Wake County Prosecutor Makes North Carolina History for Illegal Race Discrimination
Under the leadership of Lorrin Freeman, the Wake County District Attorney’s office has reached a dubious milestone. For the first time in North Carolina history, a state appellate court has overturned a criminal conviction due to a prosecutor’s unlawful discrimination against a Black juror.
In a 4-3 ruling, the North Carolina Supreme Court found that former Wake County prosecutor Travis Wiggs illegally excluded a Black woman from a jury in 2016, saying the evidence showed the decision was likely “motivated in substantial part by discriminatory intent.”
Even though the Constitution prohibits race-based discrimination in jury selection, it is almost impossible to prove under the current rule: a court must determine that any non-racial justification given by the prosecutor was a lie.
How near-impossible? Despite research showing that prosecutors remove Black prospective jurors at about twice the rate of whites, North Carolina appellate courts had never made a finding of discrimination against a juror . . . until last week.
Here’s what happened:
In 2016, Christopher Anthony Clegg was convicted of robbery with a dangerous weapon. He served over four years in prison and completed parole in August.
The prospective jury pool for Clegg’s trial contained 22 people, three of whom were people of color. Wiggs removed the only two Black women, Gwendolyn Aubrey and Viola Jeffreys. In excluding Ms. Aubrey, Mr. Wiggs cited her “body language” and “lack of eye contact.” He also claimed she answered “I suppose” when asked whether she could be fair and impartial—a misstatement of the exchange that had actually occurred.
However, Wake Superior Court Judge Paul Ridgeway said the defense had not met its burden of establishing racial bias as a reason for the exclusion.
The case eventually came to the state supreme court, which at first told the trial court to reconsider the challenges.
So in 2019, another hearing was held, with Mr. Wiggs proffering essentially the same explanations he had before. Judge Ridgeway found the explanations unconvincing but said he couldn’t conclude the prosecutor had purposefully discriminated.
But Judge Ridegway got it wrong, said Associate Justice Robin Hudson, who wrote the Supreme Court’s majority opinion. According to the Court, the “totality of the evidence presented for the court to consider established that it was sufficiently likely that the strike was motivated in substantial part by discriminatory intent. This constitutes a substantive violation of defendant’s constitutional right . . . and the trial court clearly erred in ruling to the contrary.”
In a concurring opinion, Justice Anita Earls gave a stern rebuke of the prosecutor’s actions: “[G]uaranteeing that juries are selected without racial bias is important to the administration of justice not only for the rights of the litigants and the rights of prospective jurors, but also for the legitimacy of the court system itself,” Justice Earls wrote. “When racial bias infects jury selection, it is an affront to individual dignity and removes important voices from the justice system.”
Mr. Wiggs has left the Wake District Attorney Office and is currently an Assistant Attorney General at the North Carolina Attorney General’s Office.
So what does his former boss, Wake County District Attorney Lorrin Freeman have to say about all this? It was under her leadership that Mr. Wiggs tried to defend—not just once, but twice!—the specious removal of the only two Black women in a 22-member jury pool.
Has she apologized to Ms. Aubrey or Ms. Jeffreys? Will she apologize to the Black community for the humiliation and harm caused by her office’s shameful practices?
Will she apologize to Mr. Clegg, who has already served the full sentence on the now-reversed conviction?
And what measures does she have in place, or will put in place, to make sure her prosecutors aren’t illegally removing Black potential jurors?
DA Freeman did not respond to request for comment.
“If we really want to end to juror discrimination, we need not only strong legal protections and courts willing to enforce them, but also elected prosecutors who reject discriminatory jury selection practices and affirmatively embrace inclusive juries,” Emily Coward, Policy Director at the Decarceration Project told Raleigh Watch.
“In the face of statewide data demonstrating that prosecutors are twice as likely to strike Black citizens from juries than their white counterparts, what are our elected district attorneys doing to turn the tide? With few exceptions, the answer is, not much. In fact, in the past, North Carolina prosecutors were trained not to comply with the constitutional protection against juror discrimination, but instead to ensure that their discriminatory strikes evaded detection by the courts. It's time for district attorneys to choose a different path.”
Elizabeth Hambourger, an attorney with the Center for Death Penalty Litigation and who assisted with Mr. Clegg’s case agrees.
“The real problem is prosecutors not wanting to grapple with the history of race discrimination in jury selection and do something affirmative to reform their practices,” Ms. Hambourger said.
“The data shows that Black potential jurors are removed at much higher rates. The problem is big and historical enough, you can’t just do nothing and expect it to go away. Elected District Attorneys like Wake DA Lorrin Freeman are in a position to change this pattern by developing more robust training and policies and speaking out publicly, as other DAs have done.”
Both Ms. Hambourger and Ms. Coward pointed to specific measures taken by other prosecutor offices around the country to protect against bias in jury selection.
Such measures include “training assistant district attorneys on the influence of implicit bias and structural racism on jury selection, developing internal policies prohibiting and addressing discrimination in jury selection, limiting or eliminating the use of peremptory challenges and racialized challenges for cause, collecting data on prosecutors' jury strike patterns, and engaging in regular monitoring and review of jury selection data to ensure that all citizens are treated with fairness and dignity in the jury selection process,” said Ms. Coward.
This is a critical moment for Lorrin Freeman. The Raleigh community deserves better from its elected prosecutor.