This Article considers ongoing litigation in State v. Tucker, a case currently before the Supreme Court of North Carolina, involving prosecutors’ use of peremptory challenges to secure an all-white jury in a capital trial involving a Black defendant. The argument proceeds in three parts. Part I contends that prosecutors’ surreptitious use of a “cheat sheet” that recited “justifications” for peremptory challenges in Tucker’s capital trial evidences their intent to discriminate against him and the Black members of the venire. Part II critiques the N.C. Attorney General’s decision to defend the trial prosecutors’ use of the document. Part II, Section A argues that his office’s response to Tucker has exposed limitations of its commitment to addressing the issues identified by the N.C. Task Force on Racial Equity and Criminal Justice, which he co-chaired. Part II, Section B argues that ending racial discrimination in jury selection in North Carolina will require the Office of the Attorney General to demonstrate that there are limits to the conduct it will defend on appeal. Part III considers the arguments advanced by the Attorney General in response to the allegations raised in Tucker’s petition. Part III, Section A discusses the growing recognition of exceptions to procedural bars that might otherwise prohibit courts from considering evidence of racial discrimination in jury selection. Part III, Section B argues that the equal protection doctrine does not permit prosecutors to employ devices designed to undermine the operation of mechanisms imposed by courts to guard against racial discrimination. Part III, Section C discusses unique considerations regarding the adjudication of homicide cases involving Black defendants in North Carolina and argues that courts should closely scrutinize claims of racial discrimination in the jury selection process in such cases.
Ian A. Mance, Cheat Sheets and Capital Juries: In State v. Tucker, North Carolina's Attorney General and Supreme Court Contend with Evidence of Prosecutors' Efforts to Circumvent Batson v. Kentucky, 44 Campbell L. Rev. 3 (2021).