A Forsyth County man on death row for killing a Kmart security guard in 1994 alleges prosecutors used a training document to hide the fact that they considered race in striking five potential jurors during his trial.

Russell William Tucker, 51, was convicted in February 1996 of first-degree murder in the death of Maurice Travone Williams. Tucker was accused of shooting Williams in the chest on Dec. 8, 1994, after Tucker walked out of the Kmart store in clothing Williams believed Tucker had stolen.

According to testimony, Tucker shot at one security guard and missed. Williams turned and ran, and Tucker shot Williams in the chest, with the bullet piercing Williams’ aorta and both lungs. Tucker fired five times into a police car as he ran away. One officer was wounded.

On Feb. 21, 1996, Tucker was sentenced to death, but the N.C. Supreme Court stayed his execution in 2000 after one of his appellate attorneys admitted that he intentionally botched Tucker’s appeal. Tucker currently has a pending appeal in U.S. District Court in the Middle District of North Carolina as well as a separate appeal in Forsyth Superior Court. His attorneys filed a brief on his behalf on Thursday. It was a response to court papers filed in May by a prosecutor with the N.C. Attorney General’s Office.

The crux of his latest appeal in Forsyth Superior Court is in a document entitled “Batson Justifications: Articulating Juror Negatives.” “Batson” refers to a 1986 U.S. Supreme Court decision that said prosecutors cannot get rid of potential jurors solely based on race. The decision involved the use of what are known as peremptory challenges, where prosecutors and criminal defense attorneys can remove a potential juror without giving a reason. A criminal defense attorney can object based on the Supreme Court decision if that attorney believes prosecutors are using race in removing jurors. And if asked by a judge, prosecutors have the opportunity to give a non-racial reason for removing the juror.

The problem, according to Tucker’s attorneys, is that prosecutors didn’t really have non-racial reasons for removing every one of the five black people in the jury pool for Tucker’s trial. And that’s where the document comes into play.

Elizabeth Hambourger and Mark Pickett, Tucker’s attorney, say the two Forsyth County prosecutors in the case — David Spence and Robert Lang — lifted language from the document when they gave their reasons in court for why they removed the black jurors. Words and phrases such as “inappropriate,” “monosyllabic,” “body language,” or a juror having “no stake in the community” came directly from the “Batson” document and were used as justifications for getting rid of black jurors, they argued.

Attorneys for the N.C. Attorney General’s Office deny those allegations in court papers, arguing that the trial record clearly shows that race was not a factor in jury selection and that the “Batson” document simply re-enforced to prosecutors that they are not to consider race when deciding to remove a potential juror. Lang, now an Assistant U.S. Attorney, declined to comment. Spence, a prosecutor in Carteret, Craven and Pamlico counties, did not respond to a message left at his office Friday. Forsyth County District Attorney Jim O’Neill said he cannot comment on a pending case.

Document in Racial Justice Act litigation

Hambourger and Pickett said in court papers that they wouldn’t have found the document if it had not been for litigation surrounding the now-repealed Racial Justice Act. The Racial Justice Act became law in 2009, and more than 90 percent of death-row inmates filed claims under the law. The act allowed death-row inmates to challenge their death sentences if they believed racial bias played a role in their case. If they were successful, they could get their death sentences commuted to life in prison without the possibility of parole. Republican state legislators repealed the Racial Justice Act in 2013, but there is still pending litigation.

Errol Duke Moses, another death-row inmate from Forsyth County, also filed a claim. Under the law, inmates were allowed to use statistics and evidence from other cases to prove a pattern of racial discrimination. A judge ordered Forsyth County prosecutors to turn over their files in other death-penalty cases to Moses’ attorneys. That included Tucker’s case.

And the “Batson” document was contained in those documents. State prosecutors said Tucker could have found that document earlier. Two previous attorneys for Tucker filed sworn affidavits saying that they did not see the “Batson” document in previous discovery.

“The Batson Justifications document is central to Tucker’s claim because it places the prosecutor’s strike justifications in their true context,” Hambourger and Pickett write in a brief filed Thursday. “The existence of the document in the prosecutor’s file and the prosecutor’s use on the record of words and phrases obviously taken directly from the document show that the prosecutor did not have valid race-neutral reasons for his strikes — if he did, he would not have needed to refer to a list of prefabricated reasons prepared by someone else long before trial.”

The use of the document by Lang shows that prosecutors were intentionally discriminating against blacks in jury selection, they said.

“The document does not purport to train prosecutors on how to avoid bias in jury selections, or otherwise suggest alternate strategies to use that might avoid the taint of racial discrimination,” they write. “Rather, it quite openly directs prosecutors to use certain pre-packaged excuses when they face an objection for removing black ... members.”

They said this is just one example of a long historical pattern of Forsyth County prosecutors disproportionately excluding blacks from juries. They cite a Michigan State University study, which was used in the majority of Racial Justice Act claims. That study said that from 1990 to 2010, Forsyth County prosecutors removed potential black jurors at a rate 2.25 times higher than they got rid of other jurors in death penalty cases.

A recent study by three law professors at Wake Forest University found that in 2011, Forsyth County prosecutors struck potential black jurors from all types of jury trials at three times the rate they struck white potential jurors. That rate was higher than Durham, Charlotte, Raleigh, Greensboro and Fayetteville, according to the motion.

Danielle Marquis Elder, a senior state prosecutor with the N.C. Attorney General’s Office, denied those allegations in a written response filed in May in Forsyth Superior Court. She argues that Tucker should have raised these issues in earlier appeals and should not be allowed to raise them now.

Elder also argued that Lang laid out reasons not contained in the “Batson” document for why he removed certain black jurors, including that one juror had fallen asleep. Another black juror was consistently vague about whether he supported the death penalty.

Hambourger and Pickett said that Lang removed black jurors but allowed white jurors to remain, even though the white jurors were just as vague about their support of the death penalty as the black jurors.

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mhewlett@wsjournal.com 336-727-7326 @mhewlettWSJ

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