North Carolina death penalty case could set statewide precedent

Hasson Bacote, 37, convicted of felony first-degree murder but state has not executed a death row prisoner since 2006

Hasson Bacote, 37, is appealing his death penalty sentence under North Carolina’s Racial Justice Act (Courtesy American Civil Liberties Union )

A North Carolina court is hearing a case this week that has the potential to impact all capital punishment cases across the state.

Hasson Bacote, 37, was convicted of felony first-degree murder in Johnson County in 2009 and sentenced to death.

Attorneys with the American Civil Liberties Union, who are representing Bacote, are appealing his sentencing under the state’s Racial Justice Act, arguing that racial discrimination played a critical factor in his trial.

It’s the first case to be heard under the legislation since it was repealed in 2013 by former Republican Governor Pat McCrory, who claimed it “created a judicial loophole to avoid the death penalty and not a path to justice”.

The law was originally passed in 2009, giving death row inmates the chance to be resentenced to life in prison if they could prove that race was a factor in their initial sentencing. Mr Bacote filed his claim in 2010.

Only four cases succeeded before the law was repealed. Yet, in 2020, the state Supreme Court ruled that cases that had previously been filed still had to be heard but no new appeals could be submitted.

There are currently 120 other appeals pending under the old legislation. Bacote’s case is the first to be heard since the state Supreme Court decision and could set a precedent for how all other pending cases are handled. There are 136 death row inmates in North Carolina.

Henderson Hill, Bacote’s attorney said his defence will introduce evidence from 680,000 pages of notes from every state capital trial from 1980 to 2010 showing a historical pattern of racial discrimination, especially in Johnson County, where his client shot 18-year-old Anthony Surles during a robbery in 2007.

Some of the evidence that will be presented at the hearing includes prosecutor notes stating the skin colour of potential Black jurors or their physical appearance. In one case, a potential juror was referred to as a “thug”, the ACLU said.

Part of the organisation’s defence argument is based on a Michigan State University study published in 2011, which found statewide evidence showing a pattern of Black jurors being struck from capital punishment trials more frequently than white jurors.

In Bacote’s case, the prosecutor removed potential Black jurors at 10 times the rate of non-Black individuals across four trials, according to the Death Penalty Information Center.

North Carolina Attorney General Josh Stein attempted to delay Bacote’s hearing, claiming in court filings that the state Supreme Court determined the study was “unreliable and fatally flawed”. He added that racial discrimination “cannot be presumed based on the mere assertion of a defendant; it must be proved”.

Compounding Bacote’s sentencing, felony first-degree murder is rarely a basis for capital punishment anywhere in the country, the ACLU said.

“There was just no suggestion that the killing was premeditated or deliberate,” Mr Hill noted.

North Carolina has not put a death row inmate to death since 2006. Much of the reason is due to litigation regarding lethal injection drugs and other questions about policies that have put the cases on hold.

The ongoing Racial Justice Act appeals also do not allow the current governor to schedule executions.

If the court rules in Bacote’s favour, it’s likely that similar evidence would be introduced in the other 120 cases, meaning that all the prisoners who had previously filed claims could be resentenced to life in prison.

Mr Hill said that some of the evidence used in the prior resentencing of four men will be utilised during Bacote’s court proceedings.

The case is likely to end up in front of the state Supreme Court, which has a conservative majority. The current trial hearing is expected to last two weeks.

Mr Hill said the ACLU is troubled that the case might not succeed if it’s kicked up to the higher court, adding “My concern is the court’s seeming hostility toward this historical evidence of discrimination”.

Still, he said, “We will brief that record at the Supreme Court and hope that review is fair and consistent with the law”.

He added: “We feel confident based on the prior litigation, based on the several studies, that we’re going to meet the statutory standard for vacating the death sentence in this case”.