify that, on July 16, 2018, I served a copy of the 

foregoing Brief of Amicus Curiae NAACP Legal Defense and 

Educational Fund, Inc. in Support of Defendant-Appellants, by

electronic means upon the following counsel of record for the parties:

Danielle Marquis Elder
Special Deputy Attorney General
North Carolina Dep't of Justice
P.O. Box 629
Raleigh, NC 27602
dmarquis@ncdol.gov
Counsel for State of NC

Jonathan P. Babb
Special Deputy Attorney General
North Carohna Dep’t of Justice
P.O. Box 629
Raleigh, NC 27602
ibabh@ncdoj.gov
Counsel for State of NC

Cassandra Stubbs
ACLU Capital Punishment
Project
201 West Main Street, Suite 402 
Durham, NC 27701
cstubbs@aclu.org
Counsel for Defendant Robinson

David Weiss
Center for Death Penalty 
Litigation, Inc.
123 W. Main Street, Suite 700 
Durham, NC 27701
dcweiss@cdpl.org
Counsel for Defendant Robinson

Donald H. Beskind 
Duke University School of Law 
Box 90360 
Durham, NC 27708
beskind@Iaw.dqkfc.edu 
Counsel for Defendant Robinson

Shelagh R. Kenney 
Center for Death Penalty 
Litigation, Inc.
123 W. Main Street, Suite 700 
Durham, NC 27701
she).agh@cdp]. org
Counsel for Defendant Walters

mailto:dmarquis@ncdol.gov
mailto:ibabh@ncdoj.gov
mailto:cstubbs@aclu.org
mailto:dcweiss@cdpl.org
mailto:beskind@Iaw.dqkfc.edu


33

Malcolm R. Hunter Jr.
P.O. Box 3018 
Chapel Hill, NC 27515
t,yeh.unterC%-ahoo.com 
Counsel for Defendant Walters

Jay H. Ferguson
Thomas, Ferguson & Mullins,
LLP
119 East Main Street 
Durham, NC 27701
feyguson@tJYnatix>mev8.com 
Counsel for Defendant Golphin

Kenneth J. Rose 
809 Carohna Avenue 
Durham, NC 27705
kenro8eattv@gm ail. com. 
Counsel for Defendant Golphin

Gretchen M. Engel 
Center for Death Penalty 
Litigation, Inc.
123 W. Main Street, Suite 700 
Durham, NC 27701
gretchen@cdpl.org.
Counsel for Defendant 
Augustine

James E. Ferguson, II 
Ferguson Chambers & Sumter 
309 East Morehead Street, Suite 
110
Charlotte, NC 28202
fer giet wo@aol. com 
Counsel for Defendant 
Augustine

This the 16th day of July, 2018.

/s/ Carlos E, Mahoney 
Carlos E. Mahoney
Local Counsel for NAACP Legal Defense 
and Educational Fund, Inc.

mailto:gretchen@cdpl.org